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Creating tribal courts

In 1997, BIA police occupied the Cherokee Nation courthouse in Tahlequah,
Okla. and locked out tribal judges on orders from the principal chief. The
modern Cherokee legal system had been in existence for at least 170 years.

Some people made the Tahlequah incident a poster child for constitutional
crises in Indian country. Others say that Indian courts have become too
easy a target for tribal naysayers.

"We apply a double standard when we evaluate Native American governments
and systems of justice in comparison to state and federal systems," said
Rennard Strickland, professor of Law at the University of Oregon and author
of numerous books and articles on Native law. "We say we don't really trust
the Indian courts because they're too tied to government chiefs, that
there's not a separation of powers. But then I submit we have a U.S.
Supreme Court that makes the determination of who the president of the U.S.
will be."

While Native courts occasionally succumb to executive pressure, many
tribes, to their detriment, have no judicial branch at all. Following a
recall petition of the tribal council in 2003, the Meskwaki Nation, lacking
a tribal court to settle the controversy, was forced to temporarily close
its lucrative casino in Iowa. An enrollment dispute among the Pechanga Band
of Luiseno Indians in 2004 has led to a California court ruling that the
tribe, with no legal forum for adjudication, is subject to jurisdiction by
the state.

The judiciary has been the weak sister of Indian government for the better
part of a century. Many tribal constitutions, written in the 1930s under
the Indian Reorganization Act, placed the judicial branch under control of
the tribal council, said Carole Goldberg, director of the Joint Degree
Program in Law and American Indian Studies at UCLA, presumably because
one-branch government maximized BIA control. By the 1970s, fledgling tribal
courts were still enmeshed in jurisdictional battles, and Native resolution
methods were finding little support.

Today, tribes increasingly subscribe to a strong and independent judiciary
of their own making. Goldberg, who serves as a hearing officer for a gaming
tribe, said Native courts offer security to those who want to do business
with a tribe and a heightened sense of legitimacy to the communities they
serve. Many tribes are attempting initiatives to put judicial branches in
their constitutions with appropriate protections. "The biggest threat to
[the courts'] security and legitimacy," added Goldberg, "is if their own
tribal members view the justice system as alien to them."

No consensus exists about how to select judges for Native courts. One
alternative, election, assures lay participation within the democratic
process, but can also lead to an amateur judiciary that leaves a legacy of
disjointed decisions. Judicial appointment, on the other hand, while it
professionalizes the judiciary and insulates it from democratic
politicking, runs the risk of being corrupted over time by a powerful
legislative or executive branch.

The Seneca Nation, for example, formerly chose judges in general elections;
now it elects them in off-years, a way of closely scrutinizing candidates
and preventing the judiciary from being overly politicized. Navajo judges,
on the other hand, are given lifetime appointments by the tribal council,
contingent on a rigorous two-year probationary period. Since 2003, three
district judges and one from the Supreme Court have been denied promotion
to full status.

Given the separation of powers, how much authority should a tribal council
have to recall an already established judge? Rebecca Tsosie, a Supreme
Court judge for the Ft. McDowell Yavapai, said too much interference can
destabilize the branch, with judges shuffling in and out and cases on the
docket going unheard. There should be provisions for removal by cause, she
added, but the power to remove at will isn't good for continuity.

Just ask Philip Viles. Appointed to the Cherokee Judicial Appeals Tribunal
(Supreme Court) in 1976, Viles was beginning his third decade on the court
when a political war erupted in 1997 following an FBI probe of financial
mismanagement by Principal Chief Joe Byrd.

Byrd used BIA agents to stifle queries regarding executive malfeasance, and
his forces occupied the Cherokee Nation courthouse for several months.
Following a rash of firings and a violent courthouse confrontation, said
Viles, "the future of the modern Cherokee Nation was at stake."

Viles, whose grandfather was principal chief of the Cherokees in the 1940s,
stood his ground. "It was a matter of countering what [Byrd] did by
emphasizing that the rule of law had governed the Cherokee Nation since at
least the 1820s, if not for hundreds or thousands of years before - and
reminding the general public of that, and of seeking an audience with
people who were in a position to help us." The standoff was resolved when
an independent commission was critical of the executive, and Byrd was
defeated for reelection in 1999.

Today an employee in the Office of the Special Trustee for American Indians
in Washington, D.C., Viles said it was the only case he knows where an
entire court was impeached, even though it was done illegally. In 2002,
Viles' reappointment to the court was denied by the council.

The Cherokee constitution so closely tracks its U.S. counterpart that Viles
was hard pressed to name a distinctive tribal feature in it. But the
Western model isn't for everyone. Among the pueblos, for example, the
tribal council traditionally wields judicial power. To create an
independent judiciary, "you'd have to go in and dismantle their entire
government and reconstitute it according to a Western model, and they've
consciously rejected that," said Tsosie, a Yaqui and professor of Law at
Arizona State University. Such a decision, she stressed, must remain with
the tribe.

Whether Western or Native-based, Indian courts look to an uncertain future.
Funding is scarce on all fronts - jails, enforcement, adjudication. Lack of
jurisdiction over non-Natives remains a problem. New issues like gay
marriage and gaming join old ones like child custody and substance abuse on
tribal dockets. Lawyers and judges with sophisticated legal expertise are
in high demand.

The growing number of law-trained Native students "finding ways to blend
what is useful about the non-Indian system with what is valued about tribal
justice," is a singular bright spot, said Goldberg. For those who return to
help their communities, "it's a tremendous asset to be able to have the
decision-makers be people who understand community values and norms."