Eldena Bear Don't Walk: So What's So Important about Tribal Courts?
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Bear Don't Walk, Eldena. "So What's So Important About Tribal Courts?" Emerging Leaders Seminar. Native Nations Institute for Leadership, Management, and Policy, University of Arizona. Tucson, Arizona. November 7, 2013. Presentation.
"I'm Eldena Bear Don't Walk and I'm going to tell you a little bit about myself before I get started. I am that kid who always planned to be an attorney. I either wanted to be an attorney or Loretta Lynn; I'm not quite Loretta Lynn, yet. My father is Urban Bear Don't Walk and my mother is Marjorie Mitchell-Bear Don't Walk. My father is one of the first American Indian attorneys in the United States. He's mentioned in In the Courts of the Conquerer. He is the second Crow to ever get a law degree and I am the second generation of Indian attorneys and we're very proud of that in that as Indian people we are developing, we are creating legacies. We now have not just a single generation, but generations of college graduates, we have generations of doctors, we have generations of attorneys, and I think that that can't be emphasized enough in that as we are developing as tribal people, our systems are developing.
How many of you don't have tribal courts? I think that there are several tribes who don't have tribal court systems yet, who might use inter-tribal court systems, whose court systems are fairly new. And I'm 40 and I tell you that because, for example, the Crow court system, in 1975 when my father was still in law school, he and my uncle developed the Crow Court. So the Crow Court is only 38 years old. It's like my little brother and in that, that means that it's still developing.
I became the first woman ever to be the chief justice of the Crow Tribe, but I like to tell people about that process. I got a phone call one day that said, "˜Hey, we really want you to do this; it's an appointment that you have to get through the chairman. He's interested in having you do that.' And so I called my parents because that's the way I was raised. I was raised that in the big decisions in your life there is a lot of consultation and it needs to be meaningful consultation. I call my grandparents, I call my parents, I call my brothers, I talk to my child, I talk to my partner. And I called my dad and he said, "˜Well, this is the third time they've asked for you, so I guess I'll say yes.' Apparently they had been asking him if I would do this and he had been saying no, for whatever the reason was, apparently maybe he didn't think I was ready yet, and I think that that's an important step sometimes in developing programs, are people ready? I don't think it's the best idea to throw a brand-new graduate into running a court system. I think experience is meaningful and powerful and valued in tribal systems. So I started that.
I've been an appellate judge for eight years for a variety of tribes. I worked for the Northern Cheyenne Tribe. I've served almost every tribe in Montana with the exception of Fort Peck and Blackfeet and I worked in Blackfeet Court as an attorney. I haven't served in Fort Peck because, man, it's far away from where I live. It's like 20 hours. It's practically in North Dakota. So I want to talk about that though.
When I was five, you know you have those career days, or maybe it wasn't five, it was like fifth grade and I wore my dad's judge's robes and everybody thought I wanted to be a nun. I am far from being a nun. The sad thing is I was looking for his judge's robes just recently and I can't find it. I swear I saw it because I wanted to wear it. That's what I wanted to wear in court. We all have things that are important to us and most importantly that judge's robe was important because my mom made it. My mom made it for my dad in a time when tribal courts were in the back of some building trailer in the middle of nowhere. Now you go to tribes and they have amazing courtrooms. We went to Pascua Yaqui while I was here. I've never had to go through security that tight. Pascua Yaqui has like TSA-quality security. You have to empty your pockets; they want to see what's in your bag. You'll plan ahead what you take with you before you go into their court system.
So now I work in two courts, three on occasion. I have written 70 appellate opinions in my career at this time, hopefully more to come, so I have a great value for tribal courts and I'm very passionate and enthusiastic, but I'm also very honest about tribal courts and their systems and what is helpful and what is not helpful. So I want you to keep in mind that while you hear a lot of complaints about tribal court systems, we're developing, we're young. Tribal courts are as young as some of your children, as young as some of you and in that, you know at this stage in your life you don't know everything, you don't have everything in perfection, and without that sense of humility about our court systems, it's difficult to drive them forward, it's difficult to make them into something better. You have to treat them sometimes not like a child, but as a developing progress. I like to tell people that our codes are living documents, just like anything else, just like the American constitution, just like the American code, our codes have to be refined, they have to be rewritten, they have to be addressed, because 30 years ago when the first code was written for your tribe or for my tribes nobody knew about meth, nobody knew about certain drug laws, nobody thought about writing a dog ordinance for all of the crazy dogs running around town. You didn't talk about seat belts; you didn't talk about housing issues in your codes.
I'm very excited about the Confederated Salish and Kootenai Tribes right now; they just developed their own Child Support Enforcement Code, instead of using Montana's, instead of using somebody else's we developed our own and why shouldn't we because tribes are best situated to determine for themselves what their needs are. That does not mean though that tribes should reinvent the wheel. There's lots of great code out there, there's lots of tribal courts doing amazing things. What an honor to sit here with Justice [Robert] Yazzie, knowing that the Navajo Court is one of the pinnacles of tribal courts in what they do in instilling cultural value in dictating to their tribal people what their law will look like, what they want their tribe to continue. Law and lawlessness in Indian Country is historical. We've always had laws. Maybe they weren't written down in a little code or on your computer or on the Internet, but we've always had laws and we've always had people who maintained them. We've always had mediators. We've always had people who needed that mediation and who needed some reminding that they need to follow the law and that their actions impact people.
So in talking about what's important in tribal courts, I once taught -- I'm an adjunct professor at the University of Montana School of Law -- and my father always says the most dangerous person in the room is a first-year law student because they know just enough and not enough. So in trying to teach federal Indian law, tribal law, why we should have those values to lots of non-tribal people you really have to focus on what is community development, what does it look like to non-Indian people. And I would tell you in going through Rae Nell's slides that what's important and the key components to justice systems are investment, whether it's personal investment, monetary investment, community investment and it's building laws. Either you are developing a court system or you're destroying a court system and your development or your destruction has a significant impact on the community that you live in.
I am not a member of the Confederated Salish and Kootenai Tribes as an enrolled member, but I am a member of that community. I live there, my kid goes to school there, I speak Salish, I go to those ceremonies. I'm a member of that community. While it might seem that I'm a member of the tribe -- I don't get to vote -- the decisions that tribal administrators make impact me. They impact me as a judge; they impact me as a community member. It is important to think as leaders that you have a duty to your tribe absolutely, but you also have a duty to the people who live in your community and as we become bigger tribes with more mixed people, you're going to have a lot of descendants and you may have jurisdiction over them or you may not.
One of the things that's important to note about the Confederated Salish and Kootenai Tribes is that we're a P.L. 280 [Public Law 280] reservation. So we have concurrent jurisdiction over Indian people with the State of Montana. So what does that mean? For me, that meant as a public defender that many of my clients were my cousins, many of my clients were people I had grown up with. That's investment in your community because you have to see their mom at a ceremony, you have to see their mom in the grocery store, but that also means, and it also means quite frankly that that particular county is one of the most prison-sentencing counties in the State of Montana. It means that there are many, many American Indian people in the Montana prison system. It is, I believe, six times higher, the percentage rate of our existence in the State of Montana. So there are lots of things to consider in tribal court systems. Our tribal courts are a reflection of our community. Again, either we're developing or we're destroying and we have to really make that commitment.
Again, your codes are developing. Some people have very basic codes that they adopted from somebody else. Codes are changeable; just because it's not in your code doesn't mean it can't be in your code. And I would tell you again as leaders -- we were talking about this earlier and I think I had talked to Ian about it on the phone -- the biggest threat to tribal courts are the tribal people themselves. And I will tell you that specifically in the framework of let's say you have an election and you're unhappy about the election and you take it to the tribal court and the tribal court does its job, the job you entrusted it to do, the job you wrote the constitution for them to follow, you wrote a code for us to uphold and we did our job and now you're unhappy. So what do you do? What do people do? They bash it. They go to the newspaper and talk about, 'What a kangaroo court this is, how the judges don't know what they're doing, the advocates don't know how to run the court, they interpreted the law wrong.' And I would tell you that that is not any different than anything that you can watch on CNN. Every court in America is terrible when somebody loses according to the person who lost. But what you're doing on a bigger scale is invalidating the work that generations of people have already done for you.
I take the work of working in a court system very seriously because I know the work that my father put into that court; I know the work that my parents put in just graduating from college. I think that we can't take in our own flippancy the seriousness of what comes out of our mouth; we cannot be harsh enough about some of those things because we have long-term effects. If people don't trust our court systems, they don't want to do business with you. If they don't think that they can get a fair shake in there because you're related to everybody, they don't want to come into your court system, they don't want to avail themselves, and so when they don't avail themselves to our court, what do they do, they want to go take it to a state court where they're more comfortable. Are you going to get a fair shake in state court? Probably. Maybe. Are you going to get a fair shake in tribal court? Maybe. It's all the same.
Now people talk about tribal courts saying, "˜Oh, you...that's your cousin.' You're right. I have 20 first cousins. My mother has 100 first cousins. My grandpa was the youngest of 11 kids and all those kids had seven kids and my grandma had...there were five of them and they all had a trillion kids and I'm related to almost everybody. It was hard to find somebody to marry on your reservation when you have that many first cousins and we actually have cousins in common. So when he's really mad he'll be like, "˜And your damn cousin...' But they're his cousins too, but we're not related. So back to my rant. Of course you're related to those people. My rule is, if I don't have to talk about it with you at Thanksgiving dinner, then I'm working on that case because if I had to recuse myself for everybody that I could show that I was related to, man, you'll never get anybody to be able to sit on those seats. But let's not fool ourselves. I walked into a justice of the peace court and the judge was talking to a man who was on a bond hearing and the judge said to the guy sitting at the bond hearing, "˜Well, I'm going to let you out on your own recognizance because I need you to finish my deck this weekend.' It happens everywhere. Don't fool yourselves to think that tribal courts are better or worse than anybody else, but I will tell you that there's a special investment made by people who are part of tribal courts that can be beneficial. Some people call it nepotism. I think nepotism is an idea that you got something because you didn't deserve it and somebody is allowing you to do that and maybe they're your mom, maybe they're not, whatever.
In reality, we're a community and our tribal communities are built of people who are related and sometimes that investment means that maybe because we understand where that kid is coming from, maybe we can better address their needs in juvenile court, maybe we can better deter them. Maybe what they need is to learn to go chop some wood for a lady for a couple days or to get something...CS&KT [Confederate Salish and Kootenai Tribes] has a grandparent program as a diversion tactic with its youth because we have generations of children who don't have grandparents who are actively involved in their lives. I hope to be the grandma that I was raised with. My grandmas are finger-shaking, chest-popping old ladies who will tell you to knock it off and behave and go wash your hands. Those are the kind of people that sometimes you need in a juvenile court. That's the investment that you want to make. That is about being familiar with your community. That is about being invested in your community. So yes, are we all related? Quite possibly. Does that mean that we're making the wrong decisions? Absolutely not.
So when I took an oath to be a judge, a justice. Let me clarify that. I am a justice. I'm not a judge, unless I'm sitting in the lower court. There is a chief judge for the Confederated Salish and Kootenai Tribe, Wynona Tanner, and then I'm the chief justice. And the only difference really is which court we oversee. But when I took an oath to be a justice, in the Crow code specifically... And again, if you don't like what's happening, write it in your code, fix it. Don't complain about it, do something about it and that means writing in your code. That doesn't mean going and firing all your judges because you're unhappy. If you don't like how your judges work, get them some training. If you don't like the timeline in your courts, fix it. It isn't an all or nothing deal. Every time we make things all or nothing, we again destroy our own credibility.
So again, when I took that oath, in the Crow code it says that I will act without fear or favor. I don't see that in many other codes and I am bound by the ABA Model Judicial Code. The ABA Model Judicial Code is like eight canons, but they're pretty important canons and if you translate them into tribal communities, they're even more important canons, for example, the appearance of impropriety. Some people think, "˜Well, this is my friend. He's a lower court judge, I'm going to go have lunch with him.' What do you think my clients think when they see prosecutors and defenders having lunch together and then my client doesn't get a great deal? They think I sold them out, they think that I'm not doing my job, they think that I'm lazy and that I am not doing the best that I possibly can for them. You have to think about that. Just like leaders in the community, if they see you glad-handing with somebody and then that person gets something over the other, we all can make the appearance of impropriety and you need to be conscious of that.
Quite honestly, being an attorney and a judge on the same reservation is kind of a lonely, solitary existence. One, because you're always getting hit up in the grocery store for free advice, and two, people do want to know what's going on, people do want to talk about their case with you and you can't do it. But even that moment, that moment where they're approaching you in the grocery store trying to talk to you about it, other people see it, it looks improper and it's important to try to not have that happen.
A strong, independent tribal court system will have trust and it's your job as leaders to build the trust in the court as much as it is my job as a judge to build trust in the court. Finances are important, but finances aren't the end-all be-all. I run my appellate court, we probably hear...we have five justices, two lay justices, three attorney justices and one clerk on $78,000 a year. We deal with probably 20 cases, which is a pretty big load for most appellate courts. It is not the load that say Navajo has or some of the Ojibwe nations have who have bigger court systems. Development -- again, we don't have bad court systems, we have developing court systems. We have places that need help. We have opportunities to help them. There are lots of us out there who work in tribal courts who consult on how to develop better code, how to develop better judges, who do a lot of training that we offer for free. Department of Justice right now is really hot on offering trainings. Not only will they offer it, but they will bring it to you.
So Owl's Nest Consulting, my friend Mato Standing High, who is also an attorney who was the AG [attorney general] for his tribe for many, many years. He'll bring you how to make better prosecutors, how to be a better trial court judge, how to write good opinions, and they'll bring it right to where you are. So courts can't say, "˜Well, we can't get anything. We can't do that.' As leaders, develop your court system. Make a commitment to developing your court system because as Rae Nell said, if your court system is strong people believe in you. If your court system is transparent, people believe in you, they want to do business with you, and if they don't believe in you and you have a great court system, that's not about your court system, that's not about their belief in your tribe, that's just them finding a reason not to do business with you.
Again, as I said, either you're building a court or you're destroying a court. A court should be extraordinary when you leave it. We are a transient population as judges. We come and go. Some places elect their judges, some places appoint their judges. Some places appoint their justices for life. My appointments are four years long, I can come and go at the whim of the administration if they like what I've done, if not, I don't have to. But when I leave a court system, I want it to be the best possible place that it can be. It should stand...your court system should stand alone. It should not need one particular judge. It helps if you have great clerks. I have a phenomenal clerk, Abby Dupuis, who has been the clerk of the appellate court since its inception, so for 14 years. She really runs the court. She knows every case. Be good to your staff. And any attorney will tell you, the best thing you can do is not to know the judges, it's to know the clerks, it's to know the people behind the scenes, it's to know the janitors in your building. Those are all good tidbits of information for people to know. It's the same in tribal courts.
I want to tell you quickly about what is so important about tribal courts, and one is about the idea that we are making some pretty new and exciting law. I can tell you that being a judge sometimes means that all I have to hear about is people's really unhappy divorces and that is no different than being an attorney and I promise you nobody's happy in a divorce. But recently the Confederated Salish and Kootenai Appellate Court made a decision about a First Amendment case, about a person's right to say what they want to say, free speech. Those are exciting cases and maybe only if you're kind of like a law nerd do you really think that that's exciting stuff, but it's exciting stuff. And I talk about it to everybody I possibly can because I want people to know not only are we making good law but we're making new...we're going into territories we've never gone into before. We're addressing issues in our code that again nobody thought about. We just did a case about particularized suspicion with a bad stop from a cop. Does that make me the most popular person? Probably not, but I wasn't the most popular person to begin with because I'm a defense attorney. I have to tell you when I became a public defender, my parents said, "˜I don't know if I really want you to do that. Don't people...isn't it unsafe to be a defense attorney?' I said, "˜No, mom. People kill their prosecutors, they don't kill their defense attorneys.' They buy their defense attorneys beers; their grandma makes them banana bread. There's a lot of perks to being in public defense. But we are making new and exciting law. We have great stuff on the best interest of the child. Tribes are incorporating their beliefs into best interest-of-the-child standards. We're incorporating our beliefs into First Amendment issues.
One of the other exciting things I know that's going on in Indian Country is the idea of holistic defense. I don't see American courts addressing holistic defense in a way that I think that tribal courts can. And what I mean by holistic defense is in Montana let's say -- we'll use something pretty vanilla -- if you don't have insurance on your car and you get pulled over for the third time, that is a mandatory seven days in jail for not having liability insurance in a place that there is no public transportation system. Our reservation is about 100 miles long; there's no public transit. So of course people...I'm not encouraging people to break the law, I'm encouraging people to prioritize, but I know that people drive to get to work, to feed their kids without liability insurance; it happens. I've been hit by one of those people. So here's my best legal advice to you right now, here's some free legal advice, write it down. Make sure that you get under-insured and uninsured motorists on your insurance. I see Renee writing it down. Good job. Uninsured, under-insured, because if you get hit by those people who don't have insurance, your insurance helps you cover it then, because I have been hit.
So this person is sitting in jail waiting to get out on bond or not getting bond because they can't make bond because obviously they couldn't even afford to get insurance. They have kids, maybe they're a single mom, there's a potential that their kids could get into the system because nobody's home watching their kids. There's a chance that if they sit in jail for seven days that they're going to lose their job, their car's already been impounded because they couldn't find any...they didn't pay their minutes and they couldn't find anybody to come get their car so they couldn't leave it on the side of the road. Snowball effects happen all the time. Holistic defense addresses those. We have defenders who now say, "˜Okay, what are the other issues? We don't want them to lose their housing, we don't want her to lose her kids, we don't want them to lose their job. How can we work with a prosecutor to make this all good and get it in front of the judge as quickly as we possibly can?'
We have incredible opportunities as tribal courts to mend our communities by being willing not just to say that crime is bad or that divorce is bad, but in addressing some of the other issues that will come with those things by being flexible, just and creative. I think that people who don't have much learn to be as creative as they possibly can. Like your grandma when she was poor and didn't have any money to feed you, she would still figure out how to feed you. We still need to figure out how to solve our problems whether we have money or not. And again it's the same thing. Your tribal council, maybe they have all the money and they're not giving it to you to fix it. That doesn't mean you stop trying to fix it. It means you try to figure out what you can do creatively and if that means feeding them popcorn. It's like a Charlie Brown Thanksgiving -- everybody gets popcorn and toast and whatever it is that you have. It is the same in tribal court systems.
It is important to be transparent in your code. It is important to make things accessible. I have worked in a court system where nobody knows where the code is. Nobody knows where the code is. It is not online. You can access almost every case from the Confederated Salish and Kootenai Tribes, the Crow Tribe, almost every tribe in Montana, almost every tribe I know of who has a solid, longstanding appellate court, you can access their opinions and I do, because when I write an opinion I would rather use another tribe's decision than use a state's decision. Why? Well, in some cases because we're all similarly situated with the Indian Civil Rights Act or it's because our code looks like another code or our constitution is based on the same treaty. All of those things are important that maybe non-tribal court system people don't take into account. If I'm writing in a state system, yeah, I might steal something from another jurisdiction, but if I'm writing something in a tribal court I want it from another tribal court because I think they have invested in the same values that we do.
Again, we have opportunities that other people don't have. States are regulated in ways necessarily that we're not. I would ask you though as tribal people and tribal leaders, when you're building your court systems, really take into consideration what's the best thing? Do you think that lay advocates are the best way to go? Would you let a lay advocate operate on you? I don't know. And I'm saying that that's equally as dangerous. So would you let a lay advocate...? Let me make sure that I'm very clear on this. There are some incredible lay advocates. My uncle who helped start the Crow Court has been a lay advocate for 38 years and he knows the Crow code inside and out. He may not know form, but he knows substance. That is important. But there are other people who go in and pay their fee and then try to write your will or want to help you with your divorce. Maybe not necessarily without training. Be specific about those things. Do you want your judges to not have any training, to just come in and go off the cuff? Do you want everybody to be attorneys? Is that really the most financially sound way to go? Not always. I like to keep myself in business, but that doesn't mean that there's not room for everybody to work in there, but I think training is important. You can never learn enough and quite honestly, you can never share enough of your training with other people.
Again, I encourage people really to build strong court systems in the idea that make it fit what your tribe needs. Your tribe might not need a drug court, but you might need a dog catcher. You might need a youth court, but you don't know how to start it. We're sharing people. Everybody has them. People are developing, there's money out there and grants to get them. There's lots of resources. Your law schools in your states usually have incredible resources. For example, the Indian Law Clinic at the University of Montana, Maylynn Smith, never says 'no.' Aw, I'm done now. Thank you very much. I think we're going to open this up for questions."