tribal judges

Eldena Bear Don't Walk: So What's So Important about Tribal Courts?

Producer
Native Nations Institute
Year

Eldena Bear Don't Walk, Chief Justice of the Confederated Salish and Kootenai Tribes, discusses some of the things that tribal justice systems need to have in place in order to be effective, and how important it is for Native nation governments and citizens to respect and support the decisions those systems make. She also reminds that people need to remember that many if not most tribal justice systems are in the early stages of development, and that their continued development must be cultivated.

Resource Type
Citation

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."

Native Nation Building TV: "Why the Rule of Law and Tribal Justice Systems Matter"

Producer
Native Nations Institute
Year

Guests Robert A. Williams, Jr. and Robert Yazzie discuss the importance of having sound rules of law and justice systems, and examine their implications for effective governance and sustainable economic development. They explore these issues and their role in creating a productive environment that encourages investment of all types from Native and non-Native citizens.

Native Nations
Citation

Native Nations Institute. "Why the Rule of Law and Tribal Justice Systems Matter" (Episode 3). Native Nation Building television/radio series. Native Nations Institute for Leadership, Management, and Policy and the UA Channel, The University of Arizona. Tucson, Arizona. 2006. Television program.

Mark St. Pierre: "Mark St. Pierre. Hello, friends. I'm your host, Mark St. Pierre and welcome to Native Nation Building. Contemporary Native Nations face many challenges including building effective governments, developing strong economies that fit their culture and circumstances, solving difficult social problems and balancing cultural integrity in change. Native Nation Building explores these often complex challenges in the ways Native Nations are working to overcome them as they seek to make community and economic development a reality. Don't miss Native Nation Building next."

[music]

 

Mark St. Pierre: "On today's program, we examine the critical role that tribal justice systems and the rule of law play in providing the necessary foundations for effective governance and sustainable development, and what happens when those systems and rules of law are poorly designed, implemented and understood. Here today to share their thoughts in this important topic are Robert Williams and Robert Yazzie. Mr. Yazzie, a citizen of the Navajo Nation, is the Chief Justice Emeritus of the Navajo Nation Supreme Court. He is also a visiting professor at the University of New Mexico School of Law and has served as a Navajo English interpreter for the U.S. District Court. Mr. Williams, a citizen of the Lumbee Nation, is the E. Thomas Sullivan Professor of Law and American Indian Studies at the University of Arizona's James E. Rogers College of Law. He also serves as the Chief Justice of the Pascua Yaqui Tribal Court of Appeals and the Judge Pro Tem of the Tohono O'odham Nation. Welcome, Mr. Williams and Chief Justice Yazzie. Thanks for joining us."

 

Robert Williams:  "Thank you."

 

Robert Yazzie:  "Thank you."

 

Mark St. Pierre:  "In your opinion, why is the rule of law so critical to Native nations?"

 

Robert Williams: “Well, there's two primary reasons that you want a court system that treats people fairly and issues decisions that people can make their own plans for the future on. The first is the internal aspect. The people of the nation have to have confidence in their court systems, they have to believe that if people are arrested for crimes that they'll be prosecuted, that they'll be treated fairly, that their rights will be recognized and then victims are protected. They have to understand that their contracts will be enforced in their courts. Externally, you also want the outside world to have confidence in the nation's justice system for business relationships, for people that might be invited on to the reservation, for a whole host of reasons -- relationships with governments -- and so those are the reasons that most tribes do invest in court systems and legal systems and tribal courts are working so hard on trying to enforce the rule of law."

 

Mark St. Pierre:  "Robert, at [the] Navajo Nation, your approach is kind of blended with Navajo tradition and common law. How would you respond to that question of why is the rule of law so critical to the Navajo Nation?"

 

Robert Yazzie:  "My experience says that when Navajos go to court, they expect certain things to happen. One is to say shí­ né' en dool jool, mso-fareast-font-family:Calibri;mso-fareast-theme-font:minor-latin;color:#222222;
background:white;mso-ansi-language:EN-US;mso-fareast-language:EN-US;mso-bidi-language:
AR-SA">  color:#222222;background:white">means my mind will become at ease when this problem that I have is addressed and people look for a satisfied result. So when people feel confident with the court system, especially [the] establishment of relationship with the judge, knowing that the judge's role will be carried out to bring peace to the problems at hand."

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Mark St. Pierre:  "We're all away that politics creep into court systems or tend to creep into court systems in all societies, but what is the impact of politics creeping into tribal court systems?"

 

Robert Williams:  "It can be particularly insidious. One of the big problems today in Indian Country is that tribes are saddled with constitutions and systems of government that really were imposed upon them 60, 70 years ago. Yet, at the same time, when those systems were imposed, many of the checks and balances of these western-style systems of constitutional democracy weren't incorporated. One of the most important is an independent judiciary, and most tribes today do not have an independent judiciary under their constitutions, and so where judges don't have the confidence to make decisions without looking over their shoulder whether a tribal politician might be unhappy, whether they might lose their job, justice suffers in any system, and that's particularly so in Indian Country."

 

Mark St. Pierre: color:#222222;”Robert, what's your take on that?"

 

Robert Yazzie:  "I hear a lot of criticism. I think some of them have merit and some of are just pure assumption, because the outside world really doesn't understand exactly how a tribal court functions. If the outside world could really look at the details of how a tribal court functions, maybe people can appreciate what the tribal courts are going through. I've heard time and time again that there the politicians or the tribal council in any situation make decisions for tribal judges. I don't think that...that may have been true, but certainly today I think the politicians, the tribal politicians have really come to terms with their role. With the Navajo Nation, we had a case involving a pay raise and the public took issue on that and brought action before the court telling the Navajo Nation Council of 88, 'The process you followed to get what you want, to give yourselves a pay raise, is unlawful.' So the court was there to make the correction, and the correction it made is that they affirmed what the public stood for. Today, right now, the Navajo Nation Council have accepted that. I don't think they really liked the decision, but it's a decision that they choose to live with and I think they have taken...they take the courts very seriously. When it makes a decision, they want to give it support, to give it growth."

 

Mark St. Pierre:  "Rob, you've worked with a number of different tribes across the country. Can you give us examples of what a politicized justice system has done to perhaps hamper or derail community development and economic development, nation-building efforts?"

 

Robert Williams:  "Yeah, and I think it's important to recognize in a number of tribes, the Navajo are an excellent example, have moved toward an independent judiciary separating the tribal courts from tribal politics, but there are still a number of tribes out there that it's common practice sometimes for tribal elected leadership -- you may have a situation where the elected leadership changes every two years and then the courts change because people like to bring in folks they're familiar with, and so the expertise and independence that you've built up is lost. There are other situations where the business community both on and off the reservation just doesn't have confidence in the judiciary and doesn't feel that their contracts will be enforced so they'll be treated fairly, and so they may go to the tribal government and say, 'We want to have you waive your sovereign immunity. We won't sign this contract unless it's going to be litigated in state courts.' Then what you begin to get is just a general undermining of the rule of law throughout the entire reservation, and so when tribal governments do think that they can interfere in tribal courts and tribal law, it has this cascading effect, it has implications throughout the entire reservation economy and society."

 

Mark St. Pierre:  "How do you separate, what are good ways to create that true separation of the justice system from the rest of the tribal government?"

 

Robert Yazzie:  "I think in a smaller population-sized tribe it's much harder to deal with the separation of powers issue because everybody is related somehow. It's very hard to separate. But in a much bigger tribe like the Navajos or the Cherokees, I think they've pretty much come to accept what the functions of the different branches [of] government that is in place. The Navajo Nation doesn't have a constitution, so we don't have a constitution that says, there shall be an executive body, judicial body and legislative body. The way the code has been put together just gives that impression there is these separate branches, and I think that even though there are problems -- like in any other government there's problems trying to stay within your bounds and to carry out your functions. But I think the Navajo Nation has really gone through some trying times. As long as people understand that judicial independence means being able to make a decision independent of all forces -- government or political forces -- that is a decision that you can make in good conscience. 'A good decision made so you can sleep at night,' is what our boss used to always tell us when we were on the bench."

 

Robert Williams:  "And following up on that, there are specific steps that tribes can take. For example, I think the Chief Justice makes a great point that in smaller tribes, it's more difficult to achieve separation of powers cause everybody knows everyone and it may be that in that situation lifetime tenure for judges which is usually one of the ways that you achieve judicial independence might not be totally appropriate, but set terms, four years, five years. Make sure they're staggered so they don't necessarily coincide with the tribal government's election cycle. And then you have a really good system of review."

 

Mark St. Pierre:  "So what you're suggesting is that the judges perhaps be elected by the tribal membership?"

 

Robert Williams:  "Or if they're going to be appointed, let's appoint them for set terms instead of oftentimes what happens it's a year-to-year contract, then that can really erode judicial independence. But you also need a system of professional education, you need to make sure your judges are out there getting the latest education they can, that they're getting certified, that you're reviewing. There's a process. The Navajo courts have a great process where judges are regularly reviewed by the chief justice and reports are issued, you can evaluate people fairly and then put them up before the council and see if they merit being reappointed again, and that's a good way to try and get politics separated out of that process."

 

Mark St. Pierre:  "Let's take a look at recall. If, for instance, in a smaller tribe the people themselves are not satisfied with the performance of a judge and the pressure builds up consistently that this judge is not really working well within tribal tradition or within the beliefs or value system of the people, what are systems to recall judges?

 

Robert Yazzie:  "We follow a process that evaluates judges when they complete their two-year probation and at the end of their two-year probation, the probationary judges must go through a judicial performance evaluation where the public have their input or the staff of the judge has their input, where other practitioners who go before that judge has their input. This is a fairly new process, and through that process, some of the judges have been removed by the standing committee based on the process that's now set in place. So we don't really...we haven't had to do any recall. I think the appointment process has enough in it that it takes care of those problems."

 

Robert Williams: “Recall is one of those areas where I think you can really talk meaningfully about the difference between western systems of self-government and many Native systems. In western systems, the recall is a check of the popular democracy. A lot of legal scholars would argue that recall of judges is a bad thing because you want judges to make decisions whether or not they're against the popular will. In tribal systems, it may be a bit different, where you have traditions of consensus and traditions of equality and egalitarianism spread out across all members. So it may well be that recall could function as an effective check on what we might call judicial activism. Because these systems are so new, many times you're applying foreign systems of law and as a judge you might be a member of the tribe, you're trained in a white legal system, but that doesn't necessarily mean you understand what justice means for the people and whether or not it's culturally appropriate. So recall may well be one way that tribal communities can take back control over their legal systems."

 

Mark St. Pierre:  "Could either of you talk for a little bit about what you think the training or education should be of tribal judges. It's obvious that every tribal judge is not going to have the opportunity to go to law school for instance."

 

Robert Williams:  "I think that what's most important is that the tribal judge, particularly at the trial level, understand the community he's working with and understand the norms and values. Native Nations Institute talks about this idea of cultural match that if the rules and the principles and the laws that are being applied on the reservation don't match the cultural expectations and what people in that community think is right, they're not going to be obeyed. And so I think there's a really good argument for making sure your trial judges particularly understand the communities. At the appellate level, there you're starting to get into issues of constitutional interpretation, statutory interpretation. Again, it may not necessarily be that an appellate judge has to be a lawyer, but this has to be a person that receives training in many of the excellent programs that are available in national judicial colleges, at law schools, at universities where tribal judges at the appellate as well as the trial level can go and get educated by professors and experts and understand what the really important issues are to perform that function well."

 

Mark St. Pierre:  "How does Navajo handle the training of judges and people that work in the court system?"

 

Robert Yazzie:  "Earlier you asked a question about what should...that there is a great need for tribal courts to learn the basics of law, rules of law. But we don't stop there. I think what Rob was telling me, he talked about doing things pursuant to the cultural norms. To me what that means is for a judge who is well-trained, like say this is due process and under the constitution, as long as a person...a person gets due process and if the procedural requirements are met, minimal, that's good enough. But in the Navajo way we don't stop there. We take this concept of due process and take it over to the Navajo context and say, 'How meaningful is this due process when we apply it to this situation. What's the end result in applying this concept to this situation?' And that is what the thinking process goes through and that should be the way that judges are trained, is to have command of the western legal concepts. But if we stop there, then we're in big trouble. If we stop there period, then we're not doing anything to foster the growth of tribal courts."

 

Robert Williams:  "We do a lot of advising of tribes at the Indigenous Peoples Law and Policy Program and when they ask, 'Well, what can we do to stimulate economic development?' I tell them, 'Invest in your court systems, invest in the rule of law, invest in tribal judges.' What you'll see is, as the Harvard Project on Indian Economic Development showed, there's a direct correlation between tribes that have strong, effective judiciaries and the economic development environment, employment rates, education rates -- direct correlations. Tribes that invest in their court systems, to do the types of things that Justice Yazzie is talking about, are successful tribes."

 

Mark St. Pierre:  "How would a Navajo citizen who wants to be a judge for instance get that training today?"

 

Robert Yazzie:  "I think right now we are trying to do as much as we can to provide that opportunity. There are Navajo -- the young people are really looking for legal training, and right now I'm teaching for the Crown Point Institute of Technology, teaching the basics of law and an introduction to law, what that means and then how to think like a lawyer, how to make lawyer noise, how to prepare for bar exam and also at the same time bring in the tradition. You have this rule of law under the American Anglo system and here's the result. Then go across the street and see how the Navajos would approach the same problem. This is the process that or emphasis...this should be the emphasis in learning about law in Indian Country."

 

Robert Williams:  "And the Chief Justice is really focused on why I think being a tribal judge is a much harder job than being a regular judge in the Anglo system, and it may well be the hardest job on the reservation because on the one hand, as he explained, your tribal judge has to know the western legal system. They have to know western requirements of due process. Every criminal case in a tribal court can be reviewed on habeas corpus by a federal district judge, so you have them looking down at you. On the other hand, you also have to know Navajo custom and tradition or O'odham custom and tradition, to make that law relevant to the people whose lives it's affecting and it's constraining. And so where do you -- it's easy, you can go to law school, you can go to a judicial training center to learn about western jurisprudence and civil procedure, but where do you go to learn how to be a Navajo, where do you go to learn how to be Lakota. That's a knowledge that has to come from the heart, has to come from tradition, has to come from a community that really works on keeping that knowledge alive and making it work for them, and I think the most successful tribal court systems you see are the ones that do both those tasks, that can run the court system in an efficient effective way so that people appreciate that it's there, it makes the decisions it needs to make, but it's also making culturally appropriate decisions and decisions that are helping to move the community forward, not backward, not getting it entrenched in politics and internecine fighting that we see too oftentimes. And that's why it's such a hard job."

 

Mark St. Pierre:  "Let's take a look at that for a minute. The Navajo court system is well known for its incorporation of Navajo common law in its jurisprudence. How is that common law incorporated at Navajo just so our viewers can understand that alternative system?"

 

Robert Yazzie:  "There's two ways we use the Navajo common law in applying common law to situations. The grassroots people have their own process, the lifeway process, the peacemaking process, and they have their own facilitator who runs the process, and in that process people are able to find the problem at hand and be able to talk things out. Here's a problem and different people can say, 'This is the way I see the problem from my perspective.' And they're able to reach a solution. So in the talking things out is where they begin to talk about values and principles, and those principles and values are the underlying basis for what makes Navajo a common law. More recently there's been a move through our own rule of law to say in every case situation, the Navajo common law shall be the law of preference. So when practitioners come to court and that's what they're told, 'Yes, this may be the Anglo position, but what is the Navajo rule of law as a matter of custom?' So in terms of incorporating there may be an issue, an issue like, for example, a judge may hear a criminal case. There's a recent decision made by the Navajo Nation Supreme Court that dealt with this concept hozho. There was an issue how the police officer handled the defendant. He didn't really...there was a question about his reading of the rights to the defendant wasn't correctly done. So when the Supreme Court looked at those facts and they thought about hozho. color:#222222;background:white">Hozho  means do things cautiously. If you are going to explain, make sure that they understand what the process is about, cautiously and with respect."

 

Mark St. Pierre:  "So it's not a minimal just reading of the rights and as quick as you can read them and then throw the handcuffs on the guy and throw him in the car."

 

Robert Yazzie:  "...And to be honest about what you're trying to accomplish with that defendant."

 

Mark St. Pierre:  "So the defendant is treated with respect as a human being."

 

Robert Yazzie:  "Exactly."

 

Mark St. Pierre:  "you've worked Rob with a wide variety of systems. What are some other examples of positive Native influence on judicial systems, cultural influences, cultural norms that you've experienced that you could share?"

 

Robert Williams:  "Yeah. I teach Indian law and one of the things that we make sure students learn about is the development of what we call tribal common law, the use of tribal customary law, not only by the Navajo but a number of tribes. We're seeing a number of tribal courts recognize the need to incorporate custom and tradition as the common law of the tribe. The Hopi, for example, their Supreme Court recently decided a case on the issue of standing. That's a technical legal term meaning basically who can bring a case, who has a right to sue the government. As we know, in the United States, it's very hard to get standing. Congress can pass a statute and you would like to go to court and sue about it, but it's very difficult, you have to show a real interest. The Hopi considered that issue of standing and who can bring a suit against the Hopi tribal government and they said, 'You know, the western concept is just way too narrow.' We are a people that believe that everyone has a say and that government is accountable. And so you saw the Hopi Supreme Court diverging from western jurisprudence and enacting a broad principle of standing which fits very well. It really is a burgeoning, a growing movement, this use of tribal customary law and it's really improving the administration of justice in Indian Country."

 

Mark St. Pierre:  "Robert, what prompted Navajo to completely revise the way they do their court system and incorporate common law? When and how did that come about?"

 

Robert Yazzie:  "Well, we had so many laws that has been imposed on us since the western court systems came in 1892. But in 1950 the Navajo Nation said, 'Enough is enough. We are not...we're no longer going to put emphasis in applying federal law to solve our cases. We are going to do things the Navajo way.' The Navajo leaders back in 1982 said, 'Well, let's look at how business...law...decision-making was done 100 years ago,' and they found out that relations had a big role, that the idea of having relations in the dispute situation meant something, and also given the relations as we're talking about here, talking things out. Without control, without a judge, without lawyers, let the relations feel that they own the problem. Let them come up with solutions. Never mind how long it will take and how many days it will take. So when people are talking things out, they're able to make some connections. You can have a longstanding dispute like land. Land dispute is the hardest thing to solve in the adversarial system, and some of them never get resolved. But lo and behold, when you give the relations the opportunity to tackle that problem, they do go back in time and say, 'This is where the problem lies and then we need to come back to terms with one another, treat each other like relatives, treat each other with respect.' And treating each other with respect, [having] a system that addresses people as humans is very, very, very important, and I think...and I see that as the future of tribal courts. We've gone too far with the western way and I think the adversarial system had its days and it needs to change and I think, I hope in my lifetime that I will be able to see that this lifeway process merge with the western system and the tribal court center and I think that will show the world that Indian people have something, they have something to contribute to make a difference where people are always fighting one another."

 

Mark St. Pierre:  "Just as kind of a wrap-up question: we've talked about court systems that function properly, when you live in a nation where the court system is working properly, what are the ramifications for the people of that nation in terms of their attitude towards their own nation and their own potential?"

 

Robert Williams:  "There's a sense of law and order, that you have personal security, you have security in your property, you have security in your investments. Indian people are entrepreneurial, too. I think anybody who spent time in an Indian community knows that Indian people have the ability to go out there and invest and work hard and create a life and create for their families. They want the same thing as everyone else does, so there's those positive benefits. There's a sense in which tribal sovereignty is strengthened, because every Indian tribe that can get its act together in this area and have effective legal systems shows the world, and as Justice Yazzie just said, that Indian people have something to contribute. And I think if tribal governments are really going to take their place in 21st-century American society that we need to really work hard in this area of creating effective tribal justice systems that make people feel not only safe and secure but proud of what it is their tribe is doing."

 

Mark St. Pierre:  "We want to give a heartfelt thank you to Robert Williams and Robert Yazzie for appearing on today's edition of Native Nation Building, a program of the Native Nations Institute for Leadership, Management and Policy at the University of Arizona. To learn more about Native Nation Building and the issues discussed here today, please visit the Native Nations Institute website at www.nni.arizona.edu/nativetv. Thank you for joining us and please tune in for the next edition of Native Nation Building."

 

Living Her Dream: Eldena Bear Don't Walk Discusses Her Law Career

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Eldena Bear Don’t Walk is living out her childhood dream. The youngster who imagined one day becoming a lawyer has done exactly that – and more. She has been an appellate judge for eight years, serving almost every tribe in Montana. At the St. Ignatius-based Bear Don’t Walk Law Office, she works as an attorney, consultant and independent legal researcher. And she was the first woman to serve as chief justice of the Crow Tribe, a seat she held from 2007 to 2011...

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Steinberger, Heather. "Living Her Dream: Eldena Bear Don’t Walk Discusses Her Law Career." Indian Country Today Media Network. February 10, 2014. Article. (https://ictnews.org/archive/living-her-dream-eldena-bear-dont-walk-discusses-her-law-career, accessed May 17, 2023)