A Court and Jury of Peers?
by Darrel Smith

Tribes are pushing state courts to enforce and give "full faith and credit" to tribal court decisions. State enforcement of tribal court decisions is dangerous for several reasons. Tribal governments are race and ancestry based institutions. Complete political control is maintained by those who meet the required race and ancestry requirements and are tribal members. Tribal courts are formed by, and for the benefit of, the limited racial constituency they serve. Non-members are denied any voice in the personnel or procedures of tribal courts. They are also denied the right to a jury of their peers.

Unfortunately, tribal courts are seldom independent. For example, U.S. District Judge Patrick A. Conmy recently said in an opinion, "The Tribal Court . . . is not an independent judicial branch, although on paper it looks good. In the past the salaries of elected judges whose decisions have offended the council have been terminated by the tribal council, despite tribal constitutional prohibitions." In other cases, independently elected judges have simply been removed from office by tribal councils. There is no effective remedy against tribal councils that are protected by sovereign immunity.

Native American attorney and newspaper publisher, Bill Lawrence, has had personal experience in tribal court. He told the U. S. Senate that, "I have personally been the victim of the [tribe’s] use of the sovereign immunity defense on five occasions.

 "On four separate occasions I have tried to get tribal financial statements which, according to our Constitution, are supposed to be available to tribal members. Tribal officials would order hearings to be postponed seconds before they were scheduled to occur, switch judges without notice, deny a right to a jury, change from a scheduled pre-trial hearing to a full trial without notice, deny an opportunity to call witnesses, and come to the first day of trial with a typed decision already in hand. Needless to say, I was denied my right to see tribal financial records.

"In 1994, three tribal members asked me to represent them in . . . tribal court in an election dispute. Despite my legal background and eligibility in every way, I was denied a license to represent people in my own tribal court. They were afraid I would take cases against the council for violating people's rights."

On other reservations, tribal courts have arbitrarily banished individuals from their homes, jobs and reservations (for example see News From Around the Country - North Dakota; CERA NEWS; March 1999). For other examples of tribal court abuses refer to the June 1998 issue of CERA NEWS or go to our website at www.citizensalliance.org, click on Real Stories and then click on the respective article you are interested in.

 In spite of the many problems, states are being asked to give "full faith and credit" to tribal courts and to enforce their decisions. Since tribes are not bound by the Constitution and are protected from suit by sovereign immunity, this precedent potentially puts everyone at risk from unaccountable tribal judgments.

 Use our newspapers and the information available on our web site to educate the people involved with this issue. If we can’t stop the process any other way, we should push for a guarantee that tribal courts will likewise enforce and give "full faith and credit" to all state court decisions. Of course, even if a tribe makes an agreement with a state there is no way for the state to enforce the agreement unless the tribe waives its sovereign immunity.