Tribal Court and Tribal Government

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Tribal Court and Tribal Government

Tribes are sovereign governments with the ability to govern their members independent of the state or federal government in many areas of law. The sovereign rights and jurisdiction that tribes have was not given to them by anyone, it is inherent, it pre-dates the establishment of the united states and tribes fight to retain and in some cases regain as much sovereignty as they can. Some tribes have their own courts, police force, social service department, legislative body etc. Each tribe’s government is different and there are over 500 tribes within the U.S. boarders that are recognized by the federal government.

What is a Tribal Court?

A tribal court, for the purposes of the ICWA is a court with jurisdiction over child custody proceedings and which is a court established and operated under the code or custom of an Indian tribe, or any other administrative body of a tribe which the tribe has given authority over child custody proceedings. Tribal courts may look very different from what you may be used to in state court. Tribal court proceedings may take place in a conference room, the judge may not have any formal legal training, and in fact there may not be any lawyers involved at all. In contrast some tribal courts are just as formal as any state or federal court. Every tribe is entitled to establish a court that reflects what they think will best serve their tribal community.

There are tribal courts in California. They range in style and size just as the tribes in California do. Many of them are only in session part-time. Some are consortium courts that are shared by several tribes. Some only hear certain types of cases for example housing or child welfare. There are also many tribes outside of California that have courts.

Tribal Court v. State Court: The main difference between tribal courts versus state courts from a CASA perspective is that if a case is transferred to tribal court and the Tribe doesn’t have a CASA program with a transfer protocol with the program you volunteer with, you most likely will not continue as the child’s CASA once the case transfers to Tribal court. The reason for this is that tribe’s and their courts have their own laws and procedures that can differ from the state laws and procedures you have been trained in as part of your CASA training. Additionally, many tribal courts serve a much small population and thus the need for a CASA program may not be as great as in county courts in California. As of June 2010 there is one CASA program in California, the Northern California Inter-tribal CASA Program serving 4 tribal courts in Northern California. There are approximately 15 Tribal CASA program nationwide.

Tribal Sovereignty and Tribal Jurisdiction

Over the years, Congress has taken the right to govern certain areas of law (to varying degrees) away from tribes and given this right to govern or “jurisdiction” to either the federal government or the state government. Tribes have retained any jurisdiction that was not expressly taken from them by Congress. Jurisdiction over Indian children in California is explained below:

State Court Jurisdiction - Tribal Intervention
The Indian child's tribe and Indian custodian have the right to intervene at any point in an Indian child custody proceeding in state court. The tribe may intervene either orally or in writing. The tribe may designate anyone they want to serve as their representative. The person may be an attorney (at the tribe’s expense), an employee of the tribe who may or may not be Indian, or anyone else the tribes designates. If the tribe intervenes in the case they are a party and should be afforded all the rights and courtesies of any party in the case.

Exclusive Juridiction
In general a tribal court has exclusive jurisdiction over proceedings involving Indian children who reside or are domiciled on the tribe’s reservation, or are wards of the tribal court, regardless of domicile or residence.

Most tribes in the United States have exclusive jurisdiction over children residing or domiciled within the reservation. Tribes in California do not exercise exclusive jurisdiction over juvenile matters but do have concurrent jurisdiction as discussed below.

Concurrent Jurisdiction
In 1953 Congress enacted what is commonly known as Public Law 280 or P.L. 280.26 Congress, via P.L. 280 delegated to some states, including California, partial jurisdiction over Indian reservations located within the state’s borders. This provision take exclusive jurisdiction from Tribes in California over juvenile matters, but tribes in California still have concurrent jurisdiction.27

What this means is that tribes in California have “concurrent” or shared jurisdiction over child welfare matters arising on the reservation. If the tribe has a tribal court, they may initiate proceedings in tribal court over these matters.

Transfers from State to Tribal Court
The child’s tribe, either parent, or the Indian custodian, may petition the court (orally or in writing) to transfer the case to the tribe’s court. Absent any of the above circumstances, the state court must transfer the case unless the court finds good cause not to transfer. Socioeconomic conditions and the perceived adequacy of tribal social services or judicial systems may not be considered in a determination that good cause exists.

Connecting with Tribes

Click here for a list of Federally Recognized Tribes courtesy of National Congress of American Indians (NCAI).

Tribal CASA Programs
There are approximately 15 Tribal CASA program nationwide. The majority of these programs operate as dual jurisdiction programs that serve the county court and have a unit that serves the tribal court. At least one of these programs serves one county court and two tribal courts. This model wherein a tribal court partners with an existing local CASA program to create a tribal unit to serve in the tribal court is very practical for tribes who want CASA in their courts but for whatever reason do not want to create their own separate CASA programs. The cost of running an independent program is always a consideration for any program to be successful and utilizing an existing CASA program is an efficient way of providing advocates to children in tribal court.

As of June 2010 there is one CASA program in California, the Northern California Inter-tribal CASA Program serving 4 tribal courts in Northern California: the Karuk Tribal Court, the Hoopa Valley Tribal Court, The Smith River Rancheria Tribal Court and the Yurok Tribal Court. Just as the dual jurisdiction - county/tribal program model has advantages, there are benefits to a tribal CASA program serving in tribal court as well. The tribal programs reflect the sovereign jurisdiction of the courts they serve. They are naturally equipped to recruit and train volunteers to serve the tribal communities they serve. They are well situated to work with the community partners they need to be successful, namely the tribal court and the tribal social services department.

That is not to say that the tribal CASA model has not had challenges. The tribal CASA programs in California do not receive funding from the California Administrative Office of the Courts like all local-county CASA programs do. Thus, tribal CASA programs must engage in active fundraising to create sustainable programs.

In the end, through lots of hard work and innovation, the tribal CASA programs have success in recruiting and training CASA volunteers to serve in the tribal courts, despite economic barriers that they have had to overcome.

Footnotes:

Local CASA Programs > Volunteer Advocate Resources > Native American Children and Youth > Tribal Court and Tribal Government