(tribal music and chanting) - I'm Professor Hager, this is part two, talking about tribal courts. Now as we talk about this, don't worry too much. We're just talking about broad overviews. You're going to learn a lot more in details when you talk about, when we have classes in civil jurisdiction, and criminal jurisdiction, and you'll certainly have a lot when we get to my class, and talk about Indian Child Welfare Act issues. But this is just sort of an overview of what you can expect in tribal courts. Now, when we talk about tribal courts, we're talking about courts that have both limited and extended jurisdiction. This dichotomy makes it difficult, sometimes, to know exactly what is happening in a tribal court setting. Now for instance, in the last lecture, I talked a little bit about how things are different in tribal courts. That some judges may show up, may have dockets once a month. Some judges may be there every day. Some lawyers may have to take a bar exam to be there. Other lawyers may just have to show up and say, I'm going to practice in your court. For instance, in Oklahoma, 28 tribal courts, there are some courts that have a licensed bar, which they don't do a bar exam, but you have to join their bar in order to be practicing in their court. Other courts are more or less just open. But one thing about tribal courts that's really interesting is that tribal courts are mostly pro se hearings, and pro se litigates. Now pro se is a term that means by yourself. A lot of people will come into tribal courts without attorneys. They'll come into tribal courts, and they'll want to get a guardianship of their grandchildren, because their parents, the parents of the child are incapable of caring for them. They'll come into tribal court, and they'll want to handle a dispute with their neighbor, and say, you know, my neighbor is playing loud music, and I want something done about it. They might come into tribal court with a criminal misdemeanor issue, and say, you know, I don't need a lawyer, I'm just gonna plead guilty. I've always said that tribal courts should have three levels of pleading. There should be guilty, there should be not guilty, and there should be a third category called guilty with an explanation. Because a lot of people just wanna come in and explain why they did what they did. And in that situation, then they're often satisfied, and will accept any punishment that they may have. So we have a lot of issues, a lot of little details to tribal courts that you really can't understand, and you really can't get to know, unless you're actually in that tribal court, and in that court means you are seeing it on a regular basis, that you have read the laws, that you are aware of what's going on. And that you also may know who the judge is, and you may get clues from where the judge is practicing. Tribal courts are what I like to call the last of the circuit riders. If you think about old Western movies, how many times did John Wayne arrest a bad guy, and put him in jail, and then the bad guy's henchmen would all gather at the saloon across the street, and John Wayne would have to hide out in the jail until such time as the judge came. Well, the judge was doing something called circuit riding. And this is an honorable and extensive tradition in the American jurisprudence system. John Adams, the second president of the United States, was a circuit-riding lawyer and judge. Abraham Lincoln rode circuit in Illinois when he was a lawyer. It basically means going from place to place. And a lot of the judges that you see in a tribal court may be a judge some place else as well. They may be a prosecutor at some other court. They may be going all over the place. And not just within a state. You may have a judge, for instance, if you're a practitioner in Kansas, all of your judges are from Oklahoma. The Kickapoo Court, the Prairie Band of Potawatomi Court, the Sac and Fox Court, all have Oklahoma judges, who ride circuit, drive up to Kansas, to set on their dockets. So you have this system whereby tribal courts may not have the exact same laws, but you may have a judge who would rather kind of practice law in a certain way. And so you've got to make sure that the judge is correctly following the law. Sometimes that becomes really difficult. One of the great examples that happened to my career, was a, I was a guardian ad litem, and a guardian ad litem is a person who's representing children in a court system. I was a guardian ad litem, and it was a good situation, because there were two families that wanted to adopt this child. So we were meeting in court, and we had several court hearings to determine how we should decide which family would adopt the children. Both were good families, both of them loved this child. The question was, how should the court decide this? And we were just in a total conundrum. We just could not think of how we would make this decision. And then, and I'm proud to say that this was my idea, then I said, well maybe we should look at the code, and see what it says. And sure enough, the tribal code had very specific instructions for this situation. And so we were able to go into court, and pretend like we all knew that before we had started the hearing. And we went in and said, well, under the code, Your Honor, and the judge said, ah yes, the code. The code deals with this issue. And the other side said, well yes, Your Honor, the code does say that, but, everybody in the audience is going, these lawyers really know their stuff. And we literally had no idea what was going on until we actually looked at the code a few minutes before. So it's important, with tribal courts, to make sure that the laws are being followed the way the tribe wants them to be followed. And sometimes, that becomes a little bit more difficult than you might think. Now, if you're a lawyer in a tribal court, you have certain requirements and certain rules. You have to be honest with the court. You can't go into tribal court, and lie to the judge. You have to be willing to do a good job. You can't just go into tribal court, take somebody's money, and then plead them out. You have to be able to go into court, and make an argument that is honest, that is trustworthy, and that follows the law. And sometimes in tribal courts, those issues come about. Now people say, well why is that, Steve, why do we have that situation? Well, it's important to remember that tribal courts, especially here in Oklahoma, are a new phenomenon. We are talking about just more than 40 years of having these courts established. The Comanche Tribal Court began operations in 2018. This is a new court system, and there are always going to be, shall we say, difficulties in getting these court systems operational. When you're talking about the Oklahoma court system, the state court system, you're talking about an institution that has been around since at least 1907. You're talking about court systems in New York, or in California, or in Illinois, that have been around for 200 plus years. Tribal courts, you're talking about new courts. You're talking about issues that are just being discovered for the first time. You are going to have stumbles. The problem that tribal courts have, is that people are waiting for them to fail. A lot of times, we'll have issues where the tribal court makes a decision, and somebody else says, well, you can't really trust them. They're not a real court. You'll have people who may be non-Indians, or in some cases, people who are Indians, but maybe of a different tribe, who say, well I don't wanna go to tribal court. They're a homer court. They're not going to be honest. They're not going to give me justice. They're just going to do something. But all of these issues, all of these things, can be accomplished if you have a judiciary, and if you have a working staff that is trying to make the court honest, and is trying to make the court work best. Now the problem is that tribal courts are adversarial systems. And so what happens in an adversarial system? Somebody wins, and somebody loses. Now the interesting thing about it is that a lot of times in an adversarial system, somebody will win, somebody will lose, but the person who wins isn't really happy about winning, because they didn't get everything they wanted, so you'll have two people go out of the tribal court system saying, well that's just a, you know, that tribal court, that's not any good. 'Cause they didn't get what they wanted. I believe that if the tribal court is following the law, if the tribal court is doing what it honestly believes is best, then you're going to have a pretty successful court system. As we've progressed, as tribal courts have gotten bigger, we've moved into some other areas. One of the areas that I think is most important in Indian country is healing to wellness. There's a case that you'll hear about called Dollar General and the Dolgen case, as it's popularly known, is a situation where you have a person on the Mississippi Choctaw Reservation. He abuses an Indian child, and the tribe wants Dollar General to have to come to court, and has to face not even criminal actions, but tort actions. And Dollar General says, well we don't have to do that, because it's Indian court, and we all know that Indian court isn't real. Well, that ended up going all the way to the Supreme Court, and the Supreme Court decided, by a snappy 4-4 decision, that in fact the Fifth Circuit decision would stand, and that the court would have jurisdiction, the tribal court would have jurisdiction over the Dollar General corporation. Let's break that down for just a minute. As you're in this class, as you're going through the Masters of Legal Studies, you're going to have to deal with a whole lot of little things that I just sort of threw out there at you. Like, for instance, what court are we talking about when we talk about the Supreme Court? Well, obviously we're talking about the United States Supreme Court. But a lot of times, people will talk about supreme courts, and they'll talk about, like, they'll just say, well the Supreme Court said, and it will be a state supreme court. So you have everybody calling supreme courts just the most supreme court of the state. But you have to know if it's a federal decision, or a state decision, and that can be very difficult. The only way to know is to read the opinion. The end result of the Dolgen case was that tribal courts still have a, you might say, a federal recognition of their value. And a lot of people, when they talk about tribal courts, when they think about tribal courts, look at them as not quite the same as state courts. Now I have practiced for many, many years. More years than I care to admit to, in tribal courts. And sometimes, it's really hard for me to remember that tribal courts are almost a brand new things. In Oklahoma, there was a case in 1978 called Littlechief. And the Littlechief decision says that if a person commits a crime on trust or restricted property, then the only court that can hear that case is the tribal court. Now, without getting into too many details, if it's a major crime, if it's a significant crime, like murder, or arson, or robbery, or something along those lines, then the federal court may take it. But the tribal court will always have concurrent jurisdiction in that situation. And we actually have had cases, for instance, there was a famous Navajo case, where a man was murdered on the Navajo Reservation. And what happened in that situation was that the tribe said, well, the federal government doesn't seem to wanna prosecute this guy, so we're going to charge him with a misdemeanor of discharging a firearm on the reservation, and we're going to sentence him for as much time as we possibly can, to hold him there, to give the federal courts an opportunity to consider whether or not to charge him with murder. You would think that, well wait a minute, if they do that, how can the federal government charge him? But there isn't double jeopardy, and that's a phrase that means, if you're tried once, you can't be tried again. There isn't double jeopardy between tribal courts, state courts, and federal courts. So you could have a person, in some situations, who can get tried for the same crime in different courts. But let's talk, let's break it down to a little bit more of, kind of a nuts and bolts system on tribal courts. Now as you can imagine, the difference between a small tribe in Oklahoma, for instance, the, let's take the Kaw Nation, for an example. The Kaw Nation is a very, very small tribe. It's located by Ponca City, Oklahoma. It's a little, teeny, tiny tribe, little, teeny, tiny court building. And it has a judge who is a law-trained judge. It's a person who is, that means a person who is a lawyer, and that means a person who goes, you know, goes to court on a regular basis. And it has a supreme court, which is made up of three people, instead of nine, or seven. Some other states have a seven-member supreme court. And it commits, it has court, I think about once a month, maybe twice. But about once a month. Now compare that to a court system like, let's take the Navajo Court system, for an example. In order to practice in the Navajo Court, you have to go through a bar exam, just like you would have to go through a bar exam if you were going to be a lawyer in Oklahoma, or California, or Colorado, or New York, or any place else. They have their own bar exam. They have court every day. They have judges who are in court every day. They have prosecutors who are there every day. They have public defenders who are there every day. They have a legal services component, which is helping people with civil questions in their tribal court, and they're there every day. It's just like a state court system. It's always going on. Most of the tribal courts don't require that same level. If, for instance, you look at the Cherokee Tribe in Oklahoma, they might have, maybe, you know, three or four court dockets a week. Which is a lot, which means, more often than not, they have a judge in the house, they have a judge, you know, on the bench, doing things. But those things, you know, might be a little bit less. For instance, if you're a Cherokee judge who does adoptions, or children's deprived actions, you're only going to be in court two days a month. And if something comes up before that next court docket, that means that you're just going to have to wait. So you know what days you're going to be there, and you know when the judge is going to be there. And you know that if you miss that date, you might have to wait up to a month to be able to see him again. Now you might think, well that's really kind of difficult if we don't have court every single day. But the issue comes down to finances. And let's talk just briefly about who pays for courts. There are, in most places, two types of court systems. There's a court system called a CFR court. And what that, the technical name for it is a Court of Indian Offenses. And the Court of Indian Offenses is actually paid for by the Department of Interior, by the Bureau of Indian Affairs. Now the judge is going to be a federal employee. It's a person who is hired to be a, what they call magistrate, in the BIA court system. The prosecutor is going to be a person who works for the BIA. The public defender is going to be a person who works for the BIA. But, and this is an important thing to remember. A CFR court does not gain its sovereignty from the federal government. The CFR court's sovereignty comes from the tribe that it is sitting for. So for instance, let's take the example of the Otoe-Missouria Court of Indian Offenses, which is a small building, a little, tiny court, on Highway 177 in, near Red Rock, Oklahoma. You go there, and you know, the money is coming from the Department of Interior. The magistrate is being paid by the Department of Interior. The prosecutor is being paid by the Department of Interior. But the basis of authority that that court has comes from the sovereignty of the tribe. Now sovereignty is a simple concept that becomes really difficult when you start thinking about the different ways in which it works. Sovereignty just means the ability of a political entity to carry out its decisions within a set, a set parcel of land. So if you are an Indian tribal government, you are sovereign over the tribe's lands, 'kay. If you are a city, let's say, let's take my favorite, I just like saying the name, basically, let's say you're Gotebo, Oklahoma. You have sovereignty over the inner city of Gotebo, you know, which is about, you know, six or 700-square feet. You probably know everyone there. You certainly know most of the dogs who live in Gotebo. But you have sovereignty, and that means that Gotebo, which has, I believe a city council government, can make up its own rules. They can say, well, in Gotebo, we are going to have a curfew for children during the winter at 8:00 p.m. And if children violate that curfew, they can be taken to the Gotebo City Council, or that city court, and there can be punitive measures given for them to stay, for staying out so late, you know, 8:30 or so. So we're going to go into that system, and we're going to look at the tribal court systems. And a lot of them are very similar to what might be referred to as a municipal court. You have regulations, and you have statutes, and those things are being passed by something that we talked about in the tribal, when we talked about tribal government. We're talking about the council or the legislature. They're going to pass certain requirements and certain rules, and those things are going to become laws. So you have requirements that are going to fall within the jurisdiction of the tribal court. So let's talk about someone who is creating a nuisance on reservation land, and that certainly happens. You have teenagers who are revving their car engines. You have lots of noise. You have a person who may be addicted to drugs, and they are, you know, going into their families' homes, and stealing things. And the family members may not want to turn, you know, their family members into the police, but at the same time, they may not want the family member to come in and be able to steal from them. So they might come to tribal court, and they might seek a restraining order, or a protective order. Now, depending upon the type of tribal court you may have, that may or may not be in the tribal code. The tribe may not have a restraining order on its code. Protective order, they're probably going to be able to apply that to the federal standards. But a lot of times, the more, shall we say, detailed elements of law, may not exist within the tribal code. Ah, but in almost all tribal codes, for almost all tribes, there's a little, tiny provision, usually at the top, that's where I usually go to look, and it says, simple, if we don't have a code for this provision, then the judge can do whatever the judge thinks is appropriate. He can use whatever law he thinks is appropriate. And this is massively different than the state courts, or the city courts, or even the federal courts. Tribal court judges have significant authority over the people who come before them. The tribal court can look at issues and say, well, the tribe hasn't actually passed this law yet, so what we're going to do is we're going to use the State of Oklahoma's code, and we're going to determine that. But there can be other situations. Let's say you live in a state, where the state decides that it's not going to permit insurance stacking. You know, that's the process of where if you have two insurance companies involved, you can get the maximum level of money from both of them if you have an accident. Let's say you live in a state where the state has allowed medical marijuana to be sold pretty much on every single street corner. Let's say you live in a state where the yahoos have taken over the legislature, and they've decided that everybody should be allowed to carry guns. When you look at the tribal courts, they don't have to do any of those things. They can do one of those things, they can do two of those things, they can do none of those things. So you have situations where tribal courts may have totally different standards than the surrounding courts. And if somebody is going to be a lawyer, that means that if they're going to practice in tribal court, they're going to have to know a totally different set of laws. And that makes it difficult, because a lot of lawyers are quite frankly not interested at all in learning new sets of law. That's why most lawyers only practice in one state, because they become familiar with the laws, and they wanna keep it there. If you're in the State of Oklahoma, you have 28 or 29 tribal courts. And there's actually a couple that are still in process. If those courts are, have different codes, and are totally different in all of the systems, then you have a situation where a judge may not know all of the provisions of his own tribal court, if he's not paying attention to things. You'll certainly have lawyers who come into court, and will want to say, well in Oklahoma, we do things this way. But that's not really the issue. The issue is sovereignty. The issue is what rights does the tribal court have. You'll hear about this in state courts. You'll hear about drug courts. Which are places where someone who is addicted to drugs, rather than just putting them in jail and not accomplishing anything, they put them into a court system that is going to make them fix the problems. This is, in a nutshell, what healing to wellness is. We start off in a healing to wellness court, with certain very simple structures. We start off by saying, okay, you're going to come to court once a week. You have to come to court. There's no excuse, you can't miss it, you're going to be in court every week. You're going to call in twice a day. No excuses, you can't wait 10 minutes, you can't wait 15 minutes, you have to call in at a certain time in the morning, at a certain time at night. You're going to have regular drug tests. We're going to make sure that you're not using drugs. You're going to have to have a job. You're going to have to work. You're going to have to do many of the things that you and I might take for granted. But in the lives of an addict, are simply not part of their schedule. The idea behind drug court, behind healing to wellness court, is that we're going to make the person have a schedule. We're going to make them do the mundane things that people do every single day of their lives. And by doing this, you end up with people at the end of the program who are going, I really don't need to use drugs. I think I would rather do this. I would rather get up in the morning and go to work, than sleep in till noon, and stay up till 4:00 a.m. Things along those lines are no longer holding the same interest for the addict. And before people think, well, that's not really, that's, that doesn't have any success, the amazing thing about healing to wellness courts is that they have about a 60% drug-free rate, after five years, 60%. You think, well that's just barely over half. But if you just send someone to jail, the recidivism rate is about 20%. So we see that it's by a factor of three times better to go through drug court than it is to go through state court. And tribal courts have become sort of a leading, shall we say, tribal courts have become sort of a leading force for healing to wellness courts. Tribal courts wants to bring people into the system, and they want to avoid these standard issues that state courts just take for granted, you know. It doesn't do a tribe any good, if its members are sitting in a jail cell somewhere. But if those members are out in the community, if they are working for the community, they are benefiting themselves, their families, and their tribe. It's much more effective, and that is a way, just in a nutshell, where tribal courts can do some good. Tribal courts don't have to follow, remember, I spoke a little bit about tribal courts having limited jurisdiction because they can only deal with Indian people. But at the same time, they have extensive jurisdictions, because they are not bound by the same requirements and the same limitations that state and federal court may have. A tribal court can look at a situation and say, okay, rather than fine you $500, you know, we're going to require you to do a painting for the tribe. We're going to require you to show us to do some beadwork. We're going to require you to go sit with an elder, and listen to that elder, and try to remember those stories for your family. We're going to require any number of things that a state court simply can't do, and that, that is the true strength of tribal courts. (tribal music and chanting)