A fundamental element of exercising tribal sovereignty is the enforcement of tribal law through tribal courts. Tribal courts may handle a variety of subjects ranging from strictly internal matters over issues such as tribal election disputes, to issuing protective orders that require the cooperation of a police force far from the village when the person to be protected travels. Given the wide range of enforcement issues, enforcement of tribal court decisions may be viewed from two perspectives: 1) How tribal law is enforced within the village itself, and 2) How tribal court decisions are recognized and enforced outside the village when this becomes necessary. This Chapter looks at various aspects of these two perspectives.

In the long run, successful enforcement of tribal court decisions begins before tribal courts start to hear cases and issue orders. Success begins with gathering acceptance of tribal court development among tribal members and creating respected court structures and procedures with their awareness and input. A lot of time and thought goes into the development of realistic and culturally appropriate tribal government structures and procedures and into written tribal law. The methods for getting cases into tribal court and the subjects the court will handle must be well thought out. Also, the methods and procedures for follow-through on tribal court orders needs to be thoroughly considered and designed.

Acceptance and respect of a tribal court by the tribal members are key components to its success and there are many activities that help generate involvement of the tribal membership. One of the best ways to gather acceptance among tribal members in tribal court development is to include them in the development process. Every village is different, and the best methods to include tribal members vary accordingly.

One method of including tribal members is to encourage them to attend council meetings where tribal court development and ordinance issues are discussed. Setting an atmosphere where tribal members feel that their input is welcome and valued is important. It is essential that the tribal council listens to the members’ input and acknowledges that they understand what is being said. Sometimes it is hard to get tribal members to attend tribal council meetings, but at least tribal councils can post notices about meetings and specifically note that tribal members are welcome to attend and participate. Unless tribal members are notified about such meetings, they don’t have the opportunity to attend.

Some tribal councils hold special membership meetings to discuss tribal court and ordinance development with the whole community. There may be added enticement to get tribal members to attend such as holding a potluck dinner before the business is discussed or door prizes for attendees. At these meetings, the tribal council has the chance to talk about their efforts to establish a tribal court and any ordinance work they are undertaking. The meetings may serve the purposes of both educating tribal members and also to gather input from them. Just as for tribal council meetings, the tone of the meeting should be to welcome input from the tribal members.

If there is a high school in the village, a council member or someone designated by the council could give a presentation to the students and start a discussion among them. School teachers may be willing to include projects or assignments about tribal courts in their classroom activities. Including high school students is particularly important when the tribal court deals with juvenile cases such as curfews, underage drinking and delinquency. A mechanism for youth input on these matters can be highly effective towards the respect and enforcement of laws affecting the youth. The youth are the future leaders of the tribe, so early education on tribal issues is also very valuable from that perspective.

A written survey is another method used by tribes to get tribal membership input on certain issues. Such surveys may cover specific topics, such as gathering tribal input on whether or not to allow dual enrollment for those 18 and over, or may be more broad such as asking the tribal members what general subjects they think the tribal court should handle.

Drafts of documents such as tribal ordinances may be mailed out to tribal members, along with a cover letter that encourages their input. Even if there is a low rate of return on tribal input, making such documents readily available to tribal members is an effort of good faith on the part of the tribal council, and an opportunity to comment is given to the tribal membership even if it is not taken.

Council efforts to reach out to tribal members such as these may be a lot of work, but they may produce a great deal in return. They may be used in the development phase of a new tribal court, or as a means of informing tribal members of tribal court progress and gathering their input on improving an existing one. Acceptance of the tribal court by the tribal members is essential and the possibilities for enhancing the success of the court through tribal member input are great.

Seeking tribal input in the tribal court development phase is part of the process for creating tribal court structures and procedures that are respected by tribal members. There are many issues and alternatives to be aware of in the design phase of tribal courts for enhancing respect by the tribal members. These may be viewed in terms of determining the actual structure of the court, the procedures that are used, and ethics standards that it will follow. It is critical that these elements suit the specific needs and resources of the village while maintaining the cultural integrity of the tribe.

Although the structure of tribal courts and some specific guidelines may be established in tribal constitutions, few in Alaska are. Tribal constitutions typically delegate the authority to tribal councils to establish tribal courts, and provide no specific further guidance. Among the first questions tribal councils face is whether to use the tribal council or some variation of it as the tribal court, or, to set up a separate tribal court. Among the variables that go into this decision are the size of the tribe and the human resources available to staff the council and courts. Smaller tribes typically tend to use their councils as their courts while larger tribes more often establish courts separate from the councils. Other structures tribal councils consider are appellate courts and intertribal courts. If the tribal court is going to use justice circles for some cases, the judges usually design the structure and make-up of the circle for each case.

If a tribal council decides to use the council as the tribal court, the council should consider if it will be generally respected in that role by tribal members. One of the questions to ask is if the qualifications for holding council office are sufficient for the role of tribal judges. Some tribes use only part of the council as judges and add Elders to make a panel of judges. There are many variations on using the councils as tribal courts, but a common emerging pattern among Alaska tribes is to use panels of judges rather than single judges. The most common number for a quorum on such a panel is three.

If a tribal court is set up that is separate from the tribal council, the qualifications for judges must be decided upon. What will the qualifications be? Will the qualifications for judges be sufficient to create respect by tribal members? Will the tribal members perceive the method of seating judges as fair? If a panel of judges is used, how many will constitute a quorum to hear a case? These are the types of questions councils need to think through in designing the structure of a separate tribal court.

An obvious benefit of separating a tribal court from a tribal council is the creation of a check-and-balance system, which is commonly recognized as promoting fairness in government. Fairness is a key component to generating respect for tribal courts from both tribal members and those outside the village. A notable disadvantage in small villages is lack of human resources to fill these leadership positions. Providing due process is an issue in structuring tribal courts by either using council, or by creating a separate body, because of the close relationships in the villages. Intertribal courts or judges pro tem (temporary judges that are brought into the village from elsewhere) may provide solutions in some cases where relationships are too close for fair hearings.

Just as tribal governments have a great deal of flexibility in the way they structure their tribal courts, they also have multiple options in choosing procedures for operating them. This flexibility allows tribes to operate in a less formal way, if they so chose, than state or federal courts. Without requirements for stiff formalities, ordinary people can state their case, judges can freely question and talk to people before them, and the court can focus on applying culturally appropriate remedies to the situations before it. Although there is a lot of flexibility in the procedures used by tribal courts, there must be notification of hearings and an opportunity to be heard. These things are basic components of due process which is required of tribes under the terms of the Indian Civil Rights Act.

The strength and effectiveness of any court system rests upon the respect given to it by the members of the community. Judicial ethics are a critical element in preserving that respect. Each tribe must address conflicts of interest and confidentially issues in appropriate ways for that tribe, and policies must be put in place for dealing with inappropriate judicial behavior that may arise. Tribal court structures, procedures and judicial ethics are all related to one another in that if they are well thought out and complied with, respect will be generated for a tribal court that is well suited to that village and culture.

Although tribes are generally very rich in unwritten traditional law passed down through generations, tribal councils serve as the legislatures for the tribes in that they create written laws. When reducing tribal law into written constitutions and ordinances, councils should take precautions, such as consultation with village Elders, to prevent conflicts with unwritten law.

Successfully enforcement of a law depends in part on a majority of the population generally supporting and complying with it. For example, if only a small part of the population wishes to ban alcohol from a village and the great majority of the village does not, it would be extraordinarily difficult to enforce a prohibition on alcohol. In creating written laws, tribal councils must consider the realistic side of enforcement in terms of how much general support there is for laws they are proposing among the tribal members.

In addition to adopting laws that have community support behind them, written laws need to be clearly written and easily understood. They must be clear and understandable to the tribal members. Although it is not necessary for a lawyer to draft tribal ordinances, review of ordinances by legal consultants is generally a good idea and recommended. If an attorney is used to draft ordinances, the council should direct the attorney to write in plain, understandable language. It is extremely difficult for a tribal court to enforce laws that are not clearly written or easily understood.

The tribe must have the necessary resources to support the application of the laws it makes. If the tribal council adopts law and order ordinances, for example, there must be a person or persons available to issue citations. There are situations where tribes share resources, such as sharing the services of a Village Public Safety Officer with a city government, but for the most part, tribes are responsible for enforcing the laws they make with their own resources.

Cases must first be brought before a tribal court before court decisions may be made, no less enforced. Establishing guidelines for how cases get into tribal courts is part of the tribal court designing process. Tribal court designers need to consider who can file petitions to use the court and for what subjects. If the court is going to handle law and order cases, they also need to decide who has the authority to issue citations and over what subjects. The filing of a petition or a citation are typically the two basic ways of getting new cases into tribal courts.

A petition is a written request for a court to do something. The petition contains facts about a situation and requests a court to take action. Petitions may be used to ask the court to consider a wide range of things including to settle disputes between persons, grant protection orders, formalize a customary adoption, settle a custody dispute between parents, protect a child or vulnerable adult, settle a grievance against the tribal government, perform a marriage or divorce, or settle a probate. Typically tribal courts allow anyone to file a petition with the court, but it is up to the discretion of the court as to whether or not the court will consider the matter. Petitions are filed with the tribal court clerk, who in turn presents it to the tribal court to review and decide. In emergencies this should happen immediately, and for non-emergencies the court reviews the petition at their next scheduled court date or meeting.

A citation is a written document given to a person who has allegedly violated a law. The citation may be used to command that person to appear in court for a hearing on the matter, or a notice to appear in tribal court may be given to that person after the citation is issued. Deciding who has the authority to issue citations in the village is an important decision in the tribal court development process. If there is a village public safety officer or village police officer in a village, they are commonly designated to fill this role. Sometimes councils designate themselves to issue citations, or designate the responsibility to certain respected persons in the village who are identified as willing to fill this role.

Tribal courts may issue orders on a wide variety of subjects, and therefore the subject of follow-up on tribal court orders is broad. For all tribal court orders, however, follow-up is easier for everyone involved when the order is clearly written and the exact intentions and directions of what the court wants to happen are spelled out.

There are many pieces of information that go into orders which become part of the written records of the court. For example, orders should have the date of the hearing, people in attendance, when and how parties were notified and if they were present or not, evidence that was presented, the reason why the tribe claims jurisdiction over the matter, and specific orders of the court. If the order is not a final order of the court, the next hearing date should be on the order.

Tribal court orders should be as specific as possible. For example, if a court orders someone to ‘go to treatment,’ the person may go to treatment and quit halfway through, believing that he or she has basically complied with the order. To remedy this particular example, the order might state that the person has to ‘complete treatment.’ The clearer and more specific the order is, the easier it is to evaluate if the terms of the order have been met. It is also important to include who is to do what tasks and to specify the timeframes for them.

Many tribal courts take legal custody of children for a period of time and place physical custody with a parent, relative, or other guardian. In these situations, the tribal court order may appoint a person or persons to monitor the well being of the child while the tribe maintains legal custody. The monitor should be given specific instructions as to how often the court wishes the monitoring to be for example. It is very important to have a social worker involved in the case management of all childrens cases. This may be someone in the village with a social work degree or a related degree, or it may be a social worker at the regional non-profit corporation level. Having the expertise of a social worker is in the best interest of children and is mandatory under some funding sources for services.

Tribal courts often order people to perform community service. If the person needs supervision while performing the community service, this needs to be arranged. There also needs to be a mechanism in place for noting when the community service was completed and notifying the court. Similar mechanisms need to be put in place in cases where alcohol and drug assessments are ordered and if recommended treatment was completed. It is a good practice to request that all service providers submit written documentation about the completion of treatment or other services to the court. It is also very helpful for the court order to require persons ordered to services to sign a release of information so that the court or court staff may exchange information with service providers for the purpose of case management.

Sometimes tribal courts order fines to be paid. There must be a collection system designated, including who will collect money and how it will be accounted for. There also should be a plan for how the money generated from fines will be used and for how to handle cases when fines aren’t paid. There are a range of options tribal courts can try when fines aren’t paid, including confiscation of personal property and garnishing wages, but tribal attorneys should be contacted for consultation on these types of mechanisms.

Cooperation with a tribal court in recognizing and enforcing a tribal court order by state courts and agencies outside the village depends on a variety of factors including recognition of tribal jurisdiction, the effort in public relations the tribe has undertaken, and how much common ground the tribal court has built with other courts and agencies. Whether other courts recognize tribal court orders out of respect under the principle of comity, or because they must under the principles of full faith and credit, affects cooperation as well. In either case, tribes must provide persons before their court with due process as required by the Indian Civil Rights Act, or their court orders may be challenged and possibly overturned in state or federal courts.

Although Alaska tribes have achieved federal and state recognition of their tribal status, the extent of tribal jurisdiction is not yet clear, and will likely be the subject of many state and federal court cases for years to come. Even the jurisdiction of tribes in the Lower 48 that have reservations, long histories of tribal-state-federal relations, and fully operational tribal courts, faces ongoing challenges by state and federal courts. Tribes across the nation have been forced to live with a certain amount of uncertainty when it comes to the extent of their tribal jurisdiction.

Tribes in Alaska know that gaining cooperation in recognition and enforcement of their tribal court orders will be easier for some subjects than for others. For example, civil regulation of domestic relations is on the easier side of the scale and imprisoning persons for criminal violations is on the harder side. In terms of persons tribal courts bring before it, the clearest jurisdiction is over tribal members, the next is over non-member Natives, and the least clear is over non-Natives. With that in mind, tribes make choices to exercise their jurisdiction over subjects and persons where tribal jurisdiction is relatively clear, or to attempt to exercise jurisdiction over persons and subjects where tribal jurisdiction is less clear. When tribal courts hear cases in areas where their jurisdiction over the person or subject is not clear, and those cases are challenged in state or federal court, the boundaries of tribal jurisdiction are tested and made more clear.

With the Alaska State Supreme Court 1999 decision in the John v Baker case, it has become clear that tribes in Alaska have jurisdiction over child custody matters for tribal children, although the State also has this jurisdiction. Except for a few tribes that have reassumed exclusive jurisdiction under the Indian Child Welfare Act, tribal jurisdiction over child custody is concurrent with the State and tribal court orders in this area are recognized by the state court system under the principle of comity. Basically that means that whichever court first takes a case, that court gets jurisdiction over that particular case, and the other court respects its orders for that case. For this reason, it is important that tribes that wish to handle childrens cases in their tribal courts step in when tribal children are in trouble, and claim jurisdiction before the State does. It is also very important for tribes to keep their enrollment records as accurate as possible, since tribal jurisdiction over child custody is based on tribal membership.

Tribal jurisdiction was strengthened in the area of domestic violence under the provisions of the Violence Against Women Act of 1994. That act mandates that all states and tribes recognize the protective orders of each other under the principle of full faith and credit. This is an area where tribal courts in Alaska have been active for quite some time, but the State of Alaska has not been working with tribes in recognizing tribal protective orders until fairly recently.

While jurisdiction for Alaska tribes is becoming clearer in some areas, there are still many others that are still far from clear. Many tribes in Alaska are not waiting around for tribal jurisdictional issues to become clear before handling problems that arise in their villages or with their members. One area in particular is regulating behavior that is not a major crime, but still harmful to the health and safety of tribal members. Alaska tribal courts that are active in this area are approaching it from a civil regulatory perspective rather than from a criminal one. Sentencing used for violators of law and order ordinances typically include fines, community service, treatment or counseling of some sort, restitution, traditional activities, permanent or temporary banishment, or some combination of these. There have been a lot of signs within Alaska state government of support for tribal enforcement of less than major law and order issues, including some written agreements with tribes and support from state law enforcement officers in the field. Hopefully jurisdictional issues between tribes and state government in this area will be resolved in a very cooperative manner.

Although the jurisdictional picture is far from clear for Alaska tribes, tribal courts are addressing local problems involving their members or the protection of their members. Most developing tribal courts begin with asserting jurisdiction over a limited number of subjects, such as childrens cases and juvenile problems, and then taking on other subjects as the court gains experience. The John case is a very significant step forward for Alaska tribal courts in gaining recognition and cooperation from the State of Alaska. To further this progress, it will be essential for state courts to be respectful of tribal courts, and for tribal courts to provide due process and fundamental fairness in their procedures.

Building a public relations network between tribes and entities outside the village promotes cooperation between them. Often times tribal courts develop relations with outside entities as problems arise and develop their contacts in that manner, but it would be beneficial for tribal courts to be proactive and to reach out and develop relations outside of times of crisis and immediate problems. It is very helpful for each tribal court to develop a list of contacts and phone numbers for all agencies, courts, and service organizations the tribal court interfaces with or may need to in the future.

Developing working relationships with state agencies, the Alaska state court system, and other tribes is especially relevant where tribes and the State share jurisdiction such as over child custody. It may be very advantageous for a tribal court to have a good working relationship with the state Division of Family Youth Services (DFYS) workers in their area. In many instances, a DFYS social worker will call a tribal office informing them that a child is in trouble and offering the tribal court a chance to take the child into custody before the State does. Given the situation of concurrent jurisdiction that the State and tribes share over child custody and protection, the court that takes a case first is the court that gains jurisdiction. So, this type of ‘heads up’ given by a DFYS worker is extremely valuable to tribal courts.

It is important for a tribal court to build a working relationship with the state magistrate or other state court personnel serving the area. This is very valuable for many reasons, but a specific example is for the filing of a tribal protective order. In order for a tribal protective order to get into the State’s central registry system, the tribal protective order must be given to a state court to file. Even though the federal Violence Against Women Act (VAWA) requires that all states and tribes honor each other’s orders of protection, Alaska statutes require ‘foreign orders’ (those orders issued by some other court) to be filed with the Alaska court system in order to get them into Alaska’s Department of Public Safety’s central registry system. The central registry system is what police statewide call into to verify a protective order. So, if a person to be protected travels outside the village and the tribal protective order is in the registry, the protective order can be accessed and verified by any police officer. A good working relationship with the magistrate or other state court personnel for the area will facilitate this process.

These are just a few examples of how beneficial building public relation networks can be. A tribe that has a well designed court that is fundamentally fair, follows due process, and has worked hard on its public relations network is in a very good position to put tribal sovereignty into practice and handle a wide range of problems at the village level.

There are a wide variety of things that tribes can do to build common ground between their courts and state courts without sacrificing cultural traditions and values. Each tribe has to make its own decisions in this arena to suit its particular situation. But for all tribes, developing a tribal court that is well thought out and respected by tribal members will promote respect outside the village as well. In general however, the more familiarity with and common ground there is between tribal courts and outside courts and agencies, the more cooperation, recognition, and mutual enforcement of court orders there will be.

One thing that state court systems and agencies understand is the written word. Volumes of written statutes, regulations, and policies guide the daily activities and decisions of the state courts and agencies. Putting tribal court structures, procedures, ordinances, and court orders in written form is something that outside entities understand and therefore promotes common ground. However, when reducing tribal law into written constitutions, ordinances, and court orders, precautions must be taken to prevent conflicts with unwritten traditional laws and values.

In English-based law systems, written law is the highest form of law, and once a law is written, it overrides unwritten customs if they conflict. Tribal systems may or may not operate this way. For example, tribes may require that written laws be interpreted so as not to conflict with tribal customary law. Many state and federal court judges may not understand this relationship between written and customary laws in tribal systems. Therefore, it is extremely important to consider and incorporate, whenever appropriate, tribal customs when putting tribal law into the written word. In light of that, it is still the written tribal laws that are the most visible and understandable to state courts and agencies.

Adopting appropriate elements of state law that are also in line with tribal thinking creates common ground between tribal and state courts. This is not to say that tribes should adopt laws that are the same as the State’s, but they can adopt parts, pieces, or elements of state law that will also work well for tribes. An example might be setting the timeframe for tribal temporary protective orders at 20 days which matches Alaska state law. It is not a requirement that tribes set 20 days as their timeframe for temporary protective orders, but the idea is that if that timeframe also works well for the tribe, common ground with state courts is achieved. Cooperation generally increases when governments have some uniformity to their laws.

The same can be said for how tribal court orders appear. Tribal courts could use a similar format as do state courts, with the tribal court’s name at the top, identification of the parties, a case number, similar categories of information within the order, signature lines at the end, and stamping it with a tribal court seal. Using similar formats and pieces of information enhances the state courts’ perception of the legitimacy of tribal court orders.

Building common ground in the ways presented here does not mean that tribes should sacrifice their values or uniqueness. Each tribe needs to weigh advantages and disadvantages of doing things or adopting written law in the name of building common ground.

Due process, comity, and full faith and credit:

Cooperative recognition and enforcement of tribal court orders by state courts and agencies outside the village depends on recognition of tribal jurisdiction. Courts recognize each other’s orders under the principles of full faith and credit which is required, or under comity which is out of respect. The Indian Civil Rights Act makes due process a fundamental requirement for tribal courts and it is an issue that a tribal court order may be challenged on by state courts even when the tribe has jurisdiction over the persons and subject of the order.

There is no set definition of ‘due process’ for tribes, but it generally means that tribes must be fair in their governmental activities, procedures, and tribal court hearings. Due process requires that tribal courts give notice of hearings to parties involved, and provide an opportunity for parties to be heard. The opportunity to be heard basically means the chance to present your side of the story, and to find out the position of the other side. The Alaska state courts appear to view having an appellate court as a necessary part of due process, and therefore tribes should consider establishing them to avoid tribal court cases from being appealed to state courts.

Due process also means that courts must practice ‘fundamental fairness.’ No law or governmental procedure should be arbitrary or unfair, and people must be given equal protection under tribal law. Part of the meaning of ‘ fundamental fairness’ is to have impartial judges hear and decide cases, which is a significant issue especially for small villages. Tribal courts need not provide due process in the exact manner as do state courts, however, the issues of notice, opportunity to be heard, and fundamental fairness must be still be met. Tribal court orders may be challenged in state courts if due process is not provided, however, due process for a tribal court does not have to be exactly the same as for Alaska state courts.

The difficulties and injustice that arise when more than one court try to assert jurisdiction over a case have given rise to a basic international principle of law called ‘comity.’ Comity is the general rule that courts will voluntarily honor each other’s jurisdiction and decisions, even when they are not forced to do so by law. If more than one court tries to handle a single case, there is a strong possibility of different and conflicting decisions, which would place the parties in the impossible position of trying to follow the law of both courts. To avoid the miscarriage of justice in this manner, courts attempt to cooperate in matters of jurisdiction. Under the principle of comity, courts that share concurrent jurisdiction voluntarily recognize the orders of other courts out of respect.

In the John v Baker decision issued by the Alaska Supreme Court in September of 1999, the Alaska Supreme Court ruled that tribes in Alaska have jurisdiction over child custody matters for tribal children, as also does the State. The Supreme Court said that it would recognize tribal court orders in child custody matters under the principle of comity, provided that the tribal courts provide due process. After the Supreme Court issued its decision in the John case, it sent the case back down to state Superior Court for a determination as to if due process was provided to the parties in the original tribal court case. In August of 2000, Superior Court Judge Beistline decided that the tribal court did not provide due process because of close relations between some of the judges and the parties, and denied comity to the tribe. Although tribes do not have to provide due process in the exact manner as Alaska state courts do, the differences of opinion on how due process is to be provided by tribes in Alaska is something that has yet to be defined.

Under the principle of full faith and credit, courts are required to recognize the orders of other courts, although the orders still could be challenged for violations of due process. An example where state courts are to give full faith and credit to tribal court orders is tribal protective orders (restraining orders). In 1994, Congress enacted the Violent Crime Control and Law Enforcement Act, which was intended to overhaul the criminal justice system in the country. A piece of that legislation, called the Violence Against Women Act (VAWA), has a full faith and credit provision mandating that all state and tribal governments honor the protective orders issued by each other.

Successful enforcement of tribal court orders begins with careful and well thought out tribal court development. Including tribal members in the development phase, designing fair procedures and ethics standards, adopting realistic and culturally appropriate written laws, and providing resources and guidance for follow-through on tribal court orders are all important elements for success. Although tribes will be more successful in gaining recognition of tribal court orders in some areas than others, cooperation with tribes in recognizing and enforcing tribal court orders outside the village is enhanced with proactive public relations networking, building common ground with other courts, and providing adequate due process in tribal court proceedings. The state court system has, and is likely to again in the future, challenge tribal court orders on the grounds of not providing due process. The differences between what due process means to state courts, and what it means to tribes in Alaska is something that is essential to resolve in order for tribal courts to operate without the threat of challenges to the enforcement of their orders.