Tribal court judges have a tremendous responsibility for the tribal membership. Tribal members put great trust in their officials to guide the community, and especially to protect the well-being of the children. In order to comply with trust given to them, and to provide role models for other members of the community, tribal judges are expected to live their lives with high ethical standards.

Tribal judges are in a unique position to improve the legal systems of the tribes. Through their work, actions, decisions, and integrity, justice may be improved. Combined with other programs and efforts in the village to promote wellness, tribal courts are in a position to encourage healing of offenders, victims, families and the whole village.

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.

Judicial ethics are closely tied with fairness. People who come before the court must perceive the court as being fair. In order for judges to be perceived as being fair, there are certain cases that they must excuse themselves from hearing. Those cases are where the judge has a conflict of interest as defined by tribal law. Conflict of interest is defined differently by state, federal, and tribal court systems, and is subject to a wide range of interpretation. But the basic idea is that judges remove themselves from hearing a case when they cannot be fair. Generally speaking, such conflicts include cases involving immediate family members (first degree relatives), in cases involving someone with whom the judge has a strong personal relationship, or in cases where the judge has a significant, direct financial, political or other personal interest that would prevent him or her from being fair.

Dealing with conflicts of interest is of particular interest to Alaska tribes, since the villages tend to be small and most everyone is in some way related to (or at least familiar with) each other. This familiarity is a strength and asset for tribal courts in making court orders that place children in the appropriate homes when they need protection, and in creating sentences designed to heal offenders and victims. But when a judge is too close to an individual, it is difficult to be unbiased and it is viewed by outside courts as an unfair situation.

Each tribe may make a list of the immediate family members and persons who judges may not hear cases about. Such a list typically includes spouses or significant others, persons living in the same home as the judge, parents, in-laws, grandparents, grandchildren, children and siblings. It may also include family members that are particularly significant because of cultural relations, such as first cousins in the Athabascan traditions. In very small villages, this list tends to be shorter, and in the larger villages it may be expanded. Another way this list is sometimes written is to simply say that judges may not hear cases involving their first-degree relatives.

The most important thing is that judges need to be fair by tribal values and standards. If a case involves a person to whom a judge has a relationship that would prejudice that judge’s decision, that judge should not hear that case. In addition to stepping down if a relative listed in the tribe’s conflict of interest language is a party in a case, each judge must ask himself or herself the question, ‘Can I be fair in this particular case with this particular person?’ and decide whether or not to excuse themselves from a case based on the answer.

The legal term for judges withdrawing from a case because of conflict of interest or prejudice is recusal. If a judge has a conflict of interest in a case, he or she should recuse from hearing that case. If a judge has a conflict of interest but refuses to withdraw from the case, the other judges should require him or her to withdraw. If a judge insists on hearing cases where he or she has conflicts of interest, the tribe should find a way to remove the judge.

Because many of the villages are very small and the relationships are so close, there is much discussion about establishing intertribal courts to hear certain cases. The intertribal courts could be between two villages, or between several villages in a region. In this way, the problems of conflicts of interest may be addressed while still keeping cases within the tribal court system. Tribal appellate courts may provide another way to deal with conflicts of interest, as they may be asked to review cases where judges may have been too close to a situation to be fair. In this case, the appellate court may order a new tribal court hearing with different judges. Tribal courts may also bring in judges from outside the village on a temporary basis to hear particular cases.

Language in a tribal ordinance that addresses conflict of interest might look something like this:

Confidentiality is another particularly important issue for Alaska villages, where there are relatively small numbers of persons and everyone tends to know everybody. Gossip about tribal court cases outside the courtroom is highly inappropriate and damages the tribal court system and the parties involved in cases. Judges, tribal court clerks, and other persons the tribal court has called to be at hearings, have a responsibility to preserve the confidentiality of tribal court cases.

The law of some tribes requires that all aspects of tribal court cases be kept confidential. Other tribes require confidentiality only of certain types of cases. Generally speaking, confidentiality is preserved in at least those cases involving children, cases that are in the process of being decided, and cases involving personal information on tribal enrollment records. In cases involving child welfare, tribal courts typically have closed court sessions where the public or tribal membership may not attend unless they are parties to a case.

In order to keep court records secure, it is recommended that hard copies of tribal court records be kept behind at least 2 locks. For example, locked inside a locking file cabinet within a locked room. Records kept on computer hard drives need to be protected with security programs, and records kept on computer servers outside the tribal office need to be stored with access restricted to those only permitted by the court as well. The court may give court records to parties to a case upon request, but that does not include miscellaneous notes that individuals may have taken during phone or other conversations about the case.

Confidentiality language in a tribal ordinance establishing a tribal court or addressing tribal court procedures might look like this:

This or a similar oath could be administered to participants of justice circles as well as used in regular tribal court hearings.

The following is a sample ordinance concerning the judicial ethics. This sample illustrates minimum standards expected of tribal court judges. Each tribe needs to incorporate its own traditional values and standards that will be expected of tribal officials. Additionally, language establishing qualifications for judges may include background checks for felonies and other language on judicial ethics.

Judicial ethics are a critical element in building and preserving respect, trust, and stability in a tribal court system. Each tribe must address conflicts of interest and confidentially issues in appropriate ways for that tribe. Policies must be put in place for dealing with inappropriate judicial behavior that may arise.

Tribal judges have the responsibility to provide for fair hearings. They must be communication facilitators to see that all sides of a case are heard. If a person appearing before the court is very quiet or has difficulty explaining their side of the case, a judge may question that person to help them express themselves. Judges should always reassure all parties that their points of view are being fully heard.

In addition to being a good communicator, a good judge has a lot of patience, innovation, open mindedness, decisiveness, and integrity. The role of a tribal judge is a difficult one, and one that requires support from the tribal membership to make the tribal court system successful.