Litigation in Native American Tribal Courts
The United States government recognizes over three hundred Native American tribes, and considers them to be autonomous nations. Accordingly, many have their own court systems that hear disputes.
Although a lot of the cases in these courts concern criminal law and family law matters, these courts also hear commercial disputes. And even though these courts are in the United States, I didn’t know much about them.
So to learn more about litigation in Native American tribal courts, I spoke with Lisa Shellenberger and Keith Smith, of Smith & Shellenberger, LLC in Denver, Colorado. Both Ms. Shellenberger and Mr. Smith litigate in tribal courts, and Ms. Shellenberger is the appellate judge for the Havasupai Tribe in Arizona.
Why should you continue reading this post about litigation in a tribal courts?
You are interested in learning about a major American justice system.
You would like to learn how attorneys and court systems adapt to serve diverse populations.
You will soon be arguing a case before Lisa Shellenberger and you’re doing research to prepare.
Lisa Shellenberger is a partner at Smith & Shellenberger, LLC in Denver, Colorado, and the appellate judge for the Havasupai Tribe in Arizona. She answered the questions in the section below. This interview has been lightly edited.
Can you tell me about the kinds of disputes that are heard in tribal court?
The subject matter in tribal court can be anything from public intoxication cases, to land disputes, private disputes, domestic violence, or family law matters.
How often do they hear commercial disputes?
A commercial dispute would be in within tribal court jurisdiction if it was between two Native American individuals. It could also involve a Native and non-Native who consented to jurisdiction, but we just don’t see those kinds of cases frequently because non-Natives don’t normally enter into agreements to consent to tribal court jurisdiction. Often times, non-Natives agree to litigate in federal court.
Does each tribe have its own separate judicial system?
There are 560 federally recognized and other non recognized tribes. Most recognized tribes get money from the federal government for a judicial system and they use the funds to run their own tribal courts.
Sometimes, smaller tribes don’t have enough resources or tribal members themselves to form a court. In those cases, there will be a tribal court association where three or more tribes come together and operate a singular system together.
Tribal court systems operate entirely independently as their own sovereign judicial system. They each have their own separate tribal code.
Is there any uniform code of procedure or rules of evidence that are shared among multiple tribes?
No. Each tribe’s civil procedure rules are independent from the others. In fact, I drafted the Havasupai’s civil procedure rules.
But there are some sections in the United States federal code that are Indian law related. Tribal courts do follow a lot of federal case law that applies that federal code or common law principles. And the U.S. constitution still applies.
How do attorneys research tribal law?
This process is a little challenging, but it is also interesting to develop the ability to research and learn.
First, there is a section on Westlaw for Indian Law, but very few tribes have their own tribal court cases published. So usually, if you look on Westlaw, you will get Navajo Nation case law and some of the other bigger, more sophisticated tribes.
There is also the National Indian Law Library (“NILL”), in Boulder, Colorado and affiliated with the Native American Rights Fund. NILL has collected a lot of codes and all of the published decisions from many tribes. NILL publishes some material online, but you can also work with them in person. Often if I have a specific research project, I will work directly with one of their research specialists.
In my law practice, I don’t do a lot of research anymore. I just apply the family law code, and so the necessary resources are narrow. But as a judge, I usually just determine whether the Havasupai lower court followed the tribal code. On some occasions, I use Cohen’s Handbook of Indian Law, which is kind of a basic bible of Indian Law and includes a lot of common law principles.
Must one be a lawyer and admitted to a specific bar to represent a client in tribal courts?
It depends on the tribal court.
The Navajo courts do require attorneys to be licensed in any state and then to take the Navajo Nation bar examination. But from last I heard, the Navajo are the only tribe with their own bar examination.
Besides that, it is uncommon to need a licensed to practice in a specific tribal jurisdiction. Some tribes do require a license, though, which requires paying a fee of about $200-500 annually. And some allow “tribal advocates” to practice law under the title of tribal advocate. Although I am not sure of the requirements for that designation, I believe they can’t hold themselves out as a lawyer and they must say “tribal advocate” on their pleadings. From my experience practicing against them, some of them are pretty savvy and can do legal citations and cite applicable law, and some of them are not as capable, but they act as a support system for otherwise unrepresented parties.
Are the submissions and decisions written in English or a native language?
The bulk of the submissions are in English. But sometimes, there may be parts in a native language, like Navajo.
In court hearings, there are interpreters for non-english speakers or elderly people. And witnesses may provide testimony in native languages.
In my personal experience, everything I’ve seen has been in English. but they use native language in court proceedings, her 2 clerks, their first language is hupai and part time worker does not speak English, it’s an interesting dynamic where her clerks need to translate
Who decides the facts in a tribal court? Is it a judge or a jury?
There are juries, although mostly for criminal law matters. The jury pool is often very small, and so sometimes it’s hard to find a jury without a family relationship with one of the parties.
What are the court facilities like?
They vary. The Navajo Tribe, and some others, have the same type of court facilities as a state court. They are nice and well organized and established.
But some are less well-established. The tribal court in which I am a judge is in a commercial temporary trailer, like the kind you may see on a construction site. There is a bench in which the judge sits and the jurors are in old-fashioned foldable chairs. Counsel tables are plastic fold-out tables, like from a picnic. It’s formal, but still informal
How did you become interested in practicing in tribal courts?
I am a tribal member herself. I am 1/8 Choctaw and 1/8 Cherokee, and I grew up in Indian country in Oklahoma. I was raised on a reservation and my family history was grounded in the tribal experience. We went to pow-wows frequently, and I did not realize that this was not the norm when I growing up. I didn’t even know I was on a reservation when I was in high school, or recognize how poverty stricken that environment was.
When I did, I thought it was was special and different and I wanted to protect that for future generations. I wanted them to have these different experiences rooted in their familial heritage. So when I went to law school, I wanted to practice Indian law.
At the same time, I was also interested in helping families, particularly with adoption, and working in Indian law allows me to do both.
Once you knew you wanted to work in the field, how did you begin working in tribal courts?
I worked for law firm run by my now-law-partner Keith Smith that practiced Indian law. They had a number of family law cases that came in the door; it was a minority of the firm’s practice at the time and no one wanted to handle them at the time. They said they would refer the cases to other lawyers unless I learned the law and handled them myself. I was kind of an entrepreneur go-getter and I learned. And then I wanted to make sure other practitioners in Colorado knew about laws like the Indian Child Welfare Act (“ICWA”) and to apply it where it wasn’t being applied. And I wanted to capitalize on this niche area of practice that I didn’t think many people were well-versed in. Now I’m on advisory committees throughout the state on the subject.
What is your practice like now?
I have two different roles.
The first is as a private lawyer, representing clients in tribal courts across the American west from South Dakota to Montana.
For the past ten years, I have been private legal counsel in tribal court actions all across the American west. I typically serve as private legal counsel for individuals in family law or juvenile law matters. I represent parents and grandparents in civil child custody or guardianship actions. Or I get involved when child services has taken a child away from them. Or I represent clients in matters initiated by the state and, pursuant to ICWA, the tribe has the ability to intervene and request a transfer to tribal court.
As a private advocate, I also represent a lot of high level tribal officials in ethics actions and ethics complaints. For example, I may represent a tribal member in an ethics complaint against them for an action taken in their official capacity. Complaints like these could cost a respondent his position as a tribal official. And depending on the tribal code at issue, it could preclude him from running or holding office again.
Cases like these often start as an administrative action in an office that acts like a district attorney and prosecutes the complaint, and then the ethics commission acts as an administrative law judge and hears the matter. That decision can be appealed to tribal court. I regularly defend people in these matters and appeal commission decisions,
My other role is completely different. I am a judge on the appellate court for the Havasupai tribe in Arizona. I started out as one member of a panel of three appellate court judges. But after covid hit, the tribe decided only to renew my contract, so now I am the sole appellate judge for the tribe. I review all of the tribal court rulings and issue decisions in that small community.
Keith Smith is a partner at Smith & Shellenberger, LLC in Denver, Colorado. He answered the questions in the section below. This interview has been lightly edited.
What are some of the strengths of tribal courts?
The judges are steeped in tradition and ways that deal with conflict resolution.
In my tribe, there is a law that was set aside for the people, and it reflects the social and legal norms that existed back before the courts were formally established. Part of that law is injected into tribal law and codified there. This allows the courts to combine a traditional approach to modern dispute resolution.
This is important because, often there are concepts that a party cannot fully explain in English. In Navajo courts, you can explain it in Navajo to judges who speak the language
Tribal courts also have an alternative dispute resolution process called peacemaking. Those are non-confrontational proceedings with an elder or medicine man, and they are useful in divorces, contract disputes, or custody disputes.
How about the weaknesses?
It’s just different.
Logistically, tribal courts could be made more formal. Tribal courts do have formal rules of evidence, but they are not as stringent in some aspects as those in state and federal courts. For example, for some matters, the court may allow hearsay evidence to come in from witnesses who may not be present. And often an adversary will show up to court with evidence that wasn’t previously disclosed, so at times there is an aspect of trial by ambush. But I always feel like stringent application of evidence will rules get a better result.
Also tribal courts don’t have electronic filing, like state and federal courts do. That is more reflective of a problem that the technology to support it doesn’t really exist on reservations. So tribal courts rely on paper filings and it’s hard to get resolution for matters that need immediate attention, particularly during the pandemic.
Do non-Native parties appear in tribal court?
Yes. In fact, I currently represent an insurance company in a large insurance dispute in tribal court. And non-Native parties may seek to enforce contracts in tribal court.
And to collect property that exists in the Navajo Nation, parties need to go to tribal court, whether they are a Native or not.
Generally speaking, if the conduct involved took place in a reservation, tribal courts will hear the case. The defendant may ask the trial court for permission to remove the case to a federal court, but these applications are often denied.
Tribal courts will hear contract cases if there is a clause in a contract in which the parties agree to tribal court jurisdiction. They generally will honor contract forum selection clauses, but if there is a non-sophisticated party that didn’t understand the contract when he or she signed it, the tribal court may disregard it.
Tribal courts perform a choice of law analysis and look to see if it is in the interest of the tribe for its law to govern the dispute, and they will also examine if they havesubject matter jurisdiction and personal jurisdiction.
How does discovery work in tribal courts?
Some tribal courts have a formal deadline for discovery. But some judges may implement a case management order to provide some formality and structure; but this varies from tribe to tribe, because each is its own sovereign entity and can set up their own courts.
There is a broad spectrum of how discovery is handled in tribal courts. Half of the time the parties agree about how to conduct discovery and participate voluntarily. But other half, you rely on the evidence you already have.
Most of the time, judges just presume the parties are ready to proceed to trial. And often, you may not be required to disclose documents to your adversary without a court order.
Still, parties in tribal courts can issue document requests and interrogatories, but other parties will frequently object. But unlike in state courts, an attorney cannot issue their own subpoena. I need to get court’s permission to issue one, and the clerk or the judge signs it. A court has never denied my request for a deposition, though.
The Navajo tribe has its own labor commission to address business and employment disputes. In its cases, there are specific deadlines for disclosure of exhibits and witnesses.
Do tribal courts exercise jurisdiction across states?
The jurisdiction of tribal courts is typically within one state, but there are some that govern across state lines, like the Navajo. These courts have inter-state jurisdiction, especially in civil matters.
This works differently for crimes. Tribal courts have jurisdiction for non-felony, petty theft or assault cases or Violence Against Women Act cases, as long as the defendant is Native American or a registered tribal member. But if a tribal member commits a major crime, the tribe and the federal government have joint concurrent jurisdiction. In those cases, however, the tribe cannot incarcerate defendants for more than a yearor fine a defendant more than $5,000. This is why the federal government often prosecutes these crimes under the Major Crimes Act.
How lengthy are complaints?
They can be as short as two pages, or as long as thirty. It depends on the issues and the forum.
The Navajo Labor Commission has a rule that complaints must be no longer than five pages. This is because voluminous complaints had become so convoluted that they were getting out of hand.
My firm typically does not sue or initiate lawsuits against tribes or tribal entities, we usually are on responsive side. But it would be a stretch to say our complaints are more than three to four pages. We’ve seen complaints that are thirty pages long.
Do prevailing parties recover attorney’s fees?
Not automatically. There is a standing rule in the Navajo Nation that each side is responsible for its own fees. But if the parties have a contract that says otherwise, then the court will grant that.
Parties can still request their attorneys fees and the court can decide to give it in extraordinary situations, following a weighing factor test, on a case-by-case basis, and even the demeanor of parties during trial. Requests like these are successful between a quarter and a third of the time.
Generally speaking, how long does it take for a case to go from complaint to judgment?
Prior to the pandemic, a case could take between ten and twelve months. Parties then have thirty days to appeal, and that could make a case take longer.
During the pandemic, the process is slower. I have been waiting for a simple defaultjudgment for two years.
Cases may take a year to be heard by the Navajo Supreme Court. And getting a decision from the court can take a long time, such as six or seven years for a land issue.
What happens when a defendant fails to respond to a complaint?
If I file a complaint in a tribal court, there’s not really a rule that provides a deadline for the defendant to respond. The summons may say the defendant must respond within thirty days, but if no one answers and you move for a default judgment, then the court usually will allow the defendant more time and then you need to ask again for the default.
This is because tribal courts will give defendants every opportunity to defend themselves; they do not like issuing orders without some evidence being presented.Tribal courts, in my experience, try to be fair and provide the parties the opportunity to be heard.
How are tribal court judgments enforced?
If the judgment permits the recovery of assets, the court can order the tribal police to get the asset. But there are so few law enforcement officers for that service, that it’s hard to get an officer to help. Sometimes two officers will be responsible for hundreds of square miles of territory, so they are often busy handling other cases and “civil assist” is not always readily available.
Parties can also make a motion to the court by order to show cause, asking the court to sanction a defendant for failure to pay a judgment. Although it is rare that a judge will send a debtor to jail, a judge will usually lecture the defendant to comply with the judgment.
Is there any special attire for participants in tribal court?
There is typical courtroom attire for attorneys in tribal courts. I wear a suit and tie when I appear at any judicial or quasi-judicial forum. Some may wear a bolo tie. A shirt or jacket is required.
Judges wear robes, but during arguments in the Navajo Supreme Court, some judges dress traditionally. For example, women may wear velvet tops and velvet skirts and a belt that more reflects the traditional dress.