OUR OPINION: A Goal for the Spirit Lake Tribe: Judicial Independence

Document Type

News Article

Publication Date

7-22-2013

Campus Unit

School of Law

Abstract

Ensuring the tribal court's independence would rebuild confidence in tribal governance.

The Spirit Lake Tribe has a long row to hoe in regaining the public's trust. And that's true with not only tribal members but also the off-reservation communities that the tribe's economy depends on.

Luckily, the tribal council has some reform-minded members who seem determined to improve tribal governance.

Now, here's more good news: Other tribes have been there before. And among their improvements, one that delivers terrific bang for the buck is ensuring the independence of tribal courts.

"A strong tribal court enhances, preserves and engenders commercial dealings on the reservation," wrote Wendy Church, court director of the Tulalip Tribal Court, in 2006.

"As the tribal court and tribal government appear strong and stable, outside businesses appreciate that they would receive a fair disposition in tribal court and are more willing to do business with the tribes."

Right now, the tribal court at Spirit Lake appears neither strong nor stable nor independent, at least from the outside. That perception almost certainly is hurting tourism and other economic development indicators.

So, if tribal leaders are looking for improvements, they should know that boosting the court's stature and independence would go a long way.

The need for an independent judiciary was described in the Federalist Papers and remains true to this day. "It is essential as a principle to establish the idea that the rule of law depends on an independent judiciary," said Supreme Court Justice Anthony Kennedy in 2007.

"Or else you have the rule of power, not the rule of law."

Those words capture the dynamic of recent events at Spirit Lake. For one thing, the tribe failed until recently to pay its dues to an outside appellate court, which meant that justice began and ended on the reservation.

For another, "Cheryl Good Iron, of Fort Totten, N.D., said the Spirit Lake Tribal Court lacks independence, as it falls under the authority of the tribal council," The Associated Press reported.

" 'They have control,' said Good Iron, a tribal member who has been a critic of (then-Tribal Chairman Roger) Yankton and his administration."

Spirit Lake isn't alone. "Tribal courts are often subject to the complete control of the tribal councils, whose powers often include the ability to select and remove judges," wrote Supreme Court Justice Sandra Day O'Connor in 1997.

"Therefore, the courts may be perceived as a subordinate arm of the councils rather than as a separate but equal branch of government."

But what once was strongly the case now is less so, wrote B.J. Jones, director of the Tribal Judicial Institute at the UND School of Law.

"Critics of tribal courts contend that these courts are nothing more than dependent entities of the controlling tribal councils," Jones wrote in 2006.

"Nevertheless, recent case law and survey data indicate that there is in fact a sizeable and growing degree of independence within the tribal judiciary."

One example is as close as the Standing Rock reservation. At a Tribal Leaders Summit in Bismarck last year, "the Standing Rock Sioux tribe's court system repeatedly was held up as an example of all that can go right in tribal justice," the Bismarck Tribune reported.

"In the more than six years William Zueger served as chief tribal court judge for the Standing Rock Sioux tribe, no council member ever approached him about cases in the court system. The retiring judge oversees a system independent of the tribal council, with law-trained judges and attorneys, with trained court personnel.".

Standing Rock's court is indeed "a model that can be replicated," said Tim Purdon, U.S. attorney for North Dakota, earlier this year.

The Pacific Northwest is home to another intriguing example. There, the Northwest Intertribal Court System handles all judicial matters for a consortium of 17 tribes. The system was the 2003 honoree of Harvard University's Project on American Indian Economic Development, in part because "the NICS member tribes have recognized the critical importance of neutral dispute resolution for the health of Indian nations and built an arrangement that provides it," Harvard reported.

Clearly, judicial independence both is within reach and has made a real difference for tribes. Tribal leaders at Spirit Lake should pursue it.

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