The Why and How of Tribal Judicial Independence October 18, 2012 Prior Lake, MN

1. 43rd NAICJA ANNUAL CONFERENCE The Why and How of Tribal Judicial Independence October 18, 2012 Prior Lake, MN Stephen L. Pevar

2. Introduction Judicial independence is an important issue on many Indian reservations today. It’s been an important issue for decades. In 1978, the National American Indian Court Judges Association (NAICJA) issued a report authored by David Getches, “Indian Courts and the Future.” The Getches Report addressed this issue at some length. Among its findings: “A lack of independence of the judiciary seems to be a serious problem with many tribes. . . .Complaints of political interference abound. There have been repeated instances of tribal leaders putting pressure upon an Indian court judge to rule a certain way, under an implied threat that the judge must comply or lose his/her job. Impeachments and recalls of judges are frequent. Such extreme actions are rare in non-Indian systems.” (Id. at 40, 94.)

3. Introduction (cont.) However, as the Getches Report was careful to note, not only is the concept of judicial independence foreign to Indian tribes, so is the concept of having a court. “[T]ribal courts were originally alien institutions imposed on tribes by the government. Even today they are seen by some as arms of a conquering nation.” Id. at 39. Indian tribes are not required by federal law—including the Indian Reorganization Act and the Indian Civil Rights Act—to have a court. And if a tribe chooses to have a court, the tribe is under no federal duty to maintain that court as an independent branch of government. Each tribe has the inherent right to decide for itself whether to establish a judicial system and, if so, to guarantee judicial independence. There are “pros” and “cons” to judicial independence.

4. What is “Judicial Independence”? “Judicial independence” has been defined in a variety of ways. At the very least, it means that judges are entirely safe from suffering negative consequences for their court decisions. It also means that judges will be free from outside pressure in deciding their cases. Full judicial independence means that neither the legislative nor the executive branch of government, nor the public, is permitted to encroach on and influence the decision making process of the judicial branch.

5. The Correlation Between Judicial Independence and Judicial Review As just noted, “judicial independence” means that judges are free to make their decisions without outside influence. “Judicial review” is different. Judicial review is the power to review the legality of actions taken by another branch of government. Although “judicial independence” and “judicial review” can overlap, they aren’t the same. A judge can be fully independent and yet not have the power of judicial review. Judicial review is a separate question for another day. The first issue that tribes should address is whether to have an independent judiciary. Only after they decide that question, should they then decide whether to allow the judicial branch to review actions of the other branches.

6. What are the “Cons” of Judicial Independence There are many reasons not to have an independent judiciary. First: it shifts power away from elected officials—who are accountable to the voters—and places that power in the hands of people who are not. Second: an independent judiciary can eliminate by judicial decree a tribe’s immunity, even for damages. Judges could issue politically and financially devastating and disruptive rulings. Third: on many reservations, disputes between the tribal council and the tribal chairperson are seen as political questions that are to be resolved over time between them, but an independent judiciary can alter this and issue rulings that are divisive for everyone.

7. “Cons” (cont.) Indian tribes have no tradition of an independent judiciary, and there is no reason to believe that judges who become independent won’t usurp their powers. Many tribal courts, for instance, have proclaimed that they have the power of judicial review and, after doing that, decided that the tribe and tribal officials are not immune from suit or that certain elected officials weren’t properly seated. These types of decisions, many tribal members believe, should be decided by the voters or by elected officials and not by judges. “The doctrines of separation of powers and judicial review, if adopted by the tribal courts, would strengthen the independence of the judiciary. Nevertheless, the tribal adoption of these doctrines could be potentially divisive because it would shift power to the tribal courts.” Fredric Bandfon, “Tradition and Judicial Review in the American Indian Tribal Court System, 38 UCLA L. Rev. 991, 1008-09 (1991).

8. What are the “Pros” of Judicial Independence? There are many reasons to have an independent judiciary. First: an independent judiciary helps ensure that the other two branches of government—the legislative and executive branches—are confined to their proper roles. Second: An independent judiciary is necessary to ensure justice to minority groups, protection of individual rights, and a fair trial—what westerners call “due process.” Every other procedural protection in a trial is meaningless if the decision maker bases his/her findings on something other than a neutral assessment of the evidence.

9. “Pros” (cont.) Third reason: outsiders often evaluate a society—and make decisions on whether to live, work, or invest there—based on the fairness of the court system. Prof. Pommersheim recently commented on the importance of an independent judiciary if Indian tribes are to lure commercial ventures to the reservation. “There is always a familiar refrain that becomes part of the legal conversation [between non-Indians and Indians] – does the tribe have an independent judiciary and a corresponding separation of powers?” Frank Pommersheim, “At the Crossroads: A New and Unfortunate Paradigm of Tribal Sovereignty,” 55 South Dakota L. Rev. 48, 60 (2010).

10. “Pros” (cont.) Judge BJ Jones recently noted that non-Indians have a perception “that tribal justice systems are not truly independent . . . [and] are not fair forums to adjudicate disputes in a fair and neutral way,” and this has a negative impact on tribal commercial enterprises. BJ Jones, “The Independence of Tribal Justice Systems and the Separation of Powers,” (2006) at 1 http://law.und.edu/tji/_files/docs/bjones-jud-indep-memo.pdf

11. “Pros” (cont.) Many non-Indian judges and legislators repeatedly comment—in negative tones—on what they perceive as the lack of an independent judiciary on Indian reservations: “Tribal courts are often subject to the complete control of the tribal councils, whose powers often include the ability to select and remove judges. Therefore, the courts may be perceived as a subordinate arm of the councils rather than as a separate and equal branch of government.” Justice Sandra Day O’Connor, “Lessons from the Third Sovereignty: Indian Tribal Courts,” 33 Tulsa L.J. 1, 5 (1997)

12. “Pros” (cont.) Fourth: Congress and the federal courts often determine whether to allow tribes to exercise jurisdiction over non-Indians based on the reliability of the tribal courts. A perfect example is William v. Lee, 358 U.S. 217 (1959). The 1978 Getches Report warned tribes of what can happen if they don’t have an adequate judicial system: “The [federal] courts will have difficulty excluding exercises of state power when tribes with inadequate or non-existent judicial systems are involved.” (page 2) Nevada v. Hicks, 533 U.S. 353 (2001), shows that the Supreme Court remains dubious about the ability of an outsider to obtain a fair hearing in tribal court. (See Justice Souter’s concurring opinion quoting the Getches Report.)

13. What is the Current Status of Judicial Independence in Indian Country? Judges in Indian country report on-going problems with judicial independence. In 2012, Professor Matthew Fletcher from Michigan State School of Law wrote: “[M]any tribal judges face overt and covert attacks on their independence. . . .For example, many tribal constitutions provide express or implied tribal council control over appointments and retention of tribal judges. Some tribal judges face threats from tribal legislatures on budgets as well.” Matthew Fletcher, “Indian Courts and Fundamental Fairness: Indian Courts and the Future Revisted, http://ssrn.com/abstract=2079757 (2012)

14. Current Status (cont.) However, everyone agrees that judicial independence in Indian country is increasing. “Critics of tribal courts contend that these courts are nothing more than dependent entities of the controlling tribal councils. Nevertheless, recent case law and survey data indicate that there is in fact a sizeable and growing degree of independence within the tribal judiciary.” BJ Jones, “The Independence of Tribal Justice Systems and the Separation of Powers,” (2006) at 12 http://law.und.edu/tji/_files/docs/bjones-jud-indep-memo.pdf