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