An Introduction to Native American Tribal Court

Transcript

Introduction

ACTEC Fellow Terrence M. Franklin:  This series tries to dig into the intersection of estate planning law and disenfranchised communities, such as Native Americans. There are about 400 tribal justice systems in the United States. Since states do not have jurisdiction over Native American land, tribal courts are a free-standing part of the tribal government that oversees legal issues that arise. What is tribal sovereignty and what kind of cases do tribal courts hear?

Today, Judge Joseph Wiseman of San Manuel Tribal Court joins us to explain how the court operates, where the state’s jurisdiction ends, the tribal law prevails, and generally the type of issues that come before the bench. ACTEC Fellow Robert Barton conducts this interview. Robbie?

ACTEC Fellow Robert Barton:  Hello everyone. My name is Robert Barton and I’m pleased today to be joined by Judge Joseph Wiseman, the supervising judge of the San Manual Tribal Court, and we’re so pleased to be able to talk to you about trust and estate issues that might be encountered in tribal court, and to have Judge Wiseman talk about the things that he sees on a day-to-day basis. So, welcome, Judge Wiseman. I’d like to start by having you do a brief introduction of yourself and what it means to be a tribal judge.

Judge Wiseman: Thank you Mr. Barton, and hello everybody. I’m Judge Joseph Wiseman. I’m the supervising judge for the San Manual Band of Mission Indians here in Highland, California. I also serve as a chief judge for a few other tribes in California, both in central California and northern California. I’ve been a full-time tribal court judge for about five years now.

Before that, I was a practicing lawyer. I was a litigator and did a lot of cases in federal court. Primarily, our practice was in federal court in my firm, but I did have experience in elder abuse cases, employment litigation cases, and I was sort of run-of-the-mill civil litigation. So, as I said, I’ve been a judge full-time for several years now, and I see a variety of cases in not only the San Manual Tribal Court, but the other tribal courts I work for.

Explanation of Tribal Court

ACTEC Fellow Robert Barton:  Could you talk about what it means to be a tribal court as far as a unit of government and how it’s structured, and where you look to law, and that type of thing?

Judge Wiseman:  Sure. Typically, tribal courts are engrafted, or the authority for the tribe to create a tribal court, is usually engrafted in the tribe’s constitution or other organic legislation. So, for example, some tribal courts are created by virtue of a provision in the tribe’s constitution. Other tribal courts are created because the tribal council- which is usually the governing body of the tribe- authorizes the creation of a tribal court.

Tribal courts are a branch of tribal government, whether they’re created through an ordinance by the tribal council, or whether they’re created by virtue of the tribe’s constitution. In my experience, the tribal courts are independent of the other branches of tribal government and in my experience, other branches of tribal government respects the independence of the tribal courts. Here in California, we have 109 federally recognized Indian tribes but we have only about 35 or so tribal courts. So, we’re still in California as sort of a small pool of tribal judicial forms. With respect to the law that I look to – in first instance, I look to the law of the tribe.

So, most tribes have tribal ordinances and tribal codes that has been past, and depending on how the government is structured, either it’s passed by the tribal council, or in some tribes, the ultimate governing authority of the tribe rests in the membership. So, sometimes a tribal law has to be passed by the membership, but I look to tribal law.

If tribal law is absent or there is an area of law that I have to deal with that’s not covered by tribal law, then I have the authority to look outside of tribal law, typically the state law, federal law, or the law of other tribes. Depending on what the tribal rules say, there is a certain priority that I need to follow. Do I first have to look to other tribes for their law or can I go to state law first? So, it just depends on what tribe I’m working for.

Tribal Sovereignty

ACTEC Fellow Robert Barton:  How does the concept of tribal sovereignty fit into the analysis you just described?

Judge Wiseman:  Well, tribal sovereignty means that tribes are sovereign. And what does it mean to be sovereign? Tribes are considered under the federal system of sovereign nations. They have the right to make laws and be governed by the laws that they choose to make, but having said that, the tribal jurisdiction in tribal laws are limited in scope. In other words, by enlarge, tribal laws and tribal jurisdiction covers the tribal land, the reservation for example, and tribal members, whether they live on the reservation, or off the reservation.

But, depending on the situation, the tribal jurisdiction will not cover non-members, for example. But, having said that, there’s a big exception. So, for example, if a non-member comes onto the reservation, by virtue of coming onto the reservation, they’re consenting to the jurisdiction of the tribe, and by extension, the jurisdiction of the tribal court.

So, I see many, many cases where the other party is a non-tribal member, but I assert jurisdiction because that person came onto the reservation, for example, to go to the gaming institution, or go to the resort, or whatever it may be. So, in those cases, I have jurisdiction.

Tribal Jurisdiction Over Non-Tribal Members

ACTEC Fellow Robert Barton:  So, could that also extend to, let’s say, a non-native spouse who resides in the reservation, who is in need of adult guardianship, in theory?

Judge Wiseman:  Yes. I’m sorry, yeah, indeed. So, if you have a non-tribal member who resides on the reservation, again, by implication, they’re consenting to the jurisdiction of the court and in that particular situation, if there’s a need for an adult guardianship, that person, whether they’re tribal or non-tribal, can file a petition in tribal court asking the court to exercise jurisdiction over the potential ward. That has happened and I’ve seen that a number of times and I generally will assert jurisdiction.

Now what’s interesting…let’s say the ward is a tribal member, but does not live on the reservation, then depending on the judicial power that the court has, I may or may not have jurisdiction over that member who lives off the reservation, but I haven’t had a situation where I’ve been challenged in exercising jurisdiction in that situation.

ACTEC Fellow Robert Barton:  Could you talk about the interplay between tribal court jurisdiction and state court jurisdiction and how you resolve those questions?

Judge Wiseman:  Well, California is unique because California is what is called Public Law 280 State. So, in a Non-Public Law 280 State, by and large, state law has no effect in Indian country. So, in Non-Public Law 280 States, the reservation is basically a barrier to state law, but here in California and five other Public Law 280 States, Congress, back in 1953, allowed those six states to exercise not only their criminal jurisdiction in Indian Country –when I mean Indian country, I mean reservations. Public Law 280 allowed states to exercise not only criminal jurisdiction in Indian country, but also, by enlarge most of their civil jurisdiction, sort of laws of general applicability. Civil laws of general applicability, but one has to remember that does not divest the tribe of its own inherent jurisdiction, so you may have a civil case, for example a probing case, where the jurisdiction lies not only in the tribal court, but also in state court. So, you may have a situation where you have concurrent jurisdiction, and those cases are common.

Native American Cultural Competency and Estate Planning

ACTEC Fellow Robert Barton:  Could you talk about the importance of cultural competency and what trust and estate practitioners coming into tribal court need to know before they get there?

Judge Wiseman:  Number one: To recognize and understand that tribal courts are legitimate courts. We function just like state court function and federal court functions. We serve the tribal community by and large, but we are legitimate courts. Most of the courts that I work for are created by virtue of provision in the tribe’s constitution, and most of the courts I work for, not all of them, have robust rules of court, rules of procedure.

So, a practitioner who’s, let’s say, experienced only in state court, if he or she were to come into tribal court, at least the tribal courts I run, they wouldn’t be surprised. The court operations are similar to most western courts. We have, as I’ve said, rules of procedure, we have ordinances. But the cultural competence issue is a good point because what a practitioner has to understand in tribal courts because tribal court traditions are divergent and different than what you’d see in the western culture, tribal traditions are really geared toward resolution, geared toward remediation, geared toward restorative justice.

So, if you come into tribal court, although you’ll be able to litigate your case and represent your client vigorously, keep in mind that the goal of tribal courts, and consistent with tribal traditions and morals, and customs, is to restore the broken relationship and try to come to a mutual understanding. What’s the best resolution in the given case?

Balancing Tribal Custom and Tribal Law

ACTEC Fellow Robert Barton:  You had mentioned tribal law and custom, and I understand that, from what you said earlier, that’s something you actually look to when you’re trying to resolve a particular case. How do you evaluate what a particular tribe’s custom is in a matter?

Judge Wiseman:  Typically, that’ll come through a tribal elder who is steeped in the customs and traditions of the tribe, and that person could be someone who has lived on the reservation for all of their lives and is quite familiar with the customs, and is considered an elder in the community. So, I can look to that person. I also can look to academic sources at to people who have studied the traditions and customs of the tribe because unfortunately, COVID has taken a lot of elders away from us.

So, there’s been a big body of tribal customs and traditions that have unfortunately passed. So, making sure that the customs and traditions of the tribe are maintained is an important consideration. So, we would look to an elder who could provide us some information, but I also look to the parties and I ask the parties who they would suggest who would be a good person to advise the court of the customs and traditions because I am not a member of the tribes I work for. So, I’m not familiar with all their customs and traditions. So, I have to look to a third party, if you will, to educate, not only myself, but the litigates in the case as well.

ACTEC Fellow Robert Barton:  Do you see tribal law and custom as providing sort of a deeper interest on behalf of the tribes as litigants and particular proceedings as opposed to maybe a traditional state court proceeding where they would not be participating?

Judge Wiseman:  Yeah. So, the tribes have a great interest, at least in my experience, and for example, let’s say we have an adult guardianship case before the court, the tribes have a great interest in making sure that as the case evolves, the traditions and customs of the tribe are respected and upheld. I’ve had the situation where I’ve issued orders, for example, where somebody is involved in an adult guardianship.

Let’s say the guardian is ordered to make sure that the ward gets to cultural events, is able to engage in cultural activities whether it’s a sweat, whether it’s powwow, whatever it may be. So, tribes are very, very interested in maintaining their culture and making sure that tribal members have access to that culture and promote the culture.

Typical Native American Estate Issues

ACTEC Fellow Robert Barton:  What type of trust and estates issues have you seen as part of your day-to-day calendar?

Judge Wiseman:  I’ve seen a variety. For example, I’ve seen situations where tribal members who are members of a tribe that have a robust gaming operation and per cap payments are paid. Let’s say that person passes away and they have a substantial estate. I’ve seen that. That tribal member may have an estate plan created, and there may be litigation over the estate plan, so the tribal court has to hear that. I also hear a lot of estate issues when it comes to allotments of tribal lands or assignments of tribal lands.

With allotments, for example, you can have an allottee who was allotted property 40 years ago, has now passed away and now there are dozens of heirs who have an interest in that allotment. On the other hand, you may have a situation on a reservation where a tribal member has been given an assignment, which is essentially a right to live on a parcel, but most of the tribes I work for that have assignments, the tribal law allows the assignee to designate who should take over the assignment when that person passes.

So, I have cases where I have to deal with how the assignment is going to be distributed. So, those are the unique trust and estate issues that come into the tribal court. As tribes become more economically successful, I think you’re going to see more cases come to tribal court when you’re dealing with large assets, if you will, to see who have large assets, or a potential ward who has large assets that needs a guardianship.

ACTEC Fellow Robert Barton:  Have you seen elder abuse issues?

Judge Wiseman:  I have. Unfortunately, I have seen elder abuse issues and I think there’s an uptick in elder abuse cases. Tribal communities are no different than non-tribal communities. The same types of issues, the same types of dynamics that occur in non-tribal communities apply in tribal communities. So, elder abuses ubiquitous in non-tribal communities and is also something I see in tribal communities as well.

Recommendations to Lawyers Presenting in Tribal Court

ACTEC Fellow Robert Barton:  How can we, as trust and estates practitioners, use our expertise to help educate you, the judge, particularly when there might be a complex interpretation issue, or some unique jurisdictional issue involving probate property?

Judge Wiseman:  That’s a good question because often times I will be confronted with an issue where there is not tribal law on that particular issue. In this area, particularly when it comes to trust and estates, there’s not a developed body of case law and often times there be an issue that’s even not covered by the tribe’s ordinances or codes. So, practitioners need to be able to educate- and speaking for myself- educate me if there is a gap in tribal law, as to what other jurisdictions have found and how other jurisdictions have resolved that issue.

If it means going to state court and looking at the state probate code, or looking at state case law, then feel free to provide that information to the court. I think most of my colleagues would agree that we need the assistance from practitioners if there’s an area that’s not covered by tribal law. And, depending on what the tribal codes are, I can take authority from, for example, state court, and state court-based law and use that either as persuasive authority or guidance. It just depends on what the code says, but I will often need information from other jurisdictions to help me answer a question under tribal law because often times, the tribal law is silent.

ACTEC Fellow Robert Barton:  Is there any other issue you think trust and estate practitioners should be aware of in coming into tribal court?

Judge Wiseman:  Just as I said earlier, just understand that tribal courts are legitimate courts. Like I said before, if you came into this courtroom where I’m sitting now would be just like any other court a practitioner would see. Also, keep in mind that tribal court judges are going to allow the parties to present their cases, to litigate their cases, so don’t be afraid of coming to tribal court or think that you’re going to be either home-towned or you’re not going to be able to present your case.

Keep in mind, as I said earlier, is the whole goal and the ethos if you will – maybe that’s the best word- the ethos of tribal jurisprudence is to come to, to the extent that we can or can’t, a harmonious resolution of the case. That’s not always the case, but that’s sort of the overarching goal. So, that’s what I would close by recommending, keeping that in mind.

ACTEC Fellow Robert Barton:  Well, thank you Judge Wiseman. We’re very appreciative of your time and expertise on this issue and I hope to have you on for a future video for additional discussions.

Judge Wiseman: My pleasure. Thank you very much and thank you for giving me the opportunity to talk about tribal courts.

ACTEC Fellow Terrence M. Franklin: Thank you to Judge Wiseman for enlightening us on tribal courts. It was fascinating hearing how the Judge tries to balance the law and tribal customs. Perhaps the notion that the ethos of tribal jurisprudence is to try to come to a harmonious resolution of the case is a lesson we can all take with us.

As author Suzy Kassem writes, “Understanding languages and other cultures builds bridges. It is the fastest way to bring the world closer together and to Truth. Through understanding, people will be able to see their similarities before differences.”

Please visit ACTEC, actec.org/diversity for more information and resources on this topic and make sure you subscribe to ACTEC’s YouTube Channel to be informed of new videos as they become available.