Thursday, September 10, 2009

Tribal Court

I'd never been to a tribal court before (I'm not going to specify the tribe). It was a very low key affair and actually pretty comfortable for me personally. Here are a couple of things I noted (which will possibly be obvious to Indian Law people, one of which I am not):

1. The tribal court I saw was very protective of, even defensive about, its jurisdiction (my client is a non-Indian being sued by her Indian husband for child custody; the notion that the tribe has personal jurisdiction over her through the mere fact of her marriage to a member strikes me as a breathtakingly broad assertion of jurisdiction, and, oh yeah, neither of them or any child of theirs live on any reservation or anything else that could be classified as Indian land.) BLEG? Is that even legal? I can't really find a case on point that talks about whether intermarriage is enough of a contact, by itself, to give the tribal court personal jurisdiction over a non-Indian. I objected, but more or less got over-ruled and told to file a motion and briefing, etc., even though I entered a special appearance to argue about jurisdiction over the non-Indian.

2. The tribe's statutes aren't secret, but they're very hard to access (you can buy them for $30 per title, and there are about 50-60 titles which all fit into 3 large binders, so about $1800.00 for three binders that all go on one CD). Or if you're nice to the court clerk she'll let you look at them (especially if you plead to her that your client is indigent), which is what I did. This isn't a universal deal, just this particular court, other bands of the same nation publish all their statutes online.

3. The conduct of court itself was very open and comfortable for me personally. I was able to ask the judge questions in open court about how his court worked, etc., and he just answered which was unusual to me.

4. Pleadings are very free form and not necessarily related to anything state courts might require. This case is based on a Petition for Temporary Custody and that's all the pleadings asked for (this I found out is a court form that the court clerk fills out for people who wander in not knowing what to do). I asked the judge what the final resolution on this type of matter would be and he said he would eventually enter a final custody order. This strikes me as odd because (1) the plaintiff didn't ask for a permanent custody order in any pleading and (2) I can't for the life of me see how this was a sufficient pleading at all because there is no underlying court case, no divorce, no separation, no paternity, nothing, just a temporary custody order between still married parents. CONSEQUENCE: Plaintiff files a one page pleading asking for nothing specific (or even delineated by the tribal code). But, apparently, that's just how they do it there.

Overall, honestly, except for the jurisdiction part and the non-publication of statutes, this is how I'd run a court if I got to do whatever I wanted. It would be low-key, less confrontational, and have a more settlement-oriented culture. I would practice in courts like that all the time if there were enough clients (this was only the 15th civil case filed all year in that court).

Anyway, that was my day. How was yours?

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