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Ronald Reagan Presidential Library Digital Library Collections This is a PDF of a folder from our textual collections. Collection: Blackwell, Morton: Files Folder Title: [National American Indian Court Judges Association] Box: 32 To see more digitized collections visit: https://reaganlibrary.gov/archives/digital-library To see all Ronald Reagan Presidential Library inventories visit: https://reaganlibrary.gov/document-collection Contact a reference archivist at: [email protected] Citation Guidelines: https://reaganlibrary.gov/citing National Archives Catalogue: https://catalog.archives.gov/ file m 9/7/82 National American Indian Court 1000 Connecticut Avenue, N.W., Suite 401, Washington, D.C. 20036 (202) 296-0685 South 813½ Pines Road, Spokane, Washington 99206 (509) 924-4763 Monton of Reply to: alreads repected to + JAB. as Pre. pib, lett. ok. Washington, D.C., office SEP. 7 1982 Spokane, WA., office OFFICERS & DIRECTORS August 23, 1982 CRANSTON HAWLEY Harlem, Montana President contex The LESLIE BLOSSOM Battle Mountain, Nevada First Vice President you Hon. James A. Baker, III LAWRENCE MILLER Chief of Staff and Fort Washakie, Wyoming Assistant to the President Second Vice President The White House E. THOMAS COLOSIMO MG" REJRET SEND pls. To They SOMEONE E. Dole WANT 9/7/moth FYI TO Washington, D.C. Washington, D. C. Executive Secretary in SNCASE SEND DONALD D. DUPUIS Dear Mr. Baker: Pablo, Montana Treasurer We are requesting a favor from you. The National American NORMA JEAN GRAY Fort Duchesne, Utah Indian Court Judges Association and Arrow, Inc., have Executive Committee Member sponsored training programs for Indian Court Judges, ROBERT WALTERS Clerks and other Court personnel for several years and Tuba City, Arizona the record shows that the training has been constructive Executive Committee Member and useful. Last year NAICJA had Stanford Research WILMER PETERS Keshena, Wisconsin Institute undertake an evaluation of the program and a Director copy of that report is enclosed for your information and F. BROWNING PIPESTEM use. Shawnee, Oklahoma Director The Indian Court Judges Association will undertake two MILDRED PRENTICE Cheney, Washington training session in September. We are asking that you Director appear at one of them and offer a few words of encourage- HOMER BLUEHOUSE ment. The sessions will be held: Chinle, Arizona Director MICHAEL ZUNIE National Judicial College Zunie, New Mexico University of Nevada Director Reno, Nevada CECELIA HAWK September 20-23, 1982 Suquamish, Washington Director BERNARD STANDING CROW University Club Ft. Yates, North Dakota George Washington University Director Washington, D. C. September 20-23, 1982 STEERING COMMITTEE EDWARD BARBER, Hayward, Wisconsin BEATRICE MITCHELL, Baraga, Michigan JACKSON ISAAC, Philadelphia, Mississippi DONALD DUPUIS, Pablo, Montana MARIE NESWOOD, Shiprock, New Mexico HOLLIS CHOUGH, Fountain Hills, Arizona EMMA DULIK, Neah Bay, Washington WILLIAM THORNE, Ft. Duchesne, Utah NELSON McCABE, Window Rock, Arizona VIVIAN JOHNSON, Zuni, New Mexico Hon. James A. Baker, III August 23, 1982 Page 2 You are knowledgeable about the Indian field and you know how important the court system should be to Tribal governments and the Indian people. We expect 150 Chief Judges, Associate Judges, Court Administra- tors, Clerks and other court related personnel to participate as trainees. Your involvement would help in our efforts to enhance the integrity and capability of the Indian Court system and to upgrade it. Please help us to achieve these goals. Thank you. 3011667 Sincerely, Tom Colino E. Thomas Colosimo Executive Secretary Enclosures BASIC STANDARDS IN THIS IS THE NIB PHILANTHROPHY The National Information Bureau's point of Philanthropic organizations have a high degree of view is that of prospective givers; it believes that responsibility because of the public trusteeship they are entitled to a reasonable value of public service for every dollar they contribute. Wise involved. Compliance with the following standards, with reasonable evidence supplied on request, is consid- NIB evaluates national, not-for-profit organiza- ered essential for approval by the NIB: tions against NIB's eight basic standards through 1. BOARD - An active and responsible governing its reports about individual agencies. Each agency body, holding regular meetings, whose members listing in this Wise Giving Guide represents an have no material conflict of interest and serve with- NIB report (except for certain agencies listed un- Giving out compensation. der Have Not Provided Adequate Information). The Guide summarizes the conclusions of the 2. PURPOSE- A clear statement of purpose in the latest NIB reports. Reports are revised regularly. public interest. While reports are being substantially revised, 3. PROGRAM - A program consistent with the agencies are listed under Report Being Updated. organization's stated purpose and its personnel and Each NIB report (generally four-to-eight pages) and NIB Comment and stating NIB Conclusion. The body of each report contains: Guide financial resources, and involving interagency includes a cover page summarizing selected facts cooperation to avoid duplication of work. 4. EXPENSES-Reasonable program, management and fund-raising expenses. a brief statement of the agency's origin and purpose 5. PROMOTION - Ethical publicity and promotion a description of its program activities RATINGS OF NATIONAL NOT-FOR-PROFIT excluding exaggerated or misleading claims. a listing of its controlling Board and paid ORGANIZATIONS BASED ON NIB'S BASIC 6. FUND-RAISING-Solicitation of contributions staff head STANDARDS IN PHILANTHROPY without payment of commissions or undue pres- an analysis of the agency's financial state- sure, such as mailing unordered tickets or mer- ments chandise, general telephone solicitation and use of information on its tax deductibility status, identified government employees as solicitors. salary ranges and current budget 7. ACCOUNTABILITY - An annual report available NIB Comment RATINGS AS OF DECEMBER 1, 1981 on request that describes program activities and NIB Conclusion. NEXT ISSUE JANUARY 4, 1982 supporting services in relation to expenses and that contains financial statements comprising a balance NIB does not generally undertake to report sheet, a statement of support/revenue and expenses about religious, fraternal or political organiza- and changes in fund balances, a statement of func- tions and single or local institutions. However, tional expenses, and notes to financial statements, NIB reports on the social welfare activities of that are accompanied by the report of an independ- some of these organizations and institutions NATIONAL ent public accountant. National organizations oper- which solicit contributions nationally from the INFORMATION ating with affiliates should provide combined or general public. When new agencies are created BUREAU, INC. acceptably compiled financial statements prepared or existing ones become national in scope, NIB in the foregoing manner. For its analysis NIB may undertakes to prepare reports about them. request disclosure of accounting treatment of var- ious items included in the financial statements. In preparing its reports, NIB cooperates with organizations to encourage them to meet NIB 8. BUDGET - Detailed annual budget approved by standards. NIB refers to this as standard mainte- the governing body in a form consistent with nance, part of its two-fold purpose. annual financial statements. NOT-FOR-PROFIT NIB also publishes Wise Giving Bulletins cov- 419 Park Avenue South Revised September 1981 ering timely subjects related to philanthropy and New York, N.Y, 10016 The Volunteer Board Member in Philanthropy, (212)-532-8595 a booklet analyzing the responsibilities and du- ties of a good volunteer Board member. 1981 National Information Bureau, Inc. 311 188N 0275-0031 NIB reports are advisory to donors and evaluate organizations against NIB's eight standards. NIB does not advise donors to give or not to give. NIB encourages donors to request its detailed reports about national organizations in which they are interested. Up to three reports at a time àre available to the public upon written request and without charge. MEET STANDARDS MEET STANDARDS ND FINDING (continued) AFS International/Intercultural Programs National Medical Fellowships (Questions about these agencies make it impossible to AIESEC-U.S. National Multiple Sclerosis Society state that they meet NIB standards. However, these Action for Children's Television National Municipal League questions are not so substantial as to lead to the con- Action on Smoking and Health National Retinitis Pigmentosa Foundation clusion that they do not meet NIB standards. NIB's Africa Fund National Sharecroppers Fund (Rural Advancement Fund) comments are offered for the contributor's considera- America the Beautiful Fund National Urban League - New York, NY, tion.) American Bureau for Medical Advancement in China national service center only - see Note American Cancer Society Native American Rights Fund Accion International/AITEC American Committee on Africa Natural Resources Defense Council African Student Aid Fund (Phelps-Stokes Fund) American Diabetes Association Nature Conservancy American Council of the Blind American Enterprise Institute New Eyes for the Needy Arthritis Foundation American Friends Service Committee NOW Legal Defense & Education Fund Atlantic Council of the United States American Fund for Dental Health Oxfam-America Cal Farley's Boys Ranch American Leprosy Missions Pacific Legal Foundation Clergy and Laity. Concerned American National Red Cross Pearl S. Buck Foundation Concern for Dying American Near East Refugee Aid Planned Parenthood Federation of America Council on Municipal Performance (COMP) American Refugee Committee Population Council Damon Runyon-Walter Winchell Cancer Fund American Social Health Association Population Crisis Committee Deafness Research Foundation Amnesty International of the USA Population Institute Defenders of Wildlife Amyotrophic Lateral Sclerosis Society of America Project Hope Guide Dog Foundation for the Blind Animal Welfare Institute Puerto Rican Legal Defense and Education Fund Hugh O'Brian Youth Foundation Arrow Recording for the Blind Human Growth Foundation Association for Voluntary Sterilization Red Cross Indian Rights Association Big Brothers/Big Sisters of America - Philadelphia, PA, Rural Advancement Fund Institute of Cultural Affairs national service center only - see Note Save the Children Federation Institute for Humane Studies Boys' Clubs of America - New York, NY, Sex Information and Education Council of the U.S. NAACP Legal Defense & Educational Fund national service center.only - see Note Sierra Club National Foundation for Cancer Research Camp Fire, Inc. - Kansas City, MO, national service Sierra Club Foundation National Society to Prevent Blindness center only see Note Sierra Club Legal Defense Fund Near East Foundation Cancer Crusade (American Cancer Society) Spanish Refugee Aid Negative Population Growth Cancer Research Institute Starr Commonwealth for Boys Overseas Development Council CARE Taxation With Representation Fund Pan American Development Foundation Catalyst for Women Tolstoy Foundation Parkinson's Disease Foundation Child Welfare League of America United Cerebral Palsy Associations People-to-Peopie International Children, Incorporated United Negro College Fund Phelps-Stokes Fund Children's Defense Fund United Neighborhood Centers of America Research to Prevent Blindness Christian Children's Fund United Seamen's Service Save-the-Redwoods League Christian Record Braille Foundation (Camps for the Blind) U.S. Committee for UNICEF Tax Foundation Citizens' Scholarship Foundation of America - United Way of America* - Alexandria, VA, national Travelers Aid Association of America Concord, NH, national service center only - see Note service center only - see Note UN We Believe College Placement Services VITA (Volunteers in Technical Assistance) Committee to Combat Huntington's Disease World Neighbors Community Development Fdn. (Save the Children Fed.) World Rehabilitation Fund Consortium for Graduate Study in Management YMCA of the United States Council for Basic Education YWCA (National Board) New York, NY, national service Council for Financial Aid to Education center only see Note Council on Foreign Relations Youth for Understanding Council on Social Work Education Zero Population Growth Cystic Fibrosis Foundation Direct Relief Foundation Dysautonomia Foundation Economic Education for Clergy *In 1981 NIB received about 6% of its unrestricted funds Family Service Association of America budget from United Way of America on behalf of its local Fight for Sight (Nat'l Council to Combat Blindness) United Ways which are substantial users of NIB services. Foreign Policy Association Foster Parents Plan Fund for Peace Futures for Children Girl Scouts of the U.S.A. Girls Clubs of America - New York, NY, national service center only - see Note Goodwill Industries of America - Washington DC INDIAN COURTS Newsletter NATIONAL AMERICAN INDIAN COURT JUDGES ASSOCIATION 1000 Connecticut Ave., N.W. Washington, D.C. 20036 (202) 296-0685 NAICJA RECEIVES Tribal Courts Move to Full Faith and Credit HIGH SCORES by Gwendolyn Packard IN EVALUATION In order for tribal courts to be respected as arbiters of justice within their own jurisdictions, they must be able to have their judgments enforced in other High scores on effectiveness and im- jurisdictions. Almost all tribal courts have had state courts refuse to grant "full pact were given to NAICJA's judicial faith and credit" to their judgments. The extention of full faith and credit to the training program by a comprehensive decisions of Indian courts by state courts is an important current issue, especial- evaluation recently completed by SRI ly as interaction between Indian and non-Indian communities increases and the International, a consulting firm con- need to enforce tribal judgments outside reservation boundaries grows. tracted with LEAA program funds. The Indian Child Welfare Act of 1978 mandates that all courts in the United The evaluation was initiated last year States grant "full faith and credit" to all tribal court decisions regarding child in response to a requirement by the Law welfare matters. In Public Law 280 states, a tribe may, with the approval of the Enforcement Assistance Administration Secretary of the Interior, set up a tribal court and reassume jurisdiction over that programs continuing under its child custody cases. Notwithstanding this Congressional delegation of exclusive funding must pass a vigorous evalua- jurisdiction in child welfare cases, state courts continue to withhold enforcement tion. Since NAICJA had been receiving of other tribal court judgments. It is apparent, that short of a Congressional LEAA program funds and was, at the mandate, the only other way in which tribal court judgments can be accorded time, entering a new contract for crim- "full faith and credit" would be through administrative negotiations or inal law training, an evaluation compo- tribal/state agreements. nent was written into the NAICJA NAICJA recently submitted a proposal entitled "Model Court Development grant. Project" to LEAA, Indian Justice Section, Office of Criminal Justice Programs. SRI International was selected to con- In implementing this project, national in scope, NAICJA proposes to: 1) duct the evaluation with Dwight K. study, define and document all the reasons state courts may have for refusing to Hunter of Pleasanton, California, ac- grant "full faith and credit" to tribal court judgements; and 2) as necessary, pro- ting as the principal evaluator. The vide some of the needed technical assistance to tribes to help them improve and evaluation was conducted in the manner upgrade their court systems. of a management audit or operations The NAICJA Board of Directors has selected twelve tribal courts, in eight research. As information was gathered states, which are willing to participate in this project. The twelve courts selected and findings began to emerge, represent a cross-section of all the existing tribal courts in terms of size, NAICJA's Board of Directors were continued on page 8 continued on page 15 Tribal court judges and instructors assemble on steps of the Judicial College Building at the University of Nevada, Reno, during National American Indian Court Judges training. Indian Court Clerks Charter National Association Indian court clerks gather for photo at recent NAICJA training session. The newly incorporated Clerks Association represents 175 tribal court clerks. Three years of NAICJA-sponsored CETA contract for training Indian Indian Court Clerks Association in- activities directed towards recognizing Court Clerks. Articles of Incorporation clude: President Sherrie Chapoose, the importance of tribal court clerks to and Bylaws for the Clerk's Association Uintah and Ouray Tribal Court; Vice the Indian Justice System reached an were approved by a general assembly of President Norma Smith, Warm Springs important milestone on January 31, clerks on October 24, 1979. Tribal Court; Secrtary-Treasurer Bon- 1980, when the National American The National American Indian Court nie Martinez, Acoma Tribal Court; and Indian Court Clerks Association Clerks Association will continue to Associate Project Director Les Hen- (NAICCA) was chartered as a non- operate as a sister organization to the drick, Coeur d'Alene Tribal Court. profit corporation by the State of National American Indian Court Judges Delaware. Association, sharing the same goals. The newly incorporated association The Indian Court Clerks group received was originally organized in July 1979 as assistance from ARROW, Inc., in their the NAICJA Clerk's Planning Commit- efforts to become a national organiza- tee. Its purpose was to help NAICJA to tion. implement a Department of Labor Officers for the National American DIRECTORY UPDATED MODEL CODE OF JUDICIAL ETHICS FOR TRIBAL COURTS PLANNED FOR TRIBAL COURTS One thousand copies of a third edition of the Indian Court Judges Telephone Direc- tory have been printed. This new direc- The need for a Model Code of In outlining his plan for the code, Mr. tory, updated by NAICJA staff from the Judicial Ethics, tailored to Indian Johnson examined the American Bar August 1979 Second Edition, was Courts, has long been recognized by the Association's Code of Judicial Conduct prepared using funds from NAICJA's National American Indian Court Judges to determine its potential adaptability as LEAA and BIA contracts. Association. NAICJA Instructor Ralph a model code for tribal courts. He con- The purpose of the directory is to pro- Johnson notes that "the creation of (a cluded that "while the ABA Code cer- vide an up-to-date listing of Indian Model Code of Judicial Ethics for tainly represents an adequate frame- tribal courts including judges' names, Indian Courts) would seem to be essen- work from which to build, it appears court addresses, and telephone num- tial not only to engender a spirit of that in light of the special context within bers. The name of each tribe's chairman rendering fair treatment to persons which tribal courts must work, signifi- is also listed. under tribal court jurisdiction, but to cant revisions are necessary in order for The new directory was mailed to give notice to the tribal community and the code to provide functional and ap- tribal court personnel, to BIA to other jurisdictions that fundamental propriate guidelines for tribal court superintendents and area social fairness and due process exist in tribal systems." workers, to LEAA personnel and to re- court proceedings." Once the code is drafted, it will be cir- questing state and local agencies. Copies To answer this need, Professor culated for review to tribal court judges can be obtained by contacting: Johnson, who is a faculty member at the and to various NAICJA associates. Pro- NAICJA, 1000 Connecticut Avenue, University of Washington School of fessor Johnson has donated his work on N.W., Suite 401, Washington, D.C. Law, has agreed to draft a model code. this project to NAICJA. 20036. 2 TWO CRIMINAL LAW PUBLICATIONS WHITE HOUSE SENDS REPRESENTATIVE TO REVISED & EXPANDED BY NAICJA NAICJA TRAINING Two of NAICJA's criminal law train- changes to the text. These substantive White House staff member Robert ing publications were revised and ex- changes were primarily in the topic Malson attended NAICJA's Family panded this summer to update their con- areas of Jurisdiction, Juvenile Justice, Law/Child Welfare training session in tent for continued use in judges' training Evidence, Due Process/Equal Protec- Reno earlier this year. He also attended and as court reference books. tion, and the Duties and Respon- a NAICJA Board of Directors Executive The Criminal Court Procedures Bench- sibilities of Trial Judges. Committee meeting in Washington, book, introduced into NAICJA's training Professor Johnson also prepared sug- DC. curriculum in 1976-77, is designed for gested answers for the practice questions NAICJA Board President Judge day-to-day courtroom use to assist In- which follow each major section of this Cranston Hawley and Secretary- dian judges in quickly finding answers book. He also wrote a syllabus and a set Treasurer Tom Colosimo have met with to those questions which frequently arise of instructons on the proper use of the Mr. Malson and Ms. Allison Thomas, in court proceedings. It presents, in sim- book by NAICJA instructors. both representatives of the White House ple abbreviated form, the standard pro- The revised Basic Criminal Law Studies Domestic Policy Staff, to discuss topics cedural steps used in most criminal collection will be distributed to all of concern to the Indian Court Judicial trials. In a recent LEAA-funded evalua- NAICJA judges. System. tion, the Benchbook was identified as one of "the most valuable (reference) ASSOCIATION GRANTED FUNDS FOR items found in nearly all reservations (surveyed)." CONTINUING CLERKS TRAINING To make the Benchbook even more useful, its author. Robert Bennett was Proposal negotiations have recently tend and participate in basic judges' contracted to expand the text. The ma- been concluded between NAICJA, training. jor addition is a section on Opening and representing the National American According to Robert Bennett, In- Closing Ceremonies of the Court. This Indian Court Clerks Association, and structor/Organizer for many of is added to the five existing sections: Ar- the Department of Child Welfare Ser- NAICJA's trainings, attendance of raignment; Criminal Trial Procedures vices, Bureau of Indian Affairs. The selected clerks at judges' training has two before the Court without a Jury; Trial negotiations centered on a request by advantages: (1) to provide specific clerks by Jury; Sentencing; and Post-trial Pro- the Association for funds available with the expertise to render more profes- ceedings. under Title II of the Indian Child sional assistance to their courts by The revised Criminal Court Procedures Welfare Act. teaching them to screen complaints and Benchbook will be distributed at training Under the agreement reached, documents before they reach court, and sessions to be held later this year. NAICJA will receive $16,211 for train- (2) to develop a reservoir of clerks with The second NAICJA publication ing tribal court clerks. The award advanced educational background and revised this summer is the Basic Criminal amount was determined according to experience from which to draw future Law Studies collection. This text, in- the ICWA funding formula. NAICJA's tribal judges. tended to provide a basic theoretical and original request was for $70,000 and in- Fruitful results of this philosophy conceptual introduction to criminal law, cluded a larger number of contract have already been realized in the pro- was originally assembled as a collection deliverables. motion of several court clerks to the of study lessons. The lessons were writ- The grant will provide a means of position of tribal judge. More court ten by a number of NAICJA training continuing activities and momentum clerks are expected to attend judgeś instructors. As originally published, the generated under NAICJA's 1978-80 training sessions in the future. Basic Criminal Law Studies collection was Court Clerks training grant from the not an integrated book and large gaps Department of Labor, CETA, and existed in its content. In addition, recent under the Court Clerk's component of court decisions (i.e. Martinez and NAICJA's current LEAA grant. Oliphant) out-dated certain portions of Ms. Sherrie Chapoose, Tribal Clerk the text. of the Uintah and Ouray Tribal Court Professor Ralph Johnson of the and President of the Clerks Association, University of Washington School of has been appointed Project Director for Law was contracted to up-date, expand the grant. Ms. Leslie Hendrick, Clerk of and revise the Basic Criminal Law Studies the Coeur d'Alene Tribal Court, will be book. He has done this work in coopera- Associate Project Director. tion with John Milne, Instructor at the NAICJA's Executive Committee has University of Washington Law School. recommended that funds remaining in Changes were made to the book's the Court Clerk component of Sherrie Chapoose is Project Director for the organizational format. The appendices NAICJA's LEAA training grant be used new clerks training program. Ms. Chapoose, were reworked, and duplication was to send several experienced clerks to a Tribal Clerk for the Uintah and Ouray omitted. Major editorial changes, con- basic judges' training. This recommen- Reservation, has worked with NAICJA centrating particularly on simplifying dation formalized a growing trend since June 1977 when she was appointed to the presentations, were accomplished within the Judges' Association to en- the Association's first Court Clerks Advisory along with extensive substantive courage experienced court clerks to at- Committee. 3 Coordinated Approach to Implementing ICWA Is Stressed by Association's Training Series Identifying and testing workable pro- Individuals appearing on the agenda which would improve communication cesses for implementing the Indian included: Judge Ernst Watts, Dean of and cooperation among tribal and state Child Welfare Act (ICWA) has been the the National Judicial College; Louis W. judges and social workers. focus of this year's NAICJA-BIA Family McHardy, Executive Director and Each regional session was designed Law/Child Welfare conference series. Dean of the National College of Juvenile individually, using a method uniquely Training designs and participant com- Justice; Judge Cranston Hawley, suited to the particular local situation. position for the series have been based NAICJA President; Robert L. Bennett, Two sessions (the Albuquerque and on a recognition that successful im- NAICJA Consultant; Louise Zokan, Reno sessions) were organized by In- plementation of the Act depends on Child Welfare Specialist, Division of dian organizations contracted directly cooperation and coordination of tribal Social Services, BIA; Robert Malsom, by the BIA. In these sessions NAICJA and state court resources with the Assistant to the Director, Domestic provided support services. The remain- resources of involved social service per- Policy Staff, The White House; Alan R. ing sessions were organized by NAICJA sonnel. Parker, American Indian Lawyer working in close cooperation with the The training series, funded by a grant Training Program; Peter S. Taylor, BIA Area Social Worker of the par- from the BIA's Division of Social Ser- Counsel, Senate Select Committee on ticular region involved. vices, was designed to include two Indian Affairs; David Etheridge, In all of the sessions, the purpose of national sessions and six regional ses- Solicitor's Office, Department of the In- joint planning and coordination was to sions. terior; Milva McCaw Kearl, Tribal At- make the training proceedings more torney; Jerry Bridges, Anadarko Area relevant to all attendees and to develop National Session to Introduce Series Social Worker, BIA: Virginia Cain, working relations between the coor- The series began with a national ses- Assistant Training Director, National dinating parties. An attempt was also sion held (February 11-14, 1980) at the Council of Juvenile and Family Court made to provide a balance of input into National Judicial College in Reno. This Judges; Rodney Lewis, Tribal At- each regional session by obtaining session, attended by over 110 Indian torney; George Colby, Tribal Attorney; speakers representing the views of the and State court judges, social workers Bob Carr, Albuquerque Area Social tribes, the state and the Bureau. and attorneys, provided participants a Worker, BIA; C. Kimball Rose, Four of the regional sessions thorough orientation to the legal Superior Court Judge, Phoenix, (Phoenix, Albuquerque, Bismarck and framework and content of the Indian Arizona; Maryetta Tsosie, Chief Judge, Reno) have been held and two (Portland Child Welfare Act. A presentation on Colorado River Indian Tribes; and and Oklahoma) are scheduled for later tribal sovereignty and the inherent Katherine Ryan, Assistant States At- this year. powers of tribes initiated the conference. torney and Coordinator of Child Abuse This was followed by an explanation of and Neglect Unit, Chicago. Phoenix Session the Act's legislative history and a The first regional session was held on description of the opinions issued to date Regional Sessions June 6 in Phoenix, Arizona. This one- by the Solicitor's Office concerning the With the Reno national session pro- day session, attended by approximately Act. viding basic information on the Indian 50 people, was coordinated by Maryetta The presentations on the content of Child Welfare Act, the regional sessions Tsosie, NAICJA Consultant and Chief the Act were divided into five main were scheduled as forums to discuss and Judge of the Colorado River Indian phases: pre-hearing procedures; tribal develop workable procedures to accom- Tribal Court. Judge C. Kimball Rose, responsibilities; state court hearings; modate specific local situations. In Presiding Judge of the Maricopa Coun- voluntary and involuntary dispositions; designing these sessions, there was an ty (Arizona) Superior Court, and Joe and post-trial rights. emphasis on providing an atmosphere continued on page 5 Dr. Vincent DeFrancis, Retired Director of the American Humane Association's Childrens Division, lectures to a group of tribal court judges at one of NAICJA's family law/child welfare trainings. 4 Roger Wollman, Chief Justice of the South Dakota Supreme Court. Other agenda topics included: The Social Worker's Role in Implementing the ICWA; the Tribal Role in Implemen- ting the ICWA; Transferring Cases from State to Tribal Courts; Reassump- tion of Jurisdiction; Issues in Providing Social Services for Implementing the ICWA; Tribal-State Agreements; and the Urban Indian Organizations' Role in Implementing the Act. Reno Session The Reno session was held September 4-5 at the National Council of Family Court Judges facilities on the Reno Campus of the University of Nevada. It was organized by Alice Drengson, Social Work Supervisor of the Inter- tribal Council of Nevada with assistance Tribal court judges confer at NAICJA-sponsored Family Law/Child Welfare training. An from Virginia Cain of the National evaluation recently conducted by SRI International indicated that learning from each other and Council of Juvenile and Family Court knowledge of where to go for help with court-related concerns are two important impacts of Judges and from Maryetta Tsosie and NAICJA training reported by tribal judges. Nancy Gale, NAICJA consultants. The keynote address for the session covered the topic of Tribal Authority Basis for Child Welfare Services and continued from preceding page of the following, in implementing the Braswell, Phoenix Area Social Worker ICWA: the social worker; the tribal con- was given by David Dunbar, Director of for the BIA, worked with Judge Tsosie tact agency; the tribal court; the tradi- Legal Programs for the National Tribal Chairman's Association. Concurrent to design the training agenda and for- tional Indian court; advocacy services; mulate the participant list. tribal government; and New Mexico workshops on the topics of Dispositional Judge Tsosie, NAICJA President state and county departments of social Options for the Tribal Child, Alcohol Abuse and Child Welfare, and Foster Cranston Hawley, and Justice Frank X. services. The seven workshops were led Gordon of the Arizona Supreme Court by a total of 21 instructors and facil- Care followed the keynote address. provided opening remarks for the ses- itators. These included social workers, The second day of the session covered sion. The main topics on the Phoenix legal education specialists, attorneys and the topics: "The Child Victim of Neglect and Abuse" and "The Indian Child agenda included: The Legal Respon- tribal judges, The tribal judges were Welfare Act: An Overview of Problems sibilities of the Bureau; Procedures for Judge Jerry Bean, Southern Ute Tribal Transfer; Tribal State Agreements; and Court; Judge Dwain Clark, Acoma Encountered and the Development of Solutions." Social Service Provision Issues. Tribal Court; and Judge Benito Mon- continued on page 13 dragon, Taos Pueblo Court. Albuquerque Session The Albuquerque regional session, Bismarck Session held on June 11-12, was attended by ap- The Aberdeen, Minneapolis and Bill- proximately 100 people. Marcella Wolf, ings regions held a joint session in Judge George R. Armstrong Conference Coordinator for RAMAH Bismarck, North Dakota on June 24-25. Navajo School Board, Inc., took the Approximately 60 participants at- Judge George R. Armstrong, a lead in organizing this session. NAICJA tended. Unfortunately, many BIA per- founder and board member of the consultant Robert Bennett, Julia Pro- sonnel who had planned to attend were National American Indian Court vost of NAICJA's staff, and Bob Carr, unable to do so because of a BIA freeze Judges Association died in BIA Albuquerque Area Social Worker, on travel. September 1980. participated in the planning. Nancy Gale, NAICJA consultant, Judge Armstrong had been Marcella Wolf and Nelson Thomp- coordinated the training. Ms. Gale Chief Judge for the Hopi, the son, Director, Division of Health and worked closely with Roger Lonnevik, Southern Ute and the Ute Moun- Social Services, RAMAH, Navajo, Jack Burkhardt, and Harold Smith, BIA tain Ute Tribal Courts. He was gave the opening remarks for the ses- Area Social Workers for the Aberdeen, also Juvenile Court Judge for the sion. The Honorable Dan Sosa, Chief Billings and Minneapolis areas respec- Uintah and Ouray Reservation. Justice of the New Mexico State tively. He was a well-known NAICJA in- Supreme Court provided the keynote Cranston Hawley, NAICJA Presi- structor and wrote a number of address. After an overview and sum- dent, and Roger Lonnevik opened the publications for the Association. mary of the ICWA legislation, the con- session. The keynote address, outlining Judge Armstrong will be missed ference was divided into 7 workshops. the activities of the South Dakota State by all those who had the privilege These workshops were concerned with Court system in implementing the of knowing and working with him. exploring the roles and responsibilities ICWA, was given by the Honorable 5 After a lull of one year, NAICJA in- itiated its current 2-year LEAA-funded Criminal Law training program in December 1978. The new program, which has consisted of seven separate sessions, instituted several new concepts in NAICJA's criminal law training ap- proach. Recognizing that the experience and tenure of its members are becoming more and more diverse, NAICJA has, with its 1978-80 program, given a great deal of attention to dividing course offer- ings into beginning and advanced levels. This, in turn, has enabled NAICJA to offer a more specialized training content providing in-depth training in specific areas. In addition, the 1978-80 criminal law offerings have been designed to simulate a college classroom atmosphere with a NAICJA Instructors Genevieve Chato, Attorney, and Instructor/Organizer Ralph Johnson, majority of the material being offered in Professor at the University of Washington School of Law, at Criminal Law training for tribal a presentation method patterned on that judges. used by the National Judicial College. Indeed, six of the seven criminal law ses- sions offered under NAICJA's 1978-80 contract were held at the National concerted effort to provide training op- clerks attended the session. The follow- Judicial College facilities on the Univer- portunity to as broad a range of member ing topics were offered to all par- sity of Nevada's Reno campus. All of the judges as possible. Careful records were ticipants: The Importance of Tribal seven sessions were designed to offer kept to assure that every judge had a Courts: Dual Judicial Power; Judicial trainees a series of one-to-two hour lec- chance to attend at least one training. Administration Conducted by the tures, each followed by small group dis- The 1978-80 NAICJA criminal law Court; Tribal Court Administration; cussions. training series was designed by NAICJA Recent and Pending Cases in Federal instructor Ralph Johnson, Professor at In implementing its 1978-80 criminal Indian Law; and Judicial Discretion in the University of Washington School of Tribal Courts. Moot court slices were law training contract, NAICJA made a Law, Seattle. Professor Johnson, in also offered. cooperation with the NAICJA Board of During the last two days of the train- Directors and with the assistance of ing the participants were assigned to various NAICJA instructors, planned classes based on their experience level. the sessions to meet the practical day-to- The following topics were presented: day courtroom information needs of Contracts; Legal Bibliography; Intro- tribal court judges. He selected instruc- duction to Library; Torts; and Pro- NAICJA Supports tors for the session based on their legal cedures in Juvenile Cases. experience, their teaching ability and The second training, also at the Judi- Related Training their ability to relate to the particular cial College, was held April 2-5, 1979. It situations facing American Indian covered: Preliminary Proceedings; NAICJA continues to encourage its courts. Arraignment and Preparation for Trial; membership to participate in training To maintain a high level of relevance Trial Procedures; Judgement; Appellate provided by other organizations when and quality to the trainings, Professor Procedures; the Indian Civil Rights Act; that training is relevant to the Indian Johnson obtained participant evaluation Search and Seizure; and Evidence. tribal court system. For example, this of each presentation made. Information The third training, again at the year NAICJA arranged for four of its from these evaluation was used to plan Judicial College, was held June 11-14, members to attend two non-lawyer and design subsequent trainings. Robert 1979. Topics included: Sources and training sessions held by the National L. Bennett, NAICJA instructor and Basic Theory of Evidence Law; Judicial College in Reno: a one-week consultant, worked with Professor Relevance, Competency and Privilege; session from April 13-18 on the topic of Johnson in coordinating several of the Burdens: Production and Persuasion, Alcohol and Drugs, and a two-week sessions, and was the primary organizer Judicial Notice, and Presumptions; general session beginning June 29. for the recent session held in Albuquer- Opinion and Expert Testimony; Hear- Tuition, room and board, and the que for beginning judges. say Defined; Hearsay Exceptions; Testi- conference fee for the four judges were The first training in the 1978-80 monial, Documentary and Demonstra- paid by NAICJA from LEAA funds. Criminal Law series was held at the tive Evidence; Impeachment and Reha- The National Judicial College provided National Judicial College in Reno on bilitation; Constitutional ICRA Issues; a $100 expense waiver for the NAICJA January 29 through February 1, 1979. and the Role of the Judge in Evidentiary participants. Junior and senior judges and court Process. 6 NEW CRIMINAL LAW SERIES Law Center; Brenda Desmond, At- torney, Crow Agency, MT; Kathryn OFFERED TO TRIBAL JUDGES Duffy, U of NV College of Bus Adm; Judge Tom Ewing, Stark County, ND; Frank Fahrenkopf, Nat'l Judicial Col- The fourth training, held on Offenses; Establishing and Defeating lege; Tonya Garcia, Idaho Legal Ser- September 16-20, 1979, covered: Crim- the Existence of Required Mental vices; David Getches, Attorney, inal/Civil Jurisdiction; Basics and Status; Attempting and Aiding the Boulder; Cranston Hawley, NAICJA Limitations of Criminal/Civil Jurisdic- Commission of a Crime; An Introduc- President; Ralph Johnson, U of WA tion; Sources/Choice of Law; Review of tion to Defenses and Responsibility; School of Law; John Junker, U of WA Criminal Procedure; Basic Procedure in Justification; Additional Defenses and School of Law; Rod Lewis, Attorney, Nine Complex Cases; Comparison of General Questions; Habeas Corpus and Sacaton, AZ; Anthony Little, Indian Criminal/Civil Cases; Specialized Pro- Tribal Courts: Special Evidentiary Pueblo Legal Ser., Bernalillo, NM; cedural Matters; Introduction to Com- Problems of Criminal Trials; the Mean- Hilda Manuel, Attorney, Sells, AZ; plex Cases; Consumer Contracts; ing of Jurisdiction (Judicial vs. John Milne, U of WA School of Law; Defective Consumer Goods; Rentals, Legislative Jurisdiction); Federal and Peter A. Ozanne, U of Oregon School Leases, and Bailments; Restraining State Court Jurisdiction in Indian of Law; Steven Palmberg, Colville Orders and Injunctions; and Execution Country; Tribal Court Jurisdiction; Legal Office; Browning Pipestem, Chief of Judgement. Moot Court Slices; and Special Prob- Judge, Western Tribes of OK; Steve The fifth session, held November lems of Criminal Procedure, Motions Quesenberry, CA Indian Legal Ser.; 26-29, 1979, concentrated on Quasi and Discovery. Dan Raas, Attorney, Bellingham, WA; Judicial Rules and the topic of Search Instructors and discussion leaders for Anita Remerowski, SD Legal Services; and Seizure. Specific presentations and the criminal law training series included Thomas Schlosser, Attorney, Seattle; discussions were held on: Political and the following: James Adams, University Peter Sferrazza, Nat'l Judicial College; Legal Implications of Santa Clara Pueblo of the Pacific School of Law; George Virginia Silva, Director-Public Affairs V. Martinez; Judicial Review and Tribal Armstrong, Chief Judge, Ute Mt Ute & Safety-AAA, Albuquerque; Felix Courts; and the Indian Civil Rights Act. Tribal Court; Robert Aronson, Univer- Stumpf, Director-Academic Dept., Other topics presented included: Police/ sity of Washington School of Law; Stan Nat'l Judicial College; Regina Judge Relations; The Growing Trend to Barnhill, Dept. of Criminal Justice, Superneau, Attorney, NAICJA Staff; Decriminalize Minor Crimes; Decrimi- Reno; Robert Bennett, Consultant on Ray Sweazey, Alamo, CA; Mike nalization of Traffic Offenses; a Report American Indians; Charles Blackwell, Taylor, Indian Pueblo Legal Ser.; Mary from the National Highway Safety Ad- President, Am Indian Tribal Gov't & Turgeon, Chief Judge, NW Intertribal visory Board; Scientific Evidence in Policy Consultants; Steve Boyden, At- Court System; Dean Ernst Watts, Nat'l Traffic Cases; the Roles of the Advocate torney, Salt Lake City; Genevieve Judicial College; Barbara Yanick, and Judge in Handling Driving While Chato, Attorney, Ft. Defiance; Philip S. Judge, Seattle; and Alvin J. Ziontz, Intoxicated Cases; and Sentencing Deloria, Director, American Indian Attorney, Seattle. Alternatives in Traffic Cases. The sixth training was held in Albu- querque, New Mexico, on February 6-8, 1980 and was designed for those judges who had less than one year's ex- perience. Trainees were given reading assignments from NAICJA's Criminal Law and Procedure text. Presentations and group discussions were based on these readings. The topics included: Jurisdic- tion of Indian Courts; the Roles of the Judge, Clerk, and Counsel; Pre-trial, Trial and Post-trial Procedures; and the Indian Civil Rights Act. The last training in the current series was held July 14-17, 1980. This training was designed for intermediate and ad- vanced tribal court judges. A pre-and post-test were given to trainees at this session and certificates of credit were awarded to those passing the post-test. Twenty judges received certificates showing they had completed the course with honors. The following topics were included in NAICJA trainees listen to lecture on criminal law. All of the seven criminal law trainings in the July 14-17 session: Structure of NAICJA's 1978-80 program were designed to provide a series of one-to-two hour lectures, each Criminal Law; Elements of Criminal followed by small group discussions. 7 LEAA Ends Funding COURT ADVISORS PROVIDE for Indian Court TECHNICAL ASSISTANCE Judges Training NAICJA has received notice from NAICJA frequently receives requests ment and the Bureau of Indian Affairs. Dale Wing, Chief of t¹ e Indian Justice from tribal courts for specific on-site The out-growth of this consultant visit Section of LEAA, th t no additional technical assistance. This year, the was a formal request to the BIA for a criminal justice training funds would be Court Advisory component of its pro- training session involving tribal court forthcoming in FY 1980 from LEAA to gram grants has enabled NAICJA to personnel, law enforcement officials and NAICJA. respond formally to those requests. tribal officials to which state judges and Over the years, NAICJA has organ- The following are examples of the law enforcement personnel from sur- ized and conducted a training program types of requests received this summer rounding counties would be invited. for a special group of Indians function- by NAICJA's Court Advisory compo- The Nooksack Indian Tribe of nent. ing in very responsible tribal govern- Washington, which is establishing a ment positions. Indian court judges face The Navajo Tribe requested an on- tribal court with the services of the problems presented by Indians day after site workshop for its Supreme Judicial Northwest Inter-tribal Court System, Council. day after day and the training they requested information which would The Chairman of the Colorado River receive helps them cope with their many assist in setting up a workable system Indian Tribes, in conjunction with the responsibilities. specific to its situation. Although there is a high turnover of Chief Judge, requested that the Associa- The Oregon Legal Services Corpora- tion conduct an evaluation of the Col- Indian court judges, neither the court tion requested NAICJA assistance for orado River Tribal Court. system or the Indian Court Judges the Klamath Tribe concerning the struc- The Mescalero Tribal Court re- Association has any power to prevent ture and administration of its newly the turnover-except that better trained quested that a NAICJA consultant visit evolving judicial system. judges are perhaps more likely to sur- for the purpose of evaluating procedures Requests were also received from the vive. of the tribal court and its relationship Oneida, Pine Ridge and Papago Tribal with other departments of tribal govern- Courts. The cost of training is very low and alternative plans have been considered by NAICJA and rejected because of tremendous cost, or not meeting the reality of Indian reservation life and cir- FULL FAITH AND CREDIT SOUGHT cumstances. The Indian Court Judges Association regrets the decision made by the Depart- continued from page 1 reasons state courts have for not exten- ment of Justice's LEAA. volume of cases handled, geographic ding "full faith and credit" to tribal court location and level of sophistication. judgments is because tribal courts fail to Contact will be made with state and meet state court requirements as "courts local courts in the eight states encom- of record," then technical assistance passing the twelve selected tribal courts where needed will be offered to those Audits Performed in order to: 1) ask for their participation tribal courts. in this project; and 2) find out what In addressing the problem of inade- for ARROW/NAICJA reasons state courts may have for not quate record systems in tribal courts, ex- granting "full faith and credit" to tribal perienced consultants will be used to The annual independent audit of court decisions. provide the needed technical and prac- ARROW, Inc., for 1979 was completed NAICJA believes the lack of comity tical on-site assistance to help those in March, 1980, by the Certified Public between tribal and state courts can be tribal courts establish a uniform record- Accounting firm of Hutchinson, attributed to: 1) lack of communication keeping and data collection system. The Johnston and Hugins. ARROW, Inc., and interaction between tribal and state results of this technical and practical on- continues to provide corporate and courts; and 2) the failure of many tribal site assistance, as well as state minimum financial management for NAICJA pro- courts to meet state requirements as records requirements and NAICJA's grams, thus aspects of NAICJA finances "courts of record." For these reasons, the recommended model standards will be were also reviewed in the ARROW Model Court Development project has compiled in a "Model Records Stan- audit. been designed to include consultation dards Manual." This uniform record- In June and July, Robert Scott, meetings in the eight states involving keeping and data collecting system will LEAA auditor, spent several weeks in tribal council members, tribal leaders, be intended for use by all tribal courts. the NAICJA offices doing an audit and tribal court judges, state court ad- The principal objective of this project review of NAICJA's LEAA-funded pro- ministrators and judges, and NAICJA is improved tribal and state court rela- gram. All of NAICJA's files and staff and consultants. These consulta- tions resulting in enforcement of Indian records, including those of other pro- tion meetings will move to solve any lack court judgments by state courts. A grams were opened to him. of communication between tribal and valuable by-product in the attainment of The LEAA audit was initiated on state courts, as well as bring about more this objective is the development of a NAICJA request so that the Association interaction and improved relations. practical yet detailed model records would have the authority to clear its files If it is determined, at any of these system tailored to meet tribal court of items stored only for audit purposes. consultation meetings, that one of the needs. 8 A NAICJA Publication Recent Court Decisions and Legislation Relevant to Indian Courts by Ralph W. Johnson with assistance from Michael Elsass This newsletter starts a new idea, of providing brief descriptions of the federal and state court decisions and federal legislation, that Indian court judges should know about. Over the past few years many important decisions have been rendered by these courts which affect Indian court jurisdiction, or affect the substantive law that is applied by courts on the different reserva- tions. Few Indian courts have access to the Federal Reports, or state reports; thus, Indian judges find it difficult to keep current with the opinions now be- ing published in this field. It is, therefore, the purpose of the following summary to describe these cases briefly, giving enough information to tell the judges the general nature of the cases, and their significance to Indian courts. Decisions that are important to Indian reservations generally, but are of lit- tle direct importance to tribal courts, have also been summarized. This was done so Indian court judges might be aware of changes in the larger Professor Ralph Johnson framework of federal/state law in which the reservation courts operate. Lastly, a brief description has been included of federal legislation that has, or can have, an impact on the jurisdiction of Indian courts. CONTENTS The descriptions which follow have been broken down by issues, as shown I. JURISDICTIONAL in the table of contents. ISSUES In each case report, the reader should carefully note the court that is the A. General Jurisdictional source of the opinion. U.S. Supreme Court opinions are, of course, control- Questions ling on all Indian and other courts in the nation. Federal courts of appeals' 1. Cases Decided by the decisions are controlling in that particular circuit (e.g., the 9th Circuit) and United States Courts are entitled to great weight elsewhere. Federal district court decisions are of Appeal binding on the parties to the litigation and should be given serious considera- 2. Cases Decided in the tion, but are not so noteworthy as the court of appeals decisions. State court United States District decisions are generally useful to Indian courts only for their reasoning or in- Courts 3. State Court Decisions herent persuasiveness. Such decisions reflect the considered judgment of a state appellate tribunal, and should be studied for the wisdom that may be 4. Other Developments B. Decisions relating to reflected in the opinion, however only in a few exceptional circumstances are Public Law 280 they binding on tribal courts. C. Cases Involving the Most of the citations are to the Indian Law Reporter, which is now widely Sovereign Immunity of available. It is cited, for example, as 6 ILR D-54 (1979). This means the case Indian Tribes can be found in volume 6 of the Indian Law Reporter at page D-54, and that it II. INDIAN HUNTING AND was decided in 1979. The Indian Law Reporter citations are used because of its FISHING RIGHTS CASES wide availability, and because most of these cases have not yet appeared in A. Off-reservation fishing the official federal or state reporter systems. rights in State of Washington B. Regulation of non- Indian, on-reservation fishing & hunting III. CASES INVOLVING INDIAN WATER RIGHTS NAICJA Publication Distribution Policy IV. TRIBAL AFFAIRS All publications prepared and printed by NAICJA are financed by govern- A. Tribal Property ment grants or contract funds. The publications are first distributed to tribal B. Tribal Government court judges who are NAICJA members and to relevant agency personnel. C. Domestic Relations & When additional copies remain, they may be obtained by written request to the Probate Matters NAICJA Washington Office. NAICJA regularly mails requested copies of its D. Miscellaneous publications to tribal personnel, Indian attorneys, law libraries, state and coun- ty courts, and to various state and local agencies. V. AMENDMENTS TO THE FEDERAL CRIMINAL CODE NATIONAL AMERICAN INDIAN COURT JUDGES ASSOCIATION, 1000 Connecticut Ave., N. W., Suite 401, Washington, D.C. 20036 I. JURISDICTIONAL ISSUES could not regulate the sale or were held not applicable to distribution of liquor on the these lands. This section discusses recent cases Muckleshoot Reservation. However, an opposite re- involving jurisdictional questions sult was reached in Shoshone that affect Indian courts. The three The Major Crimes Act is not Unconstitutional. In and Arapahoe Indian Tribes of most important facts to look for in U.S. V. Broncheau, 6 ILR D-50 Wind River Reservation of Wy- these cases are (1) who was involved, i.e., Indian or non-Indian; (2) where (1979) the 9th Circuit upheld oming v. James P. Knight etc, 7 conviction of an enrolled Nez ILR p.3116 (1980) where the did the events occur, i.e., on or off court held that the tribe did Perce Indian under the Ma- the reservation (or partly on, etc.); jor Crimes Act, rejecting his have power to zone non- and (3) what was the nature of the litigation, the subject matter of the claims that (1) this Act was Indian fee patent land on the reservation and said it was unconstitutionally vague in suit. These are the critical elements its definition of "Indian", and "skeptical" whether the in all cases dealing with juris- that the Act was unconstitu- county's zoning power extend- dictional questions. ed onto the reservation at all. tional as a denial of equal A. General Jurisdictional Ques- protection to Indians (it ap- State jurisdiction on the plies only to Indians). The Warm Springs Reservation tions court declined to decide under P.L. 280. The district 1. Cases Decided by the whether the Major Crimes court in United States v. E. K., United States Act was exclusive, or whether 6 ILR F-113 (1979) held that Courts of Appeal tribal courts still had concur- the State of Oregon does not On-reservation hunting rent jurisdiction over the have jurisdiction to try an In- violation. An enrolled In- same offenses. dian youth for an offense oc- dian cannot be prosecuted Lesser-included offense curring on the Warm Springs under federal law, 18 USC Indian Reservation, as that 1165, for hunting without instructions under Major reservation was specifically tribal permission on his own Crimes Act prosecutions. In excluded from state jurisdic- reservation. The 9th Circuit United States v. Pino, 6 ILR tion by Public Law 280 [28 held, in U.S. v. Jackson, 6 E-58 (1979) the 10th Circuit U.S.C. Section 1360(a)]. See ILR D-54 (1979) that juris- held that in prosecutions also U.S. v. Allan, 574 F.2d diction to prosecute such under the Major Crimes Act, 435, 438, n.5. tribal members rests ex- the judge is required to in- clusively in the tribal courts. struct the jury on lesser in- An off-reservation housing cluded offenses even though project is held to be "Indian State Regulation of on- the lesser offense is not one of Country". In U.S. v. Mound, reservation sales of liquor. those enumerated in the Ma- 6 ILR F-159 (1979) the federal In United States v. New Mexico, jor Crimes Act. Thus, in court held that it had jurisdic- 6 ILR E-1 (1979) the 10th Pino, where the defendant tion to try an Indian for an of- Circuit held that the State of was charged with manslaugh- fense committed under the New Mexico had no authori- ter, the court should have Major Crimes Act on land ty to regulate liquor traffic given a jury instruction on that was not within an Indian within the boundaries of the the lesser-included offense of reservation. The court found Mescalero Apache Reserva- careless driving. that the land, which was a tion. This decision relied on low-income housing project, United States v. Mazurie, where 2. Cases Decided in United was a "dependent Indian the U.S. Supreme Court had States District Courts Community" and thus "Indian held that under a 1953 federal Tribal power to zone non- Country" under 18 U.S.C. statute the Wind River Tribe Indian land on the reserva- 1151. This finding was based had jurisdiction to regulate li- tion. The issue of zoning on the facts that: the title to quor sales on the reservation, power on Indian reservations the land was held by the Uni- even over a non-Indian has become increasingly im- ted States in trust for the tribe; tavern owner operating a portant. In Trans-Canada the housing project communi- tavern on fee patent land. A Enterprises V. Muckleshoot Indian ty had a close relationship similar result was later reach- Tribe, 6 ILR F-1 (1979) the with the tribe and was being ed by a federal district court court held that the tribe did given the same services by the in Muckleshoot Indian Tribe v. not have authority to regulate tribe as its other communities; Washington, 6 ILR F-36 non-Indian use of fee patent and the community had close (1979) where the court said land on the reservation. ties with the federal govern- the State of Washington Tribal zoning ordinances ment with federal moneys be- I-2 ing spent for water supply, have jurisdiction. In ments with the U.S. De- sewers, roads, medical ser- C.M.G., Juvenile V. Oklahoma, partment of the Interior so vices, and a portion of the 6 ILR G-17 (1979), an Okla- that, when appropriate, state educational needs. The court homa court held that the Chi- law enforcement officers could said the above facts made the locco Indian School is a de- receive Deputy Special Officer project a "dependent Indian pendent Indian community Commissions from Interior Community" even though under 18 USC 1151 defining and could thus assist in main- some non-Indians lived there. Indian Country and thus the taining law and order on these Under this holding a tribal federal courts have exclusive scattered parcels of trust allot- court would also have jurisdic- jurisdiction to prosecute of- ment lands. tion over such a housing pro- fenses occurring there; the B. Decisions Relating to Public ject area. state courts do not have any Law 280 3. State Court Decisions jurisdiction. These decisions ordinarily Washington v. Yakima Indian Na- 4. Other Developments have relatively less weight out- tion, 6 ILR A-5 (1979) is an espe- A recent U.S. Justice De- side the state, or in the federal cially important case because it partment memorandum re- courts. They are not binding was decided by the United States ported in 6 ILR K-15 (1979) on Indian courts, although the Supreme Court, and thus is bin- addressed the question of reasoning in them may be use- ding on all other courts. jurisdiction to prosecute non- ful to Indian court judges. It is important to know some Indians who commit victim- of the background to understand A state court has jurisdic- less crimes such as traffic of- the significance of the case. In tion to try a civil, tort action fenses, prostitution, or vag- 1963 the State of Washington, occurring on the Eastern rancy on Indian reservations. under the authority of P.L. 280, Band of Cherokee Reserva- The memorandum concluded assumed partial civil and tion in spite of the fact that that, as a general rule, the criminal jurisdiction over In- the Band was a "recognized" state has exclusive jurisdiction dians and Indian country within Indian tribe. In Sasser v. Beck, over these offenses under the the state. This jurisdiction was 6 ILR G-32 (1979) a North McBratney rule (N.I. V. N.I. limited in that it extended to only Carolina court held that the offense comes under state eight subject areas (school atten- state court had jurisdiction to jurisdiction). However, where dance, welfare, domestic rela- try a civil action brought by a Indian lives, property or tribal tions, mental illness, juvenile non-Indian against an Indian interests are directly threat- delinquency, adoption pro- for personal injuries sustained ened by the offense the federal ceedings, dependent children, in defendant's motel swim- courts would also have con- and operation of motor vehicles) ming pool located on the current jurisdiction under the and to fee patent land, unless a reservation of the Eastern General Crimes Act, 18 USC tribe specifically requested that Band of Cherokees. The court 1152. the state assume complete said that the Eastern Band of An Oklahoma State At- jurisdiction over all subjects and Cherokees ceased to be part of torney General's Opinion, lands. the Cherokee Nation when reported in 6 ILR M-1 (1979), The Yakima Nation argued in they refused to emigrate to concluded that the state lacked the Supreme Court that the Oklahoma in 1835. The band jurisdiction to prosecute a state's scheme was invalid later incorporated under state crime committed by an Indian because P.L. 280 jurisdiction law and submitted itself to against an Indian on trust cannot be asserted in this state jurisdiction. Neither allotted land, defined as "In- "piecemeal" way, and further, subsequent federal recognition dian Country" by 18 USC because Washington had not of the band nor passage of 1151, even though the land amended its state constitution as P.L. 280 altered this state was not on any reservation. required by Public Law 280 to jurisdiction. This A.G.'s opinion is consis- allow for jurisdiction over The facts of this case are tent with recent federal court Indians. The Yakima Tribe also sufficiently unique that the cases which reversed a long- argued that such piecemeal ruling will have little applica- standing Oklahoma court jurisdiction "checkerboarded" the tion to most other reserva- practice of asserting state reservation, making law enforce- tions. jurisdiction over these trust ment impossible and thus deny- Chilocco Indian School in allotment lands. ing the Indians equal protection Oklahoma is a "dependent The Attorney General re- under the federal Constitution. Indian Community" where commended that state officials The U.S. Supreme Court re- the federal, not state, courts work out cooperative arrange- jected the Indians' arguments I-3 and held that the state's assertion The Montana Supreme Court federal courts may hear ICRA of jurisdiction was valid and was held in Larrivee V. Morigeau, 6 suits against the tribe. not unconstitutional, and that it ILR G-67 (1979) that under Two important cases were was for Washington to deter- P.L. 280 and a tribal ordinance decided in United States circuit mine whether a state constitu- the Confederated Salish and courts in the past year on the tional amendment was necessary Kootenai Tribes had granted the issue of tribal immunity from before asserting P.L. 280 state concurrent jurisdiction over suit. In Bottomly v. Passamaquoddy jurisdiction. the operation of motor vehicles Tribe, 6 ILR B-22 (1979) the The Yakima decision is signifi- on the reservation. Thus, the court addressed the question cant for those states which had state trial court had jurisdiction whether the tribe and three of its asserted P.L. 280 jurisdiction to hear a negligence action former governors could be sued before 1968. After the 1968 In- brought by a non-Indian plaintiff for fees by an attorney who had dian Civil Rights Act, P.L. 280 against an Indian defendent aris- represented the tribe. The court jurisdiction could only be ing from an auto accident on the held that the tribe was protected asserted with tribal consent. reservation. from such a suit by its sovereign One issue which the Supreme C. Cases Involving the Sovereign immunity, reasoning that the Court did not decide is whether Immunity of Indian Tribes "mere passage of time with its the assertion of Public Law 280 Indian tribes may not be sued erosion of the full exercise of the jurisdiction by the state means unless the United States Con- sovereign powers of a tribal that the state jurisdiction is ex- gress enacts a law consenting to organization" does not amount to clusive and that Indian tribes no such suit. This is because Indian a waiver of sovereign immunity. longer have jurisdiction in those tribes possess "sovereign im- Even though the tribe had not areas. An opinion by the Soli- munity"; the same concept pro- been exercising many of its citor, written for Assistant tects the United States govern- powers, and had not been Secretary for Indian Affairs in ment and state governments specifically recognized by the the Department of the Interior, from suit unless they consent. federal government, it still re- in November 1978, concluded The doctrine of sovereign im- tained its immunity until Con- that even though the State of munity protects not only the gress explicitly removed it. Florida asserted P.L. 280 tribe, but also tribal officers who In another important decision, jurisdiction over the Seminole are acting under tribal authority. the 9th Circuit Court of Appeals reservation, the tribe retained its Individual members of the tribe, held in People of the State of Califor- own power to enact a law and acting on their own and not as nia ex rel California Department of order code, establish a tribal official representatives of the Fish & Game v. Quechan Tribe of court, and authorize tribal police tribe, are not immune from suit, Indians, 6 ILR D-41 (1979) that to enforce tribal law. While the however. P.L. 280 does not constitute a Solicitor's opinion does not have An important case decided by waiver of sovereign immunity. the status of a judicial decision, it the United States Supreme The court stated that, like the nonetheless reflects the official Court in 1978, Santo Clara Pueblo United States, Indian tribes can- view of the Department of the v. Martinez, 436 US 49 (1978) in- not be sued without the consent Interior on the question of con- volved a question of tribal of Congress, citing the United current tribal/ state jurisdiction. sovereign immunity. In Martinez, States Supreme Court decision The Washington State At- the Court held that if Congress Santa Clara Pueblo v. Martinez. torney General recently took the desires to waive tribal sovereign P.L. 280, the court concluded, position that tribal/state jurisdic- immunity it must do so explicit- does not waive tribal immunity tion was concurrent under P.L. ly. The court held that the In- because it does not do so explicit- 280 in his brief in Yakima Na- dian Civil Rights Act of 1968 did ly. tion V. Washington, No. 74-1225 not constitute such an explicit Three federal district courts (CCA 9th 1979). A 1978 decision waiver of tribal immunity, and also handed down decisions in- by a federal district court in the thus the federal courts do not volving tribal sovereign immuni- case of Confederated Tribes of the have jurisdiction to hear suits ty in the past year. In Wilson v. Colville Indian Reservation v. Beck, based on the ICRA. The Court Turtle Mtn. Band of Chippewa In- 6 ILR F-8 (1979) stated that the went on to say that aggrieved dians, 6 ILR F-2 (1979) the court fact that a state has asserted persons must seek a remedy held that the Indian Civil Rights jurisdiction under P.L. 280 does within the tribal court system, Act did not constitute a waiver of not mean that a tribe loses with the narrow exception of tribal immunity from suit, criminal jurisdiction over its habeas corpus cases, that is, where whether the plaintiff is a tribal members. the party seeking relief claims to member or not. (Martinez had One other case involving P.L. be imprisoned unlawfully. That held that the ICRA did not allow 280 was decided in a state court. is the only situation where a tribal member to sue the tribe.) I-4 In Sechrist v. Quinault Indian Na- fishing rights decided in the past D-43 (1979) is another case in- tion, 6 ILR F-138 (1979) the year is Washington v. Washington volving the issue of regulation of district court held that sovereign State Commercial Passenger Fishing on-reservation fishing by non- immunity protects the tribe Vessel Association, 6 ILR A-89, 99 Indians. In this case the 9th Cir- itself, but not individual mem- S.Ct. 3055 (1979). In this case cuit Court of Appeals ruled that bers. the United States Supreme the Crow Tribe has the power to In Trejo v. United Sates, 6 ILR Court upheld most of the impor- prohibit non-members from F-19 (1979) the federal district tant aspects of the controversial hunting or fishing on the reser- court held that actions against "Boldt" decision, which had held vation unless they own fee land policemen employed by the BIA that, as a result of treaties, In- within the reservation. If they for an alleged illegal search and dian tribes in Washington are own such land, they cannot be seizure must be dismissed when entitled to have the opportunity prohibited entirely from hunting it is shown that they acted in to take up to 50% of the avail- and fishing on the land where good faith reliance on a search able fish harvest at their tradi- they reside; however they can be warrant issued by a tribal judge. tional off-reservation fishing subjected to reasonable tribal The court further held that the grounds. Further, the Court spe- regulations. tribe, and the judge, were im- cifically held that the State of If the tribe allows other non- mune from suit. Washington must comply with members to hunt and fish on the The Washington State the decision, and that the federal reservation, the tribe may fix Supreme Court also handed district court in Washington has seasons and limits and require down a decision last year on the the authority to enforce the treaty payment of license fees, although issue of sovereign immunity. provisions if the state will not. it cannot use criminal sanctions The court held in North Sea Pro- The Supreme Court modified for enforcement. Forfeiture of ducts, Ltd., V. Clipper Sea Foods the lower court decision by rul- the arms or other property of Company, 6 ILR G-27 (1979) that ing that the on-reservation catch, non-Indians is not permissible. the operation of a tribal business and fish caught for ceremonial The state has no power to reg- off the reservation does not con- and subsistence needs, are to be ulate on-reservation hunting and stitute an implied waiver of tribal included in the Indians' 50% fishing by tribal members. sovereign immunity. share. The court also stated that However, the state may regulate It should be remembered that the 50% figure represented the all non-members' hunting and sovereign immunity does not maximum amount that would be fishing. Thus non-members must ordinarily protect tribal officers allocated to the tribes as their obtain licenses from the state as who are acting illegally, i.e., out- treaty share. If over time the In- well as the tribe and are subject side the scope of their authority. dians abandon their fisheries, to both tribal and state regula- In such cases suits can be their share might be reduced. tions. State regulations cannot brought against them, but only B. Regulation of Non-Indian, authorize hunting or fishing in to enjoin threatened illegal ac- On-Reservation Fishing violation of tribal rules, and vice tions, not for money damages. & Hunting versa. Also, a different question is In another case from Wash- In Mescalero Apache Tribe V. posed if suit is brought by a ington State, the 9th Circuit New Mexico No. 78-1790 Slip tribal member in tribal court. In Court of Appeals held that the Opinion (10th Cir., August 13, such a case it is within the discre- state has the power to regulate 1980), the 10th Circuit Court of tion of the tribal judge to deter- on-reservation fishing activities Appeals held that the adoption mine whether the doctrine of by non-Indians. In Confederated by the tribe of a comprehensive sovereign immunity applies in Tribes of the Colville Indian Reserva- game management code pre- that court. Even if the tribal tion v. Washington, 6 ILR D-27 empted state game management judge allows the defense of (1979) the court reasoned that laws. As a result both tribal sovereign immunity, he may neither Congress nor the tribe members and non-members, in- nonetheless allow suits for in- intended to exclude totally the cluding non-Indians, were sub- junctions against tribal officers if state from exercising jurisdiction ject to the tribal code and not to they are found to be acting out- on the reservation. Significantly, state game laws. In upholding side the scope of their authority. the court looked on the tribes' this tribal pre-emption of game own code to determine tribal in- II. INDIAN HUNTING AND management, the court distin- FISHING RIGHTS CASES tent. However, the court stopped guished (Confederated Tribes of the short of saying that if the tribe Colville Indian Reservation V. A. Off-Reservation Fishing has made it clear that it wanted Washington, 6 ILR D-27 (1979) Rights in State of Washington to exclude the state, the state which held that a tribe had no Probably the most important would have no jurisdiction. power to pre-empt state taxation case in the area of hunting and United States V. Montana, 6 ILR of cigarette sales to non-Indians, I-5 saying that the management of In a Washington case, State. v. have this power even if the state con- game involved a "significant in- Reed, 6 ILR G-30 (1979) the stitution says that the state has no terest" of the tribe, whereas the Washington Supreme Court power over Indians. taxation of cigarette sales to non- held that the state may regulate In Colville Confederated Tribes v. Indians was merely a revenue- treaty fishermen who are fishing Walton, decided by the 9th Circuit raising measure. in a usual, off-reservation tribal Court of Appeals, August 20, In January 1979, the 9th Cir- fishing ground, when the regula- 1980, the court addressed the ques- cuit Court of Appeals decided a tion is necessary for conservation tion whether reserved water rights case involving the treaty hunting of the fishing resource. were transferred along with allotted and fishing rights of the mem- In another state case, the land when it was sold to non- bers of the Klamath Tribe, South Dakota Supreme Court Indians. The court concluded that which had been terminated held in South Dakota v. Hero, 6 reserved rights do not pass with the under federal law. Kimball v. ILR G-64 (1979) that when the land, but that the new non-Indian Callahan, 6 ILR D-22 (1979), the Rosebud Sioux Tribe sur- owner has a right to continue to Klamath Termination Act, pro- rendered to the United States all receive as much water as was actual- vided that the tribal roll would "claim, right, title, and interest" ly being used on the land at the time close in 1954 and, at that time, to certain portions of their reser- of transfer. Also, while reserved any member could withdraw vation, they also surrendered rights date back at least to the crea- from the tribe and participate in their treaty hunting and fishing tion of the reservation, the rights a management plan. The case rights. Thus, Indians' hunting which are transferred when allotted arose when persons who with- and fishing on these lands must land is sold in fee to a non-Indian drew, or whose ancestors with- now comply with applicable state date from the time when the water drew, were subjected to Oregon law. In order to retain treaty was actually put to use on the land. regulation when hunting on land rights in the face of such broad Thus, the new non-Indian owner which had formerly been part of cession language, the court received the right to only as much the reservation. The court held reasoned, Congress must water as was actually being used on that treaty rights to hunt and fish specifically state that the rights the land, and the "priority date" is on those lands which had been are reserved. from the time of first use, not from part of the reservation survived the time of the creation of the reser- III. CASES INVOLVING for all persons who were on the vation. The court held that the tribes INDIAN WATER RIGHTS tribal roll at the time of termina- reserved water right is diminished, tion, or where their ancestors The Winters doctrine provides that or lapses, when allotted land passes were on the roll. Even persons when the federal government out of trust, and this portion of the who withdrew from the tribe at created a reservation of any kind, it right returns to the state. the time of termination retained impliedly reserved enough water to The court said the state can ap- their treaty hunting and fishing carry out the purposes of the reser- portion surplus water (i.e. water rights. The court concluded that vation, even though the water is not above and beyond the Indians' the State of Oregon could immediately put to use. This right needs) among non-Indian fee regulate treaty right hunters and does not disappear if not used, and owners on the reservation but fishermen only when necessary the amount which is reserved (the declined to decide whether the state's for conservation. amount necessary to fulfill the pur- regulatory authority extends to other In a federal district court case poses of the reservation) is not water management. It also said that involving off-reservation fishing, reduced because less is actually us- the tribal adoption of a comprehen- United States v. State of Michigan, 6 ed. sive water code did not pre-empt ILR F-67 (1979) the court held In Jicarilla Apache Tribe v. United state apportionment of surplus that the Ottawa & Chippewa States, 6 ILR E-26 (1979) the 10th waters. Tribes had treaty rights to fish in Circuit Court of Appeals held that a A federal district court decision, certain parts of the great lakes, New Mexico state court has jurisdic- U.S. v. Anderson, 6 ILR F-129 (1979) and that the right was not limited tion to adjudicate, that is determine held that the date Winters' rights vest, by species of fish, the origin of the extent of, all federal reserved that is become good against all the fish, the purpose for which water rights, including rights re- others, is the date when the reserva- the fish were caught, or how and served for Indian tribes. This deci- tion was created. Thus, the Indians' when the fish were caught. The sion is based on the McCarran right is superior to all those who seek court also said the state had no Amendment of 1953 and the recent to appropriate water after the crea- authority to regulate the Indian U.S. Supreme Court decision of tion of the reservation. The court off-reservation fishing because United States v. New Mexico, 238 U.S. went on to determine the extent of such authority had been pre- 696 (1978). Thus, state courts may the reserved water right, and held empted by the treaties and by validly determine the extent of In- that sufficient water for irrigation subsequent federal and tribal dian reserved water rights. Jicarilla and to maintain fishing areas was regulation. specifically held that state courts reserved. I-6 IV. TRIBAL AFFAIRS mulgated rules and regulations and governing procedures; A. Tribal Property setting forth procedures for e) a copy of a list of all current In June 1979 the United establishing that an Indian members, and, if available, States Supreme Court decided group exists as a tribe, and thus past lists of members; Wilson v. Omaha Indian Tribe, 6 should be granted federal f) an indication that the group is ILR A-64 (1979), a case involv- recognition, 25 CFR 54. These not composed principally of ing the determination of reserva- procedures will replace the case- persons who are members of tion boundaries. At issue was the by-case method formerly used by another tribe; boundary of the Omaha reserva- the Bureau. They went into ef- g) an indication that the group tion. The Court relied upon a fect in October 1978. All re- has been expressly ter- federal statute, 25 U.S.C. §194, quests for recognition should minated or forbidden tribal which provides that: follow the procedures set out in status. In all trials about the the rules. When the department receives right of property in which The general procedure is de- the petition it publishes a notice an Indian may be a party scribed below. However, any In- of receipt in the Federal Register. on one side, and a white dian group seeking recognition The Governor and the Attorney person on the other, the should first obtain from the BIA General of the state where the burden of proof shall rest the "Guidelines for Preparing a group is located are notified, and upon the white person, Petition for Federal Acknowledg- the department will publish a whenever the Indian shall ment as an Indian Tribe". The notice in a local newspaper make out a presumption guidelines contain specific and which requests comments in sup- of title in himself from the helpful ideas on how a group can port or opposition to the petition. fact of previous possession make its petition as complete as The group has the opportunity to or ownership. possible and improve its chances respond to these comments for recognition. before a decision is made. The Court held that this statute Any Indian group in the con- The department will notify the applies in disputes between in- tinental U.S. which believes it dividual Indians or a tribe on group of any obvious omission in should be acknowledged as an the petition, and allow the group one side, and other non-Indian Indian tribe must file a petition time to correct them. When a individuals or corporations on with the Department of the In- decision is made, on the basis of the other. The term "white per- terior. If a tribe is not sure the petition, or, if necessary, ad- son" does not, however, include whether it has already been ditional research conducted by states. In a land dispute falling recognized, it should contact the the department, prepared fin- within the statute, the Indian or Department of the Interior. The dings will be published in the tribe must show only prior title petition itself may be in any Federal Register. After a period or possession of lands in ques- form, but it must contain the during which interested persons tion, and it is then up to the par- following: may comment, the decision is ties questioning Indian owner- a ) a statement of facts establish- made. If the criteria described ship to prove that they, not the ing that the group has been above are satisfied the depart- Indians or the tribes, are the identified throughout history, ment must acknowledge the rightful owners. Thus, the non- more or less continuously, as group; if they are not satisfied, Indians have the burden of prov- American Indian or abor- the department cannot ing that they are the owners. If iginal; acknowledge the group. The they fail to meet this burden, the b) evidence that a substantial decision becomes final in 60 days Indians will prevail. portion of the group lives in a unless the Secretary of the In- In another case involving certain area or community terior requests reconsideration. tribal property, a federal district viewed as American Indian, If the decision is favorable, the court in Montana held that when and that its members are group becomes eligible for the a non-Indian leases tribal lands descendants of a tribe which benefits and services accorded for the purpose of mining coal, historically inhabited a spe- recognized tribes, and is that coal may be taxed by the cific area; henceforth entitled to enter into state. In Crow Tribe of Indians v. C a statement of facts establish- a government-to-government State of Montana, 6 ILR F-53 ing that the group has main- relationship to the United States. (1979) the court reasoned that, tained tribal or political in- C. Domestic Relations & Probate because the tax was not assessed fluence or authority over its Matters on tribal lands or on the tribe, members; the state tax was proper. The following administrative d) a copy of the group's govern- decisions were issued by the B. Tribal Government ing document, such as its Department of the Interior, In September 1978, the constitution, or else a state- Board of Indian Appeals. Bureau of Indian Affairs pro- ment of membership criteria On the question of the validity I-7 of Indian Custom marriages, the witnesses [Estate of Family Newrohe ping, aggravated criminal entry, administrative law judge wrote Choate, 6 ILR I-18 (1979)]. extortion, and receiving or traf- that: ficking in stolen property. Sec- (a) marriage contract be- D. Miscellaneous -A ond, there is a suggestion that tween members of an In- "Equal Protection" Issue the current judicial rule-that dian tribe in accordance The 10th Circuit Court of Ap- lesser-included offenses are en- with the customs of such peals recently upheld New Mex- compassed within federal juris- tribe, where the tribal ico's practice of allowing only In- diction under the Major Crimes relations and government dians to sell their arts and crafts be codified in the existed at the time of such on the veranda of the state- amendments. This means that marriage, and there is no owned museum in Santa Fe, when a person is tried for a crime federal statute rendering while excluding non-Indian listed in the Major Crimes Act, the tribal customs invalid, craftsmen [Livingston v. Ewing, 6 federal jurisdiction is expanded will be recognized and ILR E -39 (1979)]. That state ac- to allow the person to be con- upheld by the courts of tion was upheld because the victed of a lesser-included of- (the state) as a regular court found that the state's fense. Thus the defendant is en- and valid marriage for all scheme furthered legitimate edu- titled to a jury instruction on the cational, artistic, and cultural in- purposes. lesser charge, even though that In the Estate of Guo-La a/k/a terests of the Indians of the charge is not one of the crimes Thomas Jones, 6 ILR I-23 (1979) the region. The court said it did not listed in the Act. This is, of administrative law judge described constitute unconstitutional course, consistent with recent the effect of a tribal custom divorce discrimination, or denial of, federal court cases on this sub- in stating that (1) "a divorce in accor- equal protection to non-Indian ject. dance with Indian or tribal custom craftsmen. (3) The Federal Assimilative has long been recognized by the Crimes Act provides that in cer- Congress, the courts, and the V. AMENDMENTS TO THE tain situations state law will be Department (of the Interior)", (2) FEDERAL CRIMINAL CODE used to define offenses which are "the courts have held that so long as The Congress of the United States then prosecuted by federal the Indians continue in tribal rela- is currently in the process of revising authorities pursuant to the tions, their domestic affairs are con- the Federal Criminal Code. Several Assimilative Crimes Act. The trolled by their peculiar customs", of the proposed changes would have proposed criminal code revision (3) "no distinction is made in the an impact on the Indian community. may contain an amendment kind of marriage which such divorce Some of special interest to Indian which would provide that state dissolves so long as the parties con- court judges are discussed below. It law would not be incorporated tracting the marriage and effecting is important to keep in mind, how- into the ACA when to do so the divorce are Indian wards of the ever, that these are proposed would conflict with an express Government and living in tribal changes being considered by Con- federal policy or law. Thus, relation", and (4) a divorce may be gress. They are not now the law and federal authorities would not be accomplished unilaterally. will never become the law if they are able to prosecute Indians for In Estate of Harold Dompy, 6 ILR not passed by Congress. Further, crimes defined by state law when I-6 (1979), a case involving a ques- even if these proposals are contained it would conflict with an express tion about the capacity to make a in the revised criminal code, they federal policy. will, the judge ruled that: may be passed in a different form (4) Under current law, state ac- Being aged and than that described here. tion is required before P.L. 280 uneducated, being unable (1) It is stated as a general prin- jurisdiction may be withdrawn to read or write, being ciple in the introduction to the from the state and retroceded to unable to speak or proposed amendments that none the tribe. Under the proposed understand the English of the proposals is meant to ex- amendments, state action would language, and possessing pand state or tribal jurisdiction. not be required for retrocession to impaired hearing and Federal jurisdiction is not refer- take place; only the tribe and the poor eyesight are condi- red to, and indeed, some of the Secretary of the Interior would tions that do not proposals would expand federal need to act. necessarily disqualify one jurisdiction with reference to Again, it should be emphasized from making a will. Indians. that these are proposed amendments Mental competency is the determin- (2) The proposed amendments only. They have not been signed in- ing factor. Also, Department of the would change the Major Crimes to law and may not be. However, if Interior regulations do not require Act in two ways. First, several enacted these amendments could that witnesses speak the language of new crimes would be added to have a significant impact on the In- the person making the will, only that the Act, including negligent dian community. they know they are acting as homicide, terrorizing, kidnap- I-8 Indian Court Clerks Attend Management and Writing Training Fifty-seven tribal court clerks from ten states attended a three-day workshop sponsored by the National American Indian Court Clerks Association on the topics of Court Administration, Legal Writing, and Improving the Image and Status of Court Clerks. The workshop was held in Albuquerque and was pri- marily financed by funds from the Court Clerks' component of NAICJA's LEAA grant. The first day of training was spent on the topic of Court Administration. The subjects of Cash Accounting, Court Budgeting, Financial Management, and Personnel Management were covered by the Instructor, James G. Farrar, Senior Staff Attorney for the National Tribal court clerks at NAICJA-sponsored training. Center for State Courts. The "one-write" bookkeeping system was presented to the clerks as one system charts for tribal judiciaries to show lines forwarded to the Washington office of which is both time-saving and relatively of authority and communication. NAICJA for printing in booklet form simple yet would meet the needs of most Necessity for developing and up-dating for use by the clerks. Procedures dis- tribal courts. Clerks who have not been position descriptions to reflect the cur- cussed by Mr. Bennett included: the file involved in the budget preparation for rent duties of clerks and other personnel inventory for the judge; arrangement of tribal judicial systems were urged to in the judicial system was stressed and a documents in the case folder; and the become involved so that they might be method for accomplishing this was ex- necessity and method for maintaining aware of their court's financial situation plained. accurate records in the minutes of trials. throughout the fiscal year. Techniques Mr. Farrar also led a discussion on Also that morning, Howard Rainer, for budget preparation and monitoring the need for property accountability. Assistant Director of American Indian were presented. On the morning of the second train- Services at Brigham Young University, During Mr. Farrar's presentation, ing day, Robert L. Bennett, American gave a presentation entitled "Your Self- there was also considerable discussion of Indian Consultant, presented the mate- Image as a Court Clerk." According to personnel management. The need was rial contained in a draft of a Handbook Conference Organizer Bob Bennett, the recognized to develop organization on Court Procedures. The draft will be continued on page 14 History Gives Outline CIVIL PROCEDURES BENCHBOOK of NAICJA Courses PREPARED FOR TRIBAL JUDGES A Brief History of NAICJA's Training Tribal judges at the NAICJA- fessor Ralph Johnson from the Universi- Program, from its inception in 1970 to the present, has recently been completed. sponsored Civil Law training session ty of Washington Law School; by Pat The purpose of the document is to out- were introduced to the new Civil Pro- Hayes, Tribal Government Services, line the subject matter, the approximate cedures Benchbook recently printed by the Bureau of Indian Affairs; and by the classroom hours, and the resources and Association. NAICJA Board of Directors. Funds materials used for each of NAICJA's The Benchbook, written by NAICJA from the Judicial Services branch of the criminal, civil and family law trainings. Instructor Robert L. Bennett, is de- BIA were used for its preparation and The History was prepared by Robert signed to assist Indian judges in quickly printing. L. Bennett, American Indian Consul- answering questions which arise in the Mr. Bennett, author of the new refer- tant; Ralph W. Johnson, University of handling of civil law cases. It presents, ence book, is also author of NAICJA's Washington School of Law; and in simple abbreviated form, four main Criminal Court Procedures Benchbook. This William Canby, formerly of the Arizona topics: Examination of File; Civil Trial latter book was first printed in 1976-77 State University College of Law and Procedures before the Court without a and has become recognized as an in- now a federal judge. Jury; Trial by Jury: and Appearance of valuable reference for tribal courtroom Judgement Debtor. use. The Benchbook was reviewed by Pro- 9 Tribal Chairmen Join NAICJA UNDERTAKES PROJECT Judges in Resolution TO MICROFILM TRIBAL CODES Members of the National Tribal A project to make copies of tribal slipped into plastic frames and mounted Chairmen's Association and of the Na- codes readily available to courts, in the ringbook; and a printed appendix tional American Indian Court Judges libraries and the general public is being with name, address and phone numbers Association have joined forces in an ef- undertaken by NAICJA. The process to of all the tribal courts whose codes ap- fort to coordinate resources towards be used is microfiching, a process which pear in the microfiched collection. After solving problems which affect both tribal will transfer the tribal codes, page by the first codes have been processed, governments and tribal courts. page, to sheets of microfilm cut to the NAICJA will collect as many of the re- Late last year the two organizations form of file index cards. maining codes as it can. These will also formalized their desire to work together Microfiche machines for reading the be microfiched as they become by each passing resolutions which state microfiched tribal codes are presently available. their intent: 1) to undertake joint efforts available in most law firms, law libraries The advantages of preparing the in developing programs and obtaining and public records offices. Many tribal codes with the microfiche method in- funds for those programs in areas of governments also own the machines. clude: use of a popular and readily ac- mutual interest and concern; and 2) to Where necessary to purchase a reading cessible system; low cost of the micro- organize a joint Project Committee to machine, the cost is nominal and is fiching process and the reading equip- accomplish their purposes. recommended. ment; and compactness of finished pro- Two problems which have been iden- NAICJA intends to proceed im- duct. NAICJA estimates that it would tified for joint NTCA/NAICJA con- mediately to microfiche a number of cost approximately $70 to produce a sideration are: first, the high turnover of tribal codes it presently has in its collec- single finished notebook. Notebooks will tribal judges and the need to curtail this tion. They will be compiled into a single be made available to requesting parties turnover to gain a more stable tribal loose-leaf notebook package which will at cost. judicial system; and secondly, the need contain a printed introduction about In- NAICJA made numerous efforts for mutual respect for, and understand- dian tribal codes; printed information without success to raise $75,000 to ing of, the respective responsibilities on how to use the microfiche and index; organize, prepare, typeset, and have faced by the Executive and Judicial a printed index and table of contents; printed tribal codes in standard uniform Branches of Tribal Government. microfiched copies of the tribal codes publications similar to State and Federal Codes which can be seen in law offices and law libraries. Because that amount TRIBAL COURTS INCREASE of funds was not made available to Declination Rate High NAICJA, it was decided that the The number of tribal courts in the microfiche approach would be a useful U.S. Attorneys, in 1978, declined a United States has increased from 98 in alternative and within the reach of ac- startling 68 percent of the major crime 1977 to 126 in 1980, according to cessible funds in the current year's cases referred from Indian country, ac- NAICJA records. This represents an in- LEAA training program grant. cording to the evaluation conducted by crease of 29 percent. During that same NAICJA Instructor Ralph Johnson, SRI for NAICJA. In theory, declined time, there was a net gain of 74 new Professor at the University of cases can and should be brought back to judicial positions. Washington School of Law, has been Indian court and tried as lesser offenses working on this project for NAICJA. if in violation of tribal criminal codes, He is being assisted by Susan Lupton, but there are no statistics available on Arrow Board Members who is a third year law student and has a the numbers which do reçeive Indian Attend Civil Law Training master's degree in librarianship. court trial. The Board of Directors for ARROW, Inc., held their annual meeting in Albu- WASHINGTON BAR ASSOCIATION querque to coincide with NAICJA's first civil law training session. This gave CERTIFIES NAICJA COURSE ARROW board members a first-hand opportunity to observe NAICJA train- An indication of the quality of Association approved the NAICJA ing activities and to meet with judges NAICJA's training programs is the criminal law session held in Reno at the and instructors. degree of acceptance they receive from National Judicial College for 24 crédit Those ARROW Indian board mem- the legal profession outside the Indian hours of continuing legal education. bers attending included: Robert L. Ben- Court System. Since then, NAICJA has identified nett; Will Rogers, Jr.; Ben Reifel; In many states, practicing attorneys more of its training instructors and par- Dolores Tidrick; and Leo Vocu. are required by law to participate in ticipants who would benefit from such ARROW Inc., a non-profit tax- some sort of legal education each year to accreditation. The Association, there- exempt organization operating since keep their licenses current. Each state fore, is applying for certification of other 1949 for the betterment of the American sets the criteria (i.e., quality of faculty of its training programs from the states Indian, provides corporate and financial and subject matter) for the courses it will of California, Colorado, Idaho, Wash- management services for NAICJA pro- approve. ington, Arizona and New Mexico. grams. In 1979, the Washington State Bar 10 NAICJA President Testifies for BIA Funding Increase Testimony requesting that the BIA be allocated $8,000,000 in FY 81 for the specific use of tribal courts was given by NAICJA President Cranston Hawley as he appeared before the U.S. Senate Committee on Appropriations. The Committee will to review and take action on the proposed BIA budget this fall The $8,000,000 requested represents or not, that tribal courts are adopting a sizeable increase over FY '80, a year in more of the ways of non-Indian courts. which no increase had been granted. As This adds to the complexity of court- justification of the proposed FY 81 in- room procedures. In addition, the In- crease, President Hawley cited the dian Bill of Rights has added enormous- following. by to the complexity of the work of tribal First, the number of Indian courts courts. Ten years after Congress passed and the extent of the jurisdiction they the Indian Civil Rights Act, the Su- NAICJA President Cranston Hawley, Chief will exercise is increasing. In the coming preme Court of the United States, in Judge of the Fort Belknap Tribal Court year 14 tribes, whose governing author- 1978, decided in Martinez = Santa Clara ity has recently been restored, will be Pueblo, 436 U.S. 48 (1978) that, except before Indian courts and secondly to establishing judicial systems. This will in matters for which the writ of habeas provide proper recognition of the tradi- raise, to 132, the number of Indian corpus was appropriate relief, Indian tions and customs of Indian peoples. courts sharing the requested appropria- courts were the only proper forums to They must be trained to collect and tion. In addition, it is estimated that, in adjudicate the questions arising under record needed information and to docu- 1980 alone, at least 40 tribes will that Act. ment the court's caseload and progress. reassume jurisdicton over child welfare Finally, inflation is hitting tribal President Hawley stressed that, al- proceedings under the provisions of the courts as it is every other aspect of though a growing number of tribes are Indian Child Welfare Act of 1978. American society. From FY '76 to FY supporting a major portion of their Second, the number of cases handled 80, the Indian court system received an court's financial needs, federal funds by Tribal Courts is increasing. In 1981, additional $1.5 million in federal budget continue to be vital to the Indian judicial it is predicted that at least 125,000 cases allocations over the FY '76 base. Infla- system. Strong financial support from will be heard in Indian courts, up 25 tion ate away most of that increase. Congress is necessary to the efforts of percent since 1976. These numbers will In order to meet the increasing de- American Indian Tribes to provide continue to rise, President Hawley said, mands being placed upon it, in order to justice to their own people in their own particularly as state courts refer more comply with the laws which Congress courts. "The competence and integrity and more child placement cases to tribal passes and with the rulings of the federal of the courts," said President Hawley, courts in compliance with the ICWA. courts, and in order to attain full faith "can affect every other aspect of life in In addition, more civil cases of all and credit for their decisions, the Indian society the safety of people's lives and kinds will be heard in tribal courts. This judicial system must strive to build ever property, the guarantee of tribal con- is partly the result of federal courts' hav- more sophisticated and better qualified stitutional rights and privileges, the ing recognized the jurisdictional author- courts. More judges and court clerks are stability of economic enterprise- that is, ity of Indian courts in the civil area. [See needed. Support systems must be devel- everything that contributes to the order- Williams v. Lee, 358 U.S. 217 (1959) and oped. Probation officers, child case ly and peaceful progress of our daily Iron Crow V. Oglala Sioux Tribe, 231 F.2d workers, prosecutors and defense coun- lives." 89 (8th Cir. 1974) ]. sels are urgently needed. All these per- Third, the complexity of Indian courts sonnel must be trained, first to guaran- Handbook Describes is greatly increasing. It is a fact, desirable tee the civil rights of those who appear Activities for ICWA Another new NAICJA publication NAICJA PRINTS GUIDELINES FOR was completed this summer and is available for training use. The publica- INTERPRETERS IN TRIBAL COURT tion, a Handbook on the Indian Child Welfare Act, provides a narrative descrip- Receipt of many questions concerning ed by the interpreter and give a number tion of the activities prescribed by the the use of interpreters in tribal court of suggestions for facilitating the inter- ICWA for each stage of a child place- spurred NAICJA to print a 3-page in- pretation process. ment or custody proceeding. Ten flow formation statement entitled Guidelines The Guidelines for Interpreters in Tribal charts accompany the narrative to for Interpreters in Tribal Court. Court were based upon a document used clarify the steps which must be taken to The guidelines were prepared by in Federal District Courts in New Mex- implement the various provisions of the George Armstrong, a Judge for the Ute ico, but are tailored to the specific needs Act. Mountain Ute Tribal Court, and of tribal courts. The Handbook was prepared by Robert Bennett, NAICJA consultant. Guidelines for Interpreters in Tribal Court Robert L. Bennett and reviewed by They include a statement of the purpose are available on request from NAICJA's Louise Zokan, BIA Child Welfare Spe- of an interpreter in a tribal court. They Washington office. cialist, and by members of the NAICJA also outline the procedures to be follow- Board of Directors. 11 Over 75 Tribal Judges Attend NAICJA's First Civil Law Training To prepare themselves to effectively handle their increasing civil caseload, tribal court judges throughout the country are seeking specialized training in the area of civil law. To meet this need, NAICJA designed a civil law training plan which has received initial funding from the Judicial Services Division of the Bureau of Indian Affairs. NAICJA's first civil law training program was offered in May 1980. Its second is scheduled for Fall 1980. These are, hopefully, the beginning of a series of sessions which will parallel the success and impact of NAICJA's criminal law and child welfare trainings. Over 75 American Indian court judges participated in NAICJA's first national civil law training session. The session, held at the University of New Mexico School of Law in Albu- querque under a new NAICJA contract Bob Bennett, Instructor/Organizer for NAICJA's first national civil law training, confers with the Judicial Services Division of the outside the American Indian Law Center where the training was held. Bureau of Indian Affairs, included the following topics: Separation of lord/Tenant Rights; Basic Law and of Law; from E. Thomas Colosimo, Powers-Tribal Court Civil Jurisdic- Torts; and Civil Law Benchbook. NAICJA Secretary-Treasurer; from Pat tion; Family Law Benchbook; Analyses The agenda for the civil law training Hayes, Chief of the BIA's Division of of Criminal and Civil Penalties and was prepared under the direction of Tribal Government Services; and from Forfeitures; Basic Law of Contracts; In- Robert L. Bennett, NAICJA consul- members of the NAICJA Executive stallment Contracts and Consumer Pro- tant. Mr. Bennett received input into its Committee. tection; Leasing and Housing Rental development from Ralph Johnson, Pro- The agenda utilized a combination of Contracts, Covenants and Land- fessor, University of Washington School lecture presentations and small group discussions. Presenters for the main training topics included: Professor CIVIL CASES INCREASE FOR TRIBAL COURTS Ralph Johnson; the Honorable James In recent years, the number and types of civil law cases adjudicated in tribal Delaney, Judge of the 17th District courts have increased. These cases are coming to Indian courts from several dif- Court, Colorado; Charles W. Blackwell, ferent sources. President, American Indian Tribal First, with the implementation of the Indian Child Welfare Act of 1978, state Government and Policy Consultants; courts are increasingly transferring child custody and placement proceedings to Ralph Gonzales, Executive Assistant to tribal courts. the Commissioner of Indian Affairs; Secondly, many tribes are developing new Civil Law ordinances in a number Genevieve Chato, Attorney-at-Law; of subject areas. In many cases, the proposed civil ordinances involve moving and Robert L. Bennett. The following specific actions (i.e. traffic offenses) from their current place in the tribe's participated in the civil law training as Criminal Code of Actions and reclassifying these actions as violations in the discussion group leaders: Kevin Gover; Civil Code of Rules and Regulations. These new ordinances will bring more Hilda Manuel; and G. Paul Dumas. civil cases to tribal courts. Cranston Hawley, NAICJA President; Third, more and more cases involving creditor-debtor relationships are find- Will Rogers, Jr., ARROW Board ing their way to Indian courts. While one usually thinks in terms of creditors be- Member; Dr. Robert Desiderio, Dean ing non-Indian businesses, it is becoming increasingly evident that many of the School of Law, University of New creditors coming before tribal courts are Indian-owned businesses. As a result, Mexico; Philip S. Deloria, Director of processes are needed, for example, for repossessing items located within the the American Indian Law Center; and jurisdiction of the Indian courts. Pat Hayes participated in the opening Fourth, as tribal housing authorities become more common and more active session of the training. on reservations, many Indian courts are seeing greater numbers of leasing and Mr. Bennett, Instructor/Organizer housing rental cases. To handle these cases, the judge must be familiar with for the training session, reported that contracts, covenants and landlord-tenant rights. overall participant response to the train- Fifth, tribal courts are handling more tort cases as greater numbers of plain- ing activities was very good. Some of the tiffs ask recompense for wrongful injury sustained. The judge must be skilled in major presentations at the training were distinguishing intentional from negligent wrongful acts and must clearly video-taped for future training sessions recognize and adhere to the differences between criminal and tort cases. and for use by judges not present at the training. 12 Family and Child Welfare Series NAICJA Seeks Funds Stresses Coordinated Approach to Help Implement ICWA Provisions continued from page 5 cho Agency Jurisdiction; Vincent A proposal to help tribes identify Portland Session Knight of Pawnee Agency Jurisdiction; resources for implementing the Indian The Portland regional - will be Ryland Rivas of Anadarko Agency Child Welfare Act was submitted by held later this year and 0 being co- Jurisdiction; JoAnn Dodson, Graduate NAICJA to the Offices of Human sponsored by the Social Service Division School of Social Work, University of Development Services, HEW. The pro- of the Portland BIA Area Office and by Oklahoma; Angela Gullatt, Legal Divi- posal was prepared in response to a NAICJA. June McKelar, Portland sion, Department of Human Services; solicitation from HEW's Administration Area Social Worker, is coordinating the Debra Roth, State Child Welfare Super- for Children, Youth and Families. session. She is being assisted by Nancy visor ; and Gerry Bridges. The primary goal outlined in the pro- Gale, NAICJA Consultant and Gwen- posal is to help tribes, as they begin to dolyn Packard, NAICJA Staff Assis- National Session to Conclude Series implement the ICWA, obtain access to tant. The final session of NAICJA's 1980 financial and technical resources already This session is being designed in two Family Law/Child Welfare training existing within the established federal, segments. The first day will include state series will be the national summary ses- state and local social service systems. and tribal judges and social workers. sion to be held in Phoenix, Arizona on The plan of action contained in the pro- The second day will be limited to tribal November 18-20, 1980. Over 200 par- posal provides for developing linkages judges and BIA social workers. ticipants are expected. between tribal governments and state Ms. McKellar and her staff have de- The conference will offer six general governments, child welfare agencies and signed a series of videotapes which will sessions on the following topics: Protect- the courts. These linkages would be be used on the second day as simulated ing the Best Interests of Indian Children developed through research, informa- case examples to stimulate discussion and Families; The Roles and Respon- tion transfer, advocacy and referral ser- between social workers and judges. Each sibilities of Courts and Agencies in Im- vices. case will be presented outlining some plementing ICWA; Children in Place- The proposal was submitted earlier background facts; the social workers ment; Tribal Government/Tribal this year and final approval is expected evaluation of the case; and the action Courts: Developing Future Resources; in September. recommended by the social worker. The and Recommendations for Future judges will be asked to respond to the Directions: CLERKS RECOMMEND social workers' recommendations and Ten workshops will be offered. They ICWA DESIGNATION indicate how the court would react to the include: Intervention and Identification case. of Alternatives to Prevent Breakup of An interesting sidelight to the It is anticipated that this method Indian Families; Exploration of proceedings at the National Fami- would serve to generate meaningful Resources for Providing Services to ly Law/ Child Welfare conference discussion about real and relevant situa- Indian Children and Families; Intake was a presentation made by a tions. and Investigation: Development of group representing the National Tribal Codes and Child Care Standards American Indian Court Clerks Oklahoma Session for Service Providers; Culture and the Association. This group outlined In Oklahoma, a unique format has Indian Family; Accountability; Com- their perception of the court clerk's been developed for achieving the munication between State and Tribal responsibilities under the Indian regional training goals. Every month, a Courts and their Perspectives on Child Welfare Act and urged that group of CFR judges, state judges and ICWA; Transfer of Cases between State tribes designate their court clerks social service personnel has been and Tribal Courts; Tribal/State as agents to receive notice of any meeting at the University of Oklahoma Agreements; and Custody Alternatives. involuntary proceeding in a State to discuss the Indian Child Welfare Act. Planning for the agenda has been Court where an Indian child is in- Organized by Gerry Bridges, Assistant done by a committee including the volved. Such designation, it was Area Social Worker for the BIA's Honorable John P. Steketee, Juvenile proposed, is logical since record Anadarko Office, the group has stated Court Center, Grand Rapids, keeping and procedural concerns its primary purpose as the need to Michigan; Louise Zokan, Child Welfare are primary court clerk respon- discuss coordination of judicial pro- Specialist, BIA; Alberta Tippiconic, sibilities. cedures, services and efforts necessary to Arizona Inter-tribal Council; Gwen- achieve full implementation of ICWA. dolyn Packard, NAICJA Staff; and VIDEOTAPES PURCHASED Active participants in the Oklahoma Nancy Gale, NAICJA Consultant. Using BIA Judicial Services and monthly sessions include: State Judges LEAA funds, NAICJA has purchased a Glen Dale Carter of Potawatomi Coun- $600 set of videotapes developed by the ty, Alan J. Couch of Cleveland County, Legal Services Corporation. NAICJA Roger Mullins of Ponca City, Haskell will use these tapes for its judges train- Pond of Garvin County, and Thomas ing. The tapes primarily discuss Indian Walker of Carter County; Browning legal history; trust responsibility; pro- Pipestem, Chief Magistrate of the perty rights; judicial jurisdiction; Courts of Indian Offenses; CFR regulatory jurisdiction; and fishing, Magistrates Howard Goodbear of Con- hunting and treaty rights. 13 57 COURT CLERKS ATTEND TRAINING continued from page 9 presentation produced a noticeable ef- fect on the clerks. Mr. Bennett stated that he believed the clerks left the train- ing with greater confidence in their own abilities. After the lunch break on June 25, Jesse Casaus, Clerk of Courts for the U.S. District Court in Albuquerque, spoke. Mr. Casaus emphasized the need for each Clerk's Office to establish a mis- sion to render effective and courteous service. He talked in terms of: (a) responsibilities; (b) functions; (c) statistical reporting; (d) office services; (e) other services; and (f) organization. He also provided a copy of the Code of Conduct for the United States Clerks of Court. It was recommended that this Code be used as a guideline for develop- ing a Code of Conduct for Indian Court Tribal court clerks take notes during workshop sponsored by the National American Indian Clerks and that the topic be considered Court Clerks Association. The workshop was financed primarily by funds from the Court at the next general meeting of the Na- Clerks component of NAICJA's LEAA grant. tional American Indian Court Clerks Association. Later that afternoon, Earl J. Ross, Chief, Operations Training Branch of HANDBOOK SERIES PREPARED FOR the Federal Judicial Center, spoke on the topic of Report Writing and the TRIBAL COURT CLERK REFERENCE Basics of Record Keeping. Mr. Ross placed great emphasis on the Clerk's Three handbooks, designed as refer- The first handbook, entitled responsibility for the care and safety of ence guides for Indian court clerks, are SECRETARIAL GUIDELINES FOR court records from fire, vandalism and being prepared and printed by the INDIAN COURT CLERKS, was unlawful use. Records management was National American Indian Court Judges printed and distributed late last year. discussed thoroughly. Association using funds from the court The second, JURY TRIALS HAND- On the third training day, the major clerk component of NAICJA's LEAA BOOK FOR INDIAN CLERKS, was course was Legal Writing, Part I. This grant. Initial work on the handbook completed this spring and was was presented by Steve Wall, J.D., series had been undertaken earlier using distributed at the June Albuquerque University of New Mexico School of funds from a Labor Department grant clerks training session. Law. Emphasis was given to basic com- for court clerk training. Work has recently begun on the third position and the necessity for applying handbook in the series. This book will rules of composition to Court be entitled CRIMINAL ACTIONS Documents, Brief Writing and Opinion MATERIAL FOR INDIAN COURT Writing. Mr. Wall stressed the need for CLERKS. proper word usage, good organization NAICJA Participates The handbooks are prepared by and sound sentence structure. Mr. Wall NAICJA staff working closely with also discussed the importance of modern in Navajo Workshop Indian court clerks. For the first two legal writing, tracing its evolution from handbooks, NAICJA Staff Assistant a historical oral tradition. NAICJA has participated in a Johnye Drapeaux worked with the Of- In reviewing the requirements of workshop for the Supreme Judicial ficers and committee members of the preparing modern legal documents, Mr. Court of the Navajo Nation. The National American Indian Court Clerks Wall discussed the complexity of cases workshop focused on the areas of Indian Association. These clerks helped for- and disputes, the need for clearly de- law and tribal government and on the mulate the original concept for the fined orders and dispositions, and the responsibilities of the Navajo Nation handbooks and provided suggestions, due process requirement. He also under the Indian Child Welfare Act and review and final approval for the discussed the various kinds of legal the Indian Civil Rights Act. publications. Julia Provost, Staff Assis- writings (court documents such as peti- Robert L. Bennett was instructor for tant in NAICJA's new Albuquerque tions and motions, brief writing and opi- the workshop and former Chief Justice branch office, will work with NAICJA nions). He talked about writing the in- Virgil L. Kirk, Sr., outlined the Coun- on the third publication. itiation of proceedings, motions during cil's participation in the judicial pro- Each of the handbooks will be avail- proceedings, and orders and disposi- cesses on the Navajo Reservation. able in a handy 5 X 7 inch booklet form. tions. 14 Evaluation of NAICJA Programs Regulations Drawn for Offers Findings and Recommendations Child Welfare Act of 1980 continued from page 1 Act; a 22 percent increase was in- The new Adoption Assistance and briefed so they could raise questions and dicated in the subjects of a judge's Child Welfare Act of 1980, P.L. 96-272, give advice. role and jurisdiction of a tribal court. allows for direct Title IVB (Child Information for the evaluation was 5. The scores judges got on the criminal Welfare Services) payments to Indian gathered from an intensive review of law quiz correlated positively with the tribal organizations. The Office of NAICJA documents, publications and number of training sessions they had Human Development Services in the training materials, from a background attended to demonstrate that training Department of Health and Human Ser- survey of 104 tribal court judges, from makes a difference. vices is in the process of developing questionnaires administered at NAICJA 6. A survey of 10 reservations showed federal regulations to implement this trainings, and from on-site reservation that prosecutors, defenders, clerks law. Section 428 which is of particular visits to 15 tribal courts. During the site and police rated NAICJA-trained importance to Indian tribal organiza- visits, the evaluation team met with judges as generally adhering to a set tions follows: various people who were in a position to of performance criteria developed by "Sec 428. (a) The Secretary may, in have knowledge about the tribal courts. the evaluator and a panel of veteran appropriate cases (as determined by the Because of the way in which the evalua- Indian court judges. This was inter- Secretary) make payments under this tion was designed, many of its findings preted to mean that judges are apply- part directly to an Indian tribal are applicable to all NAICJA's various ing what they learn at NAICJA ses- organization within any State which has training programs. sions. a plan for child welfare services ap- The primary findings of the evalua- 7. NAICJA compares favorably with proved under this part. Such payments tion are summarized below. the eight other court training pro- shall be made in such manner and in 1. Tribal judges rated NAICJA training grams funded in part by LEAA. All 9 such amounts as the Secretary deter- high on all aspects, including subject programs share some of the same mines to be appropriate. matter content. problems and weaknesses, but (b) Amounts paid under subsection 2. Approximately 79 percent of the 100 NAICJA trainees rated their pro- (a) shall be deemed to be a part of the judges polled felt they needed more gram higher than did the trainees of allotment (as determined under section training in 14 criminal law subjects. the other programs on the same para- 421) for the State in which such Indian 3. When asked what they have gained meters. tribal organization is located." from NAICJA training, most judges Preliminary recommendations to Some important questions to be con- indicated they have learned about NAICJA from the evaluation include sidered are: proper court procedures and changes the suggestions that the Association: 1) Under what circumstances will in the law. Many indicated an in- hold a long planning session to develop grants be made? crease in their confidence, resulting specific training objectives and outline a 2) What formula will be used for from the knowledge received. Learn- long-range policy strategy; develop a payments to Indian tribal organiza- ing from other judges in the training plan to achieve funding stability; tions? sessions and knowledge of where to develop standardized lesson plans, 3) What criteria will be used to deter- go for help were two other important stated course outlines, requirements and mine eligibility? gains the judges reported. sequences; focus on fewer subjects; re- Individuals or organizations in- 4. A pre- and post test given to new introduce more variety in training terested in obtaining further informa- judge trainees at a criminal law train- methods; institute a testing and cer- tion or commenting on regulatory issues ing showed that NAICJA training tification process; identify and use a cen- in P.L. 96-272 should write to Dorothy made a difference, especially in speci- tral training location; and expand staff Sortor Stimpson, Office of the fic subjects. An increase of 100 per- to add capability for management, Secretary, Planning and Evaluation, cent accuracy was demonstrated in evaluation-research, and curriculum 200 Independence Avenue, S.W., the topic of the Indian Civil Rights development. Washington, D.C. 20201 (202) 245-6665. Funding Cycle for ICWA Grants CRITERIA ARE HIGH FOR The second application and funding cycle for the Indian Child Welfare Act grants NAICJA INSTRUCTORS will soon be under way. A tenative schedule for this cycle follows: Selection of quality instructors is a Mid September New draft grant regulation will be published continual concern to the National in the Federal Register American Indian Court Judges Associa- Beginning of November Final grant regulations will be published in tion. The following criteria are Federal Register employed. NAICJA Instructors must November-Early January, 1981 Open grant application period possess: 1) good knowledge of the law; 2) an understanding of Indian culture Mid January- Mid March, 1981 Bureau Agency & Area Office review of and the ability to adapt material to the grants Indian environment; and 3) good teach- April 1, 1981 Beginning of funding for second year of ing skills. Indian Child Welfare Act grants Over 50 percent of NAICJA's instruc- Further grant information and application kits should be available through Bureau tors, for all its training programs, are of Indian Affairs agency and area offices by mid October. Indian. 15 NAICJA OFFICERS AND BOARD OF DIRECTORS Judge Cranston Hawley, (Fort Belknap Tribal Court) President Judge Lawrence Miller (Shoshone/Arapahoe Tribal Court) First Vice-President Judge Leslie Blossom (Te-Moak Tribal Court) Second Vice-President Judge Norma Jean Gray (Uintah and Ouray Tribal Court) Member Judge Dwain Clark (Acoma Tribal Court) Member Judge Richard Frederick (Turtle Mountain Tribal Court) Member Judge Orville Olney (Yakima Tribal Court) Member Judge Wilmer Peters (Menominee Tribal Court) Member Technical Assistance Judge Mildred Prentice (Coeur d'Alene Tribal Court) Member Judge Robert Walters (Navajo Tribal Court) Member Available to Tribal Courts Judge Homer Bluehouse (Navajo Tribal Court) Member E. Thomas Colosimo (Arrow, Inc.) Secretary/Treasurer Tribal courts desiring technical as- sistance should make a written request to NAICJA's Washington office. The re- STEERING COMMITTEE quest should include a statement of the (The Above Directors and the Following) need and any pertinent background in- formation. The name and position of the Judge Elbridge Coochise (Hopi Tribal Court) Member Judge Donald Dupuis (Confederated Salish & Kootenai Tribal Court) Member requesting party should be given along Judge Ceclia Hawk (Puyallup Tribal Court) Member with the location and phone number of Judge Marie Neswood (Navajo Tribal Court) Member the tribal court involved. Judge Bernard Standing Crow (Standing Rock Sioux Tribal Court) Member NAICJA staff will contact the re- Judge Nelson Wright (San Juan Pueblo Court) Member questing party to make appropriate ar- Judge Edward Barber (Lac Courte Oreilles Tribal Court) Alternate Member rangements for assistance. Where Judge Hollis Chough (Fort McDowell Mohave-Apache Tribal Court) Alternate Member necessary, on-site consultation visits Judge Loretta James (Tulalip Tribal Court) Alternate Member may be arranged. Consultants will be Judge Nelson J. McCabe (Navajo Tribal Court) Alternate Member selected by NAICJA in coordination Judge Jackie Parsons (Blackfeet Tribal Court) Alternate Member with the requesting party. Judge Michael Zunie (Zuni Tribal Court) Alternate Member NAICJA does not get involved with This 1980 newsletter was prepared and printed with funds from NAICJA's legislation either at the tribal or congres- LEAA and BIA grants. It was edited by Nancy Gale. Volume 7, No.1. sional level. NAICJA 1000 Connecticut Ave., N.W., Suite 401 Washington, D.C. 20036 16 AN EVALUATION OF THE JUDICIAL TRAINING PROGRAM OF THE NATIONAL AMERICAN INDIAN COURT JUDGES ASSOCIATION September, 1980 Prepared For THE NATIONAL AMERICAN INDIAN COURT JUDGES ASSOCIATION Suite 401-1000 Connecticut Avenue, NW, Washington, D.C. 20036 (202) 296-0685 The National American Indian Court Judges Association contracted with SRI International of Menlo Park, California, to undertake an extensive evaluation of the Indian Court Judges Training Program funded by LEAA. Indian Court Judges and many others cooperated with the evaluators to enable them to reach objective conclusions as reflected in this report. Mr. Dwight K. Hunter who now has his own Research Company, in Pleasanton, California, was the Principal Consultant for the Project. This study was funded in part by the Indian Justice Section of the Law Enforcement Assistance Administra- tion of the United States Department of Justice. All judgements and opinions stated herein are those of the author and do not necessarily represent the sentiments of the above agencies or the National American Indian Court Judges Association. I INTRODUCTION The National American Indian Court Judges Association (NAICJA) was formed in 1968 by a small group of Indian court judges who were concerned about the impact of the Indian Civil Rights Act of 1968 (ICRA) upon the Indian communities and the courts. The Association announced its intent to enlist all American Indian court judges and to act to "improve the Indian court system and to upgrade their profession through the imple- mentation of recommendations adopted after research is undertaken on specific matters." Arrow, Incorporated, a private, non-profit corporation, which had funded and sponsored a number of training and leader- ship programs for native americans from 1965, agreed to provide the initial funding for NAICJA and to serve as a secretariat for the organization. In 1970, the Law Enforcement Assistance Administration (LEAA) awarded the organization two grants; one for research on Indian court needs and the other for training Indian court jud- ges. The Donner Foundation also provided the funds needed for a cash match of these two grants. The early training sessions were held in several regional locations, and the judges convened once per month, on weekends to participate in their training. There were 76 presiding and as- sociate judges trained in the first year. From an evaluation standpoint, much would have been gained if a thorough study of the conditions of the Indian courts and the qualifications of Indian judges would have been made at that time, prior to the commencement of the training. This would have allowed the NAICJA or an outside evaluator to make assessments from time to time to determine the influence of NAICJA's programs on the judges and the courts. However, as is common in most training programs funded during that period, benchmark data were not gathered. Therefore this evaluation, performed 10 years af- ter the fact depends on historical data, subjective assessment by participants and nonparticipants, testing, and professional ob- servations to ascertain the impact of the NAICJA training on the judges and the quality of justice dispensed in the Indian courts. The evaluators informed the NAICJA board at the beginning of the evaluation that the effort was not to be a "report card" evaluation done to the program, but instead it would be conduc- ted like a management audit or operations research. As informa- tion was gathered and findings began to emerge, they would be briefed, so that they could raise questions and objections, give advice and make any changes in the program they desired to even 1 before the evaluation was completed. This is the manner in which the evaluation was carried out, and several key recommendations have been implemented earlier. Both the NAICJA and representatives of Arrow, Inc. have been extremely helpful and cooperative in the evaluation, providing access to all financial and program records. Mailings of all in- formation going to the judges, to LEAA, or other principals have been forwarded to the evaluators. Progress discussions with the board members have been received with interest, enthusiasm and a very healthy attitude of introspection. The individual judges that have been burdened by many questionaires have been very co- operative in assisting in the evaluation with their judgments. Without their assistance, the evaluation could not have been suc- cessfully completed. ii EXECUTIVE SUMMARY OF FINDINGS AND RECOMMENDATIONS 1. How Do the Judges Rate NAICJA Training? They rate it very high on all aspects. On a scale of 1 to 4 with 1 being "good" and 4 being "poor", NAICJA training received a rating of 1.6. 2. How Do They Rate NAICJA's Training in Subject Matter? This also was rated very high. On a scale of 1 to 6, NAICJA was given an average rating of 2.6 on 18 different subjects se- lected as "critical" by a panel of veteran Indian court judges. 3. Do the Judges Feel That They Have Received Enough Training in Criminal Law? No they do not. Approximately 79% of the 100 judges polled indicated their need for more training on 14 criminal law sub- jects. 4. What Have the Judges Gained From the Training? Most of them have indicated they have learned about proper court procedures and changes in the law. Many indicate an in- crease in their confidence, because of the knowledge they have received. Learning from other judges in the training sessions and knowledge of where to go for help were too other important gains the judges reported. 5. What Level of Knowlege Do the Judges Have as a Group A criminal law exam (closed book) was given to 70 judges of different levels of experience and background, and 68% of them passed. They scored highest on jurisdiction and judicial conduct and lowest on the ICRA and Procedures. 6. Does the Training Make a Difference? Yes it does, especially in specific subjects. A pre-test was administered to new judges, prior to criminal law training. The same test, with questions rearranged was given after their training. An increase of 100% was made in ICRA and 22% each in the role of a judge and jurisdiction. 7. Is There a Difference Between Trained and Untrained Judges? Yes there is. A correlation of the scores judges got on the criminal law quiz with the number of training sessions they had attended showed a positive correlation. 8, Are the Judges Applying What They Learn at NAICJA Sessions? Apparently they are, according to a sample survey of 10 reservations, where everyome but the judges were asked to assess the degree to which the courts on their reservation conform with a set of performance criteria developed by Hunter Research and a panel of veteran, Indian court judges. Prosecutors, defenders, clerks, police and others rated the courts and and indicated that they generally adhere to the criteria. 9. How Does NAICJA Training Compare With Other Court Training NAICJA compares favorably with the eight other court train- iii ing programs funded in part by LEAA. A11 9 programs share some of the same problems and weaknesses, but NAICJA training is rated higher by their trainees than are the other programs. Also NAICJA uses a much higher percentage of its training resources for direct services, rather than staff costs, and a lower cost per trainee than most of the others. 10. What Recommendations Does the Evaluator Make To NAICJA? There are ten recommendations that have been made to NAICJA, and some of them have already been implemented. Most of these recommendations are dependent on NAICJA obtaining a steady source of funding. 1. The NAICJA Board needs some long planning sessions to develop their specific training objectives for who, what, when and how they wish to train the judges. 2. The NAICJA needs to develop a short range plan for sta- bility in their funding, so that long range plans can be made and implemented. 3. Standardized lesson plans for the core NAICJA courses should developed, with learning objectives and Indian relevance built in. 4. NAICJA should continue to tighten its course offerings to fewer subjects, with more time and emphasis being given to those that are critical to the performance of the courts. 5. A curriculum brochure listing NAICJA's courses should be created and distributed to judges and tribal councils. It should list the subject, the contents, the level of difficulty, and the requirements for the trainees for each course. 6. NAICJA should re-introduce more variety into its training methods to maintain interest and stimulate learning. 7. NAICJA should continue to use testing as a part of its training, SO that the judges and NAICJA will know what they are achieving on an on-going basis. 8. NAICJA should further develop its certification process as a means of certifying to tribal councils, reservation communities, state and federal courts, and the judges themselves, that they are proficient in specific subject areas. 9. Most of the training should be done in central locations, like the National Judicial College, since this is pre- ferred by the majority of the judges. 10. NAICJA is understaffed and needs to increase capability for management, evaluation-research, and curriculum and training development. iv TABLE OF CONTENTS I. INTRODUCTION i EXECUTIVE SUMMARY iii II. DESCRIPTION OF THE INDIAN COURTS 1 III DESCRIPTION OF THE NAICJA JUDICIAL TRAINING PROGRAM 13 IV MANAGEMENT AND ORGANIZATIONAL STRUCTURE OF NAICJA 17 V HOW THE JUDGES RATE THE NAICJA TRAINING PROGRAMS? 19 VI HOW MUCH KNOWLEDGE DO THE JUDGES GAIN FROM THE TRAINING? 23 VII WHAT HAS BEEN THE IMPACT OF NAICJA PROGRAMS ON THE COURTS AND THE INDIAN COMMUNITIES? 25 VII HOW DOES NAICJA TRAINING COMPARE WITH OTHER COURT TRAINING PROGRAMS? 33 IX RECOMMENDATIONS FOR THE NAICJA TRAINING PROGRAM 38 A. Introduction 38 B. Overall Planning For the Training Program 38 C. Curriculum Development 39 D. The Overall Training Approach 42 E. Fiscal Management 46 F. Program Management 46 APPENDIX A. A Brief History of the NAICJA Indian Court Training 50 Program B. Characteristics of Selected Indian Courts 61 V LIST OF TABLES AND FIGURES TABLES 1. Analysis of turnover among Indian court judges over a 30 month period from 1977-80 2. Relative importance of different training subjects as determined by a panel of Indian court judges 3. The Judges' overall rating of NAICJA training 4. Judges' rating of NAICJA training by subject 5. Have you received enough training? 6. How has NAICJA training helped you? 7. Overall scores on Indian criminal law 8. Knowledge gains by subject matter 9. Major crimes declined by U.S. Attorneys--1978 10. Assessment of judicial performance by other justice system officials on 10 sample reservations 11. Assessment of judicial performance by other justice system officials on 10 sample reservations 12. Comparison of NAICJA and other court training programs 13. Comparison of 1978 sources of revenue 14. Subject areas deemed critical by the NAICJA panel of veteran judges 15. Comparison of training program staffing FIGURES 1. Factors other than NAICJA training that impact a judge's performance in the court and community vi II DESCRIPTION OF THE INDIAN COURTS A. Introduction Tasks 1 and 2 of the evaluation dealt with documentation of the judicial environment in which the Indian courts operate. This includes the background of the judges themselves, in terms of their prior education and vocational experience, before becom- ing judges and coming in contact with the NAICJA training. It also included the organizational structure and physical environ- ment of the courts, courtrooms, equipment, supplies and so forth. The purpose was to separate out those aspects of a judges performance that can be attributeable to NAICJA training from those that are due to some other factor. For instance, an Indian court judge with a law degree and a number of years experience in the courts would be expected to need different types of training from NAICJA than would one with less background in the law. Likewise a judge who operates in a system with poor facilities, lack of support personnel and heavy influence of the tribal coun- cil probably cannot perform in the ideal manner that might be prescribed in NAICJA training. The findings on the court environment and the background of the Indian court judges emanating from this evaluation are pro- vided below. B. Nearly 50% of the Judges Have Over 4 years of Experience While the amount of turnover among judges has been discussed in much of the literature on the Indian courts, a random sample of 105 judges found that 53% had from a few months to 3 years of experience and 47% have 4 or more years of tenure. There are a core of nearly 21 judges of the sample group that were judges in the early years when NAICJA training began. C. The Indian Courts are Growing and Changing A review of the status of the Indian courts in a 30 month period from October 1977 through March of 1980 shows 28 courts were either created or re-established during that period. In 1977 there were 98 Indian courts identified on the records of NAICJA. In 1980 there were 126. This represents an increase of 29% and means that the absolute number of courts that could have their judges trained by NAICJA has increased substantially in the last 30 months. During that same period, among all the courts, there was a net gain of 74 new judicial positions created. Some courts re- duced the number of positions or never refilled a vacancy, but the net gain of 74 new judicial positions represents a 36% in- crease in the number of judges filling the new positions. What are the reasons for the new positions? Some are additional asso- ciate justices to handle increased caseload, some are juvenile 1 judges to specialize in that area, several are newly created ap- pellate panels to handle appeals at the tribal level, and a few are pro tem judges who back up the sitting judges in times of vacations, illness or potential conflict on specific cases. There were 43 courts in which at least one new chief justice was selected, who was not already an associate during the 30 month period. In most of the courts the chief justice was changed only once in the study period, but a visual inspection of Table 1 shows that in some courts, especially among the Pueblos, where annual elections are part of the selection process, the turnover has been 2 to 3 times among the chief justices. In 25 courts there was a change in the chief judges posi- tion, but the manner in which it was made should not be consid- ered to be turnover, since a chief justice and an associate have either changes places or the new chief had been an associate pre- viously and was therefore eligible for NAICJA training. The turnover among associate justices has been much higher with 55% of the courts experiencing turnover among their associ- ates and 45% with no change. (see Table 1) What impact does the growth and change have upon NAICJA? It means that the universe of judges that NAICJA desires to train is for the most part constantly changing. There were 98 courts and 202 judges known to the organization in 1977, but by the early part of 1980 there were 126 courts and 269 judges. The courts on a core of reservations show many years of stability in the tenure of their judges. The implications for NAICJA is that their training must take into account the latter group who have many years of experience and have participated in many training sessions sponsored by NAICJA. On the other hand, a steady flow of new judges will probably continue for several years, and the NAICJA will need to isolate the new judges and orient them to their new roles as soon as possible and in a concentrated fash- ion. Turnover is Not Necessarily Bad The issue of turnover among the judges should be addressed, because it is assumed to be a negative aspect of the Indian court. The argument as it relates to NAICJA is stated that be- cause the turnover is high, relative to non-Indian courts, NAICJA efforts, costs and energy are wasted on judges that are only in their positions for a short time. This view is very simplistic and shortsighted. Other sides of the issue are: Among many of the Pueblos, persons elected as the adminis- trators of the tribes are also the judges. This is done on an annual basis and results in a frequent turnover, but this is a part of the culture. While the advocates for turnover want to see stability in the same judges in their positions year after year, the Pueblo tradition provides opportunity for many community members to serve and bring 2 TABLE 1: ANALYSIS OF TURNOVER AMONG INDIAN COURT JUDGES OVER A 30 MONTH PERIOD FROM 1977-1980 NEW NEW CHIEF NEW NEW CHIEF ASSOCIATE JUSTICE POSITION COURT AREA AND COURT JUSTICE JUSTICE ROTATED CREATED CREATED ABERDEEN 1 Cheyenne River - 1 - 1 - 2 Crow Creek - - - - - 3 Flandreau 1 1 - - - 4 Fort Berthold - 4 - - - 5 Fort Totten - - 1 1 - 6 Lake Traverse - 1 - - - 7 Lower Brule - 1 - - - 8 Omaha - - - 2 - 9 Pine Ridge 2 4 - 2 - 10 Rosebud - 1 1 - - 11 Standing Rock 1 1 - - - 12 Turtle Mountain 1 1 - 1 - 13 Yankton 1 - - 1 I ALBUQUERQUE 14 Nambe 1 1 1 2 - 15 Picuris 1 - - -1 - 16 Pojoaque 1 4 1 -1 - 17 San Ildefonso 3 2 - 1 - 18 San Juan 2 3 - -2 - 19 Santa Clara 2 5 - 2 - 20 Taos 3 2 - 1 - 21 Tesuque 3 1 - - - 22 Acoma - - - -1 - 23 Cochiti 1 1 - 2 - 24 Isleta - 4 1 1 - 25 Jemez 3 6 - - - 26 Laguna 1 2 1 1 - 27 Sandia - 1 1 1 - 28 San Felipe 1 2 - 1 - 29 Santa Ana - 1 - -4 - 30 Santo Domingo 2 2 - 2 I 31 Zia 2 3 - -1 - 32 Zuni 1 1 1 1 - 33 Ramah - 1 1 -1 - 34 Jicarilla - 2 - - - 35 Mescalero 1 - 1 2 - 36 Southern Ute 1 - - 1 - 37 Ute Mountain - - - 2 - BILLINGS 38 Blackfeet - 5 1 -3 - 39 Crow 1 1 1 1 - 3 NEW NEW CHIEF NEW NEW CHIEF ASSOCIATE JUSTICE POSITION COURT AREA AND COURT JUSTICE JUSTICE ROTATED CREATED CREATED 40 Flathead - 3 - - - 41 Fort Belknap - - - - - 42 Fort Peck 1 1 1 1 - 43 No. Cheyenne - 1 1 - 3 - 44 Rocky Boys 2 1 1 2 - 45 Wind River - 1 - 1 - ANADARKO 46 West. Oklahoma - - - 4 3 EASTERN 47 Cattaraugus - - 1 7 1 48 Choctaw - - - 1 - 49 Cherokee - - - 2 1 MINNEAPOLIS 50 Bay Mills - 1 1 1 - 51 Fond du Lac - - 1 2 1 52 Nett Lake - - 1 - - 53 Hannahville 1 - - 1 - 54 Isabella - - - 1 1 55 Lac Courte Or. - - - - - 56 L'Anse - - - - - 57 Leech Lake - - - - - 58 Menominee - 1 - 3 - 59 Red Lake - - - 1 - 60 Sault Ste. Marie - - - 1 1 61 White Earth - - - 3 1 63 Bad River - - - 1 1 64 Red Cliff - - - 1 1 PHOENIX 65 Ak Chin - - - 1 1 66 Camp Verde - - - 1 1 67 TeMoak - - - 1 1 68 Battle Mtn. - I - - - 69 Duck Valley 1 1 - - - 70 Duckwater - - - - - 71 Elko 1 - - - - 72 Fallon - - - 1 1 73 Ft. Yuma - - 1 - - 74 Colorado River - - - - - 75 Fort McDowell - 1 - 3 1 76 Fort Apache - - - 2 1 77 Fort Mojave - - 1 - - 78 Gila River - 1 - 1 - - - 79 Goshute - - - - 4 NEW NEW CHIEF NEW NEW CHIEF ASSOCIATE JUSTICE POSITION COURT AREA AND COURT JUSTICE JUSTICE ROTATED CREATED CREATED 80 Havasupai 1 1 - 1 - 81 Hopi - 1 1 3 - 82 Joint Use - - 1 - - 83 Kaibab - - - 1 1 84 Las Vegas - - - 2 1 85 Lovelock - - - - 1 - 86 Moapa 2 - - - - 87 Unitah-Ouray - 1 - - - 88 Papago 2 1 - - - 89 Pyramid Lake 1 - - - - 90 Reno Sparks - - 1 1 - 91 Salt River 1 1 - 1 - 92 San Carlos - - 1 - - 93 South Fork - - - - 1 - 94 Washoe - - - - - 95 Walker River 2 - - -1 - 96 Yavapai Pres. - - - 1 1 97 Yerington 1 - - -1 - 98 Yomba - - - 1 1 PORTLAND 100 Burns Paiute 1 - - 1 1 101 Coer d' Alene - 1 - - - 102 Colville 1 1 - - - 103 Ft. Hall 1 2 - - - 104 Hoh - - - 1 1 105 Kalispel - - - - - 106 Lummi - - - - - 107 Makah - - - -2 - 108 Muckleshoot - - - 1 - 109 Port Gamble 1 1 - 1 - 110 Port Madison - - - - - 111 Puyallup - - - -1 - 112 Quileute - - - 1 - 113 Quinault 1 - - - 3 - 114 Skagit System 1 - - 2 1 115 Skokomish 1 - - - - 116 Swinomish 1 - - - - 117 Spokane - 1 - 1 - 118 Tulalip - - 1 2 1 119 Kootenai - - - 1 1 120 Umatilla - - - - - 121 Warm Springs - - - - - 122 Yakima - - - 1 - 123 Annette Island - 1 - 1 - NAVAJO - 3 1 -3 I 5 NEW NEW CHIEF NEW NEW CHIEF ASSOCIATE JUSTICE POSITION COURT AREA AND COURT JUSTICE JUSTICE ROTATED CREATED CREATED 125 Hoopa Valley - - - 5 1 126 Trinidad Ranch - - - - 1 Totals 60 93 25 74 28 6 new ideas into tribal government. In the long run, when one considers the large number of persons among the Pue- blos that have received some training in the law by NAICJA since 1970, and the number of family and community members they influence, the result may be a more knowledgeable and law abiding community. In this regard, the crime rates a- mong the Pueblos are lower than half of the other reserva- tions in the country.* While the advocates of low turnover may wish to see sta- bility among the judges being trained, the community and defendants probably hope that the judge who operates in their courtroom has as much training as is available. Any exposure to judicial training, no matter how brief, is probably preferrable to trial and error. Some signs are beginning to appear that more stability in Indian courts is coming, influenced perhaps by what the judges have been learning in the NAICJA training. These signs are (1) the hiring of judges from outside the boun- daries of reservations to reduce the appearance of con- flict in specific cases, (2) the growing awareness of tri- bal councils of the benefits of an independent judiciary, and (3) consideration of election versus appointment of judges in courts that are being created or reformed. D. Most of the Indian Courts Consider themselves to be Adver- sary in Structure With Cultural Application of the Laws. Of the 90 judges who were asked to describe the type of court they operated within, 80% stated that their courts were a mixture of adversary structure and some procedures, mixed with tribal and traditional values. This view confirms the observation of NAICJA's Long Range Planning Study, that with the exception of some of the Pueblos and some subject matter, such as domestic re- lations and hunting and fishing cases, non-Indian procedures and adversary structures are generally adhered to. E. In What Directions Do the Judges Want Their Courts to Grow in the Future? This question is critical to NAICJA, because one feels a certain ambivalence among the judges, regarding the overall training objectives of NAICJA. Should NAICJA be solely providing instruction and assistance to the judges in setting up model, ad- versary courts with prosecutors, defenders, discovery proceedings and other Anglo oriented procedures, or should instructions on strengthening traditional courts and procedures and cultural values in the community be provided as well.? *Hunter, Dwight, Crime in Indian Country (not yet published), BIA, 1980, page 7 **NAICJA, Indian Courts and the Future, 1978, PP 42-43 7 Of the 84 judges who responded to the question of what dir- ection their courts should evolve in the coming years 56% stated they liked the status quo, essentially a mixed system. Interest- ingly, 15% want their courts to become more Anglo, while the same percentage want theirs to become more traditional, and 13% are just not sure. This is an issue that each court and tribal coun- cil should consider. Until a more formal consideration is forthcoming from the courts, the implications for the NAICJA are that the instruction should probably continue in improving the judges knowledge on ad- versary structures and procedures, but with more consideration of traditional values and methods of conflict resolution. Some of the courts are using pre-trial conferences to resolve issues, which are settled out of the formal court procedures in a tradi- tional manner. For the most part, at present, little is said in the training about the traditional aspect of the court operations and, in fact, there is little discussion among the judges on how and when to utilize these methods in judicial performance. F. Many Indian Court Facilities Appear to be Incomplete Nearly every judge that was visited by the evaluation team as well as those queried by them had a courtroom, and most had judges chambers and clerks offices, but the other facilities of a court system are generally not available or are inadequate, such as space for juries. Although the number of jury trials in In- dian courts is not yet large (238 jury trials in 1977), 64% of the judges indicated they had no place for a jury to be gathered or sequestered. The same was true of space for prosecutors and defense to have a place to confer with the principles in cases. Separation of powers or at least the appearance of separa- tion is a problem with respect to Indian court facilities in that 44% of the courts share facilities with law enforcement or tribal administration, 30% share personnel (usually clerks), 31% share equipment and supplies. From the standpoint of professional development of the judges and the prestige of the Indian courts in and out of the community, the most glaring deficiency is in the area of law li- braries and reference materials. The most common resources available to the judges are small bookshelves, with only a few of the NAICJA reference and training materials on them. This repre- sents an on-going challenge to NAICJA, which has published 28 documents specifically for the use of the courts and clerks and has obtained and distributed 12 other volumes from other authors. With the turnover of judges, outgoing judges often take these documents with them when they leave office. Some of the judges stated to the evaluation team that they kept their offices locked at all times or took their most valued documents, especi- ally the NAICJA bench books, home with them each day. The lack of sufficient reference materials is a significant 8 problem for the judges and for NAICJA. One of the criticisms made by defenders and prosecutors among the reservations visited was that the judges do not write opinions or do legal research. Some of the judges were very pleased with the training they had received from NAICJA on legal research and opinion writing. They look forward to the time when all judges are writing opinions on cignificant cases, when a body of Indian court decisions will be- gin to be published and available for other judges consideration. Such decisions would demonstrate more than any other method, short of court watching, how Indian tradition, culture and values are integrated into the justice process and the quality of the Indian courts. Is it feasible for the tribes or a funding agency to finance the development of a fully stocked and maintained legal library? The answer is "probably not", yet many of the courts are located some distance from library resources of other courts and educa- tional institutions. Some borrow volumes from the legal aid of- fices or private attorneys, but these are not sufficiently com- plete. The Indian courts average 161 miles in distance from their respective U.S. attorneys offices, and 36 miles from the county seats, where library materials could be looked at. The distance is too great to facilitate daily reference. A solution that might be explored is the use of computer terminals at the courts, which can be tied into an automated leg- al research system like the LEXIS service marketed by Mead Data Central or similar programs, which don't require purchase or maintenance of libraries at the reservation level, but still give the interested judge access to legal documents. Of the judges queried on the adequacy of their facilities, nearly 67% felt their courtrooms, clerks facilities and chambers were adequate to good. While this is a subjective judgement, the evaluators observed a great disparity in facilities and equipment among the courts. Some were borrowing supplies and space from other agencies and paying court travel costs out of their own pockets, while others had very modern facilities, recording de- vices, paper shredders and modern sound systems. Some courtrooms were in need of signficant repair, and some were so entwined with the busy operations of the law and order department, that the separation and respect needed for the courts were nearly impossi- ble to obtain. G. The Attitude of the Tribal Councils Seem to Determine the Degree to Which the Courts Have Adequate Resources There is no empirical evidence to support this notion on a national basis, but in the limited site visits to 15 reserva- tions, this was the impression left on the minds of the evalua- tors. Why did one court have excellent facilities, an annual operating budget, good equipment and the apparent support of the council, regardless of who was in power, while others are so sad- 1y neglected? The one common thread found by the team was that where the tribal government was active in commercial activities, 9 they had found a strong need for legal structure and procedures in their dealing with mining or timber companies or recreational interests. In discussions with tribal chairmen or council mem- bers the court was a very vital part of their plans for develop- ing and safeguarding tribal business ventures. This observation also held true for reservations that were not so blessed in natural resources. In these locations if the tribal council was active in obtaining federal funds for schools, housing, tribal government facilities, and manufacturing con- cerns, then the council had also looked after the court by ob- taining federal grants to improve their facilities and equipment. The converse was true on reservations, where the courts had poor facilities and low levels of support from their council. In this context, the communities in general were not developing or being improved very quickly, and the court was equally underde- veloped. In these communities the courts operate under the most trying of circumstances, and high morale must be difficult to maintain. In these communities it appeared that councils had not yet seen the benefits to the community of a well developed and operated court system. An attitude of neglect and even antagon- ism was apparent in some places, with frequent turnover of jud- ges, inadequate facilities and insufficient supplies, and inter- vention in the functions of the courts by council members, tribal attorneys and others. H. The Court Environment Impacts the Degree to Which NAICJA Training Principles Can be Implemented In evaluating the contributions of NAICJA's programs to reservation justice, one might compare NAICJA materials and the principles they project with the manner in which the court system is conducted. In doing so, one might be misled to the conclusion that if practice doesn't conform with the training, that the training is not effective. This is not necessarily true. For instance, on the matter of separation of powers, a doc- trine stressed in the training, many of the tribal constitutions and codes do not enable such separation, and acting more indepen- dent than the council would like has shortened the tenure of some very capable judges. Of the 91 judges that responded to the question, 44% stated that they receive pressure from the council in the form of complaints, threats of firing, holding back court funds, or other methods. In the same vein, if one finds a court that is backlogged in its filings versus disposition, a conclusion can be reached again that the courts have not been trained properly, but in cases where this condition was found, training was not the problem at all. Instead the council had not granted (even though the courts had made repeated requests) sufficient personnel, supplies, or facilities for conducting the courts business in a more timely manner. Many of the other factors, besides NAICJA training that impact the performance of the Indian courts are identified in 10 Figure 1. Consequently, the NAICJA instructors can present and even advocate certain standards of performance to the judges, but each judge must adopt, adapt or modify the doctrine according to their environment and what they can or are allowed to do. 11 JUDICIAL BACKGROUND Education Experience Abilities Attitudes TRIBAL LEGACY Traditions Culture conflict LEGAL STRUCTURES Tribal Government Court Structure Codes, laws TRIBAL-COURT RELATIONS NAICJA TRAINING PROGRAM JUDICIAL PERFORMANCE Power separation Criminal law Knowledge Judicial selection Criminal Procedure Competence Resource Commitment Civil Law Fairness Civil Procedures Legality Juvenile Procedures In court FEDERAL LAWS AND Child Welfare/Family Law In community REGULATIONS Etc. Etc. Legislation Case law Regulations Grant programs ANGLO COMMUNITY RELATIONS Community attitudes Law enforcement Comity Full faith & credit Agency respect COURT SUPPORT Facilities Personnel Equipment Resources FIGURE 1: FACTORS OTHER THAN NAICJA TRAINING THAT IMPACT A JUDGES PERFORMANCE IN THE COURT AND COMMUNITY 12 III DESCRIPTION OF THE NAICJA JUDICIAL TRAINING PROGRAM A. Determining Training Needs In the beginning and since that time the NAICJA Board, staff and the judges have collaborated on determining the training needs of the Indian court judges. Questionaires have been used to determine specific subjects in which the judges would like to be trained and the different training methods they prefer. The rationale for the formation of the NAICJA in 1968 was the concern over the impact of the Indian Civil Rights Act of 1968 on the community and the courts. As other legislative or Supreme court decisions have emerged, such as the Indian Child Welfare Act and the Oliphant and Martinez decisions, the NAICJA has acted quickly to address them in their training programs. In the April, 1979 session and again in the June, 1979 sessions the judges were asked to indicate their priorities among a number of subjects. A review of the 8 non-Indian training programs evaluated by LEAA shows that two of them survey their trainees for this infor- mation and the rest use informal means, such as staff meetings, discussions with prominent persons, etc. During the NAICJA evaluation, a panel of experienced judges (none of them NAICJA Board members) were selected by the Presi- dent and were asked to select from among a list of criminal and civil subjects to determine the most important subjects that a judge needs to know. The results are shown in Table 2, where the subjects with the higher scores are deemed to be the most critical to the judges. In general, the training provided to the judges is based on the elements and procedures of the Anglo Saxon system, with ad- versary structure and discovery procedures. While the instruc- tors that are expert in the law, procedures and aware of the res- ervation environment are able to adapt the former to the latter, instructors that are not knowledgeable of Indian affairs present the material, and the judges then have to make the application. The selection of instructors with (1) good teach skills, (2) good knowledge of the law, and (3) ability to adapt the material to the Indian environment is a continual concern of NAICJA. Little training or emphasis is given to traditional or customary methods of dealing with disputes or violations. While there are 16 courts characterized as being "traditonal" in their structure and operation, the majority of the judges (80%) feel they are able to blend traditional and cultural values with their adversary structure and procedures. Yet few examples of how that takes place are evident, except in out of court, or informal-in- court settlements, and the use of the native tongue in many courts. A small proportion of the judges (15%) said they would like to see their courts become more traditional in structure and 13 TABLE 2 : RELATIVE IMPORTANCE OF DIFFERENT TRAINING SUBJECTS AS DETERMINED BY A PANEL OF INDIAN COURT JUDGES The 21 experienced judges were asked to rate each of the subjects below as to whether they were (1) critical, (2) important, (3) helpful, or (4) not very important. Numerical values were as- signed to each rating and the totals are as follows: The judges were also asked to add any subjects not on the list. LAWS, ORDINANCES, STATUTES INDIAN COURT RELATIONSHIPS Tribal codes, laws, etc 110 Tribal councils and the court 106 State laws and ordinances 82 BIA, IHS, federal agencies 92 Federal Statutes, regulations. 92 Federal prosecutors, solicitors. 94 State-Federal decisions 88 State courts, comity 100 INDIAN COURT JURISDICTION DOMESTIC RELATIONSHIPS Indians and non-Indians 87 Marriage, annulment, divorce 81 Criminal matters 106 Child abuse and neglect 102 Traffic 97 Child placement 100 Fish and Game 100 Adoption 98 Civil matters 104 Paternity suits 94 Child and family welfare 108 Tribal enrollment 94 Competency hearings 89 Guardianship, legal custody 92 INDIAN CIVIL RIGHTS RULES OF EVIDENCE Indian Civil Rights Act 98 Relevance of evidence 100 Warrants, searches, arrests 100 Materiality of evidence 96 Degree of proof required 98 JUVENILECRIME AND DELINQUENCY Hearsay evidence 93 Hearings 98 Exclusion of evidence 90 Dispositions, orders 102 ELEMENTS OF CRIMES-DEFENSES COURT MANAGEMENT Major Crimes 88 Facilities, equipment, personnel 106 Alcohol Related Crimes 90 Personnel Management 100 Other Crimes 86 Court records, reporting 104 Budgeting, fiscal management 102 GENERAL TRIAL PROCEDURES JUDICIAL SKILL DEVELOPMENT Arraignments, pre-trial 92 Legal research 94 The order of a trial 90 Writing legal opinions 106 Judges role in trials 102 Establishing a law library 96 Enpaneling-instructing jury 108 Alcohol-drug dependency cases 92 Swearing in, exam. of witness. 94 Mental incapacity cases 96 Defense motions, challenges 106 Attorneys in the courtroom 97 Jury verdicts, judge decision. 100 Orders, decrees, sentencing 104 Appeals at tribal level 104 Appeals to federal courts 96 14 procedure. Should some NAICJA training be addressed specifical- 1y to this group and the 16 traditional tribes? This is a well known, but unresolved issue for NAICJA. There has been some criticism of NAICJA in this regard, but the demand had not been established. B. Development of Lesson Plans and Instructional Methods After the curriculum for a training session has been deter- mined, the instructional method, selection of instructors and methods of training are determined collegially by the NAICJA Board, staff and the two senior instructors, Professor Ralph Johnson and Robert Bennett. NAICJA endeavors to obtain persons to instruct that have knowledge and experience with Indian courts and indian affairs. Sometimes the instructors they have selected and depended upon have dropped out at the last minute, leaving NAICJA with the problem of finding someone else of equal ability or substituting persons with less background. The lesson plans are dependent upon whomever has been selec- ted as the instructors. There is no requirement that instructors submit their lesson outlines early for review. In the earlier years the training sessions included quite a variety of teaching approaches, such as video taping and critique, role playing, panel discussion and moot court. In the last several years the plenary session lecture, followed by small group discussions has been used almost exclusively. This is also true of the other 8 comparison, non-Indian court training programs. Only 2 of the programs used methods other than lecture and discussion to any degree. Three of them require the instructors to submit lesson outlines from 60-90 days ahead of the training session. C. Selection of Trainees In the early years, the training was focused upon Chief Jus- tices, until a demand was found for the associate judges to be included in the training. Over the years as a need has been dis- covered by NAICJA to extend the training to other groups that are critical to the operation of the courts, courses have been de- veloped to meet the need. Cases in point are the training ses- sions to which the clerks of the Indian courts have been invited, those for BIA and tribal social service workers and joint ses- sions for tribal chairmen, governors and tribal council members.* In the beginning, persons that expressed an interest were in vited, including many tribal leaders from tribes which had no courts but were interested in forming one. In later years, due to funding restrictions, the project director selects those who he feels should attend each session. In many instances persons that have not been invited, learn of the session and will request *Many clerk training sessions have been sponsored by NAICJA, and a clerks association has been formed, independent of NAICJA. 15 permission to attend and NAICJA re-imbursement of approved costs. Most of the latter group are persons that were not originally in- vited, because (1) they had already attended several sessions on the upcoming subject, or (2) they were not invited because one or more judges had already been invited from their court. Assisted by the Arrow Secretariat, the Project Director sends invitations to the group of judges who are most in need. As soon as it is known how many will attend, additional judges are invited from back-up lists of judges with lesser needs, until the session is full. The number of persons invited depends on the state of NAICJA finances at the time and the scope of the training. Some sessions will be focused upon one group of judges, such as those with less than one year experience, in which case the number of trainees will be 25-35. Other sessions will be of general inter- est, such as those dealing with family law and child welfare, in which case 65-100 judges and non-judges may attend. 16 IV MANAGEMENT AND ORGANIZATIONAL STRUCTURE OF NAICJA A. Policy Making and Administration The policy setting functions for guiding the NAICJA organi- zation are performed by the NAICJA Board, assisted by the Steer- ing Committee and Alternate Steering Committee. These are com- posed exclusively of Indian court judges, most of whom have years of experience. Board and steering committee meetings are held frequently, often in conjunction with the training sessions, so as to mini- mize travel expenses. The meetings are conducted by the Presi- dent, Judge Cranston Hawley or the Vice President, Judge Lawrence Miller, in the President's absence. A carefully prepared and usually lengthy agenda of matters are considered at each meeting, with the meeting packets having been mailed out by the Arrow Secretariat-NAICJA staff, ahead of time. Matters of business are thoroughly discussed, with those that require additional consideration being carried over to the next meeting or assigned to an ad hoc committee appointed for specific purposes The role of Arrow, Inc. has been a significant one for NAICJA, in that this organization assisted in the formation of the group in 1968 and was the sole funder of the earliest train- ing and organizational efforts. Each year the NAICJA has passed a resolution assigning Arrow to continue as the Secretariat for the organization. Under this arrangement Arrow provides the fol- lowing services to NAICJA: 1. Financial services and program management 2. The Executive Director of Arrow, Mr. E. Thomas Colosimo, serves as the Finance/Corporate Officer of NAICJA. 3. Make certain NAICJA complies with reasonable and appro- priate regulations required by funding agencies as well as all legal requirements. 4. Arrow will provide an independent audit by a CPA of NAI- CJA books and records. 5. Indians will be given employment preference in selection of staff B. Roles in the Conduct of NAICJA Programs Grants management and overall management of NAICJA programs is handled through the Arrow secretariat, with guidance and input from the NAICJA board and the instructors. The same is true of the administration of the program office in Washington, D.C., which is co-located in the Arrow, Inc. headquarters. The board approves of training curricula and methods, but the majority of course outlines and materials preparation for the training is performed by Professor Johnson and Bob Bennett, with assistance from the NAICJA Staff. Individual instructors, other 17 than Mr. Johnson and Mr Bennett prepare their own outlines and often bring their own handouts to the training sessions. When the training is conducted in the facilities of the National Judi- cial College in Reno, that organization generally contracts to prepare all folders and handout materials. Preparations for the trainings session are a joint effort between the NAICJA staff and the President of NAICJA, Judge Haw- ley. The management of the training sessions is primarily han- dled by the President, assisted by Mr. Johnson and Mr. Bennett. The marketing of NAICJA programs, both to the Indian court judges and to potential funders is mostly undertaken by the NAICJA staff, with assistance from individual board members and the senior instructors, Johnson and Bennett. Many contacts by letter, telephone and invitations to NAICJA activities are ex- tended by Mr. Colosimo to congressional members, administration officials and representatives of federal agencies and founda- tions. Evaluation is done informally by the senior instructors who submit memorandums as well as verbal comments on the training and training needs to the board and the Secretariat. Instructor evaluation sheets are passed out at most training sessions, but are not formally analyzed and interpreted. 18 V HOW THE JUDGES RATE THE NAICJA TRAINING PROGRAMS A. Introduction The attitudes of the judges toward the training programs were obtained through several methods. All questionaires that NAICJA had distributed over the years to the trainees, which asked for the judges assessments were analyzed as were all NAICJA minutes and correspondence files from 1968 through 1980. Assessment instruments were distributed at the training ses- sions to approximately 40 judges at the training sessions. An additional 20 judges were queried on site, when the evaluation team visited. These 60 judges were asked to give their assessment of the NAICJA training programs. The results are presented and analyzed below. B. Judges' Overall Assessnent of NAICJA Training is High A random sample of 60 judges were asked to assess the quali- ty of the NAICJA training approach by responding to a series of questions. They rated each aspect of the NAICJA training program on a scale of good, alright, fair or poor. Numerical scores were given to these opinions, so that the overall judgement could be calculated. The results are shown below in Table 3. TABLE 13: THE JUDGES' OVERALL RATING OF NAICJA TRAINING GOOD ALRIGHT FAIR POOR TOTAL QUESTIONS JUDGES WERE ASKED 1 2 3 4 SCORE 1. Do you feel the subjects you need to learn about are the ones being taught and discussed? 1.5 2. Is the training adapted to your circumstances in your court and reservations? 1.8 3. Do you leave each training session with ideas, skills, and techniques that you can use in your judicial functions? 1.4 4. Do NAICJA training sessions and written materials provide your BEST source of information on the law and the judicial function? 1.4 5. Would you say that you FULLY UNDERSTAND the concepts being taught in the NAICJA training? 1.8 19 The scores on the far right indicate the overall assessment by the judges. All of them are between "alright" and "good", which is a positive assessment of these aspects of the program. On these elements, the judges rated NAICJA's training higher than did the trainees of the 8 other programs evaluated by the LEAA. C. NAICJA "Critical Subjects" Training is Rated Fairly High A closer look was taken at the curricula NAICJA teaches to determine how well they present the subjects that are critical for a judge to know. The ad hoc panel of judges referenced above identified the "critical" subjects. Then approximately 50 judges randomly selected were asked to rate NAICJA training in those subjects. Their responses are shown in Table 4. TABLE 4 JUDGES' RATING OF NAICJA TRAINING BY SUBJECT VERY GOOD AVERAGE POOR TOTAL TRAINING SUBJECTS 1 2 3 4 5 6 SCORE 1. LAWS AND COURT DECISIONS 2.0 2. JURISDICTION OF INDIAN COURTS Over criminal matters 2.1 Over fish and game matters 2.9 Over civil matters 2.1 In child and family matters 2.3 3. INDIAN CIVIL RIGHTS Indian Civil Rights Act of 1968 2.1 Warrants, searches, arrests 2.2 4. GENERAL TRIAL PROCEDURES Enpaneling-instructing a jury 3.0 Defense motions, challenges 3.0 Sentences, orders, decrees 2.7 Tribal court appeals 3.0 5. COURT-COUNCIL RELATIONS 2.7 6. DOMESTIC RELATIONS Child abuse 2.3 Adoption 2.7 7. COURT MANAGEMENT Securing facilities, equip., 3.0 Personnel Management 3.0 Court records and reporting 2.5 8. WRITING LEGAL OPINIONS 3.0 Average 2.6 A score of 3.5 would represent an "average" rating for these subjects in that it lies half way between 1 and 6. The rating of 2.6 is better than average. The evaluation on the other eight training programs did not assess the adequacy of subject matter coverage by specific subject, so comparison is not possible. 20 D. The Majority of the Judges Want More Training on Selected Subjects A relatively small minority of judges feel they have received sufficient training in selected subjects. The results are shown in Table 5 where the responses of nearly 100 judges are shown. TABLE 5 : HAVE YOU RECEIVED ENOUGH TRAINING? HAD NEED RECIEVED PERCENTAGE TRAINING SUBJECTS ENOUGH MORE NONE WANTING MORE NO. NO. NO. Jurisdiction 22 47 8 71% Indian civil Rights 26 61 8 73% Trial Procedures 20 69 7 79% Evidence 15 71 10 84% Elements of crimes-defenses 18 61 16 81% Motions and Challenges 12 74 12 88% Sentencing 34 50 7 63% Appellate Procedures 17 63 18 83% Tribal Sovereignty 22 64 13 78% Tribal Council and the Courts 29 57 11 70% Juvenile Law 13 72 12 87% Major Crimes 18 57 16 80% Legal Research and Opinions 13 59 25 87% State Laws and Comity 19 57 22 81% Average 20 62 13 79% The above are the perceptions of the judges as to whether they have received sufficient training in the various' subjects. Counting the judges that have received no training, a large num- ber of judges want additional training. A good method for de- termining how well versed the individual judges are these sub- jects would be to provide some feedback to them through some type of testing, since their actual knowledge may or may not match with their perceptions of knowledge. E. Judges Report Gains in Knowledge and Confidence From NAICJA Training Programs The judges were asked an open ended, essay type question in the training sessions and in the on-site visits to indicate how NAICJA training had helped them in their roles as a judge. Their responses are grouped in unscientific fashion in Table 6. The numbers in parentheses (33) following each item are the numbers of judges making a similar comment. 21 TABLE 6 : HOW HAS NAICJA TRAINING HELPED YOU? GAINING KNOWLEDGE CHANGES IN OUR COURT SYSTEM Court procedures (33) * Change court procedures (33) Changes in the Laws (30) Upgrade our courts (2) Reading materials (17) Established our court (1) General knowledge (15) Case Decisions (6) Jurisdiction (4) Evidence (2) Indian viewpoint (1) JUDICIAL PERFORMANCE Major Crimes (1) Raise Judges' confidence (28) ICRA of 1968 (1) Learn from other judges (23) How Anglo sysTem works (1) Learn where to get help (6) *Number of judges mentioning each item 22 VI HOW MUCH KNOWLEDGE DO THE JUDGES GAIN FROM THE TRAINING? The judges were given a quiz on the fundamental of criminal law in Indian country. The questions were prepared by the evalu- ator and reviewed by one of the senior instructors to ensure that the questions, answers and subjects were consistent with what had been taught in the training. The instructions attempted to elim- inate guessing, by telling the judges that the training program, not the judges was being tested, and that they should mark "I'm not certain" in the multiple choice answers if they were not sure of the answer. To further discourage guessing, the responses "all of the above" and "none of the above" were included with each question. A - The Judges Score High on Jurisdiction and Judicial Conduct Approximately 70 judges took the ungraded exam on Indian criminal law. Their total scores show a wide range in their un- derstanding among the different subjects. The results are as follows: TABLE OVERALL SCORES ON INDIAN CRIMINAL LAW SUBJECT AREAS QUESTIONS PERCENTAGE CORRECT ROLE OF JUDGE 8 71% PROCEDURES 7 64% JUDICIAL CONDUCT 5 78% ICRA of 1968 8 48% JURISDICTION 6 87% Total 34 68% The judges seem to have a fairly good understanding of the jurisdictional issues, (at least those included in the question- aire) and those on judicial conduct in the court and in the com- munity. The judges scored less well in trial procedures and the Indian Civil Rights Act of 1968. It should be noted that the questions were administered in closed book form, and the judges had no advance warning or preparations time. They answered the questions on the basis of what they knew. They may well have scored higher if they had prepared or if they had access to re- ference materials. If the judges exams had been graded in the non-curve method, 64% of the judges would have received a passing grade. B. The Judges Make Significant Gains in Some Subjects Due to the NAICJA training In order to isolate the educational impact of NAICJA train- ing and to measure the amount of knowledge the judges gain from the training, the evaluator administered the same criminal law questions to a group of 16 new judges (in office less than 1 23 year). This was conducted at the NAICJA training session in A1- buquerque in February of 1980. On the first day of the criminal law training session, before any instruction had taken place, the questionaire was administered. The instructors had reviewed the questions, and those for which no training was planned were dropped out of the exam. After 4 days of instruction in Indian criminal law, the judges were administered the same questions, but in a different sequence. They had not been told the correct answers on either occasion. The results are interesting, because they show large gains in some subject areas and less in others, suggesting either that the training was not as clear in one sub- ject as in another or that some of the subjects are very complex and require more time and attention. In any event the overall gain in knowledge of all the judges appears to be significant.* TABLE 8 : KNOWLEDGE GAINS BY SUBJECT MATTER PRE-TEST POST TEST PERCENTAGE GAIN SUBJECT MATTER SCORE SCORE IN JUDGES' SCORE Role of the Judge 60% 73% + 22% Trial Procedures 42% 67% + 16% Judicial Conduct 64% 66% + 3% Indian Civil Rights 29% 58% +100% Jurisdiction 60% 73% + 22% All Judges and Subjects 49% 65% + 33% C. Is There a Significant Difference in Knowledge Between the Trained and Untrained Judges? Yes, even with a number of law trained judges, who had not received NAICJA training, there is a statistically significant difference between the trained and the untrained judges. Using a Z test methodology for comparing judges with from 0-4 NAICJA training sessions with judges having more than 4 sessions, the more highly trained judges scored higher at a 90% confidence level than would be likely due to chance. Further analysis and extraction of judges with law degrees will probably show the difference between NAICJA trained and the untrained or minimally trained judges to be even stronger. * Using a T-ratio test for non-independent means, the gains made in the post test were statistically very significant. A T-score of 2.947 was required at the 99% confidence level, and the analy- sis produced a T-score of 12.0900. 24 VII WHAT HAS THE IMPACT OF NAICJA PROGRAMS BEEN ON THE INDIAN COURTS AND THE COMMUNITIES? A. Introduction From the beginning this has been the most elusive and troublesome aspect of the study. It was presumed by some that a visit to the reservation courts could reveal objective informa- tion that would demonstrate the impact of the NAICJA training. The evaluator's experience with the workload and records system of several courts, suggested that this would be difficult to do. Nonetheless a sample of 15 courts were selected to visit, based upon their approximate representativeness to the rest of the courts. Population size, workload, geography, and previous visit data from (1) the long range planning study of NAICJA, (2) the 1977 survey of AILTP and (3) the 1977 survey of Doug Robin- son of LEAA, and the number of trained and untrained judges were among the selection criteria. The evaluators went to the reservations looking for objec- tive and subjective evidence of NAICJA impact. The results of their assessment are discussed below: B. NAICJA Training Materials are Generally in Evidence The NAICJA has produced and distributed approximately 40 documents and training aids, most of their own creation, over the 10 years they have been training the judges. NAICJA sponsored volumes constitute the major portion of the scanty library and resource materials most judges have access to. The most valuable items found in nearly all reservations were the criminal law bench book, and the bench book for family law and child welfare. Many of the textbook, reference materials NAICJA has distributed over the years were not in evidence. Some of the judges provided the reasons for this, namely that with a turnover in judges, previous judges had taken the materials with them, when they left office. In some instances the judges keep their materials at home for individual study and safekeeping. The evaluators sat in (hopefully unobtrusively) in arraignments or trials on nearly every reservations. In the ma- jority of instances, the judges read from or referred to the bench books of NAICJA. The visits preceded the distribution of the Civil Law bench book, at least they were not in evidence, nor known of by any of the judges. C. Record Keeping Systems on Sample Reservations are Not Set Up to Provide Workload Data While case files, dockets, court orders, fine ledgers and other work records of the courts are generally current and organized (although there is wide variation of systems), most of the courts visited do not keep annual reports on the number of cases filed, numbers disposed of, types of dispositions, appeals 25 to tribal court, appeals to federal court, jury trials, and so forth. It had been hoped that such information would be availa- ble, especially appeal data, that might indicate the reasons for reversals, if any, of trial court decisions. If reversals were due to defects in the trial court procedures, rather than errors in the police procedures or tribal codes and constitutions, one might make the supposition that the NAICJA training was or was not improving the performance of the courts. However the records of appellate numbers and results are not readily available, and the impression gained by the evaluators is that there are not very many. (AILTP reports 213 appeals at the tribal court level in 1977 for 93 Indian courts.) The exception to the lack of reporting are those courts un- der a 638 contract that are required to make regular workload re- ports. There are several other areas of need in the recording and reporting area. The BIA Division of Law Enforcement Services in past required law and order departments to record dispositions on individual cases. These dispositions were dropped because of in- sufficient recording by the courts. All courts visited do make a record of dispositions in the case files and in several other places, but most do not report back to the police department for their rap sheets, with the exception of release and custody or- ders. The clerks usually stated that the officers could come up and look at the record if they were interested, or that many of them knew the outcome of the case, because of their presence in the court. Another serious problem (not in magnitude, but in its impact upon the community) are the major crime cases that are declined by the U.S. Attorney. In theory those cases when declined can and should be brought back and tried as a lesser offenses in the Indian court. There is little information about the number of these cases, nor how many actually come back and enter into the system. The BIA Special Officer usually has a record of how many were declined, but not what happened to them. This information was sought because declinations have long been a problem and the reasons for declination might have some bearing on the respect of the federal attorneys for the Indian courts. Table 9 shows the high percentage of major crimes that were declined by the U.S. attorneys in Indian country in 1978. These cases do not enter the Indian court system as reduced charges un- less they enter as a complaint from the law and order department. How many are being brought back to the Indian courts are not known, nor are they flagged as such, when they are brought in. 26 TABLE 9 : MAJOR CRIMES DECLINED BY U.S. ATTORNEYS--1978 1978 MAJOR MAJOR MAJOR % CLEARED MAJOR CRIMES PER CENT CRIMES CASES CASES BIA AREA CRIMES CLEARED CLEARED TRIED DECLINED DECLINED Aberdeen 814 449 55% 166 283 63% Albuquerque 311 133 43% 78 55 41% Anadarko 1 1 100% 1 0 0 Billings 348 185 53% 86 99 54% Eastern 64 34 53% 6 28 82% Juneau 17 4 24% 1 3 75% Minneapolis 228 158 69% 60 98 62% Navajo 1,373 608 44% 70 538 89% Phoenix 678 323 48% 124 199 62% Portland 693 278 40% 101 177 64% Total 4,527 2,173 48% 693 1,480 68% D. The Judges Call Upon NAICJA Instructors and Other NAICJA Judges for Assistance The judges were given a multiple choice list of persons they go to regularly for assistance on legal matters. There were 41 judges that indicated they usually contact NAICJA instructors or other Indian court judges for information and assistance. The judges stated that prior to NAICJA sessions, they knew only a few judges from neighboring reservations. After participating in the training, they felt they knew the instructors and many of their peers well enough to call and ask for advice. Next in order of contacts for assistance were tribal attor- neys, the U.S. Solicitor, and the U.S. Attorney. As was shown earlier, the judges rated NAICJA very highly as the best source of information they have on the law and the judicial function. E. How Does Judicial Performance Compare with Training Principles Without concrete data to conclusively prove the impact of NAICJA's training on the behavior and performance of the Indian Courts, the evaluators looked for subjective clues. A meeting was held at each site with the judges, prosecutors, defenders, police chiefs, BIA special officers, court clerks, law and order committee representatives, and in many cases members of the tribal council. The purpose of the study was explained as was the evaluation team's desire for objectivity on its part. The judges were asked a number of questions regarding the NAICJA pro- gram, the attitude of the community toward the court, and the court's relationship with state courts in the vicinity. Persons other than the judges were asked to respond to a number of standards on "How a judge should perform his/her judicial function. These standards were developed by the study 27 team with assistance from the ad hoc panel of Indian court jud- ges. The standards were further reviewed by one of the senior instructors to make certain that the standards complied with the principles being taught in the NAICJA training. Those that did not conform, and those that were not absolute were dropped from the standards. Obviously in an adversary system of justice some of the actors will probably have judgements about the court that reflect their interest in how justice is carried out. The police might be expected to have a different view than the defenders or the clerks, for instance. The evaluators stressed that they were not evaluating the judges, but NAICJA's impact upon the courts. Therefore the res- ervation officials were asked to assess the performance of the courts, not individual judges. Using the 16 standards of performance for Indian courts, the performance of the 10 courts were rated by knowledgeable persons on the reservation other than the judges. Their collective re- sponses are found in Table 10, where on a scale of from 1 to 3 with 1.0 meaning the courts always meet the criteria, "2" meaning the sometimes do, and "3" meaning they never do, all respondents on all 10 reservations rated the judges at a 1.8 or somewhere be- tween always and sometimes. In Table 11 the responses are broken down by the respondents position in the justice system. i.e., the police, prosecutors, clerks, and others (defense, tribal council members, law and order committee members). It is not surprising that the police rate the courts lower than do the clerks and oth- ers. The prosecutors who should have the same goals in specific cases as the police give the courts a higher rating. This assessment indicates that for the 10 sample courts, at least, the courts are generally performing their roles in the courts and the community in conformance with the NAICJA princi- ples. It can not be proven that the NAICJA training is the rea- son for this, but that assumption is compelling. To further distinguish the impacts of the NAICJA training on the performance of the judges, the evaluators might have had the respondents assess each of the judges. Then a difference between the trained and the untrained, if any, could be determined. The evaluators did not penetrate any further, because (1) it would have exceeded the researchers authority and (2) might have fo- mented negative feelings among the court, police, clerks, etc. As it was, extreme caution was taken to make certain individual jud- ges were not discussed by the respondents, when interviewed. 28 TABLE 10 : ASSESSMENT OF JUDICIAL PERFORMANCE BY OTHER JUSTICE SYSTEM OFFICIALS ON 10 SAMPLE RESERVATIONS MEETS MEETS IT DOESN'T STANDARD SOMETIMES MEET PERFORMANCE CRITERIA 1 2 3 1. The judge withdraws from any case in which he/she is closely related to the principles by (1.5) blood, marriage or business 2. The judge NEVER confers with the police or prosecution on spec- (2.1) ific cases outside the court 3. The judge NEVER confers with the defendant or counsel on (2.0) specific cases, outside the court 4. If there is no prosecutor, or an ineffective one, the judge (2.2) MAY assist in the inquiry 5. If a defendant cannot afford counsel and needs one, the judge (1.8) MAY assist 6. The judge is fair and im- (1.8) partial 7. The judge is well organized, confident and clear in his/her instructions to principals and (1.9) the jury 8. The judge is firm, but (1.8) polite in conducting court 9. The judge always acts in an exemplary and respectable way (1.5) in the community 10 The judge never takes an active role in political ac- tivities (except Pueblos) on (1.5) or off the reservation 11 The judge maintains strict separation of powers between (1.8) the courts and Council 12 The judge doesn't allow the council to influence the (1.7) outcome of specific cases 29 MEETS MEETS IT DOESN'T STANDARDS SOMETIMES MEET PERFORMANCE CRITERIA 13. The judge always strives to learn the job through training, (1.8) self study, etc. 14. The court subscribes to professional journals, news- (1.7) letters, etc. to keep current 15. The judge strives to secure adequate facilities, equipment, (1.7) and personnel for the court 16. The judge oversees the oper- ation and management of the (1.5) court OVERALL AVERAGE ASSESSMENT 1.8 30 TABLE 11: ASSESSMENT OF JUDICIAL PERFORMANCE BY OTHER JUSTICE SYSTEM OFFICIALS ON 10 SAMPLE RESERVATIONS RATINGS BY THESE GROUPS PERFORMANCE CRITERIA POLICE PROSEC. CLERKS OTHERS 1. The judge withdraws from any case in which he/she is closely related to the principles by blood, marriage or business 1.6 1.0 1.9 1.3 2. The judge NEVER confers with the police or prosecution on spec- ific cases outside the court 2.0 1.4 2.2 2.7 3. The judge NEVER confers with the defendant or counsel on specific cases, outside the court 2.3 1.6 1.9 2.2 4. If there is no prosecutor, or an ineffective one, the judge MAY assist in the inquiry 2.2 2.2 2.2 2.2 5. If a defendant cannot afford counsel and needs one, the judge MAY assist 1.8 1.8 1.7 1.8 6. The judge is fair and im- partial 2.0 1.2 1.9 2.0 7. The judge is well organized, confident and clear in his/her instructions to principals and the jury 1.8 1.6 1.8 2.3 8. The judge is firm, but polite in conducting court 2.0 1.4 1.9 2.0 9. The judge always acts in an exemplary and respectable way in the community 1.8 1.4 1.5 1.2 10 The judge never takes an active role in political ac- tivities (except Pueblos) on or off the reservation 2.0 1.4 1.8 1.8 11 The judge maintains strict separation of powers between the courts and Council 2.4 1.5 1.9 1.2 12 The judge doesn't allow the council to influence the outcome of specific cases 2.0 1.2 1.7 2.0 31 RATINGS BY THE GROUPS PERFORMANCE CRITERIA POLICE PROSEC. CLERKS OTHERS 13. The judge always strives to learn the job through training, self study, etc. 2.0 1.4 1.9 2.0 14. The court subscribes to professional journals, news- letters, etc. to keep current 1.6 1.8 1.3 1.9 15. The judge strives to secure adequate facilities, equipment, and personnel for the court 2.0 1.4 1.7 1.7 16. The judge oversees the oper- ation and management of the court 1.8 1.4 1.5 1.3 OVERALL AVERAGE ASSESSMENT 2.0 1.5 1.8 1.9 32 VIII HOW DOES NAICJA TRAINING COMPARE WITH OTHER COURT TRAINING PROGRAMS The evaluators attempted to gain access to the evaluation design of McManus Associates, Inc. of Washington, D.C., who were awarded the contract by LEAA to evaluate 8 other court training programs, that were partially funded by LEAA. The purpose of the request was so that in addition to what was in the NAICJA design, the team might make certain they were collecting some of the same information, so that comparisons across training programs could be made. However neither the Courts Section of LEAA nor McManus Associates responded with this request, even though the McManus evaluation was nearly complete, when the NAICJA evaluation began. A copy of the McManus evaluation results was obtained re- cently from another source and some comparisons can be made among the NAICJA and the other 8 courts training projects, where simi- lar data are available, although data definitions may not be identical. A review of the summary information in Table 12 reveals that there are many similarities among the programs and some major differences. The similarities are that most of them started close to the time that LEAA funding programs began, in the late 1960's and early 1970's. All of them had overall organizational goals, but few, specific training objectives. They vary greatly in the numbers and types of training pro- grams they undertake. Generally, over the years, they have seen a training or a publication need and have developed a program to address it. The number of staff they use and the costs per trainee probably vary greatly, but the non-uniform methods by which the budgets and training inputs are calculated make compar- isons difficult. In 1977, a base year for comparison, NAICJA trained 754 per- sons in its 8 training sessions held in that fiscal year. Yet each of the 181 judges trained during that period attended an average of 4 of the eight criminal law sessions. The per trainee cost for the criminal law training for NAICJA in the current LEAA grant over a two year period was $559. The cost for training the 246 clerks in 1978-80 was $813. The cost per judge for the BIA funded civil law sessions and family law-child welfare training cannot be calculated at this time, since several more sessions are yet to be held. On the matter of cost, it is important to point out that over the years NAICJA has paid most of the costs of travel, per diem, and books for the judges. There is no information in the McManus evaluation on what is included in the training costs of the other 8 program. However, NAICJA has allocated approximately 73% of its training budget directly to the trainees, with only 27% being used in administrative salaries. This is the lowest personnel cost ratio of any of the other programs, which range from 32% to 57% of their budgets. 33 TABLE 12 : COMPARISON OF NAICJA AND OTHER COURT TRAINING PROGRAMS COURT TRAINING PROGRAMS CHARACTERISTICS IJA AJC NJC AAJE ICM NCDA NCCD NITA NAICJA BACKGROUND 1. Year started 1956 1971 1963 1969 1970 1970 1973 1971 1968 2. Training site NY Var. Reno Var. Colo Hous Hous Var. 3. Annual sessions 2 5 41 28 25 11 7 9 6 4. Session Days 10 4 5-20 2-4 2-8 2-15 2-15 ---- 4 TRAINING NEEDS 5. Determine need Surv Inf Inf Inf Delphi Inf Inf Inf Inf 6. Dev. Curricula ---- --- Comm. Staff 7. Objectives no gen yes gen --- no no no 8. Lesson Plans 3 mo 2 mo --- 2 mo --- Instructor 9. Assess trainee Inst Eval Instructor 10. Assess Instr. Trne Trne Trne Trne --- Trne Trne Judges 11. Teaching Meth. Lec Lec Lec Lec Lec Lec Mix Mix Lecture TRAINING COSTS 12. 1978 Budget $91K 200 1724 437 562 518 571 653 $408,000 13. Perm. Staff 2 5 36 7 11 13 12 6 4 14. No. Trainees 40 296 1271 1296 1027 1000 695 564 754 15. Cost/trainee 2250 858 1633 338 475 708 832 1124 $541 PROGRAM EVALUATION AVE* 16. Learn Roles 1.8 3.1 2.7 3.1 3.3 4.3 3.2 3.1 3.1 17. Learn Skills 1.8 2.6 2.6 2.7 2.9 2.4 2.3 2.0 1.4 2.4 18. Substantive 2.2 1.7 2.8 2.9 2.5 2.8 2.7 2.9 1.8**2.6 19. Peer Contacts 3.8 3.6 4.0 4.2 4.5 4.3 3.6 4.5 --- 4.1 20. Make Changes 4.2 4.5 4.5 4.6 3.6 5.0 5.2 5.6 --- 4.7 21. Good Subjects 1.6 1.2 1.8 1.4 2.4 1.9 1.7 1.9 1.5 1.7 22. Skill Practice 3.5 3.3 2.9 1.5 3.0 3.4 2.8 1.5 --- 2.7 23. Give Feedback 4.7 4.8 4.1 2.9 4.0 4.4 3.7 1.8 --- 3.8 Average Score 3.0 3.1 3.2 3.3 3.3 3.6 3.2 2.9 1.6 3.1 OTHER 24. Good Instruct. 93% 90% 92% 100% 77% 98% 89% 78% --- 25. Good Facility 93% 91% 95% 97% 97% 92% 94% 100% --- * The average rating given all 8 (excluding NAICJA) training programs by their respective trainees **The NAICJA judges 71% of the questions on the role of a judge correct 1y and 65% of the judges passed the criminal law exam. 34 Of interest to the NAICJA are the variety of funding sources each of the other programs enjoy. While the LEAA contribution to their budgets have decreased over the past several years, the to- tal training budget of these programs has increased, due to their other sources of revenue, which more than make up the difference. (see Table 13 for the comparison) None of the other programs, except one, assess the progress of the trainees, as is true with NAICJA, except by informal and intuitional means. All use the lecture and small group discus- sion methods of instruction as the predominant training means. NAICJA trainees rate the NAICJA training higher than do the trainees of the other programs on the few criteria in common among the two evaluations. An indication of the level of quality of the NAICJA training is the acceptance by the legal profession outside of the Indian court system. In the State of Washington, every practicing attorney is required by law to participate in 15 hours of contin- uing legal education each year in courses approved by the Wash- ington State Bar Association. The Bar sets the criteria, which address the quality of faculty, facilities and subject matter. In 1979, the Bar approved the NAICJA training session held in Reno at the National Judicial College for 24 credit hours. Another impact of NAICJA that ripples out past the training sessions is the number of tribes that contact the Association for advice and sometimes technical assistance in setting up their court system, remodeling their procedures and structure, or revi- sing their code. The Association is also called upon from time to time to come on a reservation or Indian community and assess the quality of their court system. This was done for many years informally, usually initiated by a telephone call from the tribe to the NAICJA Secretariat with Arrow, Inc. In later years it was formalized for a time under NAICJA's Court Advisor program. The correspondence files and officers of NAICJA list over 34 in- stances in which NAICJA was called upon for this assistance. In conclusion, the NAICJA training program has performed very well in presenting the principles of criminal law to the judges and providing any that would take advantage of it with a fairly good background. Over the years the program has gone through changes in format, curricula and training methods. The overall understanding of the judges is fairly high, even with the amount of turnover and the new judges in the Association. NAICJA is now facing new challenges, the major of which is to find a sound and stable financial base to underwrite their programs. Closely related is their need to standardize their training and to demonstrate the quality of instruction they are providing through testing, certification or other means. The As- sociation has come a long ways since they organized in 1968. 35 TABLE 13 : COMPARISON OF 1978 SOURCES OF REVENUE TUI- FOUND CON- INTER TRAINING PROGRAM LEAA TION SALES ATION TRACTS EST OTHER TOTAL Institute of Judic- $ 40* $ 26 $ 25 $ 91 ial Administration Appellate Judges 109 25 134 Conference National Judicial 210 455 812 1,477 College American Academy of 250 100 154 504 Judicial Education Institute for 227 241 22 20 72 582 Court Management National College of 450 208 50 708 District Attorneys National College of 350 161 53 7 571 Criminal Defense National Institute 121 352 100 61 634 for Trial Advocacy National Association of Indian Court Judges 421** 421 * Budget in thousands ** Criminal law training only for 1976-77 36 They are now well known within Indian country and becoming better known in non-Indian, legal circles. Their overall challenge now is make the association an institution that will survive because of demonstrated needs they fulfill and the improvement they lend to the quality of justice in the Indian courts. 37 IX RECOMMENDATIONS FOR THE NAICJA TRAINING PROGRAM A. Introduction In this section are the policy recommendations of Hunter Research for the consideration of the NAICJA Board, officers, instructors and membership. They are based upon the data anal- yzed and impressions obtained during the three years that the re- search team has been attending NAICJA training sessions, the vis- its and discussions with court and other personnel on a number of reservations and visual inspection of their facilities and re- cords. Included with the recommendations are the justifications and rationale supporting the research teams recommendations. B. OVERALL PLANNING FOR THE TRAINING PROGRAM Due to interruptions in the flow of project funds and other factors, the NAICJA board, staff, instructors, and Arrow personnel have not taken the opportunity to sit down and careful- 1y lay out the 1-2 year training plan and objectives for the training program. Once they have been assured that funds were forthcoming, a training session has been hastily planned and scheduled, and notices have been sent out to the judges. An analysis of the history of the project reveals the reason why, namely the many hurdles the program has had to overcome in quali- fiying and obtaining the funds from several state planning agen- cies and the various regional agencies of LEAA. Yet this type of short range planning is critical to ensuring that all parties are in agreement on where the program is heading and what it should be doing. To this end the following are recommended. 1. As soon as possible, a two day planning session of the NAICJA Board and staff should be held to develop the fol- lowing: a. A statement of training objectives of the NAICJA on the subjects they will teach, judges they want to reach, what skills they want the judges to gain, how they will determine their effectiveness, etc. b. A preliminary two-year schedule of training ses- sions, subjects, and types of judges to be invited, locations, and preferred instructors. This kind of up front planning can address several of the problems faced by NAICJA, the largest of which is the lack of an overall strategy of exactly where they are headed. They have done remarkably well, considering the ad hoc, and rushed fashion in which they have had to put their training programs together at times, but not without stress on the part of some of the staff and the instructors. 2. NAICJA Must Establish at Least a Short Range, Stable, Steady Source of Funding. 38 One of the major constraints NAICJA has had to work around has been the uncertain source of funding and the shifting re- quirements they have had to deal with in planning and carrying out their training. A review of the brief history shown in the appendix will bear this out. With the funding being slow and uncertain, NAICJA has taken a conservative approach in the past and has not made long or short range plans, until they were certain they had the funds in hand. As a result, when the funds have been received, hurried preparations for training sessions were often required because of short deadlines and expiration dates set by some of the funders. This had made it difficult for the judges, tribal councils, NAICJA instructors and the Arrow Secretariat to make plans very far in advance. For the criminal law training, the LEAA has been the major source of funds for 8 of the 10 years NAICJA has been providing criminal law training. Because of LEAA's current difficulties in obtaining appropriation funding, they may not be a viable source of funding in the very near future. Thus other sources need to be found. The most obvious would be the BIA, with its trust re- sponsibility, to provide a steady, annual allocation for training of Indian court judges. This could be augmented by funds from a variety of foundations as well as other federal agency, special purpose funds. All of the other court training projects have received re- ductions in their LEAA allocations over the past several years, yet most of them have increased their total training budget but obtaining larger proportions from foundations, interest on investments, tuition from the judges, or other sources. To continue to be a major contribution to the quality of the Indian courts, the NAICJA must become institutionalized to sur- vive, and a stable funding source is the major step in that pro- cess. C. CURRICULUM DEVELOPMENT 3. Development of a Standardized Set of Lesson Plans To Be Used in the Training NAICJA has developed standardized lesson plans in the past with cassettes, lesson outlines, workbooks and so forth, but over the years as the instruction has centralized to national sessions and new instructors have been retained, or substitutes have been obtained, several advantages may have been lost, namely a. A clear statement of what the judges are to know or be able to do when the training is concluded (instruc- tional and learning objectives) b. When substitutes must be obtained at the last moment to replace an instructor who has cancelled, the standard 39 NAICJA outline can be given to substitute, with the Indi- an relevance and learning objectives built in. Some judges have complained that many persons without background in reservation life or knowledge of Indian courts teach subjects in a law school approach, without being able to apply to the Indian court environment with examples. While NAICJA works diligently to get quali- instructors, when one falls through at the last minute must find a replacement in a hurry, who often is quali- fied in the subject, but not the application to the Indi- an community. In such cases, the substitutes could be given the standard course outline with its Indian court relevance built in. c. Another criticism leveled at NAICJA is that more of the judges themselves are not involved in the training. This presumes that any judge can be an effective teacher, which is not necessarily so. However, a standardized les son plan could be made available to those judges who have the capacity to teach. They could also be given teacher training to build up their confidence in instructing. 4. NAICJA Should Develop and Publish a Catalogue of its Course Offerings. After NAICJA accomplishes recommendation 5 below, they should publish a catalogue of the courses they intend to teach. This would include criminal, civil, child and family law and others. A brief description of what the course entails and what level of judges should take it would be included. For instance a course on legal research and advanced opinion writing would be open to judges that had already demonstrated competence in the basic courses. A special course could be devised for traditional court judges on how to improve their efficiency and effective- ness in this special area. A course dealing strictly with fish and game matters could be included, as could a course on dealing with state and local governments in the Public Law 280 states. This will help NAICJA stay focused on what it wants to a- chieve with the judges, it will help the judges take more of a role in the selection of their own training schedule and content. It is also necessary to demonstrate to other courts and organiza- tions of the quality and coverage of NAICJA's training. The certification guidelines (see recommendation #9) should also be included, so that the judges know they are expected to attend all classes during a session, complete all assignments, and take the certification quizes, when they feel ready for them. 5. NAICJA Should Focus its Instruction on the Most Critical Sub jects the Judges Need to Know There are so many subjects that the judges can be exposed to, that if all were addressed, the impact of the trainin may be 40 to familiarize the judges with many concepts, without a working knowledge of those subjects, which are the most critical. It is doubtful that much of the academic ground the NAICJA might like to make up, because of the small number of judges hav- ing legal training, can be accomplished in the part time ap- proach. One training approach is to familiarize the trainee with as many concepts as possible in a explorative and discovery pro- cess, but the judges are very practical and have very practical problems. They need knowledge they can apply every day, such as the ICRA and trial procedures. These are the two areas in the testing of all of the judges that they had the most difficulty with. A core lesson plan for the most critical subjects should be developed for all non-veteran judges. A panel of judges with an average tenure of 5 years was convened at one of the training sessions to address this question. They were given a list of criminal and civil subjects (some of which NAICJA has taught and some that they have not) and were asked to indicate which ones were critical, important, helpful, and not very important. Their aggregated response is shown in Table 14, where only those sub- jects determined to be critical or important by them are listed. TABLE 14 SUBJECT AREA DEEMED CRITICAL BY THE NAICJA PANEL OF VETERAN INDIAN COURT JUDGES A. KEY LAWS AND COURT DECISIONS E. COURT-TRIBAL RELATIONSHIPS B. JURISDICTION OF INDIAN COURTS F. DOMESTIC RELATIONS over criminal matters Child abuse and neglect over civil matters Adoption in fish and game cases in child and family matters G. COURT ADMINISTRATION Securing facilities, equip- C. INDIAN CIVIL RIGHTS ment, and personnel the ICRA of 1968 Personnel management warrants, searches, arrests Court records-reporting D. GENERAL TRIAL PROCEDURES H. WRITING LEGAL OPINIONS enpaneling, instructing a jury defense motions-challenges sentences, orders, decrees tribal court appeals NAICJA should consider the above subjects and others that from their perspective are considered to be critical and build the core curriculum in just those areas. Again in the choice between broad, but shallow coverage of many subjects versus intensive training in the critical subjects, 41 the latter is recommended to NAICJA as a way of ensuring the most impact on the judges and the Indian courts. The core curriculum can be split between fundamental train- ing for new judges and advanced, problem solving approaches for the judges that have demonstrated their grasp of the basics. Focusing on the "critical" subjects does not rule out the introduction and discussion of other subjects that emerge, but NAICJA should be careful about the amount of time devoted to them and the number of new subjects introduced, since dilution of the basic, critical subjects can result. In response to the question, "Do you fully understand the concepts and subjects taught in the NAICJA training?" the aggre- gate response of the 55 judges asked was "alright". Only 20 of the judges (36%) said that they fully understood the training. It is the author's opinion that this response should not be inter- preted that the quality of teaching is low, but that the scope and coverage of too many subjects for too short a period is the cause. D. THE OVERALL TRAINING APPROACH There are many opinions by educators, trainers and trainees on what constitutes the best instructional methods. The teacher (presumed to have more knowlege) imparting information directly to the student (pedagogy) is the traditional approach, while a current trend, though not proven to be superior, is where the teacher provides the learning environment and the students dis- cover information and participate in the teaching (Androgogy). Some judges like the passive approach, where they listen or take notes from lecturers; others like an active role with pre- course assignments or role playing. In the early and middle years of NAICJA training many methods, some fairly innovative, were used, but in latter years a pattern of lectures to the whole group of trainees, followed by small group discussions has emerged as the principle method. The lecture and small discussion group approach actually uses both of the above mentioned approaches. The lecture method is essentially a pedagogical approach, while the small group dis- cussions with a discussion leader represents the other. Of all the possible methods for training, the eight other court training projects funded by LEAA utilize lectures and discussion almost exclusively. There is probably a reason for this, and that is time, money and fatigue. A great deal more effort is required of training developers and instructors if role playing, moot court, case studies, panel discussions, etc., are used. Much more pre- paration time is required. A lecture outline can be used over and over again with different (and even the same) classes, but case studies, scripts for role playing and so forth require fre- quent changes and adaptation, if given to the same groups of peo- ple. 42 6. NAICJA Should Introduce More Variety of Methods in its Train- ing Approaches Four consecutive days of the same training patterns can diminish the interest and commitment of the judges in the training. NAICJA has been concerned about the amount of fallout of judges as the training sessions progress, especially in the small groups, where it is most noticeable. Some of this may be unavoidable, but some variation of routine may help. In most cases the discussion leaders have no agenda of ob- jectives on what they are to achieve in the small groups* Some- times very general subjects, unrelated to the lectures are dis- cussed, and often the discussion leaders are not successful in taking the subject of the lecture and helping the judges inter- pret and adapt it to their courts and communities. With some ex- ceptions the specific application of the general information dis- cussed in the lecture probably does not take place. The low per- centage of judges who felt they "fully understand" the concepts taught (35%) verifies this judgement. As a minimum, it is recommended that a uniform set of quest- tions for each subject be provided the discussion leaders. In addition, a set of discussion objectives on what the discussion leaders should be accomplishing should be provided. These dis- cussion leaders should be knowledgeable about the Indian courts and communities and should be able to (1) give Indian relevant examples, (2) apply general lecture concepts to specific cases, (3) help judges problem solve specific dilemas and (4) assess the degree to which the judges have gained knowledge or skills. One of the criteria on which training methods should be used is the preference of the judges. Of the 57 judges that were asked their preference in training methods, their responses were as follows: (The judges made more than one choice) 1. A workbook with self test blanks to test my knowledge and refer to 42 2. The present method of lecture and small group discussion 35 3. Visual presentations, movies, role playing, mock trials, etc 29 4. Panel Discussions 28 5. Small group discussion only with my fellow judges 22 6. Cassette recordings of instructions 22 *In the July, 1970 session, the discussion leaders were given a set of questions to be covered in the small groups 43 Note: The intensive pre-training planning session for the NAICJA board and/or instructors recommended above is critical if this recommendation is to be carried out. The preparation necessary to use the above, non-lecture methods cannot be done with just a few weeks or months notice, especially by part-time curricula developers, who have other full time responsibilities. If subsequent recommendations are implemented, few judges would be exposed to the same presentations of the above lessons, unless the had difficulty with the concepts, so most of the preparation materials would be useful with slight modifications for years to come. 7. NAICJA Should Increase Accountability on the Part of the Judges. For the most part the judges that attend the training ses- sions are sincere in their desire to learn all they can from the experience. Most attend the majority of the session. Most take notes, and some even record the proceedings to study later. Yet neither the judges, nor the instructors and NAICJA board can be certain of what the judges have learned. In the past, NAICJA has provided self test questions for some subjects, but these have never been followed up on by the judges or NAICJA. As a minimum, some testing should be done to accomplish the following: Let judges and NAICJA know what concepts are being learned Let instructors know where to alter the training, by omit- ting concepts that are well understood and emphasizing problem areas. Increase attendance on each day of the training session, the Judges know they will be asked to respond on an exam. Assure funding agencies that the NAICJA is effectively im- parting knowledge Increase the self confidence of the judges Demonstrate to state and Federal courts the quality of instruction and the judges' competence. Assure tribal councils and communities that the justice is being meted out by qualified Judges. For the first year, and occasionally thereafter, NAICJA may want to do pre-training and post-training testing on some sub- jects to verify the degree of change in judges' knowledge due to the NAICJA training. This provides a basepoint against which to compare the judges scores in future years. After the first cycle of pre and post testing has been done, a pre-test would not be necessary in subsequent years, except for a spot check on various subjects or classes. 8. Certification of Subject Competence Should be Instituted Correlated with the above recommendation is the judgement that NAICJA would do a great service to itself, the judges, the 44 tribes, the Indian community and the prestige of the Indian courts by instituting a certification system. The certification would be carried out by testing the under- standing of the judges at the conclusion of each training session. A pass or no pass grading system is all that would be necessary for determining competency. After a judge has demon- strated knowledge competency in criminal law for instance, he/she would receive a certificate of competency (not attendance). This would assure the judge, defendants, the community and state courts that the judge is knowledgeable in this area. Later, af- ter having civil law, child welfare, juvenile law, and trial pro- cedures, certificates of competence can be granted to the judge. The certificated judges need not be invited to subsequent training session on their certificated subjects, except for peri- odic refresher courses. The new judges and those that (1) had difficulty with the previous training (no pass) or (2) did not take the test would be invited to the next session or the certificated subjects. For the certificated judges, NAICJA can provide the re- fresher courses, new courses and advanced courses on the basic subjects they have been certificated in. This approach is a rifle, rather than a shotgun method for the training. This would allow NAICJA to hold sessions for spe- cial groups of judges, such as traditional courts or CFR courts. In a multiple choice of alternative methods for the judges to undertake training, certification was not the first choice. As is probably consistent with human nature, 40% of the judges wanted the present system, where courses on different subjects are held periodically, and the judges come when they can. Sur- prisingly (at least to the evaluator) the last choice of the jud- ges was for the veteran judges to teach the new judges in small discussion groups. Only 22% of the judges indicated a preference for the certification process, although in the questionaire it was not detailed, nor were the benefits detailed, to avoid lead- ing the judges to a choice. Only one of the other 8 court training programs evaluated by LEAA provided any feedback to the trainees on how they were pro- gressing, and the one that does uses an informal, self assessment model. The trainees in these other 8 programs gave their training programs a low rating for failing to give them feedback on their progress. Certification will mean more work for the NAICJA staff and the instructors in keeping track of each judge and his/her pro- gress, but great benefits should result, such as Increased confidence of certificated judges Evidence for the council of the technical qualification 45 of their judges. Evidence of quality of NAICJA training Increased respect for the Indian courts 9. The Judges Prefer National Sessions Held in a Central Place One of the dilemmas faced by NAICJA has been the issue of location of the training. National sessions were felt to pro- duce some excitement and enthusiasm as well as exposure to more judges and instructors. Regional sessions are thought to attract some judges that won't travel long distances to national sessions. The cost trade-offs between the two have not been cal- culated, although that can be easily done. When given their choice between (1) a central location, (2) the Reno Judicial college as a specific, central location, (3) regional training sessions in their area, or (4) it doesn't mat- ter where the training is held, the largest number of judges chose Reno, with any other central location selected as second choice. Regional session were clearly the last choice. E. FISCAL MANAGEMENT There are no recommendations to be made in the area of fiscal management, other than the one made above that NAICJA wrestle with the challenge of finding a steady source of funding, so that their programs can be scheduled well in advance and all judges, instructors and board members can make their plans accor- dingly. Arrow, Inc., functioning as the secretariat for the NAICJA organization has done an outstanding job of accounting for all expenditures. Fiscal records for all training programs have been maintained as have all vouchers for expenses of judges and instructors and consultants. Annual audits have shown no irregu- larities and have shown all records and procedures to conform with generally acceptable accounting principles. From time to time as the flow of grant funds have been de- layed, Arrow, Inc. has used its resources to keep the program go- ing and has been re-imbursed when the grant funds were received. Likewise, in particular circumstances where specific Judges have been unable to obtain their own travel funds, Arrow has assisted them, so that they might participate in the training. Counting the training they underwrote in 1968 as well as the incidentals over the years, Arrow, Inc. has contributed approximately $55,000 to the NAICJA training, not including contributed time. F. PROGRAM MANAGEMENT The program management of the NAICJA training has been con- ducted in a team approach, with policies being established or ratified by the NAICJA board and steering committee and the plan- ning and implementation carried out by Arrow, Inc. staff, the NAICJA President, and the instructors. In general, the roles carried out in the training process are as follows: 46 Grants management Arrow Secretariat Operations management Arrow Curriculum Development Instructors, Board Training materials preparation Instructors, Arrow Training session preparation Arrow, President, Instruc- tors Training session management President, Instructors Marketing of NAICJA Arrow, President, Board Seeking Funding Arrow Problem Solving Board, Arrow, Instructors Evaluation Instructors, Arrow Special Projects Arrow, President, Instruc- tors, Board The full time equivalent staff devoted to the training program is roughly 4 persons. The training staff of the other 8 programs funded by LEAA range from 2 persons to 36 for the National Judicial College. The ratio of NAICJA staff to train- ees is lower than that of 7 of the 8 programs. The ratio of staff salary and benefits as a proportion of the total training budget is very low (27%), indicating that most of the funds are used for the delivery of training, rather than for administrative overhead. This ratio for the National Judi- cial College is 61%. The American Adademy of Judicial Education, which is the training program closest in characteristics to that of NAICJA had 57% of its budget in 1978 for salaries and bene- fits. 10. NAICJA Should Increase the Size of Its Staff and Formalize Roles and Assignments Among Them Based upon the amount of training programs and activities that it conducts, a comparison with other judicial programs, and a certain amount of job stress among staff members, it is evident that the NAICJA staff is too small to easily handle the number and diversity of programs it is undertaking. NAICJA is to be commended for the cost conscious manner in which they have held down costs and directed the major share of their funds to the delivery of training. However if some of the structural and procedural changes recommended herein are carried out, additional staff workload will be required. It is the evalu- ators opinion that the NAICJA training can be even more effective if at least two positions are added to the program and some func- tions are reassigned. A review of the other courts training programs shows a variety of management styles and organization. The most common is to have an Director, an Associate Director and then a series of persons responsible for functional aspects of the training programs or office management. This is illustrated below for the eight court training programs, funded in part by LEAA. 47 TABLE 15 : COMPARISON OF TRAINING PROGRAM STAFFING STAFF POSITIONS IJA AJC NJC AAJE ICM NCDA NCCD NITA NAICJA DIRECTOR-DEAN ASSOCIATE DIRECTOR CHIEF-ADMINISTRATION CHIEF-TRAINING CHIEF-CURRICULUM CHIEF-RESEARCH CHIEF-FINANCE CHIEF-FUND RAISING PUBLICATIONS EVALUATOR REGISTRAR ADMINISTRATIVE ASST. LIBRARIAN CLERKS SECRETARYS DATA SERVICES PRINTER Training Budget $90* 200 1724 437 562 518 571 653 421 Full Time Staff 2 5 36 7 11 13 12 6 4 Persons Trained/year 40 296 1271 1296 1027 1000 695 564 754 An Assistant Director The first position that should be added is an assistant to the Project Director. The Project Director is able, because of other commitments to devote three-fourths time to the training programs. Thus additional administrative detail, logistical planning for training sessions, seeking funding, drafting grant applications and following up on training session details falls back on the Secretary-Treasurer. An Assistant Project Director should be knowledgeable of the Indian courts, the judges and the NAICJA program, so that he/she can stand in for the Project Director and the Secretary-Treasurer on all important matters and assist them in all program activities. An Evaluator-Researcher Another position that should be filled as soon as possible is that of an evaluator-researcher. This individual would take continual readings on the effectiveness of the training and the needs of the judges. NAICJA has attempted many evaluation efforts over the years, but has never had the personnel to follow up on the analysis. Questionaires on instructors, curriculum and even small exams on subject matter have been fielded in the training, but the results have not been analyzed, interpreted or fed back into the curriculum development and training processes. Budget in thousands 48 Most of the forms and methodologies needed for on-going assess- ment have been developed by Hunter Research during the course of this evaluation. They can be used and modified as needed at lit- tle additional cost. Another function the evaluator could perform would be to keep track of the training each Indian court judge in the nation has received and how he/she has gained from it. The key to more targeted training of the judges according to their respective needs is a tracking system, which lets the NAICJA and the in- structors know how each court is doing from a knowledge stand- point. Director of Curriculum and Training Another vital assignment the new staff or existing ones should undertake is a continual responsibility is the establish- ment of standardized course outlines and lesson plans as recom- mended above. The individual that performs this should have a background in the NAICJA programs, be aware of training tech- niques, and should function as a director of curriculum and training methods. It is not vital that the individual also in- struct. In fact it may be preferrable that they do not, so that they can objectively focus on the impact of all courses. In the early days of NAICJA there was a creativity and an excitement about the training programs as many experimental ap- proaches were used. It appears that some fatigue has set in for both the judges and the instructors due to repetition and the fast pace with which training programs have been organized and instituted. A director of curriculum, assisted by a curriculum committee of the Board could focus on recreating the enthusiasm and variety of the earlier years. The evaluative data being fed in after each course can assist the developer in this function. While it is obvious these new positions or functions will increase NAICJA staffing costs, they can probably be recouped by reducing the number of judges that are repeating many of the courses. If NAICJA institutes the trainee selection processes discussed above, more of their budget can be reallocated to staf- fing. While NAICJA has held down its staffing costs as a propor- tion of its budget, it is the lowest among all of the training programs (less than half of two of the programs) and can afford to redirect some of the funds to tightening up the program devel- opment and evaluation. 49 APPENDIX 50 APPENDIX A A BRIEF HISTORY OF THE NAICJA INDIAN COURT TRAINING PROGRAM (1968-1979) A. Purpose The purpose of this section is to provide a brief, but fairly complete history of the NAICJA Indian Court Training Program and to describe the historical framework and context within which it has developed and oper- ated since 1968. This chronology will provide the following types of information that are necessary in order to determine the impacts of this program upon reservation justice systems and perhaps community life thereon: 1. The original concepts and intent for the training program, including goals and objectives and intended results 2. The evolution of the program including changes in types of training, curricula and training methods 3. Other significant events that occurred outside of the NAICJA program, but which impacted the carrying out of its purposes, such as new funding programs, new legislation, and new policies from the funding agencies. An evaluation that is done after a program has been in operation for a number of years is often at a disadvantage, because the records needed to document pre-program conditions (baseline data) are usually not available in the form needed. Thus this chronology helps to recreate the conditions of the Indian court environment by piecing together whatever historical and descriptive data can be assembled, after the fact. The chronology is separated into 6 general phases of NAICJA evolu- tion. These phasas are by no means clearly separable from each other, but are arbitrary stages of development the program has gone through as viewed by SRI. The six stages are: 1. The pre-NAICJA period, when Arrow, Inc., in conjunction with a number of University and other organizations sponsored many management training and leadership development programs for reservation leaders. 2. The formation of NAICJA and some of the early training programs of the new organization, before stable funding sources were found, when Arrow, Inc. provided all of the financial support. 3. The development of NAICJA court training curricula and program, when LEAA funding was obtained and lesson materials and resource documents were created or obtained. Intensive training then got underway on an organized and regular schedule. 4. The addition of civil subjects to the criminal training curricula 51 and the award of BIA grants to address this area of a judge's responsibilities. 5. The introduction of bi-level training where the needs of new judges were distinguished from those of the veterans and curri- cula were structured to meet the different needs. Also veteran judges became involved as instructors of the new judges. 6. The evolution to a more formalized, comprehensive training program, with the introduction of many training and resource aids custom designed for Indian courts, the completion of the Long Range Planning Study and a more formalized, institutional format of training conducted at the National Judicial College. B. Chronology of Major Events 1. Arrow Management Training Programs - Pre NAICJA 1965 Arrow, Inc., a non-profit organization based in Washington, D.C., applied unsuccessfully to the Nation- al Legal Aid and Defender's Association for a grant to establish a model public defender project for the Rose- bud Sioux in South Dakota. 1967 A two week training course for Indian police from 24 tribes in 5 states was held at Idaho State Univerity (ISU) in Pocatello, Idaho. It was sponsored by ISU, the Federal Bureau of Investigation (FBI) and Arrow, Inc. Arrow, Inc., New Mexico State University (NMSU), the Bureau of Indian Affairs (BIA), the FBI, the New Mexi- CO Sheriffs' and Police Association sponsored beginning and advanced police training courses for 50 Indian policemen at NMSU in Las Cruces, New Mexico. ISU, Arrow, Inc., and the BIA sponsored a 12 day com- munity development institute at ISU for 17 leaders of South Dakota Sioux tribes. Among the subjects discussed were justice, education, and health. 1968 The Fort Lewis College of Durango, Colorado and Arrow, Inc., sponsored a 5 day Indian Health Institute for 25 Indian health officials. Six subsequent sessions were held in Bemidgi, Minnesota; Albuquerque, New Mexico; and Oklahoma City, Oklahoma. A week long police training institute was conducted at NMSU for 24 Indian policemen from 11 tribes in Colorado, Arizona and New Mexico. It was sponsored by NMSU, New Mexico State Police and Arrow, Inc., which funded the program. 52 Approximately 45 management training seminars were conducted by Arrow, Inc., and different universities for Indian leaders from 1966-1969. 2. Formation of NAICJA Due to the concern over the impact of the Indian Civil Rights Act (Title II, Sec. 202, P1 90-284) enacted by congress in April of 1968, a national association of American Indian court judges was discussed in June of 1968 by Judges Cranston Hawley (Ft. Belknap) , Lawrence Miller (Wind River), Henry Upchego (Ft. Duchesne), George Armstrong (Ute Mountain and Southern Ute), Josephine Newman (Flathead), Virgil Kirk (Navajo) and Betty Laverdure (Turtle Mountain). The Association announced its intent to enlist all American Indian Court judges and to act to "Improve the Indian court system and to up- grade their profession through the implemen- tation of recommendations adopted after research is undertaken on specific matters." Arrow, Inc., offered to provide the initial funding and agreed to serve as secretariat for the organization. 1969 The Articles of Incorporation and by-laws for NAICJA were reviewed and adopted in March of 1969*, and the National American Indian Court Judges Association was officially formed and was later registered as a cor- poration in the state of Delaware. NAICJA sponsored a three day management training institute for tribal court judges and other tribal court personnel at the UNMLS in Albuquerque, New Mexico. 57 persons from the Phoenix, Navajo and Albuquerque areas attended. NAICJA expressed another goal, which was to "initiate and facilitate communications between Indian courts and local, state and Federal agencies and among the courts themselves." The NAICJA, aided by a group of tribal court judges also drew up a list of 9 physical and 18 non-physical needs of the Indian courts. Included in the non-physical needs were (1) training and (2) refer- ence material for the judges. 53 In September, the second NAICJA Management Training Institute was held in Custer, South Dakota and was attended by 54 persons. 1970 The third Management Training Institute was held in Reno, Nevada and was attended by 40 judges from the Pacific Northwest and guests from other areas. The major subjects discussed were jurisdiction, procedures and evidence in juvenile courts, torts, duties of the trial judge and the possible transfer of court programs from the BIA's branch of Law and Order. Between September 1968 and June 9, 1970, Arrow, Inc., spent approximately $24,000 on NAICJA's training acti- vities. 3. Curricula Development and Early Training 1970 The National Institute of Law Enforcement and Criminal Justice of the LEAA granted $66,140 to the NAICJA for performing research and developing a criminal court procedures manual. The LEAA also awarded the NAICJA $60,000 for the train- ing of Indian Court judges. In August of 1970, Mr. William Meredith was temporarily assigned from the BIA Branch of Law and Order to act as the project director of the two projects. The Donner Foundation provided $30,000 in cash to provide the matching funds for the two LEAA grants. Training materials for use of the judges were secured, including Black's Law Dictionary, McCormicks Evidence Text, the Webster New Collegiate Dictionary, the Complete Secretary's Handbook and the film series, "The Adver- saries." The first 24 lessons were written by Judge Jamison and associates at the University of Denver Law Center, with assistance from Mr. Robert Bennett and colleagues at the University of New Mexico. They were written in work- book form. 54 1971 Between January and June of 1971, 76 presiding and associate judges* from 45 reservations were trained. (The course planned for 42.) The sessions were held in Albuquerque, Bismarck, Billings, Window Rock, Spokane and Phoenix. The training was held once per month, on the weekends, with each trainee completing 4 lessons per month or 24 in six months. Virgil L. Kirk, Sr., President of NAICJA appointed Judges George Armstrong, Cranston Hawley and Henry Upchego to a committee to review the research and training programs. Judge George Armstrong was appointed Project Director for the second NAICJA training grant received from LEAA. He replaced William Meredith, who returned to his duties in Washington, D.C. with the BIA. The subgrant was for $174,391 and was made through the Colorado State Planning Agency to the Southern Ute Tribe. The grant period was from 7/71 to 4/73. 16 lessons were recorded on cassette tapes for home study by the judges in conjunction with the 24 lessons in the workbook. The were recorded by Jack McDermott, Ralph Johnson and Jay White. 79 tape recorders were purchased and distributed to judges and instructors for playing and studying the tapes with their workbooks. The training had originally been intended for chief judges, but the NAICJA board approved the training and reimbursement of training costs for associate judges in 1971. 50,000 copies of the pamphlet, "You and Your Court" were prepared and distributed to Indian courts for the benefit of those persons that come before them. The Criminal Court Procedures Manual: A Guide for American Indian Court Judges was published and distributed, along with the research document supporting it. They were the results of the first LEAA grant and were prepared by the University of New Mexico Law School, Arizona State University and the University of South Dakota. Principal researchers were Louis Stewart, Warren Cohen and Edward Bubak. * The course had been planned and budgeted for only 42 judges. The transportation and training costs for the additional judges were provided by the Phoenix Area Office of the BIA. 55 1972 Professor Thomas B. Russell of the University of Nevada in Reno was retained by the LEAA, through a contract with American University in Washington, D.C. to assess the NAICJA training project. He made some recommendations of a management nature, some of which were implemented. The NAICJA obtained a subgrant of $124,949 from the LEAA to perform research and develop 5 documents regarding justice and the American Indian. The award was made through the Wahington State Planning Agency to the Yakima Indian Nation for 6/72 - 2/74. 1973 The third LEAA training subgrant of $225,908 was awarded to NAICJA through the Arizona State Planning Agency to the Kaibab Paiute Tribe and was to run from 7/73 through 1/75. A subgrant of $22,078 was awarded to NAICJA through the Colorado SPA to the Southern Ute Tribe for the training of Indian Court clerks. Two week training sessions were held in Missoula, Montana and in Window Rock, Arizona. A clerks handbook was also developed and distributed to tribal court clerks. Judge Cranston Hawley, Chief Judge from Ft. Belknap in Montana, was named the new Project Director for the NAICJA judicial training program. Judge Hawley estimated that he could devote approximately 75% of his time to managing the project. 1974 The first national training session of NAICJA was held in Scottsdale, Arizona and was attended by 83 judges. All previous training had been conducted at regional locations. 5 NAICJA documents on Justice and the American Indian were completed as the products of an LEAA grant. They were: The Impact of Public Law 280 upon the Administration of Justice on Indian Reservations The Indian Judiciary and the Concept of Separation of Powers The Effect of Having no Extradition Pro- cedures for Indian Reservations 56 Examination of the Basis of Tribal Law and Order Authority Federal Prosecution of Crimes Committed on Indian Reservations 4. Addition of Civil Law Training 1974 At the national training session of NAICJA held in Denver, Colorado, lessons on family law and child welfare were added to the criminal law curriculum for the first time. The overall NAICJA curriculum included the following: Criminal Law Trial procedure/mock trial Laws of Evidence Judicial Ethics Indian Civil Rights Act of 1968 Appellate Procedures Juvenile Law and Indian Case Law Civil Matters Marriage and Divorce Adoption Parental Rights Child Neglect and Abuse Guardianship 1975 NAICJA completed an updated supplement to the Court Procedures Manual and supporting research doc- ument, that was previously published in 1971. NAICJA completed a manual for Indian Court judges on legal research and case analysis. NAICJA also completed a publication entitled Handbook on Family Law/Child Welfare, which included a summary of areas of the laws of domestic relations as they exist in the majority of jurisdictions in the United States. The fourth LEAA training subgrant was awarded through the Nevada SPA to the Moapa-Paiute Tribe of Nevada. A national training workshop of NAICJA was held in Phoenix, Arizona. The training format provided two days of criminal law and one day of civil matters in the regional training program. 57 In July of 1975, 14 Nevada tribes retroceded from state jurisdiction and became eligible to establish tribal or CFR courts. Mr. Robert Bennett, Sharon Blackwell and others completed a syllabus for the basic criminal law course. Professor Ralph Johnson and Mr. Jay White compiled a syllabus for advanced criminal law and procedures. Judge DeLaney prepared a questionaire to be com- pleted by judges participating in the training on personnel, materials, equipment, facilities and services in the Tribal courts. NAICJA added a section on legal research, library use and legal opinion preparation to the training 1 curriculum. Ted Krenzke, the Director of the Office of Indian Affairs announced that the BIA Law and Order budget was increased from 10.1 million dollars to 24.5 million in 1976. He further stated that $300,000 were earmarked for tribal court improvements. Mr. Krenzke announced the creation of a Tribal Judicial Service Branch within the BIA, which would function separately from the Law and Order Division. 5. Introduction of Bi-Level Training 1975 82 Tribal court judges attended the NAICJA national training session, which incorporated a bi-level approach with beginning judges receiving basic training and veteran judges working with the advanced courses. Mock trial sessions and audio visual presentations were used in the training. 1976 Clare Jerdone, Child Welfare Specialist of the BIA requested that BIA social service workers be allowed to attend the NAICJA training sessions. Copies of a Criminal Justice Bench Book were developed by Judge George Armstrong and were distributed to the judges. A special training sessions for court clerks was held by the BIA at the police academy in Brigham City, Utah. 58 12 veteran judges began serving as instructor aides and took part in the presentation of NAICJA train- ing. During the summer of 1976, the American Indian Lawyer's Training Program, under contract with the BIA conducted a survey of court services on 93 Indian reservations. The results of the on-site survey were published in a document entitled, Indian Self Determination and the Role of the Tribal Courts. NAICJA published and distributed a publication entitled Child Welfare and Family Law as an outgrowth of two years of training efforts in substantive and procedural law on reservation domestic relations cases. Indian Child Welfare: A Review of the Literature was published by the Center for Social Research and Development in Denver. NAICJA began its Indian Court Advisor Program in which advisors visit Indian courts and the judges request to observe proceedings and discuss their impressions, and generally provide advice and counsel. Membership in NAICJA reached a total of 199 chief and associate judges. NAICJA developed a casebook specifically for Indian court judges, which contains appellate court opinions, explanatory notes and comments for (1) sovereignty and jurisdiction, (2) criminal law, (3) criminal procedure, and (4) the Indian Civil Rights Act of 1968. Mr. Dale Wing of the LEAA Indian desk explained LEAA's desire for the NAICJA program to be evaluated in 1977, with the evaluator to be selected by NAICJA. Mr. Wing recommended the Western Interstate Council on Higher Education (WICHE) located in Boulder, Colorado. Mr. Ted Krenzke announced the Congress had granted a special increase of $2,500,000 for Indian Courts. He also announced the creation of a position in the BIA to be a focal point for Indian judiciary problems. 1977 NAICJA conducted a national training workshop on family law/child welfare in Albuquerque, New Mexico with 100 judges and 85 BIA social workers in attendance. Dale Wing, David Etheridge and Dennis Peterson announced their intentions to develop a master chart which would show on a reservation by reservation basis, (1) legal 59 problems, (2) funding levels, and (3) sources of funding. Three organizations (WICHE, NITRIC and the AILC) submitted evaluation proposals to NIACJA, but none were accepted. The LEAA offered $5000 for someone to develop an evaluation design. After discussions with Judges Blossom and Fredericks, the National College of the State Judiciary in Reno extended an invitation to any of the NAICJA judges to participate in their summer session. 6. More Formal Comprehensive Programs 1977 NAICJA obtained a grant of $125,828 from the BIA to undertake a Long Range Planning Study to (1) determine needs of a sample of Indian courts, (2) establish model standards for Indian courts and (3) select 4 Indian courts to implement the model standards. Judge Cranston Hawley, President of NAICJA appointed a committee of court clerks and NAICJA Board members to design a clerk training program. A new case book entitled, Cases and Materials on the Law of Evidence was developed by NAICJA and distribu- ted to the judges. Two national training sessions were held at Reno, Nevada on the campus of the National College of the State Judi- ciary (now called the National Judicial College). Mr. Robert L. Bennett produced for NAICJA a bench book for use of the Indian court judges. It includes sections on (1) arraignment, (2) non-jury, criminal trial proce- dure, (3) criminal, jury trial procedure, (4) sentencing, and (5) post trial proceedings. Judge George Armstrong and Ms Kathleen Imig Perkins developed a Model Indian Court Rules of Criminal Pro- cedures for training and reference by the judges. Mr. Stephen G. Boyden and Ms Kathleen Imig Perkins pre- pared a Model Appellate Procedures Code, including (1) provisions to make an Indian Court a court of record, (2) procedures for establishing an Indian appellage court, (3) procedures for establishing an Indian circuit court. 60 The NAICJA Long Range Planning Study got under- way, with Judge Orville Olney as the Project Director and David H. Getches as the Project Coordinator. 195 judges from 118 Indian courts were trained during the year. 1978 The Long Range Planning Study was concluded and a large number of the final report, "Indian Courts and the Future" were printed and distributed. The Indian Court Clerks Training project got underway through a subcontract from the department of Labor, through the Antioch School of Law to the NAICJA. The contract was for $200,000. The first training sessions were held in Albuquerque, Bismarck, Seattle and Utah. Additional funds from the BIA for the Family Law/Child Welfare training were obtained in the amount of $115,204 which were to expire on January 31, 1979. The National Conference of Special Fourt Judges invited the membership of the NAICJA to become members of the ABA sponsored conference. An add on grant of $51,000 was obtained from the BIA for the Long Range Planning Study to develop a strategy for creating model courts on four reservations. NAICJA received a grant of $10,000 from the BIA to develop a plan for observing the International Year of the Child, a United Nations sponsored initiative. The scope of the plan was to deal with improving adju- dication in family law/child welfare matters. 1979 A benchbook and textbook for Family Law/Child Welfare cases was prepared as resource material for the courts. A grant of was received by the NAICJA to hold hearings on proposed regulations for the Indian Child Welfare Act of 1978. These were held in Phoenix, Seattle, Window Rock, Billings, Juneau and Sacramento. Hearings on the east coast were conducted by the National Council of American Indians. 61 APPENDIX B CHARACTERISTICS OF SELECTED INDIAN COURTS Data Most of the data on the profile of selected Sources: Indian courts was synthesized from a report prepared by the American Indian Lawyer Training Program (AILTP), entitled Indian Self-Determina- tion and the Role of Tribal Courts. The report was based upon a survey of approximately 93 tribal courts during the summer of 1976. Additional information was obtained from the working papers of the NAICJA Long Range Planning Study, which was performed in 1977. 62 COURTS ABERDEEN CHEYENNE RIVER CROW CREEK FLANDREAU FORT BERTHOLD FORT TOTTEN LAKE TRAVERSE LOWER BRULE OMAHA PINE RIDGE ROSEBUD STANDING ROCK TURTLE MOUNTAIN COURT CHARACTERISTICS A. LEGAL BASIS Tribal Government IRA CONST IRA IRA CONST LAW IRA IRA IRA IRA IRA Tribal Court CONST LAW CFR LAW CONST LAW CFR CFR CONST LAW CONST Written Procedures NO - CFR - YES YES CFR NO YES NO YES B. COURT FACILITIES Court Rooms 1 1 0 1 1 1 1 1 1 1 1 Judges Chambers 2 1 0 0 2 1 1 1 1 1 1 C. COURT PERSONNEL Number of Judges 1+3 1+0 1+1 1+2 1+2 1+2 1 1+2 1+2 1+2 1+2 No. of Prosecutors 1 0 0 0 0 0 0 1 1½ 0 1PT No. of Defenders 0 - 1 0 0 0 0 0 1 0 0 No. of Advocates 0 0 0 0 0 1 0 0 0 0 2 Legal Aid * YES 0 0 0 0 YES 0 YES YES 0 0 No. of Clerks 1 1 1 1 1 1 1 2 14 2 2 Court Admin. 0 0 0 0 0 0 0 1 0 0 D. ANNUAL CASELOAD-76 Court days per wk. 5 2 - 3 5 4 2 5 6 5 5 Criminal cases - 1104 - - 896 - - - - 667 - Other cases - 80 - - 365 - $ - - 333 - Total Cases (Annual) 2940 1184 - - 1261 - - 1500 - 1000 - 76 Population 4,487 1.432 55 3,051 3.241 743 1,362 9,237 8,410 5,159 4,581 Cases Per Capita .65 .83 - - .39 - I .16 - .19 - Appeals 0 0 0 - 5 0 4 100 2 4 10 Jury Trials 0 0 0 0 3 0 - - I 10 - E. JUDICIAL SELECTION Elected - - - E - E - E - - E Appointed A A A - A A A - A A - Other - - - - - - - - - - - * Available to Defendants on or off reservation. TABLE PROFILE OF TRIBAL COURT CHARACTERISTICS SOURCE: AILTP-1976 COURTS YANKTON WINNEBAGO SANTEE COURT CHARACTERISTICS A. LEGAL BASIS Tribal Government CONST Tribal Court CFR Written Procedures YES B. COURT FACILITIES Court Rooms 1 Judges Chambers 1 C. COURT PERSONNEL Number of Judges 1+1 No. of Prosecutors 0 No. of Defenders 0 No. of Advocates 2 Legal Aid YES No. of Clerks 1½ Court Admin. - D. ANNUAL CASELOAD-76 Court days per wk. 2 Criminal cases - Other cases - Total Cases (Annual) 27 76 Population 1,227 Cases Per Capita .02 Appeals 0 Jury Trials 0 E. JUDICIAL SELECTION Elected E Appointed - Other - # Available to Defendants on or off reservation. TABLE PROFILE OF TRIBAL COURT CHARACTERISTICS SOURCE: AILTP-1976 ANADARKO COURTS IOWA KICKAPOO POTAWATOMI SAC AND FOX ANADARKO (OKLAHOMA) CONCHO PAWNEE SHAWNEE COURT CHARACTERISTICS A. LEGAL BASIS Tribal Government Tribal Court Written Procedures B. COURT FACILITIES Court Rooms Judges Chambers C. COURT PERSONNEL Number of Judges No. of Prosecutors No. of Defenders No. of Advocates Legal Aid * No. of Clerks Court Admin. D. ANNUAL CASELOAD-76 Court days per wk. Criminal cases Other cases Total Cases (Annual) 76 Population Cases Per Capita Appeals Jury Trials E. JUDICIAL SELECTION Elected Appointed Other * Available to Defendants on or off reservation. TABLE PROFILE OF TRIBAL COURT CHARACTERISTICS SOURCE: AILTP-1976 COURTS ARDMORE MIAMI OMULGEE OSAGE TAHLOQUAH TALIHINA WEWOKA MUSKOGIE COURT CHARACTERISTICS A. LEGAL BASIS Tribal Government Tribal Court Written Procedures B. COURT FACILITIES Court Rooms Judges Chambers C. COURT PERSONNEL Number of Judges No. of Prosecutors No. of Defenders No. of Advocates Legal Aid * No. of Clerks Court Admin. D. ANNUAL CASELOAD-76 Court days per wk. Criminal cases Other cases Total Cases (Annual) 76 Population Cases Per Capita Appeals Jury Trials E. JUDICIAL SELECTION Elected Appointed Other * Available to Defendants on or off reservation. TABLE PROFILE OF TRIBAL COURT CHARACTERISTICS SOURCE: AILTP-1976 ALBUQUERQUE COURTS RAMAH ACOMA COCHITI ISLETA JEMEZ LAGUNA SANDIA SAN FELIPE SANTA ANA SANTA DOMINGO ZIA ZUNI COURT CHARACTERISTICS A. LEGAL BASIS Tribal Government 0 0 IRA 0 IRA 0 0 0 IRA Tribal Court CODE 0 CONST 0 CODE 0 0 0 CONST Written Procedures NO NO YES NO NO NO NO NO NO B. COURT FACILITIES Court Rooms 1 1 1 O 1 1 1 o 1 Judges Chambers 1 0 1 0 1 0 0 0 1 C. COURT PERSONNEL Number of Judges 1 G+C 1+2 G+C 1+0 G+C G G+C 1+0 No. of Prosecutors 0 0 0 0 0 0 0 0 0 No. of Defenders 0 0 0 0 0 0 0 0 0 No. of Advocates 0 0 0 0 0 0 0 0 0 Legal Aid 0 0 0 0 0 0 0 0 YES No. of Clerks 1 0 1 0 1 0 0 0 1 Court Admin. 0 0 0 0 0 0 0 0 0 D. ANNUAL CASELOAD-76 Court days per wk. 3 0 3 1 5 - irreg. irreg. 1 Criminal cases 203 - - - 284 - - - 2000 Other cases 87 - - - - - - - 2000 Total Cases (Annual) 290 - 496* - - - 15 - 4000 76 Population 2,129 544 2,255 1,756 3,258 1,248 421 3,258 Cases Per Capita .14 - .22* - - - .04 - 1.23 Appeals 2 0 10 0 3 0 0 0 0 Jury Trials 0 0 0 0 10 0 0 0 0 E. JUDICIAL SELECTION Elected - E - E - E E E - Appointed A - A - A - - - A Other - - - - - - - - - * Available to Defendants on or off reservation. * LONG RANGE PLANNING STUDY TABLE PROFILE OF TRIBAL COURT CHARACTERISTICS SOURCE: AILTP-1976 COURTS SOUTHERN UTE UTE MOUNTAIN JICARILLA MESCALERO NAMBE PICURIS POJOAQUE SAN ILDEFONSO SAN JUAN SANTA CLARA TAOS TESUQUE COURT CHARACTERISTICS A. LEGAL BASIS Tribal Government IRA IRA IRA IRA 0 CONST 0 0 IRA Tribal Court CODE LAW CODE CODE 0 CODE CODE CODE CONST Written Procedures YES NO YES YES NO NO YES YES NO B. COURT FACILITIES Court Rooms 1 1 1 1 0 1 1 1 1 Judges Chambers 1 1 1 1 o o 1 o 1 C. COURT PERSONNEL Number of Judges 1+1 1 3 1+2 1 G 1 G+C 1+0 No. of Prosecutors 0 0 0 0 - 0 0 0 0 No. of Defenders 0 0 0 0 - 0 0 0 0 No. of Advocates 0 0 0 ; - 0 0 0 0 Legal Aid * YES YES YES 0 - 0 0 0 0 No. of Clerks 1 1 2 1 - 0 1 1 1PT Court Admin. 0 0 0 0 - 0 0 0 0 D. ANNUAL CASELOAD-76 Court days per wk. 1 2 5 1 0 1 1 1 4 Criminal cases 213 550 - - - - 100 - 267 Other cases 37 50 - - - - - - 10 Total Cases (Annual) 250 600 1100* - - - - 60* 297 76 Population 792 1,299 1,976 2,253 383 104 304 1,666 1,035 Cases Per Capita .32 .46 .56* - - - - .04* .29 Appeals 0 - 6 0 0 0 1 0 0 Jury Trials 0 - 23 0 0 0 0 0 0 E. JUDICIAL SELECTION Elected - - - - - E - E - Appointed A A A A A - A I A Other - - - - - - - - * Available to Defendants on or off reservation. * TABLE PROFILE OF TRIBAL COURT CHARACTERISTICS SOURCE: AILTP-1976 COURTS BILLINGS BLACKFEET CROW FLATHEAD Fort Belknap Fort Peck Northern Cheyenne Rocky Boys Wind River COURT CHARACTERISTICS A. LEGAL BASIS Tribal Government IRA IRA IRA CONST CONST IRA IRA NO Tribal Court CONST CONST CONST CONST CONST CONST CONST LAW-CFR Written Procedures YES NO YES PART PART NO NO YES B. COURT FACILITIES Court Rooms 1 1 0 1 1 1 0 1 Judges Chambers 2 1 1 1 1 2 0 1 C. COURT PERSONNEL Number of Judges 1+2 1+1 1+2 1+2 1+2 1+0 1+1 1+2 No. of Prosecutors 2 0 0 0 0 1PT 0 1 No. of Defenders 2 0 - 0 0 0 0 0 No. of Advocates 0 0 - 0 0 0 0 0 Legal Aid * 0 YES - 0 YES YES YES YES No. of Clerks 2 1 1 1 1+1PT 1 1 2 Court Admin. 1 0 0 0 0 0 D. ANNUAL CASELOAD-76 Court days per wk. 5 5 5 2 6 6 3 3 Criminal cases 5250 740 300 332 - 2720 296 1200 Other cases 185 200 268 - 680 4 900 Total Cases (Annual) 7000 925 500 600 6000 3400 300 2100 76 Population 5,676 4,269 2,910 1,603 3,812 2,959 1,528 4,677 Cases Per Capita 1.23 .22 .17 .37 1.57 1.15 .20 .45 Appeals 10 0 0 2 1 0 12 - Jury Trials - 0 0 0 - 25 2 1 E. JUDICIAL SELECTION Elected - E - - - - E - Appointed A - A A A A - A Other - - - - - - - - * Available to Defendants on or off reservation. TABLE PROFILE OF TRIBAL COURT CHARACTERISTICS SOURCE: AILTP-1976 COURTS EASTERN MICCOSUKEE SEMINOLE CHOCTAW ALLEGANY CATTARAUGUS ONONDAGO ST. REGIS MOHAWK TONAWANDA TUSCARORA QUALIA COURT CHARACTERISTICS A. LEGAL BASIS Tribal Government IRA IRA IRA CONST IRA Tribal Court - - CONST CONST CONST Written Procedures - - YES YES B. COURT FACILITIES Court Rooms 1 0 Judges Chambers 2 0 C. COURT PERSONNEL Number of Judges 1+2 1+2 1 No. of Prosecutors 0 0 No. of Defenders 0 0 No. of Advocates 0 0 Legal Aid * 0 0 No. of Clerks 1 0 Court Admin. 0 0 D. ANNUAL CASELOAD-76 Court days per wk. 2 0 Criminal cases 1248 0 Other cases 220 30 Total Cases (Annual) 1468 30 76 Population 229 907 1,612 3,907 5,500 Cases Per Capita .91 .01 - Appeals 0 1 Jury Trials 3 0 E. JUDICIAL SELECTION Elected - E Appointed A - Other - - # Available to Defendants on or off reservation. TABLE PROFILE OF TRIBAL COURT CHARACTERISTICS SOURCE: AILTP-1976 COURTS CLIFF SAINT CROIX STOCKBRIDGE MUNSEE WINNEBAGO MENOMINEE FOND DU LAC RED GRAND PORTAGE LEECH LAKE LOWER LAKE MILLE LAC GREATER NETT LAKE MINNEAPOLIS COURT CHARACTERISTICS A. LEGAL BASIS Tribal Government - IRA Tribal Court CFR CFR Written Procedures CFR CFR B. COURT FACILITIES Court Rooms 0 1 Judges Chambers 0 1 C. COURT PERSONNEL Number of Judges 1+2 1+1 No. of Prosecutors 0 0 No. of Defenders 0 0 No. of Advocates 0 0 Legal Aid * 0 0 No. of Clerks 1 1 Court Admin. 0 0 D. ANNUAL CASELOAD-76 Court days per wk. 5 1 Criminal cases - 83 Other cases - 9 Total Cases (Annual) 1000* 92 76 Population 2,707 650 Cases Per Capita .37 .14 Appeals 0 0 Jury Trials 0 0 E. JUDICIAL SELECTION Elected - E Appointed A - Other - - * Available to Defendants on or off reservation. TABLE PROFILE OF TRIBAL COURT CHARACTERISTICS SOURCE: AILTP-1976 COURTS SAC AND FOX SAULT STE. BAY MILLS HANNAHVILLE ISABELLA BAD RIVER COURT MARIE L'ANSE LAC OREILLES LAC DU FLAMBEAU MOLE LAKE ONEIDA POTAWATOMI COURT CHARACTERISTICS A. LEGAL BASIS Tribal Government IRA IRA Tribal Court CONST CONST Written Procedures YES YES B. COURT FACILITIES Court Rooms 0 1 Judges Chambers 0 0 C. COURT PERSONNEL Number of Judges 1+3 1+1 No. of Prosecutors 0 0 No. of Defenders - 0 No. of Advocates - 0 Legal Aid # - YES No. of Clerks 1 1 Court Admin. 0 0 D. ANNUAL CASELOAD-76 Court days per wk. 0 1 Criminal cases 5 - Other cases 5 - Total Cases (Annual) 10 - 76 Population 304 758 Cases Per Capita .03 - Appeals 0 0 Jury Trials 0 0 E. JUDICIAL SELECTION Elected E E Appointed A - Other - - * Available to Defendants on or off reservation. TABLE PROFILE OF TRIBAL COURT CHARACTERISTICS SOURCE: AILTP-1976 COURTS PRARIE ISLAND PRIOR LAKE UPPER SIOUX WHITE EARTH RED LAKE COURT CHARACTERISTICS A. LEGAL BASIS Tribal Government Tribal Court Written Procedures B. COURT FACILITIES Court Rooms Judges Chambers C. COURT PERSONNEL Number of Judges No. of Prosecutors No. of Defenders No. of Advocates Legal Aid * No. of Clerks Court Admin. D. ANNUAL CASELOAD-76 Court days per wk. Criminal cases Other cases Total Cases (Annual) 76 Population Cases Per Capita Appeals Jury Trials E. JUDICIAL SELECTION Elected Appointed Other * Available to Defendants on or off reservation. TABLE PROFILE OF TRIBAL COURT CHARACTERISTICS SOURCE: AILTP-1976 NAVAJO COURTS CHINLE FORT DEFIANCE TUBA CITY EASTERN NAVAJO SHIPROCK TOTAL NAVAJO COURT CHARACTERISTICS A. LEGAL BASIS Tribal Government CODE Tribal Court CODE Written Procedures YES B. COURT FACILITIES Court Rooms 3 Judges Chambers C. COURT PERSONNEL Number of Judges 1+5 No. of Prosecutors 0 No. of Defenders 0 No. of Advocates - Legal Aid # YES No. of Clerks 1 Court Admin. 0 D. ANNUAL CASELOAD-76 Court days per wk. 5 Criminal cases 14,000 Other cases 16,000 Total Cases (Annual) 30,000 76 Population 125,520 Cases Per Capita .24 Appeals 100 Jury Trials 30 E. JUDICIAL SELECTION Elected - Appointed A Other - # Available to Defendants on or off reservation. TABLE PROFILE OF TRIBAL COURT CHARACTERISTICS SOURCE: AILTP-1976 COURTS COLORADO RIVER COCOPAH FORT MOHAVE FORT YUMA FORT APACHE KAIBAB HOPI FORT MCDOWELL PAPAGO AK CHIN GILA RIVER SALT RIBER PHOENIX COURT CHARACTERISTICS A. LEGAL BASIS Tribal Government IRA IRA IRA IRA IRA IRA CONST IRA IRA IRA IRA Tribal Court LAW CODE-CFR CFR CODE CFR CONST SALT-CODE CONST CONST LAW CODE Written Procedures NO NO NO SOME NO SOME NO YES YES YES NO B. COURT FACILITIES Court Rooms 1 1 1 1 1 1 1 1 1 1 Judges Chambers 1 1 1 1 1 1 2 0 1 1 C. COURT PERSONNEL Number of Judges 1+1 1 1 1+1 1 1 0 0 0 SEE SALT RIVER 1+2 1 1+2 1+1 No. of Prosecutors 0 0 0 1+1PT 1 0 1 1 No. of Defenders 0 0 0 0 - 0 I 0 o No. of Advocates 2 0 0 0 0 - 3 - 3 1 Legal Aid * 0 0 0 0 0 - - I YES o No. of Clerks 1 0 1 2 0 1 3 0 4 1 Court Admin. 0 0 0 0 0 0 0 0 1 o D. ANNUAL CASELOAD-76 Court days per wk. 5 3 0 5 0 5 5 1 5 5 Criminal cases 1500 60 11 2821 15 maj 2372 200 779 571 Other cases 900 1 1 831 - - 238 20 1148 170 Total Cases (Annual) 2,400 61 12 3,652 15 804 - 2,610 220 1,927 741 76 Population 1,673 360 374 8,077 122 5,673 330 8,707 312 6,405 2,809 Cases Per Capita 1.43 .17 .03 .45 .12 .14 .30 .71 .30 .26 Appeals 2 0 0 10 0 3 - - 0 3 2 Jury Trials 0 0 0 3 0 2 - 0 0 6 1 E. JUDICIAL SELECTION Elected - - - E - - E - - E E Appointed A A A - A A - A A - - Other - - - - - - - - - - - * Available to Defendants on or off reservation. TABLE PROFILE OF TRIBAL COURT CHARACTERISTICS SOURCE: AILTP-1976 COURTS SAN CARLOS CAMP VERDE HAVASUPAI HUALAPAI YAVAPAI/ PRESCOTT BATTLE MOUNTAIN DUCK VALLEY DUCKWATER ELY COLONY FALLON COLONY FORT MCDERMITT GOSHUTE COURT CHARACTERISTICS A. LEGAL BASIS Articles Tribal Government IRA IRA IRA IRA of 1962 IRA IRA IRA Tribal Court LAW CODE CODE CONST CFR LAW LAW CONST Written Procedures NO NO SOME NO NO PART PART NO B. COURT FACILITIES Court Rooms 1 1 1 1 1 1 0 1 Judges Chambers 1 1 1 1 1 1 1 1 C. COURT PERSONNEL Number of Judges 1+2 1+1 1 1+1 1 1+2 1 1 No. of Prosecutors 0 0 0 1 0 0 o 0 No. of Defenders 0 0 0 0 0 0 0 0 No. of Advocates 3 0 0 0 0 0 0 o Legal Aid 0 0 0 0 0 0 0 YES No. of Clerks 2 1PT. 1 1 O 1PT. 1 1 Court Admin. 0 0 0 0 0 0 0 0 D. ANNUAL CASELOAD-76 Court days per wk. 7 2 5 3 0 5 1 1 Criminal cases 2726 102 50 475 0 200 80 - Other cases 74 2 16 25 0 200 40 - Total Cases (Annual) 3000 104 66 500 0 400 120 - 76 Population 5,619 280 308 703 280 1,007 407 126 Cases Per Capita .53 .37 .21 .71 - .40 .29 - Appeals 4 0 1 1 0 0 0 0 Jury Trials - 0 0 1 0 0 0 0 E. JUDICIAL SELECTION Elected - - E - - - - - Appointed A A - A A A A A Other - - - - - - - - # Available to Defendants on or off reservation. TABLE PROFILE OF TRIBAL COURT CHARACTERISTICS SOURCE: AILTP-1976 COURTS LAS VEGAS LOVELOCK MOAPA PYRAMID LAKE RENO/SPARKS RUBY VALLEY SOUTH FORK WALKER RIVER WASHOE YERINGTON UINTA-OURAY HOPI COURT CHARACTERISTICS A. LEGAL BASIS Tribal Government IRA IRA IRA IRA Tribal Court CFR CFR CFR LAW Written Procedures NO YES YES YES B. COURT FACILITIES Court Rooms 1 0 1 1 Judges Chambers 1 0 1 2 C. COURT PERSONNEL Number of Judges 1 1 1 1 No. of Prosecutors 0 1 1 2 No. of Defenders 0 0 0 1 No. of Advocates 0 0 0 O Legal Aid 0 YES 0 o No. of Clerks 0 1 0 3 Court Admin. 0 0 0 0 D. ANNUAL CASELOAD-76 Court days per wk. 0 2 1 5 Criminal cases 5 - - 1400 Other cases 11 - - 100 Total Cases (Annual) 16 - 500 1500 76 Population 117 503 452 1,645 Cases Per Capita .14 - 1.11 .91 Appeals 0 0 2 0 Jury Trials 0 2 1 100 E. JUDICIAL SELECTION Elected - - - - Appointed A A A A Other - - - - * Available to Defendants on or off reservation. TABLE PROFILE OF TRIBAL COURT CHARACTERISTICS SOURCE: AILTP-1976 PORTLAND COURTS FORT HALL COEUR d'ALEN KOOTENAI NEZ PERCE UMATILLA WARM SPRINGS BURNS PAIUTE COLVILLE KALISPELL SPOKANE CHEHALIS LOWER ELWAH COURT CHARACTERISTICS A. LEGAL BASIS Tribal Government IRA CONST'49 CONST IRA CONST IRA IRA IRA Tribal Court CONST CONST CODE LAW LAW LAW LAW LAW Written Procedures YES YES NO YES YES YES YES YES B. COURT FACILITIES Court Rooms 1 1 0 1 0 1 0 1 Judges Chambers 1 1 0 2 0 2 0 0 C. COURT PERSONNEL Number of Judges 1+2 1+1 0 1+1 1 - 1 1+3 No. of Prosecutors 0 0 0 0 0 0 0 o No. of Defenders 0 0 0 0 0 0 0 o No. of Advocates 0 0 0 0 0 0 0 0 Legal Aid 0 0 0 YES YES YES YES YES No. of Clerks 2 1 0 1 1 1 0 0 Court Admin. 0 0 0 0 0 o 0 0 D. ANNUAL CASELOAD-76 Court days per wk. 3 2 0 5 ? 1 A/N 2 Criminal cases 1468 71 0 889 23 262 - 360 Other cases 112 7 0 569 0 95 - 40 Total Cases (Annual) 1580 78 0 1458 23 357 75 400 76 Population 2,258 450 719 1,922 129 2,560 123 743 Cases Per Capita .70 .17 - .76 .18 .14 .61 .54 Appeals 8 0 0 3 0 0 0 0 Jury Trials 0 2 0 3 0 - 0 0 E. JUDICIAL SELECTION Elected E-CJ - - - - - - E Appointed A-A A - - - A A - Other - - - - - - - - # Available to Defendants on or off reservation. TABLE PROFILE OF TRIBAL COURT CHARACTERISTICS SOURCE: AILTP-1976 COURTS LUMMI MAKAH MUCKLESHOOT NISQUALLY NOOKSACK PORT GAMBLE PORT MADISON PUYALLUP QUILEUTE QUINAULT SKOKOMISH SWINOMISH COURT CHARACTERISTICS A. LEGAL BASIS Tribal Government CONST70 IRA IRA IRA IRA CONST75 IRA IRA Tribal Court LAW LAW LAW LAW LAW CONST CONST LAW Written Procedures NO YES YES - YES YES PART NO B. COURT FACILITIES Court Rooms 1 1 0 1 1 1 0 0 Judges Chambers 1 1 0 1 0 1 0 0 C. COURT PERSONNEL Number of Judges 1+1 1+2 1+1 1+1 1+1 1+1 1+0 1 No. of Prosecutors 0 POL.JUD. 1 0 0 PT 0 0 No. of Defenders 0 0 0 0 0 0 o 0 No. of Advocates 0 0 0 0 0 1PT 0 o Legal Aid 0 0 0 YES 0 0 0 o No. of Clerks 1 1 1 1PT 1 1 1 0 Court Admin. 0 0 0 0 0 0 0 0 D. ANNUAL CASELOAD-76 Court days per wk. 2 2 1 1 0 5 0 1 Criminal cases 245 105 50 - 2 296 2 16 Other cases 50 60 0 - 0 52 0 0 Total Cases (Annual) 295 165 50 - 2 348 2 16 76 Population 1,305 920 111 263 176 1,153 255 386 Cases Per Capita .23 .18 .45 - .01 .30 .01 .04 Appeals 0 0 0 - 0 - NA 0 Jury Trials 0 0 0 - 0 9 0 0 E. JUDICIAL SELECTION Elected - - - - E - - - Appointed A A A A - A A A Other - - - - - - - - * Available to Defendants on or off reservation. TABLE PROFILE OF TRIBAL COURT CHARACTERISTICS SOURCE: AILTP-1976 COURTS TULALIP YAKIMA METLAKATLA COURT CHARACTERISTICS A. LEGAL BASIS NO Tribal Government WRITTEN IRA Tribal Court RESOLUT CONST Written Procedures NO - B. COURT FACILITIES Court Rooms 1 1 Judges Chambers 1 1 C. COURT PERSONNEL Number of Judges 1+5 1+2 No. of Prosecutors 1 0 No. of Defenders 1 0 No. of Advocates 0 0 Legal Aid * 0 YES No. of Clerks 1 1PT Court Admin. 0 0 D. ANNUAL CASELOAD-76 Court days per wk. 5 1 Criminal cases 960 248 Other cases 240 2 Total Cases (Annual) 1200 250 76 Population 5,210 1,042 Cases Per Capita .23 .24 Appeals 0 1 Jury Trials 1 0 E. JUDICIAL SELECTION Elected - - Appointed A A Other - - * Available to Defendants on or off reservation. TABLE PROFILE OF TRIBAL COURT CHARACTERISTICS SOURCE: AILTP-1976 -

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[National American Indian Court Judges Association]

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