Copyright 1999 Federal News Service, Inc.
Federal News Service
SEPTEMBER 29, 1999, WEDNESDAY
SECTION: IN THE NEWS
LENGTH:
2829 words
HEADLINE: PREPARED TESTIMONY OF
PETERSON
ZAH
ON BEHALF OF THE NATIONAL ASSOCIATION
OF INDIAN LEGAL SERVICES
BEFORE THE SENATE COMMITTEE ON INDIAN AFFAIRS SEPTEMBER 29,
1999
BODY:
INTRODUCTION
Chairman
Campbell, Vice Chairman Inouye and distinguished members of the Committee, my
name is Peterson Zah, I am a member of the Navajo Nation, and I am presently
working as a special advisor to the President of Arizona State University in
Tempe, Arizona. I am honored to be invited to testify on S. 1508, the "Indian
Tribal Justice System Technical and Legal Assistance Act of 1999." My testimony
is on behalf of the National Association of Indian Legal Services (NAILS) and in
support of this bill.
As some of you may know, prior to my years as
President of the Navajo Nation, I served as the Executive Director of DNA
Peoples Legal Services on the Navajo Reservation. I know first-hand the
importance of the work of Indian legal services in the lives of Indian people
and in the development of tribal law and judicial systems. That is why I am
always eager to have the opportunity to speak up for Indian legal services and
why I am pleased to be here in support of this bill. Let me begin by providing
some background on these 30 small Indian legal services organizations that are
out there everyday helping individuals and developing the foundation for modern
tribal jurisprudence.
Indian legal services programs were first created out
of the legal arm of the OfFice of Economic Opportunity in the mid-1960's. Eight
programs were established in the 1960's, and approximately 25 more in the 1970%.
Funding was shifted to the Legal Services Corporation (LSC)
with its creation in 1974. To recognize the significance of this fact, it was
the first real time in the 225-year history of this country that Native American
people had any meaningful access to legal representation by other than
government attorneys in a few, random cases. Today, these small programs, funded
primarily by LSC, continue to provide fundamental, bread-and-butter legal
representation to individual Indian people, and small tribes, throughout the
United States.
The importance of Indian legal services programs has been
recognized before by this Committee. In a June 1981 Report, 97th Congress, First
Session, entitled "Analysis of the Budget Pertaining to Indian Affairs Fiscal
Year 1982," at page 22, this Committee reported that the ILS programs provide
"exceptional services," to Indian Country, and that attorneys working with ILS
programs had become "... an integral part of the tribal legal and judicial
processes -- ... "and "... -- contributed greatly to the development of the
on-reservation judicial systems." (Emphasis added.)
For over thirty years,
these programs have been providing nationwide essential, basic legal services to
individual Native Americans and tribes whose members fall within the federal
poverty guidelines. A cornerstone of the work of ILS programs over these three
decades has been assisting tribes in the development and evolution of tribal
justice systems, including tribal courts. This work has included, to name but a
few of the various general categories: the development of written codes on
tribal law, written codes on practice and procedure in tribal courts, selection
and training of tribal judges, tribal- state court judge training on common
legal areas of interest, development of tribal court lay advocate programs and
the training of lay advocates to staff those programs, and the development of
tribal peacemaking (traditional alternative dispute resolution) courts and
systems.
For a more in-depth, comprehensive look at the history and work of
Indian legal services programs, we will be submitting for the record copies of a
study entitled "Legal Needs and Services in Indian Country: 1998 Report to the
Legal Services Corporation," by Eric Dahlstrom, Esq. and
Randolph Barnhouse, Esq.
As that Report will demonstrate, Indian legal
services organizations are all too often the only game in town, the only
organizations available on the reservations themselves, on a daily basis, to
provide independent, community based legal assistance to individuals and tribal
court systems. Allow me to give you a very small sampling of what I mean.
DNA Legal Services of Arizona, New Mexico and Utah
Back in my home
country on the Navajo Reservation DNA has continued its history of contributing
to the evolution of tribal court systems within its service area through code
development and judicial and law enforcement training. In 1993 the Navajo Nation
Council passed the Domestic Abuse Protection Act (DAPA). A DNA attorney drafted
the DAPA and guided it through the tribal legislative process. The Act allows
victims of domestic abuse to apply to the courts pro se for protection from
their abuser, possession of any home, child custody and support, and a broad
range of other remedies. In 1995, DNA established its Native American Family
Violence Prevention Project (NAFV Project), with the initial goal of educating
Navajo Nation courts, legal practitioners and others about the DAPA. The NAFV
Project conducted trainings for judges, court personnel, prosecutors, law
enforcement, and social services across the Navajo Nation in three states. In
1996, DNA also drafted and secured passage of the Hopi Nation's domestic abuse
prevention act which contains provisions similar to the Navajo Nation law.
DNA's Youth Law Project (YL Project) has also been actively working to help
Navajo and Hopi communities deal with violence and to improve the legal system's
response to that violence. DNA has taken a leadership role in a broad based
coalition working on these issues. The coalition has been invited to comment on
revisions to the Navajo Nation Children's Code. In the future, the coalition
hopes to pursue funding to develop a criminal code for the Navajo Nation dealing
with youth violence, and to train courts, prosecutors, law enforcement, social
services, and other legal personnel on the code and on how to respond to crimes
committed by youths.
In the past, the YL Project has conducted a Street Law
program at Navajo high schools, developing a Street Law curricula, and bringing
DNA lawyers and others from the community into the high schools to give students
a hands-on view of how the law affects their lives. More recently, the YL
Project has assisted the Window Rock and Tuba City, Arizona communities to
institute Teen Courts. These types of innovative, community based programs are
responsive to critical local needs, and they help create a healthy and stable
environment which is then attractive to business and other community
development.
Finally, DNA has also worked with the courts of the smaller
tribes such as Hualapai, Havasupai, and Yavapai Apache to provide lay advocate
training for the more efficient operation of their tribal court systems.
CONCLUSION
Mr. Chairman and members of the Committee, unfortunately I do
not have time today to talk about the fine work of other Indian legal services
programs with tribal courts and tribal communities. I have, however, included a
few detailed descriptions at the end of my testimony. I hope I have not done a
disservice to these and all the other Indian legal services programs by giving
you such a limited snapshot of some of the work they have done in recent years.
I simply wanted to give you, very briefly, some sense of the vital role these
offices play in the development and provision of legal services on the
reservations.
It is this type of committed, on-site work, done
day-in and day-out that creates a climate of trust in our tribal judicial
systems. In that environment of trust and confidence our Indian communities can
grow and thrive.
This modest bill, S. 1508, will help contribute to that
growth by expanding the opportunities for Indian legal services and tribal court
membership organizations to contribute to the work the tribes themselves are
doing in this area. It is essential that such organizations, outside of tribal
government but committed to tribal justice, continue to help shape the
development of our tribal justice systems. It makes our systems healthy and
responsive, and that is good capacity building.
Before I close, I want to
mention briefly the support for Indian legal services that comes from tribal
governments, intertribal organizations and tribal judiciaries. I will do that by
referring you to the letters of support that were attached to the NAILS
testimony presented to this Committee as part of the record of your Hearing on
June 3, 1998, on the Initiative on Law Enforcement in Indian Country.
Although these letters and Resolutions of support were presented to the
Committee in the context of that initiative, their general theme is germane to
S. 1508. That theme is one of encouragement and support for Congress to create
the opportunity for supplemental funding for ILS in order to enhance the
capacity of tribal courts in a meaningful, low cost way. I urge you to go back
and see the strong words of those Resolutions and letters.
As Chairman
Campbell stated in introducing S. 1508, this bill is intended to complement, not
substitute direct federal support for tribal governments in the area of tribal
justice. The bill would authorize the Attorney General to award grants to
national or regional tribal justice system organizations and associations and to
non-profit entities which provide legal assistance services for tribes and
tribal members for the purpose of improving tribal judicial systems through
training, technical assistance and civil legal and criminal assistance. The bill
specifically includes our 30 Indian legal services programs as eligible entities
to whom the Attorney General may award grants for civil legal and criminal
assistance programs by the references to non-profit entitles which provide legal
services pursuant to federal poverty guidelines. The bill provides that these
grants would be conditioned on the availability of appropriations. As you may
know, Indian Legal Services programs have been very mindful about not competing
with tribal courts for operating funding, and so we appreciate the Committee's
intent in the bill that the Attorney General would, subject to available
appropriations, provide funds for these grants from within existing Department
of Justice programs and outside of the tribal courts program.
I hope I have
given you good indication of why that is right, and how it occurs. I commend the
Committee on its foresight in appreciating how these organizations are key parts
of our judicial development. By moving this bill into law you will, in a modest
way, be contributing to a healthy jurisprudence in Indian Country; and that, as
you well know, is good for everyone.
Thank you again for this opportunity to
speak to you today. I am happy to respond to any questions you might have.
EXAMPLES OF THE TRIBAL COURT WORK OF OTHER SELECTED INDIAN LEGAL SERVICES
PROGRAMS
Indian Pueblo Legal Services of New Mexico
Indian Pueblo Legal
Services (IPLS) has been assisting the Pueblos in the development of tribal
domestic violence codes. They have organized working groups within the Pueblos
which are responsible for identifying the substantive code provisions and
procedures to be enacted by each Pueblo, given the unique nature of each tribal
government and tribal court. IPLS has facilitated the discussions and drafted
the codes. IPLS provided this technical assistance to eight Pueblos under a
contract with the Eight Northern Indian Pueblos Council and to three Pueblos
under a Violence Against Women Act grant. The working groups within the Pueblos
are responsible for ensuring that the Tribal Council considers and adopts the
codes.
Michigan Indian Legal Services
Michigan Indian Legal Services
(MILS) has represented several Michigan tribes in securing federal recognition.
MILS' work with these tribes did not stop there, however. For many years, MILS
has been actively engaged in the assistance of the tribes in the development of
their tribal court systems, including code development and training of tribal
judicial personnel. Two recent projects include drafting of a juvenile code and
a peacemaking code for the Little River Band of Ottawa Indians.
Dakota
Plains Legal Services of South Dakota
Dakota Plains Legal Services (DPLS)
staff has met with tribal court judges and court personnel from throughout South
Dakota to establish court procedures, improve working relationships, discuss
code revisions and do-it-yourself kits for simple procedures such as non-
contested divorces. DPLS staff has also been involved in peer mediation training
with the tribal courts in their service area.
North Dakota Legal Services
Since its beginning in 1971, North Dakota Legal Services has provided
representation to low income Native Americans in the Fort Berthold Tribal Court.
NDLS has handled a wide variety of cases, attempting to feature a high volume of
routine cases together with three or four impact cases each year. Included among
those thousands of cases were impact decisions in the area of domestic violence
jurisdiction (Stretches v. Stretches), individual Tribal members rights
(Bordeaux v. Wilkinson), tenants fights (Chase v. Fort Berthold Housing
Authority), juvenile detention and tribal jails (Fitzsimmons on behalf of KMR),
and repossession protection, debtors rights, criminal due process and Tribal
Court jurisdiction.
Wisconsin Judicare
Between 1996 and 1998 Wisconsin
Judicare was actively involved in a statewide Tribal Lay Advocate Training
Project. This project resulted in 20 tribal individuals receiving a
certification from the Wisconsin Tribal Judges Association (WTJA). With this
certification, advocates may apply to practice in one or more tribal courts in
Wisconsin. The impetus for this project came from the fact that
while the
tribal courts are expanding in their scope of services, there has been no
similar increase in the availability of attorneys to represent individuals in
those growing courts.
When two new tribal courts opened their doors in
Wisconsin in 1996, Judicare's Indian Law Office, at the request of the tribal
courts, presented a seminar for state and tribal court judges entitled,
"Tribal/State Legal Relations: What Judges Need to Know." The Wisconsin
Department of Justice co-sponsored the event. The purpose was to establish a
good, cooperative understanding and working relationship between the state and
tribal courts so justice would flow evenly for everyone with a minimum of
jurisdictional problems. Approximately 30 state and tribal court judges attended
the session which covered a variety of jurisdictional issues. The seminar
received high marks in the concluding evaluation, with judges consistently
suggesting that similar events be presented in the future.
Idaho Legal Aid
Services
Idaho Legal Aid Services (ILAS) was instrumental in creating the
Nez Perce Peacemaker/Access to Justice Project, which worked in conjunction with
the Nez Perce Tribal Court to provide mediation services and pro se pleading
forms to individuals bringing actions in the Tribal Court. Law students and
Tribal elders engaged in intensive cross-cultural mediation training and then
collaborated in mediation of selected tribal court disputes. In addition, ILAS
staff drafted legal codes for several other Idaho tribes and contributed to the
development of jurisprudence in the tribal courts by actively engaging in
representation of individual tribal members in those court systems.
Native
American Program of Oregon Legal Services
The Native American Program of
Oregon Legal Services (NAPOLS) has done a substantial amount of Tribal Court
development work over the past decade. For instance, NAPOLS assisted the
Confederated Tribes of Grand Ronde Tribe in establishing their Tribal Court,
which has been up and running since 1991. NAPOLS drafted the Tribal Court
Ordinance, conducted workshops for the Tribal Council, assisted in the hiring of
a tribal court judge, did lay advocate training, did training for the Tribal
Social Services department on court procedures, and drafted court forms for use
by the Tribal Court. Most recently NAPOLS assisted the Tribal Court judge in
creating computerized form court orders that complied with PL 96-272, to ensure
the payment of foster care maintenance monies for Tribal foster care providers.
NAPOLS has also appeared numerous times in the Grand Ronde Tribal Court.
NAPOLS has done very similar work for the Coquille Indian Tribe. The
Coquille Tribe was restored in 1989. Their Constitution, which NAPOLS assisted
in drafting, was adopted in 1991 and required the establishment of a tribal
court. NAPOLS has conducted a series of tribal court workshops for the Tribal
Council, presented a workshop that involved local county judges and child
protective services workers on the ICWA and tribal courts, drafted the Tribal
Court Ordinance, assisted in the hiring of a judge, drafted substantive
ordinances that will be applied by the Court. The Court officially convened for
the first time in May of 1998.
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