Equal Justice NewsletterAugust 1999
For those of us who had the privilege of working with Fred Paul as lawyers and judges, he was a legend larger than life. He graduated from the University of Washington Law School in 1937. As a lawyer he represented the interests of his clients with forcefulness and integrity. He literally sacrificed his health, his law practice and his personal financial resources in championing the rights of his fellow Native Alaskans.
In 1966 Frederick Paul was approached by the Arctic Slope Native Association, a loosely structured federation of Eskimo villages spread across the 55 million acres of the Arctic Slope. The conditions in those villages included: no schools beyond the sixth grade except one at Barrow to the eighth; average education attainment of third grade; life expectancy of 34 years; unemployment of over 60%; alcoholism rate above 50%; and a suicide rate four times the national average. The approach to Mr. Paul was precipitated by the impending onslaught of the oil juggernaut, drilling upon the aboriginal lands of the Eskimos, and by the state's selection of their valuable lands for its own property as authorized by the 1958 Statehood Act. The crisis was real and quite cataclysmic.
In order to lawfully represent the Eskimo people, compliance with the federal statute, 25 USC Section 81, was necessary. But because of communication and transportation problems on Alaska's North Slope in 1966, it took about six months to put together a contract with the Eskimos, involving Bureau of Indian Affairs' certification that the leadership of each village fully understood the terms of the contract. The contract, dictated by the Department of the Interior, provided for representation before federal and state courts and before the committees of Congress concerned with the natives' land claims. Compensation was to be "wholly contingent," and in an "equitable" amount not to exceed 10% of any recovery obtained for the Eskimo people. The fee was to be determined either by an independent tribunal or by the Secretary of the Interior. It took the Department 17 months to approve the contract. Frederick Paul began his work under the contract from April 1966 to February 1970--a period of 46 months. Twenty-two months after that Congress in December 1971 enacted the Alaska Native Claims Settlement Act.
The following quote from the October 1994 issue of Washington State Bar News perhaps most effectively relates the essence of Fred Paul's commitment to equality and justice:
"Reared in Ketchikan, Alaska, Frederick Paul fought tirelessly on behalf of Alaska natives. In the 1940s and 50s he helped them oppose commercial fish traps imposed on the [T]erritory of Alaska by the federal government. He was inspired by his father, an attorney who obtained the acquittal of his wife after she was arrested in Wrangel, Alaska, for voting--then illegal for Native Americans--and who set aside his classical-singing career to lobby Congress for Native American voting rights in Alaska.
"In the 1960s, Paul opposed the U. S. Department of the Interior's plan for noncompetitive oil leasing on Alaska's North Slope. The five-year court battle was settled with Alaskan Indians and Eskimos winning title to more than 40 million acres of land and $1 billion under the 1971 Alaska Native Claims Settlement Act. Paul gave up most of his practice, spending more than 7,000 hours on the case. After the court awarded him a $275,000 fee, the IRS levied Paul for taxes, breaking him financially."
In posthumously presenting the 1994 Washington State Bar Association Courageous Award to Louis Frederick Paul, then president L. Paul Stritmatter stated "Mr. Paul committed all of his legal talents and energies to the problems of his clients, without regard to the fact that he wasn't being paid. His courage in the sacrificing of his own interest to aid that of his clients is a role model of professionalism for all of us."
Louis Frederick Paul was of the Nahn-ya-ahyi tribe of the Shgut-quon Nation of the Tlingit people. His Indian name was Kudanake. He was also of Scot and French Canadian ancestry. He was an American. His survivors include his sister, Frances DeGermain; his daughter, Nina Wright (her husband and their children); his son Blair (his wife and their children); his son Steve (his wife and their children); and his son Michael (his wife and their child).
In the footsteps of his grandfather and father, Blair Frederick Paul is a lawyer and a member of the Washington State Bar. In speaking with reverent admiration of his father, he wrote:
"The greatest calling of a lawyer, according to my father, is preservation of the rule of law and social peace.' Where a body of people need representation, the law has no greater purpose than to insure that their claims and grievances are aired. It is preposterous to think that such people can effectively petition, without the benefit of a lawyer. And not just any lawyer, but a good lawyer, most of whom have mortgages to pay, kids to raise, sleep to treasure, health to preserve and the freedom to accept a case or not."
It is significant to note that Frederick Paul's contribution to the Alaska Native Claims Settlement Act (1971) was over 6,000 hours, about four professional years, supervision of another 9,000 hours of labor and, arguably, a critical and direct influence upon the substantive terms of the Act.
Although Frederick Paul had a valid contract for compensation, the Claims Settlement Act voided all "percentage" contracts, even those previously approved under the statute, and substituted a quantum meruit procedure for attorneys' fees against a $1.9 million portion of the native claims award. The Act specifically provided that if "reasonable" fees in the aggregate exceeded the fund, all attorneys were to take "pro rata." Twenty-seven applications for fees were filed, totaling over $7 million. After three and a half years of wrangling, a settlement was reached under which all the lawyers were paid a little over $40 per hour (less than $20 per hour at present value) and less than that after collection costs.
Having sacrificed his life's blood in pursuit of his clients' interests, Frederick Paul in 1976 sued to set aside the limitations and to enforce his original contracts, first against the Eskimos themselves, who were barred by criminal provisions from paying him fairly; and then against the United States on a "taking" theory. The Court of Claims dismissed the case and certiorari was denied by the Supreme Court. See Paul v. United States, 687 F. 2d 364 (Ct. Cl. 1982), cert. denied 461 U.S. 927. The Court of Claims stated (at p. 368):
"[Paul argued] . . . that the First Amendment requires minority peoples like Alaskan natives to be able to obtain legal representation in order to vindicate their land rights, and that the restrictions [under the statute] improperly interfere with that First Amendment right. We may assume that the First Amendment is somehow implicated in the natives' legal representation, but we cannot agree with [Paul] that there had to be a clear and present danger' before Congress could impose the attorney fee limitations of the Settlement Act. Any connection between those limitations and the natives' First Amendment rights was tenuous at best. Not only was there no prohibition of any kind on pursuit of any activities by either natives or their lawyers, but even if the fee provision constituted some type of indirect restraint' there was and could be no discouragement of any of their activities respecting that particular settlement--the Settlement Act came after those activities, not before. If the act had any effect in discouraging the future retaining of lawyers by Indians or natives, that impact would not bear on the natives' rights involved in the Alaska Settlement Act." (Emphasis added.)
After reciting the late entry of certain well-known lawyers and "big name" firms to the Alaska Native cause, Blair Paul observed "[T]hey only arrived in 1969 when Frederick Paul and a few others like him, poorly funded as they were, had already created the climate in which a Claims Act was possible. Five generations of Alaska natives lived and died before the bar, let alone the government, finally acted.
"Representation of the unrecognized and unlanded tribes was then and is at this moment, a perilous venture for a lawyer. The tragedy is not so much the travail of the lawyer, though that is bad enough, but rather that of the grievants who are not able to find the skilled counsel they so desperately need when they need them. . . . "
This article constitutes only a brief reference to the remarkable life of Louis Frederick (Fred) Paul. Much of his life has been chronicled. Volumes more can be written Under any circumstance, we are confident in asserting that Frederick Paul was a giant who walked among us!
RULE 82.5 TRIBAL COURT JURISDICTION
(a) Indian Tribal Court; Exclusive Jurisdiction. Where an action is brought in the superior court of any county of this state, and where, under the Laws of the United States, exclusive jurisdiction over the matter in controversy has been granted or reserved to an Indian tribal court of a federally recognized Indian tribe, the superior court, shall, upon motion of a party or upon its own motion, dismiss such action pursuant to CR 12(b)(1), unless transfer is required under federal law.
(b) Indian Tribal Court; Concurrent Jurisdiction. Where an action is brought in the superior court of any county of this state, and where, under the Laws of the United States, concurrent jurisdiction over the matter in controversy has been granted or reserved to an Indian tribal court of a federally recognized Indian tribe, the superior court may, if the interests of justice require, cause such action to be transferred to the appropriate Indian tribal court. In making such determination, the superior court shall consider, among other things, the nature of the action, the interests and identities of the parties, the convenience of the parties and witnesses, whether state of tribal law will apply to the matter in controversy, and the remedy available in such Indian tribal court.
(c) Enforcement of Indian Tribal Court Orders, Judgements or Decrees. The superior courts of the State of Washington shall recognize, implement and enforce the orders, judgements and decrees of Indian tribal courts in matters in which either the exclusive or concurrent jurisdiction has been granted or reserved to an Indian tribal court of a federally recognized tribe under the Laws of the United States, unless the superior court finds the tribal court that rendered the order, judgement or decree (1) lacked jurisdiction over a party or the subject matter, (2) denied due process as provided by the Indian Civil Rights Act of 1968, or (3) does not reciprocally provide for recognition and implementation of orders, judgements and decrees of the superior courts of the State of Washington.
"To assist the member tribes, at their direction, in a manner which recognizes the traditions of those tribes in the development of tribal sovereignty, individual character, and courts which will provide fair, equitable, and uniform justice for all who fall within their jurisdiction."
NICS assists member tribes in the development of their individual justice systems and provides personnel as needed to operate tribal courts.
Tribal Jurisdiction. In 1854 the first tribal reservations were created in the Washington Territory. Tribes were removed from traditionally held lands and fishing areas and placed on sites selected by the United States Government. Certain rights were reserved by Indians through treaties. Important among those was "The right of taking fish at all and usual and accustomed grounds and stations in common with all citizens of the territory."
The Tribes have vigorously asserted their treaty-reserved fishing rights in recent years. In the United States v. Washington court decision of 1979, commonly known as the Boldt decision, Indian treaty rights were affirmed and upheld in the United States Supreme Court. This was a major victory for Indian tribes in their efforts to exercise control over their resources. The case also affirmed the right of the Native Nations to regulate their own members in the exercise of their fishing rights. This power to regulate extends to both off and on reservation fishing sites. The Supreme Court's recognition of the tribal right of extra-territorial jurisdiction over fishing areas helped clarify the need in Western Washington for strong tribal courts capable of exercising sovereign powers.
The expanding exercise of jurisdiction by Indian tribes in Western Washington is not simply a result of the Boldt decision, however. With the advent of the Indian Child Welfare Act, Congress also recognized the need for tribes and tribal courts to have exclusive jurisdiction over the welfare of tribal member children. It also stems from a greater awareness of the need for tribal self-governance. Tribal recognition that reservation resources should be developed for the benefit of tribal members, rather than non-Indians, has led tribal governments to develop proactive ordinances, regulatory plans, criminal ordinances, juvenile codes, and business regulations.
Growth of NICS. When representatives from tribes throughout Western Washington met in 1979 to explore ways of meeting their justice needs, they realized that there were neither sufficient financial resources nor enough people with necessary experience to provide individual justice system services for each tribe. They concluded that the most practical solution was to establish a circuit court system: the Northwest Intertribal Court System (NICS). NICS acts as a personnel bank. It started with one full-time judge and now offers prosecutorial, juvenile, code writing, mediation and training services in addition to judicial services. The primary focus of NICS is on direct court-related services.
Judicial Services. NICS has been providing judicial services to member tribes since its inception. NICS judges hear a variety of cases at the tribal level, including criminal, fishing, housing, family and commercial disputes. NICS judges have helped bring regularity and predictability to the judicial process, while at the same time remaining sensitive to the individual needs and traditions of each tribe. The fairness and impartiality of NICS has inspired a confidence in the tribal courts which has resulted in a significant increase in the number and diversity of cases being filed in NICS member courts.
Prosecution Services. The NICS prosecutors work closely with tribal law enforcement officers and tribal officials to ensure adequate representation for the tribe in tribal courts. The services of NICS prosecutors have helped members comply with fisheries management obligations required by the Boldt decision. NICS prosecutors have generated respect for the criminal codes of member tribes and have assisted fisheries committees and housing authorities in carrying out their regulations.
Appellate Services. The NICS Appellate Unit coordinates appellate services for its member tribes. Upon request NICS also provides appellate services to non-member tribes in the Pacific Northwest region. Tribes in Washington, Oregon, Alaska, Idaho and Northern California are eligible for one appeal per tribe per year. Additional appeals are handled on a contract basis.
Once an appeal is accepted for review, NICS assembles a three-judge panel to hear the case. The judges will then travel to the reservation to hear the appeal.
NICS' provision of direct court services to member tribes has allowed a number of the tribes to conduct their own courts where previously they had not been able to do so. Tribal justice systems are in their formative stages, so it is important that Indian people develop their own justice systems tailored to their own needs. With the help of the Northwest Intertribal Court System, Indian tribes in Western Washington are achieving a major goal of tribal self-determination: individual tribal justice systems developed for their people, by their people.
The Northwest Intertribal Court System is located at 144 Railroad Avenue, Suite 302, Edmonds, Washington 98020. Telephone (425) 774-5808 and Telefacsimile (425) 778-7704.
Margaret Pepin-Donat has been administrator of the Northwest Intertribal Court System for two years. She has a strong commitment to promoting tribal sovereignty by assisting and recognizing each tribal jurisdiction in developing their separate and formal equitable justice systems. She holds a masters in urban planning from the University of Oregon and a masters in anthropology from Harvard University.
What sets Native American tribes and their members apart from the majority society is the strong recognition of tribal identity. For the majority society, those whose ancestors came from Europe, most can probably trace their ancestral origin by country but probably not by their tribal identity. For instance, how many could identify themselves a Pict or Visgoth? The same is not true for Native Americans, including Alaskan Natives.
An enrolled member of the Yurok Indian Tribe, Richard Nelson, III, was found "guilty" in the Yurok Tribal Court of violating the tribe's Fishing Rights Ordinance. He was fined $200 suspended on condition that he comply with Tribal law for the following year. In a new trial a special judge restored his suspended fishing rights on the condition he comply with the Fishing Rights Ordinance for one year. The Yurok Tribal Court of Appeals on May 7, 1999, in an opinion by Luna, J., affirmed the opinion of the special judge.
With regard to Nelson's second claim, he was relying on Article IX of the Yurok Constitution protecting traditional practices, which are not defined.
The Yurok Court of Appeals noted that the tribe's constitution included not only the recognition of tribal norms and mores, but also the specific inclusions of the several references to restoring, enhancing and managing the tribal fishery resources.
With regard to applying the First and Second Rules, the court noted that if Nelson complied with the sentencing terms that included no future fishing violations, he would restore honor and live in harmony with nature.
The court also examined Nelson's traditional practice claim as a property right. The court, citing Felix S. Cohen's Handbook of Federal Indian Law, noted that Nelson could claim no greater share in the tribal assets than that possessed by the tribe. In this case the constitutional requirement to restore, enhance and manage the tribal fishery was an obligation the tribe placed upon itself and its members to live in harmony with nature.
As an aside, it should be noted that you will oftentimes find a tribal court judge allowing a defendant to do community service instead of paying a cash fine. In many cases, especially for illegal fishing, the defendant may be required to provide the cash equivalent of fish for a tribal elders' luncheon. Providing the fish helps restore the defendant's personal, family and clan honor in the eyes of the elders while at the same time providing a community service.
Douglas W. Luna holds three judicial positions. He is a full time review judge with the State Department of Social and Health Services; and holds part-time positions as a supreme court justice with the Northwest Intertribal Court System (NICS) and a judge with the federally recognized Central Council of Tlingit and Haida Indian Tribes of Alaska (CCTHITA). He is a third-generation Filipino American recognized by the Filipino American National Historical Society as Washington's first Filipino judge. He is a Tlingit Indian enrolled with CCTHITA. He is a graduate of the University of Washington, the University of Oregon School of Law and the National Judicial College.
Despite five hundred years of repression and misguided efforts to "civilize" them, there remain some 500 Native American nations within the United States. They range from tiny Alaskan villages to the Navajo Nation of the southwest, whose reservation is larger than several states. In Washington there are twenty-seven federally-recognized tribes and roughly 100,000 tribal members.
Like all societies, tribal nations always had laws and systems of dispute resolution. Native systems of justice were generally misunderstood by European invaders, who sought to stamp them out together with the rest of aboriginal culture. Sometimes, however, the newcomers found Native legal organizations to be useful tools in imposing their view of "order" in Indian communities. Thus, in the late 1800's the Bureau of Indian Affairs, then dedicated to the assimilation of Native people into the dominant society, selected traditional tribal leaders as judges of the first modern tribal courts. While nominally applying rules set by the Bureau and modeled on Anglo-American law, these courts also relied on traditional relationships, sanctions and principles.
By the 1950's, many tribal courts had languished due to the neglect of a federal government bent on "termination" of Indian nations and their special relationship with the United States. Tribes themselves lacked resources to maintain courts. As the 1960's approached, and activism stirred among oppressed communities around the world, new life was breathed into tribal courts. Often helped by lawyers from the Office of Economic Opportunity and successor legal services programs, tribes reinvigorated their courts, drafted new codes, and sought to return justice in Native communities to Native hands.
Today all but two of Washington's recognized tribes maintain tribal courts. These courts continue to mingle Anglo-American and indigenous law. In a "typical" tribal court, state-licensed attorneys would see much that is familiar, from the judge's robes to the jury in the box. Many of the judges are trained in law schools, judicial colleges, and other programs. Others have learned law the old-fashioned way, practicing closely with licensed attorneys. The jurisdiction of tribal courts is complex, involving an arcane mix of federal, tribal and sometimes state statutory and decisional law. In general, however, these courts handle a mix of civil and criminal cases not unlike a Washington Superior Court. The litigants include tribal members and non-Indians, individuals and corporations. If a dispute involves an Indian person or took place within an Indian reservation, no lawyer should ignore the possibility of tribal court jurisdiction, concurrent with or even exclusive of state and federal fora.
Despite their familiar trappings, however, tribal courts are not mere replicas of the surrounding non-Indian judiciary. On the contrary, there are tremendous differences both among tribes and between tribal and state and federal courts. Like courts in other jurisdictions, tribal courts can vary greatly in caseload, sophistication, and the quality of the work on both sides of the bench. The greatest difference, though, is the diversity of law applied. In addition to an entire title of the United States Code dealing solely with Indians, tribal courts apply a large and growing body of tribal legislative enactment's, and most seek actively to apply tribal custom to resolve modern disputes such as divorce and custody, crimes, and administrative appeals. While generalizations among the many courts are dangerous, a common theme of this tribal common law is the restoration of respect and balance between the litigants and the community, rather than simply declaring one side the winner. This approach has earned the sobriquet "restorative justice," and has been actively promoted for the non-Indian world by legal leaders, including Attorney General Janet Reno and former American Bar Association president Roberta Cooper Ramos.
Tribal courts hold the promise of a legal system that is close to its citizenry, affordable to access, and dedicated in equal measure to both tradition and innovation. They are small and flexible enough to pioneer concepts and practices--such as restorative justice--that can prove useful in all communities. Unfortunately, there are many barriers to bringing the budding gifts of tribal justice into full bloom. Like their non-Indian counterparts, tribal courts labor under the burdens of pro se litigation created by the lack of affordable counsel. They struggle to attract the most talented staff in a very competitive market. Federal aid to tribal courts has been virtually frozen for years, and despite the financial success of a few tribal casinos, most tribes are scrambling to meet the other needs of their members, who often suffer poverty rates over 30%. And, unlike state and federal courts, tribal courts regularly confront fundamental challenges to their authority and competence. Those challenges sometimes come from persons philosophically opposed to tribal sovereignty, but they arise as well from simple ignorance of tribes and tribal law--an ignorance enhanced by the fact that many tribal laws and decisions are unpublished and available only from the tribe. There is much that both tribes and other jurisdictions can do to better share the accumulated wisdom within their respective legal systems. Law school curricula should provide at least a required introduction to tribal law and tribal courts. Communication between state, federal, and tribal judges should be enhanced, not merely through the recent and ongoing work of groups like the National Judicial College and the National Center for State Courts, but through the efforts of individual judges. A simple telephone call and a lunch date with the judge in an adjoining jurisdiction might be an important step. Finally, state-licensed attorneys should recognize that, for reasons of justice as well as business opportunity, they ought to learn about tribal courts and be no more hesitant to practice there than in any other jurisdiction.
The fact that tribal justice systems have survived, and creatively combining traditional and Anglo-American jurisprudence, should be no surprise. It reflects the familiar potential for human society to gain strength through diversity.
The Northwest Women's Law Center (NWLC) is a private, non-profit legal organization committed to advancing women's legal rights. The enormous variety and quality of work the Law Center accomplishes every year is directly attributable to its excellent and committed volunteer pool. The Law Center has many years of experience assisting both women and men to represent themselves in state court actions. Its Self-Help and Education programs serve primarily low-income women and women of color, who are the most underserved groups when it comes to legal services. The Law Center is delighted to have been able to develop a legal resource for Tribal Communities similar to its other pro se family law materials.
The object of the Tribal Court Family Law Handbook is to assist pro se litigants in accessing tribal courts in Washington, when appropriate. It is not intended to make anyone an expert on tribal court or Indian Law, nor to be a comprehensive directory of Tribal Codes in Washington. Its modest, but important, goal is to educate the public about a possible alternative to state court for resolving family law matters where one or more of the affected parties is a tribal member. Other potential positive outcomes include relieving tribal court personnel of "hand holding" and increasing the number of tribal spokespersons.
The handbook will provide basic information on the existence of tribal courts; questions to ask regarding jurisdiction; examples of tribal domestic codes and procedures; and a directory of tribal, state and county legal resources. It addresses such questions as: "How do I initiate an action in tribal court?" and "How do I obtain an Order of Protection in tribal court?" The handbook will have resources such as Tribal Court Clerks, Legal Services Programs (including the Native American Pro Bono Program), Tribal-State Child Support Programs and some of the information and resources from the NWLC Information and Referral Line, the only state-wide legal referral service in Washington State. The Law Center is now expanding its legal referrals for tribal court practice.
There are 27 Tribes and 27 Tribal Court Systems in Washington State. Each court has its own set of laws and procedures on family law matters. Tribal court systems range from very complex, with multiple volumes of tribal codes, full-time court staff and regular calendars, to very small courts with part-time staff and few codes or written procedures. Common to all the tribal court calendars, and to state court family law as well, is the overwhelming predominance of pro se litigants. It is estimated that at least 80% of family law matters in tribal court involve parties who have no legal counsel. The burden falls upon the tribal court staff to assist the litigants in bringing their matters before the judiciary. There is evidence that this trend will continue and expand. The lack of free legal services, the increasing numbers of tribal members and others who are affiliated with tribal communities, and the limits on tribal court funding compel the need for a proactive response.
For the most part, Tribal Courts are organized to support pro se representation; however, the courts have limited funds. Litigants have the right to be represented by a Tribal Spokesperson, hired at their own expense, who qualifies for admission to practice based on his or her knowledge of the laws of a particular tribe. Some tribal courts require that Spokespersons pass a bar examination to be approved to practice in those courts. Regardless whether an applicant is legally trained, the knowledge of tribal law and tribal court procedure for that specific tribe is essential to admission.
Tribal court laws and procedures may vary greatly from those in state court. For instance, in tribal court, paternity and child support are sometimes considered part of child welfare proceedings rather than separate family law actions. The hearsay rule is often interpreted very differently in tribal court from the way it operates in state and federal courts. The parties to a case may and often do include extended family members who would most likely be excluded in a state court proceeding.
The NWLC convened a work group to develop this publication. With support of the law firm of Heller Erhman White and McAuliffe, the work group met to outline steps necessary to develop this material, sent a survey to each tribal court, and researched tribal court law and procedure on marriage, dissolution, child support, paternity and domestic violence, among other issues. Work group members and other volunteers drafted chapters of the handbook, which was compiled with the help of the support staff at Heller Ehrman. Final editing will commence shortly. The Northwest Intertribal Court System has provided a generous grant to cover at least a portion of the costs of printing and distribution of the handbook. We hope to have it available by mid- to late September.
Further information may be obtained from Mary Hanneman, Legal Education Coordinator at the Law Center, at (206) 682-9552 or firstname.lastname@example.org.
An eminent scholar, he was a forceful and passionate advocate of Indian rights and a pioneer in establishing Indian law as a field a field of study. He took the lead in setting up seminars and courses for tribal judges with the National American Indian Court Judges Association. His teachings and commitment motivated thousands of law students at the University of Washington, Harvard University, and the University of California and universally influenced the nation's understanding of Indian law. His articles were directly cited in important United States Supreme Court decisions, including one that granted fishing rights to members of the Puyallup Nation.
A man of great intelligence, Professor Johnson was motivated by his strong sense of justice and honor.
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