“I object, your honor, pursuant to Kastigar v. United States.” The Navajo judge replied, “Overruled, Mr. Boos. And I don’t want to hear about Kastigar anymore.” But it was my job to spread all over the trial record that my client’s Kastigar rights were being violated, so it wasn’t the last time the tribal court judge heard this objection.
My client, the son of a politically powerful Navajo tribal chairman, was accused of using his father’s position to extort bribes and kickbacks from businesses that wanted to do business with the Navajo Nation. The two of them were also accused, in separate prosecutions, of using the chairman’s position to personally and illegally profit from a multi-million dollar land purchase by the nation. The amounts of money taken were so large that the United States Senate Indian Affairs Committee subpoenaed my client to testify before the committee and gave him involuntary use immunity to force him to testify. Under the U.S. Supreme Court decision in Kastigar, this meant that any evidence my client gave to the committee could not be used against him if he was later prosecuted for a crime related to his testimony. This would have been a tough legal issue for any court.
But tribal courts now often address these complex legal issues – ones you might expect to find only in state or federal courts. As tribes experience growth, the tribal courts are called upon to decide disputes about such matters as complicated commercial contracts, energy development and, as in my case, complex criminal prosecutions.
Tribal courts are equipped to handle these cases. Like state and federal courts, tribal courts operate according to written rules of procedure that govern how cases are litigated. The Navajo Nation rules of criminal procedure were modeled on the federal rules, and the way my case was handled would have seemed familiar to any attorney who has practiced in state or federal criminal cases.
But even when tribal court procedures are similar to state or federal courts, tribal courts must sometimes decide issues that are unique to Indian Country. In my case involving the chairman’s son, the tribal court was faced with unique procedural issues, such as whether non-Indian residents of the Navajo Nation could be called for jury duty and how the Navajo court could subpoena off-reservation, non-Indian witnesses to appear at the trial.
Complex litigation is also growing at the Southern Ute tribal court, although the tribe has developed a different set of procedural rules for its court. The Southern Ute rules of civil procedure are based on the Colorado Small Claims Court rules of procedure, in recognition of the fact that, originally, most litigants were tribal members who represented themselves and who could not be expected to deal with a complex web of rules based on federal practice. However, as the cases have become more complicated and attorneys practice more frequently there, the tribal court has been given the option of applying the federal rules of civil procedure to complex cases.
The level of education and experience of tribal judges has also risen in the last few decades. At first, tribal court judges were lay advocates, selected based on their knowledge of tradition and fluency in their native language. In recent years, the judges of the Navajo Nation Supreme Court have generally been law school graduates who are licensed to practice law in one or more states. The current chief justice of the Navajo Nation is licensed to practice law in the state of Utah and a former justice of the Court was licensed in Utah and Arizona. Similarly, the judges of the Southern Ute tribal court have often been state-licensed attorneys.
Being law-school trained doesn’t mean that a judge can’t make mistakes.
In my case, the Navajo trial court judge incorrectly refused to hold the hearing required by Kastigar to determine whether the prosecutor had used testimony given by my client to the Senate Indian Affairs Committee as the basis for the prosecution. Like state and federal courts, tribal courts have appellate courts to deal with these mistakes. The Navajo Nation Supreme Court overturned my client’s conviction because the judge failed to comply with Kastigar. The Southern Ute Tribe uses the Southwest Intertribal Court of Appeals for appeals of decisions from its tribal court.
I have frequently encountered non-Indian attorneys uneasy at the idea of practicing in tribal courts. But modern tribal courts are sophisticated, often operate at levels every bit as complex as those found in state or federal courts and should not be avoided simply because they are “tribal”.
Steven C. Boos is an attorney with the firm Maynes, Bradford, Shipps & Sheftel in Durango. Reach him at email@example.com.