To some, recently retired state Supreme Court Chief Justice Ron George will be most remembered for legalizing same-sex marriage in California. Others will remember him as the architect of a major restructuring of the state’s court system.
But for California Indians, his legacy may be something entirely different: An initiative undertaken by George last year may lead California to formally recognize civil judgments from tribal courts.
Of the 109 federally recognized tribes in the state, nearly 20 operate their own court systems. Another dozen or so have started running limited court systems, or are actively exploring the idea. These courts oversee tribal members on tribal lands. Their authority rests on the limited sovereignty of Indian tribes, who operate as semi-autonomous nations within U.S. borders.
Most of the judges are retired state and federal judges. In fact, it was a letter from one of these tribal judges — Richard Blake, the judge for the Hoopa Valley Tribe’s tribal courts — that prompted George to take action.
But California Indians are also California residents who leave reservations, marry and enter contracts with non-Indians, and may actually belong to a tribe in another state. For those reasons – and others - the Administrative Office of the Courts (AOC) is seeking comment for proposed legislation that would formalize interactions between state and tribal courts.
The language comes out of the California Tribal Court/State Court Forum, the group George established in May of last year. Comments are due by the end of this month, with the goal being to find an author and pass legislation next year.
“We expect to have some structural commas, little details added or subtracted,” said Len Edwards, a retired Superior Court judge who sits on the Tribal Court Forum. He added that he didn’t expect any opposition.
Not so fast. Cheryl Schmit of the casino watchdog group Stand Up for California, said she had concerns.
“There are quite a number of problems with this proposal, the two most serious being inadequate grounds for objection and often difficult jurisdictional issues,” she said.
She added, “Even in tribal court, tribes assert immunity to civil liability. How do you get a fair trial if evidence can’t be put forward and the party that pulls you into court asserts immunity to any question you ask of it?”
Tribes, their members and non-Indians who interact with them already operate under a complex web of rules. Generally speaking, Indians on tribal land are subject to both state and tribal jurisdiction, while non-Indians are generally subject only to the state.
Adding to the confusion is that California is one of a handful of Public Law 280 states. In these half-dozen states — Alaska, Minnesota, Nebraska, Oregon, and Wisconsin are the others — the federal government has transferred some of their legal authority to the state. All have significant American Indian populations.
In matters of child custody, domestic violence and similar areas, tribal members have long been subject to protections via a number of federal laws. For instance, the Child Support Enforcement Act requires Indian parents to pay child support payments. The Indian Child Welfare Act requires the enforcement of custody orders from tribal courts.
The proposed bill would basically do the same for civil judgments from tribes. But Tom Gede, an attorney with Bingham McCutchen LLP and a member of the federal Tribal Law and Order Commission, said this legislation would differ in a key way. Those federal provisions are written under the rules of “full faith and credit” — meaning that they recognize judgments from tribal courts the same way California would recognize the validity of a ruling made in another state.
The proposed bill would use a lesser standard — comity. This means that non-tribal members could appeal judgments against them in state court on the grounds that they did not receive due process or that the court showed bias. This is the same system used in other courts that recognize tribal civil judgments, including Maine, South Dakota, Wisconsin and Wyoming.
“Due process questions can be reviewed by the state superior court in deciding whether to recognize the tribal court judgment,” Gede said. “This is reasonably well-written and well thought out, and provides pretty solid protections for a defendant in civil matters.”
The law would also recognize tribal courts from other states. There are about 650,000 American Indians living in California, and over half of them are members of tribes based in other states. In fact, the numbers of Cherokee and Navajo tribal members living in the state dwarfs the membership of many California tribes.
There is an existing state law that technically makes some monetary judgments in tribal courts enforceable on non-Indians. The Uniform Foreign-Country Money Judgment Recognition Act covers only some types of judgments. It also flips the equation, forcing a tribe or individual Indian who has won a judgment to essentially litigate the case all over again in state courts, according to an AOC analysis.
“There’s a history here,” Edwards said. “The state courts didn’t trust tribal courts, traditionally. They didn’t think due process was going on there.”
Edwards said there is a higher level of professionalism in tribal courts in recent years. He pointed toward Humboldt County, where local authorities have a good working relationship with three of California’s most established tribal courts: Hoopa Valley, Karuk and Yurok.
“There’s been a growing groundswell of consciousness that we have tribal courts in our midst and we haven’t worked formally with them,” Edwards said.