November 01, 2016

Judicial Ethics and Tribal Courts

By Marla N. Greenstein

Intellectually, we understand that tribes are sovereign, replete with unique and diverse history, culture, and beliefs. Tribes have a variety of “court” structures and models: Some focus more on the community as the source of the body’s authority (see Neil B. Nesheim, “The Indigenous Practice That Is Transforming the Adversarial Process” in this issue), while others adopt a more Western adversarial model. Whatever the model, we assume that tribal courts will afford due process and impartial tribunals. And while those are the goals of all adjudicative systems, the framework for ensuring these goals is not always in place.

Similar to the analysis we conducted in our prior issue addressing international courts, tribal courts do not always adopt rules governing various aspects of judicial ethics. One of the first tribal court systems to adopt a Code of Judicial Conduct was the Navajo Nation. Recognizing the tension between adjudication under a purely cultural model and one that incorporates Anglo legal theories, the preamble to the Code sets out the history and objectives:

While the Navajo Nation courts generally follow the state model of justice, i.e., the adjudication method (where a judge decides the comparative merits of the arguments of two or more parties), that system is alien to the Navajo common law. Traditional Navajo justice methods rely upon adjusting the differences of equals, in mediation and the free discussion of problems, to resolve them by consent. It does not rely upon a superior decision-maker, who imposes decisions upon others. It does not use coercion or force, and is instead based upon an agreed need for harmony in the community. A code of judicial conduct for Navajo Nation courts must incorporate the values of Navajo common law.

By articulating special “considerations” that correspond with its “Canons,” the Navajo Code includes concepts foreign to the ABA Model, including such characteristics as “humility” and “harmony.” In strong contrast to this approach, the Nottawaseppi Huron Band of Potawatomi Court has adopted a Code that is based on the ABA Model with few wording changes and little accommodation to an alternative philosophy.

While many tribal courts do not have the resources or expertise to draft a Code of Judicial Conduct that would reflect their unique history and values, the National Judicial College in 2007 compiled many efforts into a single “Sample Tribal Code of Judicial Conduct.” Clearly based on the ABA Model Code, it also provides extensive references to alternative approaches in footnotes. This document can provide a useful template for tribal courts.

Whatever the source, however general or detailed, tribal courts should be encouraged to adopt some form of an enforceable Code of Judicial Conduct. In addition to providing general guidance for tribal decision makers, a Code of Judicial Conduct provides expectations and confidence in an impartial tribunal. Tribal courts often serve close communities of related individuals. By publicly adopting a Code of Conduct that articulates the values of an impartial court, free from outside influence, tribal courts will increase the confidence in their decisions from tribal members and other courts alike.