March 01, 2012

New Territory: Bringing Trial Skills Training to the Gila River Indian Community

Claire Chiamulera

The views expressed herein have not been approved by the House of Delegates or the Board of Governors of the American Bar Association, and accordingly, should not be construed as representing the policy of the American Bar Association.

Tucked in the desert 20 miles south of Phoenix, Arizona sits the Gila River Indian Community, home to members of the Pima and Maricopa tribes. Among its seven districts, Sacaton serves as the community’s unofficial capital. Here sits the community’s tribal court, a beautiful modern structure with a southwestern design.          

The ABA Child Welfare Trial Skills project team met here on a December morning to do something they’d never done before. The project has delivered child welfare trial skills training to states throughout the country for 19 years. The training sharpens trial skills of child welfare attorneys through an intensive one-day session. For the first time, the project would train legal professionals who practice in a tribal court on an Indian reservation.

CLP spoke with Anne Marie Lancour, JD, state projects director at the ABA Center on Children and the Law. Lancour, who directs the Center’s trial skills training, shared the unique preparations, highlights, and lessons learned.

What prompted your work with the Indian Community?

The ABA provides trial skills training to model court jurisdictions as part of a contract with the National Council of Juvenile and Family Court Judges (NCJFCJ). The Gila River Indian Community is a model court jurisdiction. The NCJFCJ asked if we could deliver trial skills as part of the agreement we had with them.

Talk about the significance of bringing the training to an Indian community.

There is a growing recognition of the importance of protecting heritage and culture in child welfare cases involving Native American children and families. Model courts are reaching out more to tribes. There is now a federal Resource Center focused on tribes, and federal laws and programs have expanded protections in these cases. We thought it would be a good opportunity for the trial skills project to expand what we normally do in state child welfare courts. It represents part of the growing effort to recognize heritage and culture in tribal child welfare cases.

Who attended and what was their experience level?

The chief judge of the Gila River Indian Community and four judges from Indian communities outside attended. We also had attorneys who represent children in tribal and state court, prosecutors who represent the child welfare agency’s interests, and parent attorneys. It was a highly experienced group; one judge had 34 years experience and most of the attorneys had considerable child welfare trial experience.

How did you prepare?

We researched Arizona’s child welfare law since some of the attorneys were practicing in state court and tribal court. But we also had to focus on some different laws, including federal laws such as the Indian Child Welfare Act (ICWA) and the Gila River Indian Community’s tribal code.

We always try to be culturally sensitive, but it was much more important in this situation. I had the federal law background but I really hadn’t looked at the cultural competence side. As part of trial skills, we send a checklist before a training asking about the jurisdiction’s laws, standard child welfare practices, common acronyms, and any unique issues. This checklist was a useful information-gathering tool.

We were fortunate to partner with NCJFC, who assigned a staff person to this model court. She had experience working with Native American communities and she provided background on Indian culture generally and specific to this tribal community.

I also researched various Indian tribes and even studied what you do when you go to a different country. That’s essentially what you’re doing when you’re going to an Indian community. You’re on sovereign land. It’s a foreign nation and you have to be respectful when you go to a different culture. That’s not to say we’re not respectful when we go to a state, but since this was the first time training in an Indian community, we wanted to be sure we were culturally sensitive.

Did the training change as a result of your preparation?

A lot of what we do with trial skills is fast-paced. We had to change things up and scale back. We took out some trial exercises so we would have enough time for in-depth conversations and observations.

The biggest shift in focus was recognizing that getting the “right” answer and encouraging the participants to get what we would consider the legally correct answer was not as important as the actual process. We didn’t necessarily have to be the expert in getting to the answer. It was more the process of working together and garnering a philosophical agreement. It involved more engagement than we usually do for trial skills but it was critical.

We also had to focus more on relationship and trust building. This usually comes to us in a different way. We always build trust when we go into a state, but this definitely took some time and patience. It helped me realize I don’t always have to do things the way we’ve done them for 19 years. We can change things up and still have a productive and meaningful training.

Can you give an example of how this shift in focus and emphasis on relationship building played out?

We had several practitioners who practiced in tribal and state court. A question came up about applying ICWA to whether the child’s parental rights should be terminated. We had two trainers who regularly do ICWA training, in addition to me. We all knew what we’d give as a federally appropriate ICWA answer. My co-trainers were ready to jump in with an answer that legally would have been correct about balancing the jurisdictional questions between ICWA and state law. However, it was more important to let the community members realize we trusted them to know their state and federal law so that they could talk amongst themselves and come up with an answer. They got it right after talking it through and it was much more powerful than if we had given them the answer.

Were there unique practices within the Indian community that you accommodated?

I researched protocols when you go to an Indian community. You ask for permission to be on sovereign land. You give small gifts as an acknowledgment that you’re going to a different culture and environment. You ask to be welcomed and ask for permission. We started the training by asking for permission to be on the land. Next an elder give a blessing and welcomed us. We then presented modest gifts as a sign of respect and appreciation.

We reoriented our trial court exercises so they took place in tribal court and applied the Gila River Indian Community’s code, law, and rules. Their practices are slightly different, but the tribal code mirrored many state child welfare protections by focusing on permanency and safety. The level of proof needed to prove some elements of the case differed too so we had to tailor some case facts. On the whole, it wasn’t that different from many states we’ve been in because the tribal code mirrored state laws.

Native communities tend not terminate parental rights because of the belief that children and families are part of the community. They favor guardianship, so we changed a case scenario so it would go from a shelter care or removal proceeding through a guardianship proceeding rather than a termination of parental rights proceeding.

Were the participants receptive and open to learning?

Some participants were reserved in the morning when we do a mix of lecture, discussion, and demonstration. Some people took a little while to win over. When we got to the afternoon though, everyone had come along and fully participated in the exercises. By recognizing their culture, learning what we needed to do, and acknowledging our way wasn’t the only way, they came around and bought into the training.

What value came from involving the judges?

Whenever you bring people together for training like this you always learn from each other. By having five judges attend this training, the attorneys were able to hear what their judges want to hear in these kinds of hearings. It’s always helpful for practitioners to learn what the judges want to hear.

The judges participated as attorneys in the trial court exercises. By seeing judges involved, the attorneys were more willing to do so themselves. In the early days, we thought involving judges might have a chilling effect on the attorneys. We’ve realized that having judges be active participants leads to a better training because the attorneys see judges as part of the team and realize they can benefit from training as well.

Is there anything you would do differently in future trainings?

I would involve the team more in the prep work and help get them up to speed on the culture and what we needed to do. I did a lot of research but should have shared that with the team more and brought them along. There were times when team members were ready to jump in with an answer because that’s how we usually operate. With this training, the process was more important. It was more important for participants to share with each other and arrive at an answer than for us to give them the right answer.

What three things do you hope participants took home from the experience?

  1. There is a great wealth of knowledge within their community. They are the experts and are the greatest resource of help for the children and families in their community.

  2. It’s good to come together as a group to share ideas and issues that you’ve wondered about or haven’t been sure how to handle. It’s good to pause and take time to go to training to sharpen your skills and get reinvigorated to go back and do what you have to do every day when you are at your desk or going to court.

  3. The balance between tribal codes and states’ child welfare laws is not that different. We all have fundamental interests in keeping families whole and helping children in the community. Their beliefs in keeping family together and trying to support families and the Indian heritage and community are actually what the rest of the country is beginning to realize is important. It’s important to recognize where children come from and the importance of culture and values. Children are usually better off if they can stay with their culture and families in their communities rather than be placed in foster care or institutions.

Any advice for practitioners based on this experience?

For practitioners, it’s hard sometimes, we get very bogged down in the day-to-day routine and we forget the importance of culture in the biggest sense. I learned that that culture is important in the Gila River Indian Community, but also that culture is important to everyone. We need to make sure we’re recognizing people’s culture and heritage and how it impacts children.

Trial Skills for Child Welfare Attorneys

Trial Skills for Child Welfare Attorneys is the ABA Center on Children and the Law’s flagship training program. For 19 years, this one-day session has offered specialized, targeted training to child welfare attorneys throughout the country.

Who should attend: child welfare agency attorneys, children’s attorneys, parent attorneys, and caseworkers who testify in court

Training highlights:

  • Learn strategies in dependency cases to help children achieve permanency faster.
  • Strengthen your ability to organize large caseloads and prepare for trial.
  • Expand your knowledge of the rules of evidence.
  • Improve your skills in examining and cross-examining witnesses in court.
  • Gain practical experience working through child welfare court case scenarios with personalized feedback.

Format: lectures, demonstrations, and mock trial exercises

Special features:

  • Each program is specially adapted for local practice and state law.
  • Participants receive continuing legal education credits.
  • Participants get a trial notebook to help organize and prepare for their next case.
  • Trainers are experienced child welfare attorneys.

Learn more:

To learn more about trial skills training, contact Anne Marie Lancour.