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Authored By: Alaska Legal Services

Information

Kelly Krueger & Tom Lance,  Invasive Crayfish and Tribal Youth Project Success, BIA PRoviders Conference, 4, (Nov. 30, 2017) https://slideplayer.com/slide/14143713/

 

This Guide Will Explain:

 

 

Due Process Rights in Tribal Court or Council

  • Due process means that the court must treat everyone fairly.
  • The The Indian Civil Rights Act requires that all people receive due process.
  • For tribal courts, that means you are entitled to three things:
    • Notice - the court must tell you about the hearing so you can be present
    • An Opportunity to Be Heard - the court must give you a chance to speak and to tell your side of the story
    • A Fair and Impartial Hearing - the hearing must be held in a formal fashion with no conflicts of interest 
  • A conflict of interest is when an officer of the court, like the judge, has a personal interest in the case and might be biased or impartial.
  • For more on what due process requires the court to provide you, please visit AVCP
  • If you think you were denied notice, an opportunity to be heard or a fair and impartial hearing, you can contact an attorney.

 

The Scope of Tribal Court or Council Jurisdiction

  • Jurisdiction means that the court has the ability to hear your case.
  • If a tribal court  or council has jurisdiction, then all state courts and state agencies must respect the decision of the tribal court. 
  • In Alaska, tribal courts and councils have jurisdiction over tribal members when the issue involves matters related to internal governance of the tribe such as:
    • Adoptions • Child Custody • Child Protection • ICWA Intervention • Marriages/Divorces • Probate/Inheritance • Cultural Protections • Domestic Violence • Assault/Disorderly Conduct • Juvenile Delinquency • Vandalism • Misuse of Firearm • Trespass • Drug and Alcohol Regulation
  • Not all tribal courts will hear cases on all the matters listed above.
  • For more information about jurisdiction, visit AVCP

 

 

The Types of Cases in Tribal Courts and Councils in the Kodiak Region

  • Tribal Councils of the Kodiak Region may handle a wide range of civil matters:
    • Child Welfare, Child Custody, Marriage/Divorce, Guardianship, Adoption
    • This is not a full list; contact the court for more details.
  • Whether a particular case meets the subject matter eligibility requirements is determined on a case-by-case basis. That means you must contact the tribal court and explain your case. The court will tell you if they can hear it.
  • With regard to jurisdiction over the parties, it is most proper where one or more of the parties is a tribal citizen or at least eligible to enroll with the Tribe. However, even in cases wholly involving non-members, jurisdiction to handle the matter can come through either express or implied consent. 
    • Express consent is when one party says they accept tribal jurisdiction.
    • Implied consent is when a party acts in a way that shows consent to tribal jurisdiction.

 

How To Start a Case in an Kodiak Region Tribal Court or Council

  • Tribal court and council services are started by filing a petition with the tribal court clerk. 
  • Some tribal councils maintain websites that have links to the petition you can use to start a case.
  • However, many tribal courts do not maintain websites.
    • If that is the case, to obtain a petition, contact the tribal court or tribal government directly.
  • A tribal court directory can be found here
  • If you cannot contact the tribal court or tribal government, the Kodiak Area Native Association (KANA) might be able to assist: 
    • Phone: (907) 486-9800
    • Email: info@kodiakhealthcare.org 

 

Akhiok, Larsen Bay & Ouzinkie ICWA Assistance

  • Indian Child Welfare Act (ICWA)
    • The Indian Child Welfare Act (ICWA) program at KANA represents the Native Villages of Akhiok, Larsen Bay and Ouzinkie in all Child In Need of Aid (CINA) proceedings.
    • The ICWA worker acts as a non-attorney representative for the tribe, and represents the tribe in all Child in Need of Aid cases, case conferencing calls, home visits and much more.
  • Who is Eligible for ICWA Services?
    • Prevention Services: KANA ICWA Specialists are available to work with families in danger of having a Native child taken from the home. The ICWA Specialist provides case management as well as assists in finding resources that the family may need to keep the child within the home. The ICWA Specialist’s ultimate purpose is to keep Native families together.
    • Tribal Representative in CINA Cases: The ICWA Specialist works with the Tribe the child belongs to or is eligible for membership in. The Akhiok, Larsen Bay, and Ouzinkie Tribes have designated the ICWA Specialist at KANA as their Tribal Representation in court hearings and other case management proceedings. The ICWA Specialist works with the Office of Children’s   Services (OCS) and other agencies involved in the child’s case to ensure that all comply with ICWA as well as being the voice for the Tribe.
  • If you are a member of a Kodiak Region Tribe other than these three, contact your Tribe directly.

 

KANA Medical-Legal Partnership

  • Free Legal Aid for Qualifying Patients at KANA
    • The Medical-Legal Partnership (MLP) is a new resource to help improve the health of Alaska Natives by addressing health harming legal needs.
  • How do I find the MLP attorney?
    • A health care Provider may refer you to the MLP attorney.
    • The MLP attorney is located at the Mill Bay Health Center on weekdays from 8:30am to 5:00pm (Thursdays until 6:00pm). Please note that office hours may vary.
    • To find out if the MLP attorney can assist you, please call (888) 478-2572.
  • What type of legal matter can the MLP attorney address?
    • The MLP can handle a wide range of matters regarding:
      • Decision-Making Matters
      • Public Benefit Denial, Reduction or Termination
      • Safety Concerns
      • Housing Issues
      • Education System Problems
    • For more information, including a detailed list of issues the MLP can help with, go here

 

What is Tribal Code and How Can You Access It

  • Tribal codes are the written rules that make tribal law.
  • Tribal courts and councils follow their tribal code.
  • It is important to familiarize yourself with tribal code, so you understand what you must prove or disprove to succeed in your tribal court case. 
  • If you wish to see the tribal code, ask the court clerk or point of contact.

 

Free or Low-Cost Legal Assistance Options

  • Alaska Legal Services Corporation (ALSC)
    • ALSC assists low-income clients who are facing critical civil legal issues. These issues include: consumer law, family law, housing problems, public benefits, healthcare complications, Alaska Native law, and other areas specific to veterans or the elderly.
    • ALSC also offers free community legal clinics
    • 1-888-478-2572. If you are unable to call, you can also fill out an application for ALSC’s Services.
  • Alaska Native Justice Center (ANJC)
    • Supports individuals who have been physically, emotionally or sexually abused by a partner or are seeking assistance with a legal issue like divorce, separation, child custody, support or protective order.
    • ANJC might be able to represent you or advise you on how to represent yourself.
    • Phone: (907) 793-3550
  • Alaska Network of Domestic Violence and Sexual Assault (ANDVSA)
    • If you are a victim of domestic violence or sexual assault, ANDVSA offers free, confidential assistance, including legal advocacy and court accompaniment.
    • That means they may offer an advocate to assist you in tribal court.
  • Disability Law Center
    • The Disability Law Center may be able to assist you with legal representation, but they take cases on a case-by-case basis and according to what their resources allow.
    • There is no application for legal assistance. They ask that you contact them directly at:
    • 907-565-1002 (in Anchorage) or 1-800-478-1234 (Statewide)
    • or Email akpa@dlcak.org

 

How to Appeal (ask the Court to Reconsider) a Decision

  • If you are not happy with the outcome of your tribal court case, you may be entitled to an appeal. An appeal is when a higher court reviews the decision of a lower court.
  • The appeal process will be defined by tribal law (written or customary) or the tribal court’s code. This includes how to appeal, the process the court will use for the appeal, and what standards the court will apply.  To find out how to appeal, you should contact the tribal court clerk. Some tribal courts have multiple levels of appellate courts.
  • To find out if the tribal court for your case allows parties to appeal and the process for an appeal, contact the court directly.

 

The Need to “Exhaust all Remedies” in Tribal Court Before Moving to State Court

  • Before a state court will rule on a case that was already decided in tribal court, the party who wants the state court to look at the case must first exhaust (meaning try) all tribal court or council remedies.
  • If the appeal does not change their decision, you may then appeal to a state or federal court.

 

Contact Information and Forms

  • Many forms and documents can be obtained by contacting the court directly.
  • Tribal court representatives, particularly the court clerk, can answer many questions about tribal court procedures.
  • If a tribal court has a website, you may be able to access important forms and documents there. If the tribal court does not have a website, call the court directly.
  • A tribal court directory can be found here
  • If you cannot contact the tribal court or tribal government, the Kodiak Area Native Association (KANA) might be able to assist: 
    • Phone: (907) 486-9800
    • Email: info@kodiakhealthcare.org 
       
Last Review and Update: Aug 19, 2021
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