Tribal Court Family Code Development: A Practical Guide Prepared by: David Panepinto, Alaska Legal Services, Staff Attorney. dpanepinto@alsc-law.org

Power Within the Tribe: Tribal Members Constitution Tribal Council Tribal Court/ Codes

Step 1: Judicial Code Does the tribal court have a judicial code? Not necessary, but it is helpful. If so, know your code and constitution. Do they place limits on family law matters?

Step 2: Who Decides? Who will be involved in creating the family code? Tribal Council? Committee? Community? Code drafting can be used as a way for a community to further define and understand its culture, if they’re directly involved.

Step 2: Types of Law Written Law vs. Unwritten Law Exercising sovereignty means the tribes gets to do things its own way. What do the tribal members want?

Step 2: Type of Law Sitka Children’s Code

Step 3: Authority to Hear a Case Jurisdiction = the court’s authority to hear a case. Personal Jurisdiction: WHO can the court hear? Subject Matter Jurisdiction: WHAT can the court hear?

Step 3: Authority to Hear a Case Judicial code probably addresses personal jurisdiction. What about subject matter jurisdiction? custody, adoptions, divorce, guardianships, domestic violence.

Step 3: Authority to Hear a Case Figure out what’s important to the tribe. Involve the tribal members! Don’t add a topic unless you really want it. Probably a good idea to start small, then expand.

Step 4: Statement of Purpose Short explanation of why and how the tribe wants to address the issue. Not required, but it provides guidance: Don’t make a judge guess about how they should reach a decision.

Step 4: Statement of Purpose TCC- Sample Domestic Relations Code

Step 4: Statement of Purpose TCC- Sample Domestic Relations Code

Step 4: Statement of Purpose CCTHITA- Children and Family Code

Step 5: Definitions What does the code allow the tribal court to do? We don’t know unless the important words in the code are defined. Words matter!

Step 5: Definitions Define every word you think reasonable people might disagree on, and then define some more. Even if the meaning of a word is easily understood by most people in a community, write your code as if it applies to people outside the community, because meaning changes.

Step 5: Definitions Definitions help the judges understand what cases they can accept and the factors they need to consider when making a decision. More importantly, it helps ensure a fair process for the parties involved. If there is a disagreement, you can point to the code. Consistency & reliability.

Step 5: Definitions Child Adult Family Members Child Welfare: What is abuse? neglect? abandonment? Best interests?

CCTHITA- Children and Family Code Step 5: Definitions CCTHITA- Children and Family Code

CCTHITA- Children and Family Code Step 5: Definitions CCTHITA- Children and Family Code

Best Interests Determination: Kenaitze Domestic Relations Code Step 5: Definitions Best Interests Determination: Kenaitze Domestic Relations Code

Step 6: Procedures A good code provides clear procedures: Informs judges what rules they must follow. Informs parties what rules they must follow and what they must prove. Also makes sure that everyone is treated the same.

Step 6: Procedures Should have clear guidelines for the following: Petitions Notice Hearings Orders Legal Standards

Step 6: Procedures Make sure the code provides due process: Adequate Notice Opportunity to be heard Fair tribunal

TCC Sample Domestic Relations Code Step 6: Procedures Section 2. Contents of Child Custody Petition The Petition shall provide the following information: 1. The name, address and age of the child; and 2. The names and addresses of the child's parents and any custodians of the child; and 3. The names and addresses of any other person or tribe with a specific interest in the child; and 4. The reason the Petitioner is requesting custody of the child; and 5. The facts that make the Petitioner believe that the best interest of the child require that a custody Order be issued by the Court; and 6. A statement of which tribe(s) the child is a member or with which tribe(s) the child is eligible for membership. This statement should include facts that indicate that the Itsa Tribe is the tribe with the most significant contacts with the child. TCC Sample Domestic Relations Code

Kenaitze Domestic Relations Code Step 6: Procedures Kenaitze Domestic Relations Code

CCTHITA- Marriage, Divorce, and Custody Step 6: Procedures CCTHITA- Marriage, Divorce, and Custody

Step 7: Confidentiality Consider the need for privacy in sensitive areas. Which cases will be confidential? Child Welfare Adoptions

Step 8: Child Welfare Considerations Tribes have exclusive jurisdiction over child welfare cases if child is a ward of the tribal court. Overlapping jurisdiction otherwise. Either the state or the tribe starts a case. Whoever starts it, keeps it. However, tribe has right to intervene or request transfer from state court.

Step 8: Child Welfare Considerations ICWA rules don’t apply in tribal court; tribe creates its own rules/ protections. Exercise sovereignty!

Final Thoughts: Avoid legal-speak Avoid templates Publicize Amend and review code periodically

David Panepinto Staff Attorney Alaska Legal Service Corp. dpanepinto@alsc-law.org (907) 586-5964 This project was supported by Grant No. 2015-WR-AX-0015 awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.