1. Tribal Court Family Code Development: A Practical Guide
Prepared by:
David Panepinto,
Alaska Legal Services, Staff Attorney.

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

3. 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?

4. 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.

5. 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?

6. Step 2: Type of Law
Sitka Children’s Code

7. 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?

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

9. 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.

10. 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.

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

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

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

14. 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!

15. 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.

16. 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.

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

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

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

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

21. 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.

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

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

24. 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

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

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

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

28. 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.

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

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

31. David Panepinto Staff Attorney Alaska Legal Service Corp.
(907)
This project was supported by Grant No 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.