While tribal court clerks have an obligation to help those dealing with the court system, they may not give legal advice because they generally are not licensed to practice law and not permitted to give legal advice by the tribe. Legal advice consists of telling someone what course of legal action to take. The answers to questions that begin with “should” are to be avoided. The response, by saying yes or no, tells the party what course of action to take. That would be legal advice. When the clerk comes across a question of they type, they should let the person know what the options are but not steer them towards one course of action over another. An example of this would be the question, “Should I file a protective order with the tribal court against my cousin?” The answer would be something like “That is up to you. If you feel that you need protection from someone, you may file a petition for a protective order in this tribal court or through the State court system. If you choose to file a tribal petition, here is the form to fill out and sign, then return the completed petition to this office.”
When it comes to helping someone fill out a form such as a petition to use the tribal court, the clerk must be careful not to use the clerk’s words, but to use the words of the petitioner. There may be people who are unable to read or write, or who are not versed in English or the language used in your court system. Elders of others may get confused about the forms and will need help and encouragement to complete the forms. Whenever possible, the person should fill out the forms themselves, but if the clerk is in a situation that calls for their help, then they should use the person’s own words. They may need a gentle reminder of various things that they had already told the clerk before filling out the form if it is helpful for understanding the issues in the case, but the clerk should not add to their story with things they may know on their own through other sources. The clerk should simply help them to tell their story in their own words so that the court can decide whether or not to hear the case.
While clerks may not give legal advice, they must help people deal with the court system, to explain the court processes such as what forms to use, what information is required by the court, and time frames for court processes. Tribal court clerks can and should answer “How”, “Where”, and “When” questions such as “How can I file a Petition?”, “Where do I turn in my completed Petition?” and “When can I expect to hear whether the court will take my case?” The clerk should be able to show people the tribal constitution, tribal codes, any written tribal laws, and any written court rules to people who request to see them.