The Indian Civil Rights Act is a federal law passed by Congress in 1968 that applies to all tribal governments in the United States. The Indian Civil Rights Act is very similar to the United States Bill of Rights, by providing people with basic rights, protections, and due process when under the jurisdiction of the tribal government. The Act requires that tribal courts be fundamentally fair and provide due process. In a nutshell, that means providing adequate Notice to parties of hearings, allowing parties an opportunity to speak at the hearings, and having judges hear the cases who are fair and unbiased in their decisions. It also means that court must be given equal protection and apply tribal law equally to persons in similar situations.
Tribal court clerks have a critical role in providing due process by providing Notices of hearings to parties in a case. When a hearing is scheduled, a Notice of the hearing is mailed, delivered, or verbally given to all parties. People must know about a hearing and have adequate time to prepare for it.
The clerk must go by any written tribal rules regarding the timing of giving hearing Notices. If Notices are not sent out or delivered in the time frames outlined in tribal codes, court rules, or policies, the person may make a claim that they were not given due process and they may appeal the final decision because of the error. If they are not given Notice in the specific way outlined in the written law, then that also can constitute a denial of due process. For example, if a Notice was hand-delivered, but there was no provision for hand delivery of a Notice in the tribal code, hand delivery could be considered a denial of due process. This is a critical reason why it is important for the tribal court clerk to know the written rules of the tribe. If the written rules are not working for the court system, then the tribal council should be approached about amending the law to accommodate the needs of the court.
Information in the Notice should include the Tribal Court name, address, and phone number, the case number, the case name (as in the Petitioner and Respondent, or in a children’s case, the child’s name and date of birth), and who is being given the Notice. The purpose of the hearing, the date time and place of the hearing, as well as the phone number and access code if the parties participate through a teleconference are also necessary elements. Information should be included on how to submit documents and other exhibits to the court, such as a fax number, and information regarding the parties’ rights to have witnesses and present evidence on their behalf.
Clerks must follow any written rules the tribe has for serving Notices to parties, but clerks often attempt to serve Notice in several ways to ensure that the parties are actually notified. No matter what method is used to serve Notice, the clerk must make a record in the case file of all efforts, attempts, and confirmation of notification of parties. The clerk must be able to prove that parties were notified, or that an adequate attempt was made to notify them. A hard copy of a certified return receipt of a Notice mailed to a party is a great way to provide proof of notification, but other proof may includes hand written notice of personal service and telephonic notice when a clerk uses these methods to notify parties. If a person is known for not picking up certified mail sent from the tribal court, but they insist it is a good mailing address, then sending a letter through regular mail as well and noting that in the file will give better odds that the person actually does receive Notice.
Clerks have to work hard at giving Notice to someone if their present whereabouts is officially unknown to the court, and may use several methods to Notify. The clerk can send the Notice by certified mail to the last known address and/or publish a Notice in the newspaper of their last known location, but can take it a step further by contacting relatives or friends that may have a current address or phone number. Tribal communities are tight, and one can often find someone through friends and relatives through a little investigation.
Opportunity to be Heard:
Having an ‘opportunity to be heard’ in a tribal court means that a person has to know about a hearing, and have the opportunity to participate in the hearing if they choose to do so. Notice is a critical step to insuring that parities know that a hearing is occurring, know what the hearing is about, and have adequate time to prepare to participate in it.
Once parties are in the courtroom or telephonically connected at the appointed time and day, their ‘opportunity to be heard’ is under the control of the judges. The judges control how the conversation occurs in the court. In tribal courts, parties are usually speaking on their own behalf, telling the court their side of the story and there is usually plenty of time for them to fully discuss things. Sometimes parties choose not to show up at a hearing for their opportunity to be heard and Judges may hold the hearing without them, provided that they were adequately notified.
An essential component of due process is having your case heard by fair and unbiased judges. This element of due process mainly concerns the integrity of the judges and the fairness of the system for ensuring that judges do not have a conflict of interest in a case when they sit on the bench. Tribal judicial codes typically have language regarding conflict of interest which the clerk should be familiar with. After receiving a petition to use the tribal court, the clerk may be contacting those judges without such a conflict to make a decision whether or not to hear a case, and if so, deciding which judges should serve on that case. If a clerk has a conflict of interest with a case, it is best to use an alternate clerk to serve on that case.
The neutrality of the clerk is important for giving the courtroom setting the atmosphere of fairness and impartiality. The clerk should never give any indication through facial expression or body language that they agree or disagree with a judge or anyone else speaking in the courtroom. No matter how fair the process or the decision, those in the courtroom will not feel that things were fair if it appears otherwise through the actions of the court clerk.