Most tribes have established both tribal courts of original jurisdiction where a case is originally heard, and appellate courts where a party may appeal a case to have their case reviewed if they believe due process was violated or that the tribal court incorrectly applied the law. Providing an appellate system for people who feel that they were not treated fairly, or that tribal law was not correctly applied, is generally viewed as providing fairness or a safeguard for justice.
Tribal appellate courts may be structured in numerous ways. If the tribal court is a separate body from the tribal council, the tribal council may be designated as the appellate court. If the tribal council is also the tribal court, another body of people such as an Elders panel or some other designated group may be used. An appellate system may be established by intertribal court agreement between two neighboring villages or through a system of traveling circuit judges. There is enough flexibility in fulfilling an appellate function to allow villages to select the most appropriate system to suit each of their unique circumstances. The important thing is that whatever appellate system the tribe uses should be described in the judicial code or elsewhere in tribal written law.
Appellate courts are usually set up so that they become involved in a case only if a party files an appeal within a timeframe that is usually specified in tribal ordinances, and only if the appellate court feels there is enough reason to review a case on appeal. Appellate courts do not retry cases. They review the case records from the original tribal court. From those records, appellate courts decide if there was a procedural mistake or if there is evidence that the court was unfair in some way. If the appellate court believes that the original tribal court may have made such mistakes from reviewing the records, they hold a hearing to determine if a mistake was made, and if so, what should be done about it. Providing tribal appellate courts with records to review is one of the reasons why it is important for tribal court clerks to keep complete and accurate records of all things filed and of all proceedings.
An appellate court may refuse to hear a case if there is insufficient evidence that the original court made a mistake or was unfair. If the appellate court feels that there is reason to question the original tribal court’s decision, a hearing is held. After the hearing, appellate courts may decide in one of three ways:
- Affirm the original tribal court decision. In this case, the appellate court formally agrees with the original tribal court’s decision.
- Reverse and remand the original tribal court decision. The appellate court sends the case back to the original tribal court with guidelines. An example of such a guideline might be that the case be reheard with one or more judges replaced.
- Reverse and dismiss the original tribal court case. An appellate court might make this decision if it decides that the original tribal court lacked jurisdiction in the first place to hear a case, or, if the original tribal court made a serious error in its procedure.
While most tribal courts in Alaska have appellate courts established by tribal ordinance, few cases are actually appealed so there is little experience among the Alaska tribes in exercising their appellate courts. However, tribal court activity is increasing and the requests to appeal tribal court cases are on the rise as well.
The clerk for the original tribal court case is generally the clerk for the appellate court as well. In a rare circumstance, a party may argue that the clerk has a conflict of interest with the case, or for some reason was unfair which affected the case in some way. In that circumstance, an alternate tribal court clerk should step in and be the clerk for that appellate case.
Once the clerk has received a petition to appeal a case, the clerk must notify the appellate court judges in a timely manner. A primary duty of the clerk for an appellate case is to provide the appellate judges with the complete records and files for the case for their review. If the judges decide not to hear an appellate case, they should put their decision in writing. The clerk should send the decision to the petitioners and certify in the case file that they received it. If the judges decide to hear an appellate case, the clerk provides the same services to the court as for the original tribal court hearings, such as Notice to parties, getting the court room ready, recording the hearings, and assisting with the order of the appellate court.