Drafting Orders

The decisions of tribal courts are generally issued in the form of a court order. Tribal courts issue orders on many subjects such as domestic violence protective orders, orders granting child custody, orders requiring child support payments, permanent fund dividend orders, and orders regarding civil violations such as underage drinking or illegal dumping of garbage. While the tribal court judges make all of the decisions in a case, the tribal court clerk is often asked to write the court orders for the judges to review and sign.

Most tribal courts use templates, or forms to fill out for each type of orders they issue. Using a template makes drafting orders easier and can ensure that certain elements are present in an order. In general, tribal court order templates or forms have the following elements:

Heading: The top part of the order gives the basic information about the case, the name of the court and contact information for the court, case number, and names of the parties. Initials may be used for minor children along with their birthdates. It is helpful for communication with state agencies if the heading format is laid out in the same format as state court orders are.

Title: The title is important for stating what the order is about, such as ‘Order Granting Temporary Custody,’ ‘Order Terminating Parental Rights’, or ‘Ex-Parte Protective Order.’ The title may be very specific, such as “Order Granting Emergency Custody of Samuel Sam to his Grandmother Lisa Sam.”

Opening Paragraph: This section contains a brief summary of the hearing and the court’s decision. Information should include when the hearing took place, the purpose of the hearing, who was present, what the outcome of the hearing was, such as “After considering all the available evidence, this tribal court finds that the welfare of the child, Jane Doe, is endangered if temporary custody is not taken by the tribal court.”

Court’s Findings: The Tribal Court Hereby Finds: This section gives the reason why the court has jurisdiction over the matter (based on membership, eligibility for membership, or affecting the health and safety of the tribe or tribal members) and details the facts as put before the court. It explains what the court heard and saw after everyone had a chance to explain their circumstances, testimony of witnesses, and documents submitted to the court such as certificates of completion of ordered treatment programs. The history of the case should be described if this is not the first hearing on the case. If it is a case involving children, this section would state who the parents or custodians of the child are, and if they were present at the hearing. If not, it should say why the parents were not at the hearing.

Court’s Conclusions: The Tribal Court Hereby Concludes: This section explains how the court came to the decision, what is the court’s reasoning behind the decision, and what the court determined to be the facts in the case. It may include language about Notice, such as why the court determined that Notice was given to a party who argued that there was no proper Notice. Language on a court’s conclusions might look something like: “The court decided that the child is a “child in need of aid” according to tribal law and should be made a ward of the court.”

Court’s Decision: The Tribal Court Therefore Orders: This section describes the decisions made by the court. Details are given about the specific case such as who children are to be placed with (Jane Doe is in the temporary physical custody of her paternal great aunt, Thelma Doe, until January 12, 2014), are supervised visits allowed and under what circumstances, specific information about required counseling or substance abuse assessments, specific information about how far away a perpetrator of domestic violence must be from a victim, releases of information for the exchange of information between service providers and tribal staff, the responsibility of tribal staff to make home visits, consequences if the court’s expectations and timelines are not met, and information that gives parties and the tribe guidance on whatever decision the court has made. It is good to state the goal of the court in this section, such as to have a parent ‘successfully complete the recommended treatment program and maintain a sober and violence-free home for the child.’ If this is an on-going case, it is important to state the date that the tribal court will meet again on the matter and what the hearing will be about, such as a review hearing, temporary custody hearing, permanency hearing, to return children to parents who have completed the goals, to terminate parental rights, or to extend a domestic violence order of protection.

Signature/Seal/Certification: There is a variety of ways to verify that the court order is the original or an exact duplicate of the original. At least one tribal court judge’s signature is needed on the order, but orders could be signed by all judges involved. The court clerk’s signature may be used in addition to the judges to verify that it was signed by the judge. The tribal court seal may be placed on the document to show it is an official document of the court. The court may use a separate certification form signed by the tribal court clerk to certify a tribal court order.

Original orders are kept in the case files of the tribal court, and copies are given to all parties. Sometimes a ‘short version’ of an order is issued by the tribal court that does not contain all the sensitive information of the regular court order, and that can be used by parents or guardians to prove their custody of a child for purposes of enrolling them into a school, or for medical care. Tribal courts sometimes issue amended orders when there is a change in the original order but there has not been a hearing, such as making a modification to a visitation schedule or change of placement for a child. Tribal courts generally allow parties to file a ‘request to change order’ in situations where new evidence or information is found that would have made a difference in the way the court ruled on their case should they have had that information or evidence. An order of extension may be used when the scheduled hearing cannot be held for some reason and the order needs to be extended.

Tribal protective orders are enforceable by state law enforcement when they are sent to the State’s Central Registry System. It is generally the clerk’s responsibility to file a certified copy of domestic violence protective orders with the nearest magistrate or state clerk’s office if the tribal court wants their order filed in the that system. The Alaska court system is working on rules for filing tribal court orders regarding child custody and protection through the Alaska court system which will promote cooperation between the tribal courts and state agencies in the future, and it will likely be the clerk’s responsibility to file such tribal court orders with the State when the tribal court so wishes.