Civil Rights

Tribal Courts a Tough Gig for Judges


Underfunded and something of an afterthought in the nation’s legal scheme, tribal courts present special challenges for the judges who oversee them.

Judge Joseph Thomas Flies-Away, for instance, sounded much like a social worker as he talked informally during a recent court session with a defendant who was not represented by counsel. (Tribal courts do not provide lawyers for indigent defendants to the same extent as courts elsewhere in the United States.) When he sentenced Valentino Washington to a term of community service, the judge had to explain to the puzzled 18-year-old what the term meant, reports the Wall Street Journal (reg. req.)

Jurisdictional issues also can be frustrating—while outside courts have authority over cases that affect those on tribal lands, tribal authorities are powerless to enforce their laws on outsiders who commit crimes on reservations. In theory, nontribal law enforcement agencies do so, but cooperation can be a problem. And the current system also can have the effect of punishing American Indians more harshly than others for similar crimes, as earlier ABAJournal.com posts discuss. Social issues faced by many who live on reservations can further compound these problems.

There are some legislative efforts under way to address the laws and lack thereof that have created this situation, but in the meantime, judges in tribal courts have to play the hand that they have been dealt.

Judge Flies-Away, who sits in a tribal court in an Arizona reservation near the Grand Canyon, walks with stooped shoulders, seldom smiles, and often puts in 11-hour work days, the Wall Street Journal reports. Struggling to recall a case with a positive outcome, he talks about a woman who tried to overcome her alcohol addiction, and got counseling and a job before she was struck by a car and killed as she walked, in an intoxicated state, along a roadway.

The judge says he stays on the job out of a sense of duty, because the tribe needs him.

“People think that as a judge I love this job, but I’d rather not deal with any of it,” he says. “There is much sadness.”

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