WASHOE TRIBAL COURT TRADITION COMES FULL CIRCLE BY SUZANNE GARCIA, ESQ.

For centuries, the family 31 titles that address topics groups making up the such as civil and criminal procedure, crimes, sex offender Washoe Tribe used registration, land use and an effective dispute child dependency. The court resolution system. Inter- conducts itself according to criminal and civil familial disputes were court rules, including a normally resolved detailed ethics code that internally with a establishes culturally trusted family leader sensitive conduct standards as well as facilitating a just general legal ethics result. Intra-familial standards comparable disputes were resolved to those applied in state and federal court by meetings between systems. Amendments and family leaders. This additions to the code and dispute resolution the court rules are adopted system continued to be by the 12-member Tribal Council. Though the Washoe used even after members Tribal Court is not established of the Washoe Tribe were as a constitutionally separate impacted by the arrival of branch of the tribe’s government, the Tribal Council emphasizes the settlers. However, as members of importance of a strong and independent the tribe were pushed to the margins court. The chairwoman of the tribe and the of society and lost their lands to the influx of Tribal Council do not interfere in pending court people, they increasingly found themselves matters and are exempt from jury duty. In 2010, the court handled 139 criminal matters, seven at the mercy of decisions made by the new child dependency matters, 12 juvenile delinquency settlers’ institutions: federal and state courts. matters, 50 traffic violations and 77 other civil matters of various sorts. Through the Indian Reorganization Act, tribes The Washoe Tribe places a high priority on seeking federal recognition were required to put public safety and the Washoe Tribal Court is an aside their traditional governmental structures important component of ensuring that safety. and adopt the model. Recognizing that As noted in the jurisdictional matrix provided individuals living on Washoe lands needed a dispute in the article written by Assistant resolution system and that the decisions rendered Attorney Sue Fahami, in many criminal cases, by that system had to be recognized by federal, the Washoe Tribe and the federal government state and local entities to be effective, in 1979, the share jurisdiction. The United States Attorney Washoe Tribe organized its tribal court in a manner for the District of , however, has a large similar to western courts. jurisdiction and operates on limited resources. The Washoe Tribal Court applies the laws Too often, speedy justice is simply not available contained in the tribe’s comprehensive Law and for those living in Washoe Indian Country. As Order Code. Currently, the code has approximately such, the importance of the Washoe criminal

34 Nevada Lawyer August 2011 justice system cannot be overstated. The Washoe Tribe’s system is the most effective means of addressing public safety problems in Washoe Indian Country. Those staffing the tribe’s criminal justice system understand the dynamics, strengths and problems faced in the Washoe communities at a level Washoe Tribe’s courtroom that could not possibly be expected from the larger and more distant federal system. The Washoe Tribe is not only concerned with It is important to remember that the Washoe victims’ rights, it is also concerned with the rights Tribe’s efforts towards public safety benefit those of defendants. The tribe provides licensed attorneys living both on and off Washoe land. Neither crimes to indigent defendants as public defenders and nor criminals respect jurisdictional boundaries. defendants have the right to request jury trials. In recognition of this fact, the Washoe Tribe has Tribal Court juries are comprised of six adults and worked diligently to develop collaborative working up to two alternates. Appeals from the Washoe relationships with the federal agencies, with the Tribal Court are heard by the Inter-Tribal Court of states of Nevada and , and also with local Appeals that is managed by the Inter-Tribal Council jurisdictions (Carson City, Douglas County and of Nevada and operates in Reno. Alpine County). In these times of budget cuts and In addition to handling criminal matters, the reduced resources, working together to combine Washoe Tribal Court provides a civil forum for those resources and efforts is the best way to enhance living in Washoe Indian Country. The civil docket the safety of all. The prosecutor is cross-deputized includes cases pertaining to child dependency, as an Alpine County, California, prosecutor and domestic relations, restraining orders, divisions of is assigned to cases where the crimes are alleged estates, public nuisance and traffic violations. As in to have occurred in Washoe Indian Country. The other jurisdictions, there is a process for asking the Washoe Tribe appreciates the fact that it has Washoe Tribal Court to recognize decisions issued by positive intra-jurisdictional relationships and other courts. recognizes that the spirit of cooperation it findsFarr West Lawyer Ad copy.pdf 1 4/26/11 11:13 AM continued on page 36 in its state, local and federal partners is not necessarily present in other parts of the United States. The Washoe Tribe works constantly to develop available services for crime victims. The tribe is working actively towards developing a Court Appointed Special Advocate (CASA) program to give the children at the epicenter of dependency proceedings C a voice. In addition, the M

Washoe Tribe employs a Y Victim Services Coordinator to assist victims of child CM abuse and their non-offending MY family members negotiate CY the criminal justice system CMY and access resources that will promote healing. Also, K the tribe worked closely with Douglas County to develop a Special Advocates for Elders (SAFE) program so that elders and vulnerable adults appearing before the court have an advocate. Last but certainly not least, the tribe employs a number of domestic violence advocates. August 2011 Nevada Lawyer 35 WASHOE TRIBAL COURT –

TRADITION COMES FULL CIRCLE continued from page 35 Like all governments, the Washoe Tribe must The small size of the Washoe Tribe’s jurisdiction make difficult decisions about dividing limited funds makes it easier to launch innovative programs. Many between important programs. As a result, the Washoe state court systems recognize that the adversarial Tribal Court must find a way to operate with minimal western court model does not always produce the resources. Unlike the state courts, the tribal court most effective results in sensitive areas such as family judge does not have clerks at his disposal to perform law and child dependency cases. Their solution is research and draft orders. Neither the prosecutor to implement pilot programs, such as family group nor the court clerk have full-time staff. The long- decision making, which resemble the aforementioned term solution to this problem will only be found in traditional Washoe dispute resolution systems. economic development. As such, the tribe pursues Because the Washoe Tribe is a smaller jurisdiction, economic development with an eye on providing more and because these kinds of pilot programs resonate and better services and programs for those living on with traditional Washoe culture, it is easier for the Washoe lands. tribe to design and implement similar programs. Although it can be difficult to operate an effective Additionally, because the state courts have come court/legal system in a jurisdiction that has a small to recognize that these forms of dispute resolution tax base, there are also benefits to operating a small provide effective justice, the tribe has fewer worries jurisdiction. Unlike Nevada, the Washoe Tribe does that decisions arrived at via the traditional forms of not have to have draft codes and court rules that dispute resolution will be disregarded. attempt to address issues in both the rural areas The Washoe Tribal Court is not perfect; no court and the large urban centers. The tribe can tailor its is. Not only does the Washoe Tribal Court face the written infrastructure to more effectively address challenge of engendering confidence in the larger the specific needs of its constituents. In addition, if legal community, the court is challenged, like many a code provision or court rule needs to be amended, courts, with engendering and maintaining confidence the legislative body – the Washoe Tribal Council – is in the public that it serves. The western model accessible. It meets every month. continues to have its place in the tribe’s judicial system in part because it is more easily understood and accepted by the larger legal community. Traditional Washoe methods of dispute resolution resonate with Washoe people who often feel that they never should have been forced to give up their traditions in the first place. A hybrid of the two models will allow the Washoe Tribal Court to provide a more effective form of justice in Washoe Indian Country.

Suzanne M. Garcia is Assistant General Counsel for the Washoe Tribe of Nevada and California where she works on a wide variety of issues that include drafting amendments to the tribe’s code, policy and procedures and negotiating intra-jurisdictional agreements. The assistance of the Washoe Tribe’s legal and judicial departments in writing this article is gratefully acknowledged.

36 Nevada Lawyer August 2011

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