Beth Kronk on Judicial Ethics

From ICT via Pechanga:

MAYETTA, Kan. – Appearances are everything in small communities. This is especially true in Indian country, where close family, social and work relationships may appear to compromise the integrity of tribal judicial systems.

Elizabeth A. Kronk, assistant professor of law at theUniversity of Montana School of Law, urges tribes to adopt a code of ethics for their tribal justices and elected officers, not only as an exercise in sovereignty, but also to avoid even the perception of impropriety.

“Our communities are small, and we know everybody,” said Kronk, who spoke on ethical considerations for tribal courts, practice and governance at the 10th Annual Native Nations Law Symposium, Feb. 12, at Prairie Band Casino & Resort on the Potawatomi reservation.

Kronk presented excerpts from the National Tribal Judicial Center’s Sample Code of Judicial Conduct and theABA’s 2007 Model Code of Judicial Conduct to discuss the appearance of impropriety, the definition of who a judge is, disqualification, extrajudicial activities, ex parte communication, and the integrity and independence of the tribal judiciary.

“These are hard issues in Indian country,” said Kronk, who also serves as chief appellate judge of her tribe, theSault Ste. Marie Tribe of Chippewa. She said tribal courts faced challenges to their “internal validity” and “external validity.”

External validity, she said, refers to how a tribe’s judicial system is perceived outside the community.

Formal court institutions are a relatively recent development in Indian country. With the passage of the Indian Reorganization Act in 1934, the federal government encouraged tribes to enact their own laws and establish their own justice systems. According to the National Tribal Justice Resource Center, approximately 275 Indian nations have established formal tribal court systems.

Kronk notes that many of today’s tribal courts model state courts, apply state and federal law, and the extent of tribal jurisdiction is defined by the federal government. Despite strides made in developing tribal courts over the past 40 years, Kronk said stereotypes persist.

“In a nutshell, I think certain stereotypes, such as corrupt tribal governments and inferior tribal court judges, still exist, and, as a result, tribal courts and judges may face increased scrutiny from outside entities. There are powerful groups within the United States that oppose tribal sovereignty and are constantly looking for any excuse to attack the existence of tribes as separate sovereign entities.”

Kronk said internal validity refers to a tribal community’s trust its tribal judges.

Many tribal courts have attorney judges and lay judges. Kronk said both attorney judges and lay judges serving on tribal courts face similar challenges of often living in the same communities where they preside. “Again, because these are small communities, it can be difficult to avoid ethical quandaries, such as ex parte communications.”

Kronk said lay judges in the tribal court system serve an important role in representing the interests of the tribal community. “Because we often live in small, close-knit communities, lay judges who live in those communities can offer unique perspectives on important dimensions of the communities.

“Also, one of the stated reasons my tribe includes lay judges is to help the court understand the customs and traditions of the tribe. Whenever possible, we try to buttress our legal opinions with cultural and traditional norms from the tribe.”

The National Tribal Judicial Center provides regular training for tribal judges, available to both lay and attorney judges.

“I’ve really come to admire and respect the lay judges I serve with on the Court of Appeals,” Kronk said. “First, I respect them because they are all more than willing to share their opinions and actively participate in deliberations. This is an important point, because I think it may be intimidating to participate in a legal discussion with a group of lawyers.

“Second, I really appreciate the historical and cultural perspectives my lay judge colleagues bring to the court.”

For tribes without codes in place, Kronk said model codes are a good starting point. Before adopting a tribal code of judicial conduct, each tribe is encouraged to modify the language to incorporate the tribe’s own customs and traditions. “There isn’t a cut and paste solution here,” she said.

If it is impossible for a tribal court or governing body to adopt a tribal code of judicial conduct, tribal court judges may consider adopting a statement of expectation for themselves. Such expectations may include being adequately prepared for oral arguments, being physically present for deliberations, as well as provisions for failure to meet established expectations. Kronk said the Sault Ste. Marie Tribe of Chippewa statement of expectations for the Court of Appeals was adopted in December 2009.

Having these statements or codes in place before ethical issues arise would make dealing with them if they occur a little easier, Kronk said.