Tribal Courts: Unique System -- Circuit Judges Dispense Justice That Is Based On A Different Set Of Rules

Emma Dulik lived on the Makah Indian Reservation on the Olympic Peninsula until she was 32. By then she had 10 children and was a mess-hall worker at Makah Air Force station.

Her life changed after she married Mike Dulik, a radar repairman stationed at the now defunct base. She moved away, had three more children - and then decided to become a judge.

"I'm an example of what you can do with your life if you make good choices for yourself," said Dulik, who at 57 is a judge for the Northwest Intertribal Court System based in Edmonds. "My career started when I applied for a judgeship."

Dulik, who has no law degree and has never taken a bar examination, is one of four judges in the circuit-court system that is little known outside Native-American reservations.

She hears criminal and civil cases for six tribes, including the Tulalip Tribes near Marysville. Last week she held court for the Skookumchucks in Shelton and the Muckleshoots near Auburn. Yesterday she was in Port Gamble with the Port Gamble Klallam Tribe.

But her favorite courtroom is Port Angeles, home of the Lower Elwha Klallam Tribe. "When I finish Lower Elwha, I go out to Neah Bay and go home," said Dulik, whose grandfather, Sebastian La Chester, also was a judge for the Makahs.

There are 130 tribal courts and 250 Native-American court judges for the 260 tribes with federal reservations in the U.S. Twenty-six of those tribes are in Washington.

Housed on the third floor of an office building a few blocks from the Edmonds ferry terminal, the Northwest Intertribal Court System supplies circuit-court judges, prosecutors and public defenders for 15 tribes in Western Washington.

The intertribal-court system operates from Whatcom County to Lewis County with a $1 million annual budget. It also runs a regional appellate-court system for Pacific Northwest tribes.

The court system originated in 1979 in La Conner, Skagit County, on the Swinomish Indian Reservation, following the Boldt decision in U.S. District Court, which gave Native Americans preferential fishing rights. Three years later it moved to Edmonds because of its more central location.

The chief judge and administrator of the Northwest Intertribal Court System is Elbridge Coochise, one of the most respected and best-known tribal jurists in the country.

Silver-haired and soft-spoken, Coochise, like Dulik, never attended law school. Mary Pearson and Doug Luna, the two other Native-American judges of the intertribal-court system, have law degrees.

Coochise, president of the National American Indian Court Judges Association, was one of 17 tribal government leaders and representatives of Native-American organizations who met with President Bush at the White House in April to press for improved relations with the federal government.

"I would say about 40 percent of our cases are still dealing with fisheries issues," said the 44-year-old Coochise, who attended Brigham Young University for three years and spent four years as a police officer in Arizona and Oregon before becoming a judge.

The Swinomish Tribe of Skagit County, which has its own police force, is the biggest user of the court system - about five days per month. Other tribes like the Muckleshoots, which have no police officers, schedule court one day each month.

Coochise said one of the biggest problems facing Native Americans is the reluctance of judges in some state and federal courts to respect Tribal Court decisions in child-custody and other cases.

"It's a three-pronged conflict," said former Washington Supreme Court Chief Justice Vernon Pearson, who headed a state panel that recently proposed a court rule providing for state courts to give full faith and credit to Tribal Court decisions, and allow state trial judges to transfer jurisdiction in civil disputes to tribal courts.

Tribal courts have exclusive jurisdiction over civil cases that arise between Native Americans on reservations. But if only one of the disputing parties is Native American, state courts may have a right to hear the case.

Native-American judges and lawyers complain that state-court judges don't always follow the Indian Child Welfare Act requiring state courts to defer jurisdiction to tribes in adoption and other child-welfare cases. Passed in 1978, the law was intended to stem the growing number of Native-American children being placed in non-Native-American homes.

Surveys also show there also are conflicts between tribal and state courts over child-support obligations, domestic-violence retraining orders and taxation of reservation activities.

Until 1885, federal criminal laws did not apply to Native Americans who committed crimes on Indian land. Things changed after the U.S. Supreme Court reversed the murder conviction of Crow Dog, a Sioux, saying that the Indians had different customs and that the white man's laws were unknown to the Indians.

Congress has since given federal courts concurrent jurisdiction over serious felonies on reservations, including murder, manslaughter, rape, arson and certain hunting and fishing violations.

Native-American courts, however, generally are barred from trying non-Native Americans for crimes committed on reservations. In addition, each tribe has its own codes and laws, and may choose to enforce only certain types of cases, placing the burden on the state.

The Tulalips, for example, don't enforce any criminal or domestic-relations cases on its reservation near Marysville.

"You kind of carry around the different code books to make sure you're in the right court," said Coochise, a member of the Hopi Indian Tribe in Arizona.

Some of the codes are simple yet charming, says intertribal-court attorney Tallis Woodward, noting the Muckleshoot Tribe asked her to classify hunting crimes simply as "bad," "not as bad," and "real bad."

"We joked a little bit about it but that's the way it came out," said Woodward, a non-Native American. "Other tribes use different words for it,but the meaning is the same."

Woodward, who travels up to 800 miles a week working with tribes, started out as a prosecutor on the Port Gamble Squallam Reservation.

Because she believes Indian courts are fairer, Woodward wouldn't want to practice in state courts that she said are influenced by special-interest groups and lobbyists.

"When it comes to basic fairness, Indian courts deliver," she said. "You get the finest elements of a democracy, which is something that we have completely lost."

Evidentiary objections are seldom made, and the rules of evidence are enforced less strictly than in other courts. In fact, most of the tribal codes allow any type of evidence, including hearsay. Hearsay is a statement made by a person who is not testifying on the stand. In other courts, out-of-court statements or hearsay are not admitted at trial.

"I am comfortable working where there is no hearsay rule," said Martin Sjolie, another non-Indian and one of three public defenders working at the Northwest Intertribal Court System.

Sjolie, a graduate of William Mitchell College of Law in St. Paul, Minn., said the informality found in tribal courts results in fairer trials.

The Fifth Amendment protection against double jeopardy does not apply because the tribes and the federal government are independent sovereignties entitled to enforce their own policies.

Thus, in 1987, the late David Sohappy Sr., a Yakima Indian, was convicted in federal court of illegal salmon fishing after having been acquitted of the same offense by the Yakima Tribal Court.

Praised for her common sense, Dulik has taken self-improvement classes at Peninsula Community College in Port Angeles and been to the National Judicial College in Reno, Nev. When she needs legal advice, she calls on Ralph Johnson, professor of Indian law at the University of Washington. Johnson, who began teaching Dulik and other tribal judges in the 1970s, still considers himself as "sort of an informal consultant."

He said tribal courts are an important part of the Indian self-government process. Originally patterned after Bureau of Indian Affairs courts, they have been expanded in recent years to cover civil issues such as traffic accidents, contract and labor disputes, libel and slander, and environmental enforcement.

Punishment by present-day tribal courts for serious crimes is usually imprisonment or fine. According to Johnson, they replace more traditional penalties: killing one's horse, destroying his teepee, or banishment from the tribe.

Dulik, whose third-floor office wall is covered with pictures of her great-granddaughter and some of her 24 grandchildren, seeks more recognition for Native-American judges.

"I always think we need somebody from Indian country on the Supreme Court so we can get both views," said Dulik, whose desk overlooks the Puget Sound and the jagged, snowcapped Olympic Mountains, not far from the land of the Makahs.