Overview of Cheyenne and Arapaho Tribal Court System

A General Overview of the Tribal Court

Located on the Cheyenne and Arapaho Indian Reservation in western Oklahoma, the Cheyenne and Arapaho Tribal Court system has a unique history. For many years, tribal members were required to travel off the reservation if they needed to file a lawsuit. That relied on state courts and federal courts to resolve many legal matters. But in 1999, the Cheyenne and Arapaho Tribes developed, passed, and ratified the Tribal Court Ordinance, which was signed into law in December of that year. This ordinance established the Cheyenne and Arapaho Tribal Court as the official court system of the Cheyenne and Arapaho Tribes.
The primary purpose of tribal courts is to give tribes the ability to enforce and adjudicate tribal laws in their own sovereign court systems. Article VII of the Cheyenne and Arapaho Constitution grants the right to create the court system, and as established by the ordinance, The Cheyenne and Arapaho Tribal Court "shall have exclusive jurisdiction over all causes of action arising under this Constitution, statutes, ordinances and other laws of the Tribe . "
On September 9, 2003, the first judges were sworn into office in order to fulfill the provisions of the ordinance. These first judges were primarily individuals with past legal training who often volunteered their time. The Oklahoma Bar Association provided volunteer legal assistance, and articles of organization were filed so that the court system could be governed by its own rules. Initially, there were two judges appointed, and two more judges added shortly thereafter. In early 2010, the Cheyenne and Arapaho Indian Tribes employed an attorney with 17 years of litigation experience to serve as the first full-time Tribal Court judge. Judge Sabrina Oldham similar to the original four judges, had prior legal training and volunteered to serve as Tribal Court judge for an 18-month period.

Tribal Court Jurisdiction

The Cheyenne and Arapaho Tribal Court has limited jurisdiction, meaning its authority is not as broad or comprehensive as that of state or federal courts. The Tribal Court is able to adjudicate cases that fall within its jurisdiction per its Tribal Constitution and laws, as well as Federal Law.
The Tribal Court has jurisdiction over civil cases, criminal cases, domestic relations cases, and appeals when the defendant, respondent, or subject of the case is a tribal member or a liberally-constructed non-member, the subject matter of the case is within the jurisdiction of the Court, or the Tribe has consented to the jurisdiction of the Court over the matter in dispute.
The Tribal Court also has jurisdiction over the following areas within Civil Jurisdiction when the controversy exceeds the amount of $2000:

• Actions for breach of contract (not including contracts with the Tribal government);
• Actions for personal injury;
• Actions for property damage;
• Actions to quiet title;
• Actions for wrongful death; and
• Actions for malicious prosecution.

The Tribal Court presides over criminal cases against tribal members on and off the Southern Cheyenne and Arapaho Reservation. The Court also has jurisdiction over non-member criminal prosecutions on trust land when the crime either threatens or affects the health, welfare, or morals of the Southern Cheyenne and Arapaho Tribes; the crime occurs in whole or in part on trust lands and directly threatens the political integrity, the economic security, or the health, welfare, or the environment of the Tribes; or the crime is gambling-related and it occurred within the boundaries of the Southern Cheyenne and Arapaho Reservation.
Tribal Courts do not have jurisdiction over the following matters:

• Divorces, child custody proceedings, or support proceedings involving a non-member (but has jurisdiction over tribal member divorces and child custody proceedings)
• Trust Land controversies, except those that involve less than $10,000.00
• Parties from other tribes, unless the parties are tribal members or the Tribal Government has consented to the jurisdiction of the Court over the controversy;

A Tribal Court does not have jurisdiction over a subject matter if the subject matter is the focal point of a contemplated legal action by the Tribe or the United States against the relationally involved non-member.

Organization and Staff

The Cheyenne and Arapaho Tribal Court is structured into assorted departments according to the various services offered or populations served. The Chief Judge is the highest-ranking judicial officer, with supervisory authority over the court and its judges. Underneath the Chief Judge, larger tribes may have Associate Judges, who are appointed with the advice and consent of the Tribal Council. The Associate Judges are akin to administrative law judges, handling decided classes of cases, such as small claims or municipal violations, or presiding over in-custody arraignments.
Lesser courts may be held by designated Associate District Judges, who are appointed by a Chief Judge. Additional courts, such as probate or reconciliation courts, may be established as needed. The Cheyenne and Arapaho Tribal Court is served by several associate judges, including judges that sit as magistrates, judges of contracts, and judges of Indian child welfare.
The court also employs a Clerk of the Court, who serves as the official keeper of records. The Clerk updates and properly maintains the local rules, dockets, case files, and record books, and receives all fines, fees and costs charged. Also employed by the court are a Chief Probation Officer, who oversees the court services department, and a Prosecutor, who is appointed by the Governor and subject to confirmation by the Cheyenne Arapaho tribal council. The Prosecutor may also be a "Public Defender," who represents those defendants who are rightfully entitled to counsel.

Procedures in Tribal Court

Once either the Tribal Police or a citizen of the Tribes brings an action in the Cheyenne and Arapaho Tribal Court, the case is assigned to one of two courts: Shenoskey District Court or the newly created Specialty Court. If the case is assigned to Shenoskey District Court, the case will proceed like almost every court system in the state. The filing party would file a Complaint (in civil court) or a Charge (in criminal court) or a Petition (in juvenile court) and pay a filing fee. The responding party then files an Answer (in civil court) or a Plea (in criminal court) or a Response (in juvenile court). Hearings are scheduled, evidence is presented, and a decision is rendered.
However, if the case is assigned to Specialty Court, the docket for proceedings is completely different, and the options for resolution are radically different. The Tribunal of Cheyenne and Arapaho Tribes is described by the Tribes as: …an experimental forum to provide more accessible, less formal, and more culturally competent conflict resolution to the citizens of the Cheyenne and Arapaho Tribes who engage in minor criminal behavior. This doesn’t fit neatly into the traditional courtroom model, and the procedures and processes in place are flexible in order to protect the petitioner’s privacy and provide easy access to the court. For a full list of actions and procedures, see the Tribal Court system website.

Laws Used in the Tribal Court

The Cheyenne and Arapaho Tribes incorporate both traditional customs and contemporary practices within their court system.
Clay P. Bennett, general counsel to the Cheyenne and Arapaho Tribes, has said that the Cheyenne and Arapaho Constitution directs that the tribes are to have courts, but that the tribes do not use the term "court" to describe their system. "By definition, the word ‘court’ implies that we are operating under traditional Indian law," he says. The tribes’ preference is that their court system operate under custom and usage, or the laws and customs that the tribes’ ancestors used long before the establishment of their legal structures.
According to Mr. Bennett, the Cheyenne and Arapaho Tribes’ Constitution has been created so that it will allow the tribes to develop a tribal court system under any model and have that court structure approved by the tribes. To accomplish this, the Constitution has provided for a governing body called the Court Commission. The Court Commission is composed of six tribal members (one from each of the tribes’ six districts) selected by the Court Supervisor and approved by the Executive Branch of the tribes. The Court Commission may establish other courts according to the law and custom of the Cheyenne and Arapaho Tribes and in conformity with the Constitution. The members of the Court Commission cannot be from the judicial branch of the government or the Court Supervisor who appoints them.
The Court Commission has been charged with the responsibility of establishing, maintaining, and improving the Cheyenne and Arapaho Tribes’ court system. Its duties include "coordinating and directing the work of all the courts of the [Cheyenne and Arapaho tribes] to render one system of justice," to monitor and recommend action when needed to resolve problems between the judicial and executive branches of the government, to recommend procedures for the appointment of judges, to review the qualifications of prospective justices and judges being considered for appointment, to review and recommend changes to the judicial structure of the tribes, and to adopt or recommend administrative policies and procedures for the operation of the judicial branch of the government .
One of the courts that the Court Commission has recently established is the Cheyenne [and Arapaho] Conference Integrated Tribal Court System. The Conference Court consists of five judges who rotate to hear cases in different circuits in the west central part of Oklahoma. The prompting for the establishment of this court was the decreasing number of judicial officers across Indian Country. A study conducted by the U.S. Department of Justice in 2001 revealed that only 183 judicial officers were available in 110 federally recognized tribes throughout the U.S., which translates to approximately 1.67 judicial officers per tribe. This perception is supported by the fact that there are only two sitting judges for all the Cheyenne and Arapaho Tribes of Oklahoma, even though it is one of the largest tribes in Oklahoma.
In the Conference Court, which began hearing cases in February 2004, the focus is on alternative dispute resolution and peacemaking. The Conference Court employs mediation as a way to prepare civil cases for early resolution. Peacemaking hearings are also an integral part of the model.
The overarching goal of the Conference Court is to achieve justice, rather than simply to follow laws, rules, and procedures. Peacemaking, which is the final stage in the Conference Court’s summary proceeding, encourages the injured party and the offender to work out a resolution to the conflict in front of a judge, an elder, and tribal court staff. Its role is to assist the parties in arriving at their own resolution to the problem and helping them to reach a consensus about how to live together again. The peacemaking court focuses is on healing relationships and restoring harmony.

Impact on the Community

The Cheyenne and Arapaho Tribal Court and its influence on the community is direct and far reaching. The tribal court administers the law for a population of nearly 10,000 enrolled members. The court has jurisdiction over matters related to guardianship, divorce, custody, adoption termination of parental rights for Indian children, termination of parental rights of non-Indians for Indian children, and matters relating to Indian children who are eligible for enrollment but not yet enrolled. The jurisdiction of the court extends to civil, business, torts, probate, and employment matters. The court system has triumphed by providing for the most disadvantaged and serval law reforms since its opening. Today the court continues to reform and reshape the legal landscape while allowing for new generations of tribal lawyers to join the cause.
The Cheyenne Arapaho Tribal Court is a physical manifestation of progress for both tribes. With a focus on a new potential, and collaboration between tribal and federal governments, the Cheyenne Arapaho Tribe opened its own court in September 1977 as a subsidiary of the Department of the Interior’s Bureau of Indian Affairs. The court was created out of a desperate need for tribal justice. In 1934, Congress passed the Indian Reorganization Act which reserved business and civil authority to the tribes, but made little mention of law enforcement and jurisdiction. Before 1934, Cheyenne and Arapaho members often resorted to federal authorities like U.S. marshals or sheriff’s deputies. Occasional violent disputes inspired tribal leaders to seek a different path. Cheyenne and Arapaho leaders met with U.S. marshals, county judges, and the district attorney for Custer County to discuss the creation of a tribal court system, which would have jurisdiction over criminal jurisdiction. The newly appointed judge, William B. Boone, quickly began several law reform projects. He initiated training and education programs for police officers, improved the skills of court clerks, and improved the facilities of the tribal court. Judge Boone began a process that would eventually create a domestick violence code and trespassing statute, which was signed into law in 1997. The code prohibits any domestic violence against a member of the family or household and includes all relationships and prohibits any contest of parentage. The trespassing statute prohibits any unauthorized entry onto the land or property of another. In the 1990s, Judge Boone established a tribal law library and developed the court’s first human resource policy. The Cheyenne Arapaho Tribe has a tribe-wide human resource policy currently in place.
Judge Boone presided over the court until 2001 when he passed away. The departure of such an influential leader left the court with factionalism and political strife. To help stabilize the court system, the Cheyenne and Arapaho Tribes voted to adopt the Colorado Model Act for Tribal Courts. The act was developed in the 1970s specifically for the purpose of establishing model codes and structure for tribal courts. The tribes adopted the Colorado Model Act in 2002 and Judge Chester Baley was later sworn in as a Chief Justice in 2005. One of his earliest tasks was appointing a three-judge appellate court panel. The Mihtohseenenee, or Water Wolf, of the Cheyenne Arapaho Tribe currently has the following judges: Chief Justice Jack Kali, Associate Justice Thomas Black Horse, and Associate Justice Craig Otis.

Anticipated Opportunities and Challenges

The future of the Cheyenne and Arapaho Tribal Court system, like many tribal courts in the United States, is rooted in the ancient inherent right to govern. This right has been long recognized by international law. When that right is not faithfully acknowledged by domestic law, both indigenous and settler populations suffer. Generally, the domestic legal system considers tribal law only to the extent that it is consistent with the policies of Congress, as set out in the Indian Reorganization Act (here).
Tribal jurisdiction and, therefore, its ability to create law, is derivative of federal jurisdiction. The tradition of deference to tribal sovereignty that the United States asserts with respect to foreign nations largely evaporated after the Indian Reorganization Act of 1934. Tribal members and some of the state’s citizens have recently begun to assert the arguments to which the United States once owas.
Still, many communities within the State of Oklahoma remain in contention concerning the validity of tribal jurisdiction. Fifty percent of the Cheyenne and Arapaho voter base prefers county "jurisdiction" over tribal jurisdiction. This condition is not unique to the Cheyenne and Arapaho Tribes, but exists statewide among tribal voters. To date, the Cheyenne and Arapaho governments has not asserted their position on the question of jurisdiction-at-large. We hope that they will inherit a line of authority that will at least allow them to exercise jurisdiction consistent with that held by the legislatures of the several states of the United States. However, the issue remains unresolved.
Yet, the best position the Tribes can expect to hold is concurrent jurisdiction, whether or not the State recognizes that duality. In many instances, dual jurisdiction is preferable. Neither the State of Oklahoma nor tribal countries have the sufficient legal infrastructure to address the civil needs of all of their respective citizens. In that light, the ability of the tribes to exercise their jurisdictional prerogatives would allow for an efficient allocation of resources that would tend to enhance the ability of both governments to serve their citizenry.
On the other hand, the ability of the tribes to exercise the jurisdiction required to formulate their own destinies is contigent upon adequate support from the United States . Currently, there are no federal funding policy incentives for creating tribal law or tribal codes. The Office of Public and Indian Housing, a funding management agency under the Department of Housing and Urban Development (PUH: HUD), has provided annual funds for operation of the Cheyenne and Arapaho Housing Authority. However, the HUD funds have been withheld from appropriations bills since 2000 due to federal concerns about the tribal housing policies.
While important to the physical stability of tribal members, the absence of a tribal housing code is not as crucial as the absence of a tribal code of crimes and procedures. Federal regulations require states to promulgate zoning and landlord-tenant laws in order to qualify for housing grants under the Public Housing Act. Their existence benefits just 5% of all American citizens who are generally unaffected by the multitude of landlord-tenant suits, which in 2004, amounted to approximately 200,000 civil suits according to the American Association of Justice about 7% of which concerned landlords. Yet, 90% of American citizens are affected by criminal law. A viable tribal code of crimes and procedures enforced by a reliable tribal court has the potential to reduce the workload of the state courts considerably providing state judges and juries with more time to devote to the citizens of their communities.
If the Cheyenne and Arapaho Tribal Government cannot adopt a code of crimes, a substantial percentage of the voter base will continue to advocate for a referendum that will cede tribal jurisdiction to state authorities, thereby squandering the efforts of the most ardent tribal sovereignty advocates.
Perhaps the most significant long-term plan of the Cheyenne and Arapaho Tribes is to continue to develop the necessary infrastructures required to carry out the governmental functions that the United States has neglected. Monitoring the destiny of their citizens through their tribal court system will require adequate support from the citizenry. Without the financial stability necessary to execute their sovereign powers, the Cheyenne and Arapaho Nation will drift further into the legal quagmire that has, for centuries, impeded the development of indigenous countries.