Wabanaki Legal News, Fall 1996
by Hon. Chief Tribal Judge Gary Growe
Table of Contents
This article is designed to provide a guide to any individual who has the occasion to appear in Tribal Court in connection with a Civil (any non-criminal) matter.
The Penobscot Nation Tribal Court was established in 1979. It exists to serve the legal needs of the members of the Penobscot Nation community and particularly, although not exclusively, tribal members who reside on the Penobscot Reservation. In that sense it shares a common purpose with other Tribal Courts throughout Indian Country. Of the approximately 500 Federally recognized Tribes, upwards of 200 Tribes have their own Court systems. The Courts are as varied as the Tribes themselves and range from tradition-based systems with little or no written rules or codes to systems that mirror Courts in the Federal and State systems (that is, Courts with a formalized, rule-based, adversary system). The Penobscot Tribal Court, in many significant ways, resembles a typical State of Maine District Court. In each case, however, the Courts are designed to serve their respective Tribal communities.
It should also be noted that the scope of this article is somewhat limited and will address only the most common situations. Each case has its own set of facts which may alter the outcome of that particular situation. While it may raise as many questions as it answers, it is my hope that it can, nevertheless, serve as a useful tool for those parties who, either by choice or necessity, appear in Tribal Court without benefit of an attorney.
Bear in mind that, although the Passamaquoddy Tribal Court and the Penobscot Nation Tribal Court (the only Tribal Courts in Maine) have much in common, they are distinct entities and the guidelines set out here are not necessarily applicable to practice in the Passamaquoddy Tribal Court. Questions about the Passamaquoddy Tribal Court should be directed to the Clerk of that Court.
The Clerk's Office is usually the first stop in any Civil proceeding. The Clerk's Office is the source of various forms that may be required to begin a civil proceeding. The Clerk is prohibited from providing legal advice. While the Clerk can explain the nature of various forms, the parties must complete the forms on their own without the assistance of the Clerk. Court fees in connection with beginning a civil action are fairly small in most cases and can be, if requested, reduced or entirely waived by the Judge.
Generally, the Penobscot Tribal Court is able to hear a wide range of civil matters, including divorces, child custody disputes, probate matters as well as Complaints for Protective Orders (both Protection from Harassment and Protection from Abuse). In certain cases (where both parties are members of either the Passamaquoddy Tribe or Penobscot Nation and both parties live on the Penobscot Reservation), it is the only Court that can hear the dispute.
Family and household members who are the victims of domestic abuse are entitled to protection from further abuse as well as the right to live their lives without the threat of future abuse. The Court takes its obligation in the area of domestic violence with the utmost seriousness. There is a mechanism which, to the extent possible, can provide relief for such victims as well as remedial services to both the victim and the abuser.
Since "Protection From Abuse" actions and "Protection From Harassment" actions are somewhat similar and often confused it is useful to begin with a few definitions.
"ABUSE"is defined by the Penobscot Tribal Ordinance as the occurrence of the following acts between family or household members:
A. Attempting to cause or causing bodily injury or offensive physical contact, or
B. Attempt to place or placing another in fear of imminent bodily injury.
"FAMILY OR HOUSEHOLD MEMBERS" are defined as "spouses or former spouses, individuals presently or formerly living as spouses, natural parents of the same child, or adult household members related by consanguinity or affinity. Holding oneself out to be a spouse shall not be necessary to constitute living as spouses."
In plain terms, if you are assaulted or threatened with assault by a spouse, former spouse, ex-boyfriend (or girlfriend) with whom you once lived or any family member, you may seek relief from the Court.
"HARASSMENT" is defined as "any repeated [emphasis added] act of intimidation, harassment, physical force or threat of physical force directed against any person, family or their property or advocate with the intention of causing fear or intimidation or to deter free exercise or enjoyment of any rights or privileges secured by the Indian Civil Rights Act of 1968, as amended". This definition does not include any act protected by the constitutional guarantee of free speech.
With those definitions in mind we can now look at the specific process. In each case (whether "abuse" or "harassment"), the process begins by the filing of a complaint/petition which provides a factual basis for the alleged "abuse" or "harassment". This can be in the form of a narrative or story which explains the events that occurred. It is important to be as specific as possible especially with regard to names, dates and events. The allegations should be in your own words. Essentially, this statement, which is sworn to be true, is your version of what happened.
Once a Complaint/Petition is filed with the Court, the matter will be set for a full hearing within 21 days. At that hearing, the party who initiated the complaint/petition has the burden of proving their case by a preponderance of the evidence. This means the party who filed the complaint/petition (Plaintiff) must convince the Court that their version is more likely than not to be the truth and that the events took place as they allege.
The party alleged to have committed the abuse or harassment (Defendant) will be served with a copy of the complaint/petition as well as a Summons requiring he or she to appear at the Final Hearing. In the event the Defendant fails to appear, an order can be entered against that person in their absence. Parties can also agree to have Protective Orders entered against them. Likewise, if the Plaintiff fails to appear at a Final Hearing, the case will be dismissed, absent good cause which is made known to the Court prior to the hearing.
If the Court finds that the Plaintiff is in "immediate and present danger [emphasis added] of physical abuse" from the Defendant or other good cause as the Court may determine from the allegations in the complaint/petition, the Court may, without giving notice to the Defendant, enter a Temporary Order which provides the Plaintiff with the necessary relief or protection.
This "temporary" (before the Final Hearing) protection can include an Order which prohibits the Defendant from any of the following:
A) Imposing any restraint upon the person or liberty of the Plaintiff;
B) Threatening, assaulting, molesting, harassing or otherwise disturbing the peace of the Plaintiff;
C) Entering the Plaintiff's residence; or
D) Taking, converting or damaging property in which the Plaintiff may have a legal interest.
In the case of complaints which allege abuse, the court may also enter a Temporary Order concerning the care and custody of any minor children residing in the household.
People who believe they are being abused or harassed and who change their address in an effort to avoid the abuse or harassment should know that their address can be deleted from the record in order to protect them, if the Court believes it is necessary.
This process is not tilted completely in favor of the person alleging the abuse or harassment. The Defendant who is the subject of a Temporary Order may, on two-day's notice to the Plaintiff or shorter notice as the Court may direct, appear before the Court and ask the Court to dissolve or modify the Temporary Order.
The Final Hearing itself is relatively straight forward. The Plaintiff will be required to present their side of the case. This can be done by the Plaintiff's own testimony and/or the testimony of any witnesses. If witnesses refuse to appear voluntarily, the Court can issue a subpoena to compel them to appear. You must request any subpoenas you feel are necessary as soon as possible in order not to cause undue delay of the case.
While these hearings are conducted in accordance with the Maine Rules of Civil Procedure (which have been adopted by the Penobscot Nation Tribal Court) the Court has considerable discretion in applying those rules in order to achieve fairness for all parties.
If the Court makes a finding, following the hearing, that the abuse/harassment has occurred, it has a wide range of remedies.
These remedies are the same as those set out in connection with Temporary Orders. However, in addition, if the Court enters a Protective Order after a Final Hearing it can:
1) require either or both parties to receive counseling;
2) order restitution to the Plaintiff for any losses suffered as a result of the abuse/harassment and, in the case of Protection From Abuse Orders the Court may divide personal property (but not real estate) as well as award temporary custody/support of minor children.
Violations of the Court's Orders regarding Abuse or Harassment Complaints are crimes (in cases where the violation involves the personal safety of the Plaintiff or the Plaintiff's property or residence) and can be punished by jail and fines. Violations which involve Orders regarding counseling or payment of fees of various kinds, are treated as contempt actions and are punished accordingly.
Protective Orders shall be for a fixed period not to exceed one year. They can be, if the Plaintiff requests and the Court finds it to be necessary, extended for such time as the Court may Order. The Court may, upon request by either party and if that party can establish good cause, modify the Order as circumstances may require.
The Penobscot Nation Tribal Court (and likewise the Passamaquoddy Tribal Court) have exclusive jurisdiction over divorce and support issues where the tribal members (either Tribe) both reside on the reservation. Both Tribal Court's also have exclusive jurisdiction over child custody matters involving an Indian child who lives on the reservation. In cases where an Indian child is a ward of a Tribal Court, the Tribal Court retains exclusive jurisdiction no matter where the child may be physically.
Tribal Courts of both the Passamaquoddy and Penobscot tribes maintain concurrent (i.e. cases may be heard in the Tribal Court but may likewise be heard in an appropriate State Court) jurisdiction and also hear such family matters as:
A. Domestic relations matters between tribal members residing off-reservation who voluntarily submit themselves to the jurisdiction of the Tribal Court (that is, the parties simply agree to proceed in Tribal Court).
B. Divorce between a tribal member and a non-Indian spouse residing on the reservation.
C. Paternity determinations and parental rights actions between a tribal member parent and a non-Indian parent of tribal member children where all parties reside on the reservation.
It should be noted that non-tribal members who reside within Penobscot Indian Territory do so by virtue of residency permits issued to them by the Penobscot Nation. As a conditions of those permits, the non-tribal member agrees to submit to tribal jurisdiction.
Although the two tribes have the right to develop their own unique domestic relations law they have, to date, simply adopted Maine's domestic relations laws as their own.
As in civil cases generally, matters are brought to the Court's attention for some action only by way of formal requests. In matters of divorce these "requests" are generally referred to as "complaints" and forms to begin proceedings can be obtained from the Tribal Court Clerk. In custody or post-divorce matters (such things as changes in visitation) this process is begun by what is commonly referred to as a "motion". While the Penobscot Tribal Court uses the Maine Civil Rules of Procedure, the Court has the authority to treat the rules in a manner which makes the Court accessible to the parties. While parties who appear without attorneys are bound to follow the same procedural rules as parties who are represented by attorneys, the Court makes every effort, within the law, to accommodate pro se litigants. In short, there is no reason to be intimidated by the process. There are surprisingly few requirements in order to bring your case before the Court and have it presented at a hearing.
It is important in matters of divorce/custody to be able to provide a list of any property you may own (e.g. land, a mobile home, cars, household items) and any debts you may owe. The Court will require this kind of information in order to properly act on requests for alimony, child support or the division of marital property. Forms can be obtained from the clerk that will help you organize this type of information.
Bear in mind that parties are generally always free to reach agreements with each other on their own. Those agreements can then be presented to and reviewed by the Court. If the proposal is otherwise within the law, the Court can issue an order that incorporates the parties' mutual understanding and binds the parties.
It has been the Court's experience that these "Consent Orders", as they are sometimes called, are more effective in achieving a satisfactory solution to what is frequently a difficult emotional as well as legal problem than Orders that issue after contested hearing where old wounds are reopened. The Court would encourage all parties in these highly charged matters, to the extent possible, to work together to come to some common ground. Obviously, divorces will occur and the Court acknowledges that it must on occasion use its power to grant the divorce. However, even in highly charged and bitter disputes, a certain level of cooperation and compromise and a general level of civility on the part of all parties will go a long way towards providing a basis on which to begin a new life after the divorce. This spirit is particularly important in matters involving children.
The Court acknowledges that sometimes it is difficult if not impossible to achieve an acceptable level of cooperation (it does, after all, require two willing parties). In those cases, the Court stands ready and is available, after hearing both parties, to issue a decision.
The Penobscot Nation Tribal Court acts as the Probate Court as well. Probate matters include inheritance issues generally (whether or not the deceased left a Will) but also include name changes as well as guardianships/conservatorships.
The Tribal Court has exclusive jurisdiction over the inheritance of lands within the Penobscot Nation (sometimes referred to as "assigned lands"). The inheritance of assigned lands (whether on the reservation or Trust land) is governed by Chapter 12 of the Penobscot Nation Laws and ordinances.
Before we address the rules governing inheritance of Tribal lands, it can be said that probate actions can be initiated by the filing of various forms (available from the Clerk of Court). These forms are designed to be fairly straight forward and can be easily filled out without the necessity of an attorney (although one is, of course, always free to have an attorney represent them, if they so desire; appointed counsel is generally not available in probate matters, except as guardians for incompetent parties).
The Tribal Probate Court generally follows the requirements of the Maine Probate Code. Many Probate matters require notice to interested parties (e.g. heirs, relatives, creditors) and publication. Consequently, there may be some cost to the filing party due to the necessity of publication. These costs are fairly minimal. Although the Court generally requires the party to pay at least 50% of these costs, waiver or a reduction of costs may be obtained upon a request to the Court.
There are essentially two types of probate proceedings: "informal" and "formal".
Informal Probate is most appropriate in situations where it is reasonable to assume that no factual or legal dispute will arise (more about the types of disputes in the following section on "formal" probate).
Informal proceedings are begun by the filing of an "Application for Informal Appointment of Personal Representative". The Personal Representative is the person (usually the surviving spouse or other heir) who is authorized to carry out the terms of the decedent's Will or otherwise make distribution of the decedent's property if there is no Will. The Personal Representative is also responsible for the payment of any debts owed by the decedent's estate (payment is made from the assets of the Estate, to the extent possible).
Once this Application is completed, the Court Clerk (it is not necessary to appear before the Judge) will make the appointment of the Personal Representative and issue Letters of Authority, which demonstrate the power of the Personal Representative to act. Once appointed, following the administration of the estate by distributing assets and paying or otherwise settling any claims against the Estate, the personal Representative may close the Estate (again, without the necessity of a Court appearance) by filing what is known as the "Sworn Statement of Personal Representative Closing Estate Under 18-A MRSA 3-1003". This Statement, which is far less complicated than its name, is filed no earlier than six months after the appointment of the Personal Representative.
Formal Probate proceedings are all probate proceedings which are not informal. For example, an estate that was opened "informally" becomes "formal" once some dispute arises and the court is called upon to resolve that dispute.
Typically, the following examples call for a formal rather than informal opening of an estate:
1. When there is a concern that a will may have been improperly executed;
2. when there is some question about the testator's (the person who made the will, the decedent) capacity to have executed the will;
3. when there are questions as to the appropriateness or ability of the Personal Representative who would otherwise be appointed informally;
4. when there may be a dispute about who is a rightful heir;
5. when the applicant believes there may be some challenge (even if the nature of that challenge is uncertain) and wishes to anticipate such a challenge.
All of these examples are meant to demonstrate the common factor which makes a formal proceeding the best choice: the existence or anticipation of a factual or legal dispute which will need to be resolved by the Court as soon as possible.
As mentioned earlier, Probate matters are governed by the Maine Probate Code and generally by the Rules of Civil Procedure. However, in matters involving the determination of rights in assigned land, those Rules are specifically suspended by Subsection 6 of Chapter 12 of the Penobscot Nation Laws and ordinances except to the extent necessary to insure that all interested parties are given an opportunity to present their case.
No one (even lawyers and Judges) particularly enjoy filling out long and sometimes confusing forms. The Probate process is filled with such forms. Each form, however, serves a specific and important purpose. Primarily they serve to explain the nature of the request to the Court and also serve as a record of the actions of the Personal Representative and protect him or her from complaints of disgruntled parties later on.
It may be illustrative and of some comfort to those about to embark on the probate process to examine Rule 1 of the Probate Code. That rule states, in part: "The rules shall be construed to secure the just, speedy, and inexpensive determination of every proceeding." What this means in practical terms is the Court will do its best to accommodate any reasonable request and parties need not worry excessively about being denied access to the Court because they present the wrong form.
Finally, Tribal Courts exist for the benefit of Tribal members, not for the benefit of Judges or lawyers. Pro se litigants will be treated with respect. When used, the Tribal Courts can provide efficient, inexpensive solutions to the problems of Tribal members. I trust this guide will be of some assistance to those who choose to use this Tribal asset.