Introduction to Tribal Court Practice

About the Program

Kansas attorneys are practicing law in tribal courts in increasing numbers. Effective practice in tribal courts requires familiarity with law and procedures unique to these jurisdictions. This CLE program will introduce attendees to the sources of law for tribal courts, jurisdiction in tribal courts, and common legal issues encountered when practicing criminal law in tribal courts. Additionally, the program will introduce practitioners to legal research tools useful to tribal court practice, the practicalities of drafting motions for tribal courts, and the use of custom and tradition evidence when arguing cases before a tribal court. The program primarily focuses on practice in Prairie Band Potawatomi Nation Tribal Court and Kickapoo Nation Tribal Court.

Schedule

Friday • October 3, 2008

12:30 p.m. — Registration

1:00 p.m. — Blessing [tentative] and Welcome

Part I: Substantive Criminal Law in Tribal Court

1:10 p.m. — Session A

Tribal Court Jurisdiction: The program will begin with a general overview of how to determine criminal jurisdiction in a potential tribal court case. The discussion will address fundamental inquiries such as who is an "Indian" for purposes of federal law, as well as how to determine whether conduct occurred in statutorily-defined "Indian country."

Sources of Law: This segment will introduce major areas of law governing tribal court cases, focusing on criminal prosecutions. They include tribal constitutions and codes, federal and state statutes and case law, customary law, and written tribal common law. We will also discuss how to determine what law applies.

2:00 p.m. — Break

2:10 p.m. — Session B

Special Topics: This session will explore in greater detail several substantive areas that practitioners must understand in order to handle criminal matters in tribal court, including tribal sovereignty, the Tribal Exhaustion Doctrine, how the Double Jeopardy Clause is affected by prosecutions in all three types of government, legislation (the Kansas Act) granting concurrent state jurisdiction over offenses occurring on reservations, and available criminal penalties, including traditional punishments like banishment.

3:00 p.m. — Break

Part II: Tribal Court Practice

3:10 p.m. — Session C

Origins of Tribal Courts: This session will provide a brief introduction to the different kinds of tribal courts in Kansas, how they began, and their sources of power.

Research Tools: During the majority of this session, we identify tools for locating the internal law of Native American nations, focusing on the Prairie Band Potawatomi and Kickapoo Nations, reporters containing decisions from tribal courts, and searchable databases of tribal law issues.

4:00 p.m. — Break

4:10 p.m. — Session D

Special Topics: This session will explore in greater detail several skills needed to practice in tribal court effectively. We will focus on cultural literacy; motions practice; and introducing evidence, including evidence concerning tribal customary law (custom and tradition evidence).

4:35 p.m. — Session E

Ethical Issues in Tribal Court Practice: This session will address disciplinary and ethics questions that arise in tribal courts and will discuss the process for obtaining admission to the bars of area tribal courts.

5:00-5:15 p.m. — Concluding Remarks and Blessing [tentative]

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Presenters

Aliza G. Organick — Associate Professor of Law, Washburn University School of Law

Aliza Organick received her B.U.S. at the University of New Mexico in 1992 and a J.D. from the University of New Mexico School of Law in 1996. Prior to coming to teach at Washburn, Professor Organick was a Visiting Assistant Professor of Law at the University of New Mexico School of Law and taught in the Southwest Indian Law Clinic serving Native American clients in New Mexico and Arizona. Prior to law teaching, Organick was Assistant Public Defender for the state of New Mexico in both the Juvenile Mental Health and Metropolitan divisions. She was attorney and Co-Founder/Co-Director of Miner's Legal Resource Center, which was a grant funded public interest law initiative providing basic access to legal advocacy and diagnostic health care services for coal and uranium miners. Organick is admitted to the New Mexico and Kansas Bars. She is also admitted to practice in the Prairie Band Potowatomi Nation Tribal Court, The Kickapoo Nation of Kansas Tribal Court, and the Iowa Nations Tribal Court.

John J. Francis — Professor of Law and Director of the Law Clinic, Washburn University School of Law

Professor Francis earned his B.A. from Lafayette College in 1985 and his J.D. from the American University, Washington College of Law, in 1989. He teaches in the areas of pretrial advocacy and law clinic. Following law school, Professor Francis was a trial attorney at The New York City Legal Aid Society, Criminal Defense Division until 1994. Subsequently, he continued his practice as a Supervising Attorney with the clinical programs at Hofstra University Law School, where he supervised students in the Criminal Justice Clinic and Housing Rights Clinic. In 1999, he came to Washburn to direct its nationally-renowned law clinic. Professor Francis is admitted to practice in Kansas, New York State, the District of Columbia, the United States District Courts for the Districts of Kansas and Eastern New York, the United States Court of Appeals for the Tenth Circuit, and the Prairie Band Potawatomi Nation Tribal Court.

Tonya Kowalski — Associate Professor of Law, Washburn University School of Law

Professor Kowalski earned her B.A. from the University of Florida in 1992 and her J.D. from Duke University School of Law in 1995. She currently teaches legal analysis, research and writing. Before joining Washburn Law in August 2006, Professor Kowalski was a Visiting Associate Clinical Professor for the Sandra Day O'Connor College of Law at Arizona State University, where she taught in the Indian Legal Clinic. Before that, she was a staff member in the clinic. Before she began teaching, Professor Kowalski spent several years litigating commercial, domestic, and appellate cases in Oregon and Washington, as well as in the United States Court of Appeals for the Ninth Circuit. She has also worked as a legal writing consultant and as a judicial law clerk for Judge William W. Baker of the Washington State Court of Appeals. At Duke, she was a member of the Duke Law Journal, a co-vice president of the Women Law Students Association, and a co-director of the Domestic Violence Advocacy Project. She belongs to the Oregon State Bar and the Washington State Bar Association. She is also a member of the Legal Writing Institute.

Stacey L. Leeds — Professor of Law and Director of the Tribal Law & Government Center, University of Kansas School of Law; Chief Judge of the Prairie Band Potawatomi Nation District Court; Chief Justice of the Supreme Court for the Kickapoo Tribe of Oklahoma; Associate Justice of the Kaw Nation Supreme Court

Professor Leeds joined the KU law faculty in 2003 after serving as assistant professor and director of the Northern Plains Indian Law Center at the University of North Dakota School of Law. Her law teaching career began at the University of Wisconsin School of Law, where she received her LL.M. as a William H. Hastie Fellow. She received her bachelor's degree from Washington University in St. Louis and her law degree from the University of Tulsa. Professor Leeds is a nationally recognized leader among tribal judges. She currently serves as Chair of the ABA Judicial Division's Tribal Courts Council and on the Advisory Board for the National Judicial College's Tribal Judicial Center. She is a former Justice on the Cherokee Nation Supreme Court, the only woman and youngest person ever to serve in that capacity. She currently serves as Chief Judge of the Prairie Band Potawatomi Nation District Court, Chief Justice of the Supreme Court for the Kickapoo Tribe of Oklahoma and as an Associate Justice on the Kaw Nation Supreme Court. She has served as a judge and consultant for several other tribal governments.

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