University of North Dakota
Report date
March 2020
What has been most instrumental to your progress?
The talking circles with participants from different perspectives in the tribal justice system—judges, prosecutors, clerks, and current Advocates. These participants are closest to the injustice of inadequately trained Advocates, and their contributions were important first in building a foundational sense of the issue among the groups. Previously, the extent of awareness and attention to this challenge varied significantly among the six tribes. When focused on it in talking circles, all participants agreed there was a need for substantive Advocate training, and that the need was currently unfulfilled. The organic nature of the talking circles fostered an evolution of ideas toward addressing the need. For example, nearly all tribal courts recognized their current rules for certifying Advocates were out of date, too simplistic, impracticable or might inadvertently be a disincentive for new Advocates. Nearly all participants agreed their current Advocates were too few, their abilities spanned a spectrum, and could benefit from concentrated training. All participants agreed no individual tribe had sufficient demand for or need to justify developing their own training program.
The inherent comparative aspect of talking circles with six distinct communities on the same justice challenge was brainstorming with an exponential effect. Concerns raised in one tribal conversation spawned related but different challenges in a different tribe’s conversation. Ideas put forth in one court were expanded or redirected by thoughts from another court. Partial solutions to one tribe’s needs were provided by drawing on the actions of another court. An example was raised by one tribal judge expressing concern there are no professionalism standards (like attorneys have) for Advocates in matters like handling client funds, conflicts of interests and maintaining client confidentiality. That led the PI to inquire and find that no other tribes have such standards. In this way, the collage created by the various and varied contributions, coming from similar but unique communities, revealed a broader and possibly more effective path forward than might have resulted from conversations with only one tribal court and community.
Key lessons learned
Talking circles involving tribal community members and Tribal College & University (TCU) students revealed a general unawareness of tribal court Advocates, the critical roles they play (or could play) in tribal justice systems and tribal sovereignty, and in achieving justice for individual tribal members in court cases. While some community members had experience with Advocates, or knew someone who had, most had not and were unfamiliar with the concept. One lesson was that the low numbers of current Advocates might stem from this unawareness so that increased information might spur interest. Another lesson was that any solution for improved training of Advocates would benefit from developing ways of informing tribal members of the opportunity for serving the community as Advocates and the available training to assist in taking on this new role.
Related to Answer #1 above, talking circles with tribal community members and TCU students served as a mechanism to inform them about Advocates. On several occasions, participants indicated an interest to enroll in the training program immediately (requiring the PI to remind them the purpose of the conversation was to decide if such a program would be valuable and thus no training program yet exists). Other participants asked when such a program would be available and expressed interest in enrolling. Again, the lesson appeared to be that information is key: when community members and TCU students learn about the role of Advocates and hear that training to become effective may be available, the level of interest increases.
A key lesson reinforced by these talking circles is that tribal governmental staff are stretched thin and even where problems are known and pressing, the ability of staff to add new challenges is extremely limited. That was made very clear when all six tribes declined the $5,000 generously added by the Bush Foundation for each tribe to use in engaging in this process. The consistent explanation offered for that declination was that staff were already paid for work in their various positions, and they had only limited time for this project so they did not see the need for extra compensation. Because the grant provided funds for food and beverages for community discussions, the tribes’ out of pocket expenses were covered and the staff was willing to devote additional time from their other multitudinous duties. That lesson also makes clear the need for a third party’s development of a training program.
Reflections on the community innovation process
Probably a combination of the first two stages. These community talking circles strongly confirmed the anecdotal evidence that identified substantive Advocate training is a true need in tribal justice systems. This short survey if you will of just six tribes indicates very few current Advocates have any formal training. For most Advocates, on the job training with no network to rely on is the rule. Some Advocates have worked under a tribal attorney or an experienced Advocate, but otherwise they have no resources helping them improve their representation of real parties in court. Second, recursive discussions among the six tribes helped increase understanding of the challenges inherent in addressing the issue. Scale was a consistent theme: no one tribe has sufficient demand or resources to create their own training program in any format. That is corroborated by the fact that only one TCU has an Associate Degree in Tribal Court Advocacy, and that it attracts relatively few students. Nearly every tribe whose court rules required more than mere tribal membership for advocacy certification referred to third-party programs no longer in existence.
Progress toward an innovation
This grant project made exactly the progress toward an innovative solution that it was designed to accomplish. The process of recursive talking circles on six reservations with tribal court and TCU personnel, TCU students and community members enhanced awareness of the important role of Advocates, collected information on the current state of Advocate competency and identified that a genuine need exists for developing a consistent, substantive Advocate training program. Tribal court professionals were uniform in their agreement such a need exists; they consistently expressed a desire for improved competency in existing Advocates, and believed that having a training program could encourage new entrants into the field. TCU students and community members asked relevant questions about the roles and responsibilities of Advocates, increasing community understanding of the tribal justice system, and a number expressed interest in considering becoming Advocates. Tribal court and TCU personnel considered possible solutions to improve Advocate training. While online education has real limitations, it seems most feasible for the circumstances of Indian country.
What it will take to reach an innovation?
Not applicable.
What's next?
If we can secure funding, we plan to use the foundation set by this project to develop an asynchronous, online tribal court Advocate training and certification program. We envision a phased process, with the first phase building a core curriculum of legal subjects and courtroom skills most commonly seen and used in tribal court. This Bush project has created a network of stakeholders who identified an initial list of such subjects and skills. An early step in the first phase would be to reach out to that network for current feedback on the list, and for suggestions of persons who might develop program modules on individual legal subjects and courtroom skills. The School of Law has experienced professors with expertise in a variety of areas relevant to Advocates’ practice that we will draw upon. We also want balance with judges and practitioners in tribal courts every day. Indigenous presenters can help Advocates bring cultural values into their representation, improving connections with clients as well as helping tribal courts preserve sovereign approaches rather than emulate state court systems.
If you could do it all over again...
Ideally, it would have been best to have more time for more reservation visits. The project started in January and immediately very harsh weather made road travel inadvisable. So meetings were postponed. Court schedules are notoriously unpredictable and difficult to navigate, so other meetings were cut short or key participants were available for shorter times than planned or not available at all. As the end of the spring semester approached and students were focused on exams, they were less inclined to participate in conversations. And while the PI was fortunate to have connections that opened doors, it felt like just as the relationships were strengthening and conversations becoming even more effective, the time ran out. The proposed work was completed, and was successful as designed, but perhaps could have gone further with additional time.
One last thought
Other questions included information about the desired outcomes proposed in the grant application. One outcome on data didn’t fit easily. Tribal certification processes range from simple membership (2 tribes) to an oral exam before a tribal judge (1) to certification by third-party programs no longer in operation (3). The number of current Advocates range from none (1) to one (1) to two-four (4). Tribes don’t keep records so some Advocates may or may not be active any longer, or may reappear (current rules either don’t require annual certification or aren’t followed). The records also don’t document Advocates’ educational background; the Advocates that participated in talking circles had backgrounds ranging from high school (3) to TCU (4) to law school (1). A significant number of TCU students and community members expressed interest in becoming Advocates (approx. 15). This number doesn’t capture participants who had interest but did not express it, members who could not attend talking circles, and two talking circles with low attendance.