>>Dr. Nelson: All right, we made it inside here. We're inside the courtroom at the courthouse
now. And in a lot of ways it looks like other courtrooms that you would find in in any state
or any federal court, but I wonder if you could talk to us a little bit about what differences
you see between tribal courts like the Cherokee Court and others in in the state or the U.S.
Nation?
>>Justice Poteete: I think we're probably one of the more Westernized—the most Westernized
of the tribal courts in the country. One of our justices routinely works with tribal courts
in other jurisdictions, helping train people, helping them integrate traditional adjudication
methods in--into modern world. One of our justices that just retired, Justice Matlock,
talked about the attorneys in Tulsa County frequently ask him, "Well, is that a real
court? If we come down there and we bring a case for a client who's doing business with
the tribe at the casinos, do we get a-- what's going to happen?" And we can very truthfully
say with all confidence that, "Yes, you're going to get due process here, and in a form
that you recognize." So you can look to precedence in general jurisdictions, and that guides
us a lot. Now we're not bound by that, and we can take departure from it for good cause.
And we want that, we want the outside world to look at us and say, "We're not afraid to
do business with that tribe. If we get into a dispute with them, even if we have submitted
to the authority of their courts, we'll get a fair hearing." And they will. So I think
that there's less accommodation and less difference today in a modern court than there was in
the pre-statehood time, when the Cherokee citizens lived entirely under the jurisdiction
of the tribal courts. Today most of our citizens go for many matters into state courts because
of the scattered jurisdiction of the land that we have left.
And there's a good story about tribal accommodation and and local rule, and how Cherokees adapted
what looked like on paper just almost a replica of what they saw in the surrounding states,
in the frontier states. This was a story about a Cherokee couple, and the wife had gone to
the district court, which the district court judges were lay people without particular
legal training and functioned kind of like justices of the peace for some extent. But
they had a jury trial over an assault. He had picked up a big, heavy book and banged
her over the head with it. And she had complained, and so they had the trial. And the jury, it
was imputed to them some foreknowledge of her disposition and attitude, and mode of
conduct because the jury came back and said, "Yes, it's true. We find that he did knock
her up the side of the head with that book. But since it was a great big Cherokee Code
book, and it was done with the law, we're gonna acquit. Because it was done with--"
[laughter]
>>Dr. Nelson: "We're gonna acquit?" [both laugh]
>>Justice Poteete: --yeah, so.
>>Dr. Nelson: Because it was done lawfully, in a literal sort of way? [laughing]
>>Justice Poteete: Now Professor, I don't know what this has to do with anything, but
isn't it a good story?
>>Dr. Nelson: Not a common one, to be sure. Well, one of the things that I think it does
is it suggests that there are still ways in which some kind of traditional values affect
how the court goes about its business. And so you've been sitting on the bench for how
long now?
>>Justice Poteete: Seven years, I think.
>>Dr. Nelson: Seven years you've been doing this. I'm wondering, do you find that there
are some specific sorts of Cherokee values that influence how it is you do your job?
>>Justice Poteete: I think that the the court's made up of Cherokee people who were raised
in the Cherokee Nation, and I don't think that I can articulate for you a...I'll meditate
on that as time goes by so that I might articulate that better, but I know that all of us, we
grew up here. One of the judges is a former prosecutor in the state system for years.
One of them a former district judge, very seasoned. Another is a former general counsel
for the tribe, who seceded his father in that position, succeeded, you know. I came to the
court after two years in the tribal counsel—two terms, eight years in the tribal counsel and
another seven or eight as an administrator. I worked for the Choctaws, and Chickasaws,
and the Cherokees to administer the riverbed. So I'm certain that our approach has is influenced
by growing up here, being a part of the system for many years.
>>Dr. Nelson: Mmhmm.
>>Justice Poteete: But I can't actually--
>>Dr. Nelson: Yeah you're talking about a long history of Cherokee jurisprudence, and
yeah.
>>Justice Poteete: And and our system, it mirrors that in broad society, but you couldn't
say it's a repli--There are times when there you'll find a number one court about expungement
of records. The question was for a candidate, "have you ever been plead guilty, convicted?"
Well his record had been expunged in the state court. But when it came up to the tribal court
in the case of first impression, the tribal court said, "That expungement doesn't mean
anything here. You were charged. You were--" So I mean, that's an instance that comes to
mind where the tribal court said, "Look, that may be what the state does, but we don't do
that."
>>Dr. Nelson: And maybe it's worth clarifying for some folks that tribal courts operate,
if I understand right, more or less at about the same level in terms of the hierarchy as
states do. They're alongside states but not under the jurisdiction of states, unless they've
consented to it in some cases. Is that right?
>>Justice Poteete: We there are certain scattered tracks: trust land, restricted property, tribal
land--like this courthouse I think's finally been put into trust status, but for a long
time there was a big debate. Is the courthouse on fee land? Is it under the state's jurisdiction
or the tribe's jurisdiction? Because that makes a a huge difference. And so we have
original we have a jurisdiction in that trust land, tribal lands that we own. And then we
have jurisdiction over all these issues of employment, workers comp., contracts that
people have made with the casinos or our businesses where they have agreed to submit themselves
to our courts.
>>Dr. Nelson: So there are some cases in which non-Natives find themselves agreeing to submit
to Native jurisdiction?
>>Justice Poteete: Right, there are. And that's--
>>Dr. Nelson: That's something that I think a lot of people don't understand or know very
much about. It's something I don't know a great deal about.
>>Justice Poteete: And it gets pretty complicated, but yes, there are cases like that. So, Indian
Child Welfare cases, sometimes those come to our district court. They're very busy with
those. Our criminal jurisdiction's limited. There was some new legislation that strengthened
the tribal law enforcement, and it—before we could only impose a fine of so much and
a year or a year in jail. Well, those now it's up to three and they can run consecutively
and things like that. So--
>>Dr. Nelson: And this grew out of the Violence Against Women Act, is that right?
>>Justice Poteete: I think so.
>>Dr. Nelson: It perhaps--
>>Justice Poteete: You're right in part there. And then there's another act that enhanced
that, and I'm not--but
>>Dr. Nelson: We can we can Google it, and then we'll know.
>>Justice Poteete: [laughs] Yeah, we can figure that out. We want to do that research.
>>Dr. Nelson: All right, well, as we have to wrap up here, I wonder if there's anything
that people in general ought to know about how it is that tribal courts do their work.
What misconceptions or or lack of knowledge do you feel we need to try to address?
>>Justice Poteete: In jurisdictions in other tribes, they are wrestling with this the feds
have said, "Okay, we're gonna give you back some authority over non-Indian offenders who
come into your your jurisdictions." But with that, giving them again what they had at one
time, that comes up with strings. Indian Civil Rights Act. For instance, in Wisconsin they
were wrestling with the problem of, "How do we do that?" If someone assaults an elder,
that elder doesn't have to suffer the indignity to come to court. That can be prosecuted without
them. But if you bring a non-Indian in, he has all the Civil Rights Act applies to him,
so then you have to drag the elder in to be cross-examined, and so forth. And so those
kind of issues then the tribal court is torn between, "Do we accept this additional authority
and give up and how do we integrate this little bit of more authority back into our--?" because
some of the jurisdictions really don't like--They want to be work on conciliation and bringing
harmony back. They don't like to have an armed person in the courtroom, which we routinely
do. So, I think that other tribal jurisdictions are having more problems wrestling around
with these issues than we are.