Tribal Court CASA Programs

Adapting CASA to Meet the Needs of Indian Tribal Courts
and Native American People

The National Court Appointed Special Advocate (CASA) Association has implemented a Tribal Court CASA Program designed to assist in the development and enhancement of tribal court programs that provide volunteer court appointed special advocates (CASAs) for Native American children who have been abused or neglected. The overall goal of National CASA is to increase the number of Indian children who are receiving culturally sensitive representation through indigenous CASA programs in tribal court proceedings.

Some of these programs have been in operation for years, but many are still in the planning stages. Some tribal court CASA programs serve one community; others serve more than one community. Most programs provide volunteers only in tribal courts, but some programs provide volunteers in both tribal and state court.

The tribal court CASA programs face many obstacles which have previously inhibited the development of tribal court CASA programs. The current National CASA initiative is designed to assist tribal courts to develop tools to overcome these obstacles. The tribal court CASA initiative was implemented in 1995 and many innovative policies and procedures have been identified which have been useful for the development of tribal court CASA programs.

The Tribal Court CASA Project is assisted by an ad hoc Tribal Court Advisory Committee. The purpose of the advisory committee is to review and consult with National CASA on, the development of Tribal court programs, the best methods to assist the tribal court programs and the best methods for adapting CASA to meet the needs of Native American communities.

A comprehensive Tribal Court CASA Meeting and a CASA Tribal Court Advisory Committee Meeting is held every year in connection with the National CASA Conference. On-site technical assistance meetings with the current Tribal Court CASA programs are underway.

Overview of Tribal Courts
Training and Technical Assistance Needs
Adaptation Issues/Innovative Policies and Procedures
Future Directions

Overview of Tribal Courts
and Historical Backdrop of Native American Child Welfare Policy

In order to appreciate the need to adapt CASA for tribal courts, it is necessary to provide a brief overview of tribal courts, the historical backdrop of Native American child welfare policy, and the Congressionally recognized need to have Native American child dependency cases heard in tribal courts.

Of the more than 500 federally recognized Native American tribes and Alaska Native villages, more than 250 have operational tribal court systems. These courts exercise jurisdiction over nearly 70 million acres throughout the country - some in remote locations and others in or near urban areas. The tribes themselves vary widely from the Navajo Nation with more than 200,000 members to bands with fewer than 100 members.

Indian tribes possess the inherent sovereign power to "make their own laws and be ruled by them" (Williams v. Lee, 358 U.S. 217 (1959)). As Congress reiterated in enacting the Indian Tribal Justice Act of 1993 (25 U.S.C. 3601), "tribal justice systems are an essential part of tribal governments and serve as important forums for ensuring public health and safety and the political integrity of tribal governments".

Tribal courts vary significantly from tribe to tribe (for example, the Navajo Nation court system processes nearly 100,000 cases per year while smaller tribal courts may hear less than 50 cases per year). Some tribal courts tend to look and act much like non-Indian courts. Other tribal courts (especially in Alaska and the Pueblos in New Mexico) still operate as traditional courts. Many tribal courts have court annexed traditional or peacemaking court forums. Even those tribal courts which appear similar to non-Indian courts often incorporate tribal customs and traditions in ways which distinguish them from their non-Indian counterparts. These traditional components may include use of Native language, introduction of customary or common law, a more holistic approach to dispute resolution, inclusion of the extended family, more fluid communication, invocation of the spiritual realm in ceremonies/prayer, comprehensive problem solving, focus on reparative and restorative justice, and use of customary sanctions.

It is also necessary to understand the historical backdrop of Native American child welfare policy. Beginning in the 1800s, the United States implemented an oppressive assimilationist policy towards Native Americans and Native American children in particular - forcibly taking Native American children from their homes and sending them to boarding schools where they were severely punished for speaking their Native languages and practicing Native customs and religious practices.

In more recent years, the removal of Native American children from their homes continued, but more often the children were placed in non-Indian foster care and adoptive homes at an increasingly alarming rate rather than boarding schools. For example, in 1974, 25% to 35% of all Native American children were in some type of out-of-home placement. In response to this extraordinarily high number of out-of-home placements of Native American children, Congress passed the Indian Child Welfare Act (ICWA) in 1978 (25 U.S.C. 1901-1963).

As the ICWA Congressional findings concluded:

1. that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and
   
2. that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.

ICWA clearly recognizes that "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children". In order to protect the best interests of Native American children and to promote the stability and security of Native American tribes and families, Congress set forth two basic jurisdictional and procedural requirements. First, ICWA provides that whenever possible Native American child dependency cases should be heard in tribal courts where it is presumed that the essential tribal relations and the prevailing cultural and social standards will be respected. Second, for those cases which remain in state courts, ICWA provides a series of procedural safeguards which are designed to address the historic failures of the state court systems to protect Native American children.

This Congressionally recognized need for Native American child dependency cases to be heard in tribal courts makes it imperative to provide CASA volunteers in tribal courts and to adapt CASA to meet the needs of Indian tribal courts and Native American people.

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Training and Technical Assistance Needs

The Tribal Court CASA Program includes a significant training and technical assistance component which is designed to assist the current grant programs to achieve their program goals and objectives. Moreover, it is designed to develop training and technical assistance resources which can be utilized by other tribal court CASA programs in adapting the CASA program to meet the needs of their individual communities. The training and technical assistance is being provided by the National CASA Association and The Tribal Law and Policy Institute.

An extensive needs assessment process has been conducted of the ten tribal court CASA programs which received funding in the 1996-1997 funding cycle. This needs assessment process identified numerous barriers faced by the tribal court CASA programs - such as the complex relationships that exist between federal, state, and tribal agencies; jurisdictional limitations (including the lack of criminal jurisdiction over non-Indians and the effects of Public Law 280), problems with state court recognition of tribal court orders, isolated location of most reservations (which presents problems in getting services to the community and necessitates substantial travel for CASA volunteers and staff), lack of funding for tribal programs and services, turnover/turmoil as a result of tribal elections, lack of community awareness concerning CASA, difficulty in adapting a non-Indian program to meet the needs of individual Indian communities, difficulty coordinating with state agencies/programs, difficulty of promoting a volunteer program in communities with high poverty and unemployment rates, and the critical need for Indian specific resources and program materials. Moreover, the needs assessment process identified and prioritized the training and technical assistance needs of the tribal court CASA programs.

The following is a partial listing of critical issues concerning tribal court CASA adaptation and innovative policies and procedures which are being developed by tribal court CASA programs:

• How to Organize Tribal Court CASA Programs: There have been substantial discussions concerning whether a tribal court CASA program should be a private non-profit organization or a tribal agency and, if a tribal agency, how it fits in the tribal governmental structure. It is clear that this is a critical decision which must be made early in the planning phase and that the factors involved in making the decision will vary from community to community.
  
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  How to Recruit Native American Volunteers: There have been continual discussions concerning this critical issue. Many different solutions have been discussed, including community education, brochures/posters, tribal newsletters, tribal resolutions, adding CASA provisions to the tribal code, and utilizing students from tribal community colleges as CASA volunteers.
  
  
• Tribal Resolutions on CASA: On many Indian reservations, the largest employer is the tribe itself. The tribe may hire employees to perform various tribal governmental functions and also to work for tribal business enterprises, including tribal gaming enterprises. Consequently, one of the innovative recruitment policies recommended for the tribal court CASA programs concerns working with the tribal government to enact tribal resolutions endorsing the CASA program and giving tribal employees time off from their jobs as tribal employees to perform CASA duties.
  
  
• Obtaining Credit at Tribal Colleges for CASA Volunteers: The Confederated Salish and Kootenai Tribes of the Flathead Reservation CASA Program (Montana) successfully worked with the Salish Kootenai College to recruit and train students as CASA volunteers and to provide college credit for these students. This program has been very effective and many of the tribal court CASA programs are planning to replicate the Flathead program through their own tribal colleges.
  
• Incorporating Tribal Custom and Tradition: There have been continual discussions concerning the critical issue of incorporating tribal custom and tradition into the tribal court CASA programs. Recommendations concerning this issue have included providing volunteer training on tribal custom and tradition and traditional child rearing methods, use of tribal language whenever appropriate, use of peacemaking/traditional dispute resolution methods, and use of other traditional methods such as family group conferences.
  
• Involvement of Tribal Elders: There have also been extensive discussions concerning the related issue of involving tribal elders in the tribal court CASA program as trainers, volunteers, board members, and program promoters. Tribal elders may have difficulty with some of the writing and/or oral advocacy aspects of the CASA role. Consequently, some programs are experimenting with more supportive efforts for tribal elder volunteers such as tape recording of oral recommendations/reports which are then included in a written report prepared by program staff and other types of report writing assistance. Moreover, the idea of partnering tribal elders on a CASA volunteer team with a younger volunteer (such as a tribal college student) is being developed.
  
• Traditional Program Name/Logo: Some of the programs have decided to use traditional concepts and/or word(s) from their tribal language for the program name of the tribal court CASA program. Other programs have developed traditional program logos. For example, the Grand Traverse CASA Program has developed a program logo which utilizes tribal custom and tradition to illustrate the CASA program. The Grand Traverse logo (see illustration) includes a bear which represents good medicine stepping in to protect children - like the tribal justice system steps in to protect children. Moreover, the logo represents that the CASA volunteer has to have the same qualities as the bear in order to perform their role - the CASA volunteers have to be brave and strong and they can draw upon the strength of the bear to fulfill their role.
  
• Volunteer Training: The volunteer training discussions have focused upon possible training resources (such as the state CASA programs), specific tribal court training needs (such as training concerning Indian law and jurisdictional issues), and the need to include tribal custom and tradition issues in all volunteer training (including the use of tribal elders as trainers).
  
• Small Tribal Community Issues: There have been extensive discussions concerning the specific issues/problem areas facing tribal court CASA programs. Some of these issues are related to the nature of a small rural community where everyone knows each other, but other issues are related to the specific nature of Native American communities. Two issues have been discussed extensively. First, the general consensus has been that the nature of most tribal communities makes it very difficult for tribal court CASA programs/volunteers to maintain the strict role boundaries generally set forth for CASA programs. Second, the nature of most tribal communities (except very large tribes or those tribes with geographically separated communities) makes it impossible to only assign volunteers to cases in which they do not know the parties. Instead, the tribal court CASA programs are developing an alternate method for screening volunteer assignments.
  
• Resources/Funding: There is a continuing need for more tribal court CASA resources, especially Native American specific resources. Moreover, there is a continuing need to develop funding strategies to meet the specific needs of the tribal court CASA programs.

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A series of technical assistance resources are being planned and developed to assist current and developing Tribal Court CASA programs. The following projects are proposed for the coming year: A general Tribal Court CASA brochure; Starting a Tribal Court CASA Program brochure; a Guide to Tribal Court CASA Program Development; A tribal court CASA resource guide; A sample tribal code CASA provisions; and Tribal CASA training curriculum/materials.

Listing of Tribal Court CASA Programs

For more information about the National CASA Tribal Project, please contact the National CASA Association.