Legal

Creative Civil Remedies

Chronic lack of resources combined with the complexities of criminal jurisdiction in Indian Country have inspired tribal court judges to creatively explore the outer limits of civil jurisdiction over both Indians and non-Indians. In addition to contempt of court, there are numerous other civil “remedies” that can be imposed.

Monetary Penalties:

These can include fines, fees, and assignment of court and attorney costs.

Community Service:

Community service can be orderedwhen the defendant does not have the ability to pay a fine or when payment of the fine would divert funds from restitution or other monies owed to the victim.  Traditional forms of community service (chopping wood for a ceremony, clearing ceremonial grounds) can also be ordered by tribal courts.

Restitution:

Restitution can be ordered in a civil case to make the victim as whole as possible and to compensate her for her losses. It is intended to indemnify the victim for any loss, damage, or injury that occurred as a result of the defendant’s conduct. Tribal courts can also order more traditional forms of restitution to compensate the victim for her losses such as gathering and delivering firewood, hunting or fishing for the victim, and payment for ceremonies.

Shame:

Some tribal communities traditionally used shame to publicize the defendant’s wrongdoing and to prevent future wrongdoing by the defendant and by others. Tribal courts in civil cases may order the defendant to be subject to some mechanism designed to cause him shame.  One extreme example would be ordering the defendant to wear a sign or t-shirt for 30 days that says “I sexually abused my relative.” 

Injunctions:

Tribal courts have the power to issue injunctions prohibiting the defendant from  committing, attempting to commit, or threatening to commit specified acts (e.g. contacting a victim, visiting certain locations, attending certain events, committing new crimes, etc.).  A domestic violence protection order is one of the more common examples of an injunction.

Forfeiture:

Tribal criminal and civil codes can contain forfeiture provisions that allow the tribe to seize property that has been used in the commission of a crime (e.g. to seize and forfeit a vehicle that was used in the commission of a crime of sexual violence). These provisions should be carefully drafted to comply with the Due Process clause of the Indian Civil Rights Act of 1968.

 

Exclusion or Banishment:

Tribes retain the right to exclude non-Indians (who do not otherwise have a federal right to be present) from tribal lands. Tribal codes may allow either the court or the legislative branch of government to issue orders banishing or excluding persons from tribal lands. 

 

Generally, the term “exclusion” is used for non-Indians and non-citizens/members and banishment is used for citizens/members.

 

Peace Bond:

Tribal codes may include a civil provision for the posting of a “peace bond.” Peace bonds are a type of surety bond issued against a person who has threatened another person or their property.  They can also be issued against someone with a long history of misconduct or who has threatened to breach the peace.

 

Defendants may be ordered to post a sum of money as a peace bond to ensure compliance with a court order. Upon compliance with the court’s order, the money posted by the defendant will be returned.

 

Civil Commitment:

Tribal courts may issue civil commitment orders to forcibly commit a person to a mental health facility for an indeterminate amount of time or to compel a person to receive mental health treatment.

 

The court must typically find, by clear and convincing evidence, that the person is an immediate danger to himself or others prior to issuing the order because of mental illness.  Counsel must be provided (if the person cannot afford counsel) and due process must be complied with during the proceedings. The purpose of civil commitment must be to obtain treatment for a person with a mental disorder who, as a result of that disorder, is a danger to himself or others. 

 

Treatment and Classes:

Tribal courts may also issue orders in a civil case for a defendant to attend parenting classes or batterer reeducation programs. Counseling and successful completion of substance abuse or alcohol treatment can also be ordered. Completion of job training courses or GED classes is other options for available remedies.  

 

Civil Arrest:

Tribal courts have the power to issue civil arrest orders against any person for failing to comply with a court’s previously issued order.  Pursuant to the civil arrest order, the person can be apprehended and detained by tribal law enforcement for a reasonable amount of time until the court can convene an evidentiary hearing to determine whether a violation has occurred. Tribal court judges should include language in the civil arrest order linking its issuance to the prevention of future violations of a previously issued court order.

 
 

Creative Civil Remedies

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*National Tribal Trial College is a project of the Southwest Center for Law and Policy (www.swclap.org) This project was supported by Grant No. 2011-TA-AX-K045, awarded by the Office on Violence Against Women, U.S. Department of Justice. The opinions, findings, conclusions, and recommendations expressed in this publication/program/exhibition are those of the author(s) and do not necessarily reflect the views of the Department of Justice, Office on Violence Against Women.