New year brings new code and Court of Appeals

For some, the New Year is a time to focus on evaluating and improving themselves. In that same vein, Tribal Council has evaluated the Appellate Code and the Tribe’s court of appeals – the Southwest Intertribal Court of Appeals – and has seen a need for improvement. Tribal Council was concerned about the delays in the Southwest Intertribal Court of Appeals’ processing of appeals from tribal court, and wanted to find an appellate court system that could better meet litigants’ needs. So on January 1st, a new Appellate Code and a new court of appeals – the Northwest Intertribal Court System – become effective.

The Northwest Intertribal Court System (NICS) is a non-profit organization established in 1979 that provides tribal appellate services and related court services. NICS has an established track record of reaching its decisions in a timely manner. NICS assisted the Tribe with revising the Appellate Code. NICS has a roster of justices that the Tribe will select from to serve as the Tribe’s roster of justices for its court of appeals. A decision before the court of appeals will be heard by a three-justice panel. Justices must be licensed in a state to practice law and will have at least five years’ experience of practicing or teaching law.

So how will this affect you? If you have a case before the Tribal Court and disagree with its decision, you may appeal that decision under the revised Code. Within 30 calendar days after the Tribal Court judgment or order, parties may appeal by filing a Notice of Appeal with the Tribal Court clerk, serving the appeal on the other party, and paying the filing fee. The Tribal Court will set the filing fee based in large part on the Tribal Court’s administrative costs. Some types of decisions may be appealed sooner.

You must still comply with a judgment that you appeal, unless you ask the Tribal Court to postpone the effect of the decision (called a “stay”) and the Tribal Court grants it. To determine whether to grant the stay, the Tribal Court will consider certain factors. You may also have to post a bond.

After you file, serve, and pay the filing fee, the Tribal Court clerk will certify and send the record to NICS and the parties. The record is the documentation compiled during the Tribal Court’s decision. Either party or NICS may correct any errors or omissions in the record. Once the record is finalized, NICS will inform the parties when to submit their written arguments, which are also called “briefs”. If appealing, you must file an opening brief, the other party must file a response, and you may file a reply. Non parties may request or be asked to file a brief in support of a party’s position. The briefing stage is critical because generally issues that are not briefed will not be considered at oral argument.

After reading the briefs and conducting oral argument, the three-justice panel will decide the case. The justices will uphold the Tribal Court’s factual findings unless no evidence supports a jury’s decision or the findings are clearly erroneous. The justices will not give deference to the Tribal Court’s conclusions of law. The justices, however, will generally uphold the Tribal Court’s exercise of discretion if it was applied appropriately and it was not an abuse. By a majority vote, the justices may affirm, modify, or reverse a Tribal Court decision; order a new trial or remand it to the Tribal Court; or make any other appropriate ruling.

Finally, the justices may award costs, but generally not attorney’s fees, except for frivolous appeals. And if no relevant Tribal or federal law exists to address a particular issue, the Court of Appeals may consider Colorado or federal law as persuasive authority.

If you bring an appeal in the New Year, you will be doing so under the revised Appellate Code and your appeal will be heard before the Northwest Intertribal Court System’s justices. NICS generally hears appeals within 90 days, which is much quicker than the current system.

Tribal Council will continue working on revisions and updates to other codes, and the tribal membership and tribal employees will have an opportunity to comment on those codes before they are enacted.

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