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Tribal court on Indian Island works to solve problems, not deal with symptoms

Posted March 07, 2012, at 6:57 p.m.
Last modified March 07, 2012, at 7:15 p.m.
Penobscot Nation Judicial System Chief Judge Eric Mehnert.
Penobscot Nation Judicial System Chief Judge Eric Mehnert. Buy Photo
The jury box located at Penobscot tribal courtroom on Indian Island in Old Town as seen on Wednesday, March 7, 2012.
The jury box located at Penobscot tribal courtroom on Indian Island in Old Town as seen on Wednesday, March 7, 2012. Buy Photo
The Penobscot Nation flag (foreground) and other important symbols of the nation's heritage are seen in the tribal court  on Indian Island Wednesday, March 7, 2012.
The Penobscot Nation flag (foreground) and other important symbols of the nation's heritage are seen in the tribal court on Indian Island Wednesday, March 7, 2012. Buy Photo

INDIAN ISLAND, Maine — About a dozen people lined the back of the courtroom Wednesday morning. While they waited for the judge to convene the arraignment session, most spoke with Stephen Brimley, director of the Penobscot Nation Judicial System.
“I wouldn’t call the judge ‘Judy’ if I were you,” he joked with one defendant, referring to the popular syndicated courtroom reality television show that features Judith Sheindlin.

While Judge Judy’s job is to entertain and dispense justice, Eric Mehnert, the chief judge of the tribal court, sees his job differently.

“My direction from the Tribal Council is to be a problem-solving court,” he said Wednesday during a recess. “The state court system, for the most part, deals with the symptoms that bring people to court. Here, we try to get at and deal with the root cause of the problem or problems that bring people to court.”

In most ways, the Penobscot tribal courtroom looks a lot like courtrooms in state-run courthouses in rural Maine. There’s a raised bench where the judge presides and tables for opposing counsel.

To the judge’s left is a witness box and jutting out from the wall is an area sectioned off for a jury. There’s a court clerk and a recording system to create a record of all proceedings, but there are no court officers.

There also are some obvious differences. The jury box holds six, not 12, people and there is no “bar” separating the public from the lawyers and judge. The walls are filled with art and artifacts created by tribal members rather than paintings of former jurists.

The court was created in 1979 to emulate the District Court system, according to Maine Supreme Judicial Court Justice Andrew Mead, who was the first judge in the tribal court. Bangor-area attorneys were hired to act as judge, prosecutor and public defender, Mead said in a telephone interview earlier this week.

He called it a “people’s court” long before there was a television show by that name.

“On Dec. 13, 1979, armed only with good intentions and a large gavel, I conducted the first session of the Penobscot Tribal Court,” Mead wrote in the November 1989 issue of the Maine Bar Journal in an article about his 10 years as a judge on Indian Island.

The court has exclusive jurisdiction over Class D and E crimes, which are classified as misdemeanors, juvenile offenses, civil actions between members, federal Indian child welfare matters and domestic relations matters between tribal members.

State laws have been adopted by the tribe, according to Brewer attorney Matthew Erickson, who works 15-20 hours a week as the tribal prosecutor. The biggest difference between state statutes and tribal regulations is in the hunting and fishing laws, he said.

The court has jurisdiction only over tribal members. In criminal matters, the court handles cases in which the defendant is a Penobscot and the alleged crime occurred on tribal land. So, if two people under the age of 21, one a tribal member and one not, were caught on Indian Island with alcohol, the Penobscot’s case would be heard in tribal court and the nontribal member’s case would be on the Unified Criminal Docket at Penobscot Judicial Center in Bangor.

Major crimes such as a murder on tribal land would be handled in U.S. District Court in Bangor. Class A, B and C crimes, which are classified as felonies, are transferred to the Unified Criminal Docket at the Penobscot Judicial Center in Bangor.

Funding for the court and its staff, including the judge, public defender, prosecutor, court clerk and director, comes from two sources, according to Brimley. About two-thirds of the court is funded through the U.S. Justice Department and the other one-third is funded by grants. The drug court program is funded with grant money, he said.

Although the tribal court was set up to mirror the state courts, it also was designed to reflect the Penobscots’ culture and governance style, Mead wrote.

“The traditional way of adjudicating disputes was for an elder to try to mediate,” Mead said. “We tried to simulate that in the courtroom and let anyone say whatever they wanted to say.”

Tribal court also was and still is more informal than District Court. In his article for the Bar Journal, Mead wrote that crying babies and roaming dogs were “de rigueur” in the court’s early days.

“Although fewer dogs are attending court these days, it was not uncommon in the past for a defendant’s dog to stroll behind the bench and put its head on my lap during the course of a trial,” he wrote. “Not wishing to seem aloof, I would generally scratch the dog behind the ears and hope it shared my sense of impartiality in the outcome of the case. I am pleased to report that the hand of justice was not once bitten.”

There were no dogs in court Wednesday. The morning docket included three defendants in the Penobscot Nation Drug Court and defendants charged with civil and criminal violations, including operating without a license, driving with an expired inspection sticker and violation of a condition of release.

Family and civil matters were handled in the afternoon.

The court handles less than 200 cases a year, about half of them criminal or civil violations and the other half family or civil cases, according to Brimley.

“One of the real benefits of the tribal court is that the docket load is not as heavy as it is in District Court, so you have time for people to hear one another,” said Mehnert, who spends eight to 10 days a month either presiding or working on tribal court cases. “We are able to take more time with people so they don’t feel there was a rush to judgment.”

Mehnert said that last year he issued a written decision in a running-stop-sign case, something a District Court judge would not have time to do.

“On the civil side, people often represent themselves,” he said. “When I instruct the parties on [court] procedure, I tell them that they must listen to the other side. Oftentimes at the end of the hearing, we will take a break and I’ll give them five minutes to come up with a resolution. It’s surprising in how many cases people are able to come to some consensus.”

More than 20 years ago, Mead outlined the goal for which he and court personnel strived.

“Justice can be measured by only one standard: the perception of fairness by the litigants,” he wrote for the Bar Journal. “The physical grandeur of a court room or the eloquent oratory of the magistrate are of little value if a party doubts the fairness of the proceeding. Accordingly, at the tribal court, rather than striving for lofty, abstract legal objectives, we have been content to try for fairness.”
Mehnert echoed that sentiment Wednesday.

“Whether people believe they have due process is as important as the due process itself,” he said.

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