Miccosukee tribal court a contrast to Florida's system

The Miccosukees rely on ancient customs, elders and some contemporary law to pass judgment on Indians -- a private judicial system that bears little resemblance to courts outside the reservation.

BY DAVID OVALLE

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The inside of the Miccosukee Indian tribal courtroom reflects nods to both the past and present, with modern wood paneling and five big windows juxtaposed against a huge representation of the tribe's emblem: a chickee hut.

Beyond the trappings, the tribe's legal system -- based on ancient customs and traditions along with some contemporary jurisprudence -- operates vastly differently than Florida's system outside the reservation.

To start with, all defendants are Miccosukee who can choose to hear proceedings in English or their ancestral tongue. And the judges can be overruled by a general council made up of every adult in the tribe of 500-plus.

The tribe's system of justice has come under scrutiny recently because of the controversial January collision of an SUV carrying Miccosukees and a Kendall woman who was killed, and the subsequent handling of the accident by tribal authorities.

Last week, a Miami Herald reporter visited the court as part of the fifth annual Miccosukee Law Conference. The visit provided a rare look at a court system closed to outsiders.

Other court differences include:

• The judges, who can ask questions, are not lawyers. Of the two who preside, one specifically applies ancient tribal customs and laws.

• Criminal jury trials are rare. Generally, there is no prosecutor presenting evidence, though an accused Indian can bring a defense lawyer paid for by the tribe. Non-Indian victims may not be allowed to bring their lawyers.

• Civil proceedings, usually involving non-Indians disputing contracts, are resolved by the judges without a trial. A non-Indian attorney or advisor can be allowed in only with court permission.

• Only family members are allowed inside court. Neither court documents nor the docket are public; they can only be seen by parties to a case.

• Lawbreakers found guilty of alcohol or drug-related offenses are not sent to jail, but to a substance-abuse treatment center on the reservation.

''I guess it sounds like a family counseling type of thing, and that's what it is,'' said Miccosukee Minnie Bert, a judge since 1984.

''For now, it seems to work,'' said Petties Osceola Jr., the tribal customs judge.

The Miccosukee Tribal Court was established in 1981 to try Indians for minor crimes. Major crimes are supposed to go to state or federal court. But what constitutes a major crime in Miccosukee court?

Osceola and Bert insist major crimes never happen. They mostly see public intoxication and minor disputes between tribe members.

''What is a serious crime to you may not be as serious a crime to us,'' Bert said.

The January traffic accident, which occurred on a state road off the reservation, is under investigation by tribal police who have refused to turn over reports, photos or statements to the Miami-Dade state attorney's office or the family of the late Tatiana Furry. The Miccosukees cite their status as a sovereign nation as the reason for holding back the documents.

`PROFESSIONAL'

Former Miami U.S. attorney Guy Lewis has been hired by the tribe to represent the Miccosukee passengers. From past cases, Lewis says the tribal court is ``extremely professional and, frankly, rivals any state or federal court.''

But former Miccosukee police officer Alonzo Moncur II disagrees.

He recalled arresting a tribe member for public intoxication at the Miccosukee Resort and Gaming complex. The man choked Moncur while trying to escape, he said.

Anywhere else, that would be a felony charge of battery on a law enforcement officer. Instead, the tribal court fined the man $500 and banned him from the casino for six months, Moncur said.

''This guy could have killed me and nothing would have happened to him,'' Moncur said.

INTERNAL DISPUTES

Modern Indian tribal courts were created under federal law to resolve internal disputes. But their reach has grown recently as tribes extend their political and economic power, said Dennis Whittlesey, a Washington, D.C., attorney specializing in Indian affairs.

''I don't think there is justice in these courts. The judges are often not even lawyers, and more importantly are paid by the tribe. They usually follow the tribe's position in judicial matters,'' said Whittlesey, who is involved with a wrongful death suit against a Miccosukee tribe member in Miami-Dade court.

The Miccosukee court hears criminal, civil, juvenile and traffic cases. Its modern building is next to the police department by the tribe's Tamiami Trail administration complex.

Bert, Osceola and other judges hold court on the first Monday of every month. Neither Bert nor Osceola is a lawyer. Bernardo Roman, a Miami lawyer who started his career as a Miccosukee court clerk, serves as the legal advisor. He sits next to the judges.

The court operates under one basic assumption: Indians never lie to each other, Osceola said.

''That's our No. 1 taboo -- you can't lie,'' Osceola said to visitors.

In criminal cases, a prosecutor position exists but has been vacant for years, the judges acknowledged. A special prosecutor can be appointed.

At a mock arraignment Thursday, Miccosukee Jennifer Cypress was ''charged'' with trespassing. She chose to proceed in the Miccosukee language and was formally read the counts against her. A non-Indian lawyer sat at her side. In a real proceeding, she likely would have been warned and fined, Osceola said.

AGAINST JAILS

There is no Miccosukee jail, although the tribe can send someone to Miami-Dade jail for up to a year. That has not happened recently, former Miccosukee officers said.

''In our customs, we don't believe in jail. But it is in our code,'' Osceola said.

OFF THE HOOK

When Chairman Billy Cypress crashed his car into a non-Indian couple, almost killing them on a state road in 2006, the case went to tribal court. He was acquitted.

The victims did not attend the trial because they were not allowed a lawyer, according to former Miccosukee Police Chief Dave Ward.

In the most serious case in recent memory, tribal traditions trumped even murder.

In October 2000, Miami-Dade prosecutors asked the tribal court for help reaching uncooperative witnesses who the tribe was shielding in the murder prosecution of Kirk Douglas Billie. He was accused of drowning his two children by rolling an SUV into a canal near the reservation. The tribal court refused to help, siding with elders who forgave Billie and declared the deaths an accident. ''They sincerely believe this matter has been dealt with and resolved according to Miccosukee customs and traditions,'' the tribal court ruled.

But the state didn't forgive Billie and fought to prosecute him. Miami-Dade jurors ultimately convicted him of murder.

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