Riding the Crest of the Wave

Q&A > A conversation with Tom Tremaine about justice, Indian law, and tribal courts

BY COLIN RIGLEY

Some lawyers can pinpoint the exact childhood moment when they knew they wanted to be a lawyer and why. Retired judge Tom Tremaine is not that kind of lawyer. His career, as he describes it, sounds like that of someone who followed his gut, paid attention, adapted himself to his surroundings, and knew when to lean on others for help. That mindset turned out to be a good fit for a career as a lawyer and a judge in tribal court.

Now “mostly retired” (as he describes it), Tremaine served nearly two decades in various judicial capacities, including presiding judge of the Kalispel Tribal Court and pro tem judge in the Spokane and Colville Tribal Courts, and currently serves (his remaining active role) as appellate judge for the Spokane Tribe. He worked for 26 years as an attorney with Spokane Legal Services Center and Northwest Justice Project “representing the interests of children, adults, and tribes in tribal, state, and federal courts.” In addition to presenting on Indian child welfare and related topics for the National Congress of American Indians, National Legal Aid and Defenders Association, Federal Bar Association, and others, Tremaine authored two iterations of the Indian Child Welfare Act chapter of the Washington State Juvenile Non-Offender Benchbook and the chapter on Washington’s Indian Child Welfare Act in the 2022 third edition of the WSBA’s Washington Family Law Deskbook.

Behind the résumé, however, is the perhaps more interesting question of how a kid from a working-class home in Southern California ended up with a 30-plus-year career in law, more than a decade of that as a tribal court judge, and as one of the architects of Washington’s Indian Child Welfare Act?

Speaking to Tremaine via Zoom from his home in Spokane, I began with that question.

“I had done a lot of different things,” he said. “I’ve been a farm worker both out in the orchards picking and driving tractors and harvesting equipment and things like that. I’ve been a firefighter. I’d been a dishwasher. I’d been the machinist. … [O]nce I got to New Hampshire Legal Assistance, by the time the first week was over I said, ‘OK, yeah; I’ve found home.’ ”

That’s when he shifted his focus to the law. The shift to Indian law was equally serendipitous, or in his words: “Absolute random circumstance.”

Whether the circumstances were random—or the result of someone putting himself in the places he needed to be, surrounded by the right people—they began early on, as he drove a series of old VWs across the country, making pitstops in Northern California, Montana, New Hampshire, and Massachusetts, progressively focusing his work around seeking justice for those with low incomes and clients from marginalized communities. Two major influences on his path to legal services were his time in the Army—and in particular in Vietnam, he said—and working with adolescents as a counselor in New Hampshire. Both of those experiences raised concerns for him about power: who has it, who doesn’t, how it gets used, and who has a voice.

Shortly after starting at Gonzaga University School of Law, Tremaine—who had previous experience as a paralegal for legal aid programs in New Hampshire and Massachusetts—volunteered and then did work study at Spokane Legal Services Center (SLSC).

“I got to the end of my third year of law school … and that happened to be a year [1985] that the first distribution of IOLTA funds was made to Washington legal service programs, so SLSC had the money to hire a new attorney, and thankfully they said, ‘Oh, let’s hire Tom.’ ”

The new position was designated “outreach attorney” and was designed to serve the rural counties in northeast Washington state, which included the Kalispel and Spokane Indian Reservations and part of the Colville Reservation.

And that’s where we’ll pick up.

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Tremaine: I didn’t graduate with my class at the end of the spring semester … [I] had to take a few more credits, because I’d been working so much with Spokane Legal Services. So I was a little behind … and I didn’t take the bar with the rest of my class. And the tribal courts, at that time, were courts that I could appear in without having to drag a supervisor along. … And so I made my first appearances all by myself in 1985 in those two courts. And I hit it off with the people that ran those courts, and the experience was different than the … superior courts. It was very much about community justice. … That fit my sense of justice better than, you know, you-win-you-lose.

Q: How would you explain that difference to someone who wasn’t familiar with tribal courts?

Tremaine: As a starting point, it’s important to remember that, today, there are 574 federally recognized tribes, all of which have the authority, the sovereignty, to form their own justice systems and make their own laws, and to be governed by those laws. There are now 29 federally recognized tribes in the state of Washington.

And at one time or another I would guess that I have appeared in more than half of those courts. And I’ve appeared in tribal courts in other states as well. So, it’s not the same from one tribal court to the next … . Each tribe has its own governing body that has created and then over time modified their justice systems in their efforts to more fully exercise their sovereign authority.

Where my tribal court practice began, the judges sat at a table at the same level and just a few feet away from the parties. The hearings were often more like conversations about finding outcomes that served the needs of the people and the community. It was a pretty stark departure from say the Spokane County family law motion docket. The much smaller caseloads made it possible for the judges to take as much time as was needed.

In state courts over time, there have been greater and greater efforts to try to mandate mediation, arbitration, things that might reduce the conflict and anger that accompanies the hardcore adversarial process. The difference, I think, is that the effort in tribal communities is based on a sense of community … making sure that the community can function, that people have their place, that there is justice as defined by the community.

The first time I walked into Spokane Tribal Court, I said, “I’m here to represent this person. I understand there is a hearing today. I have done everything I could to try to figure out what is at issue, read the code, and figure out what’s going on. I don’t know the process.” Here I am, a complete idiot. Those were my exact words, “Anything that you can do to help me understand, so that I can be a useful part of this; that would be great.”

At that time there weren’t a lot of “in-town lawyers” that would come out to tribal court. I would hear lawyers in town who had had experiences in tribal courts say, “It’s just a kangaroo court.” Because they couldn’t step back from the hardcore adversarial process to be a part of participating in justice based on community standards—how the community wanted disputes to be resolved.

The evolutions that I witnessed in the tribal courts where I practiced were tribes trying to rely more heavily on their culture … principles, values that are internalized with everybody who lives in the community. And if those ideals are internalized, then people are committed to the process. … As explained to me by a judge from a traditional peacemaking court, if there is a dispute between people, not only are those two people out of harmony and balance, but it creates disharmony and imbalance in the community as well. And so you participate in the peacemaking process, because that’s your obligation as a member of the community.      

Q: Can you give us an overview of your involvement with Washington’s Indian Child Welfare Act?

Tremaine: My deep dive was accidental. … From the start a lot of the work that I did [was] in tribal court dependencies. … And I am not exactly sure how it is that I got the call, but there was a family in Spokane that was pretty well known to the state child-welfare apparatus. And there were two kids in that family that were in a state court dependency. I was  contacted by a social worker from a tribe in Montana with which the children were affiliated. …

And so I [had] these long conversations with the social worker … about the provisions for the federal act. In order to apply, a child had to be either a member of a federally recognized tribe or the biological child of a member and eligible in their own right to be a member, and “membership” was a term that Congress had used purposely to avoid a requirement that somebody had to be enrolled. … The children in this case were from a related, non-federally recognized band.

I ended up going and spending a long day with the tribal council and they were very concerned. There was litigation going on in certain parts of the country where the federal government was really applying muscle to the tribal governments, alleging that money allocated by the BIA [Bureau of Indian Affairs] was being misused. Nobody on this tribal council wanted to end up in jail for misusing their authority. I spent a lot of time, I said the same thing over and over again: “This is the authority that you have” [to decide who is and is not a member of the tribe]. … And so I just went out and sat for an hour. … They came back out and said, “OK, write us something up.” And then I said, “Well, so tell me why you’re making this decision, so that I can, you know, craft a resolution for you that will assure the state court that this is a decision that you’ve made.”

We did that.

The resolution was filed with the state court along with a notice of the tribe’s intervention. The next thing that happened in that case was that the state courts … appointed [a] guardian ad litem for the children—a really, really nice, sweet elderly white woman. Her husband was a doctor, and she was trying to do all the right things. And even though the tribe had identified family within the community where these children could be placed, the guardian ad litem recommended against [it] because she understood that there [were] high levels of unemployment and alcoholism on Indian reservations. Well, I filed a motion to have the guardian ad litem disqualified and to appoint a guardian ad litem that would actually take into account the circumstances of the family. …

But between the time that I filed the motion—and the judge yelled at me for attacking the guardian ad litem a week later when my motion was being heard—the guardian ad litem stood up and said, “But he’s right; I made assumptions, and they’re not warranted.”

There is just this implicit bias. I mean, [as] a child of the 60s and the 50s, I watched TV and how Native people were portrayed—the stereotypes that existed. And that’s what people knew. And they allowed themselves to operate based on stereotypes and ignorance. And that was and continues to be the value of the [Indian] Child Welfare Act, amongst other things, that it doesn’t allow for that. And as the federal act has been strengthened, and once we were able to get a state Indian Child Welfare Act, one of the goals of the state in the Indian Child Welfare Act was to do all that could be done to limit the mischief that state court judges could do based on their own, again, their stereotypes. …

It’s hard to understand for people who haven’t done a deep dive into the historical antecedents of the relationship between the tribes and the federal government, and who, like me, from the earliest age were subjected to the stereotypes that, sadly, inform our implicit bias. Down there in our lizard brain, there are associations that have been made again and again and just pummeled into us; whether we know that’s happening or not, they’re there. Unless you know that you really need to be guarding against this, it can be influencing … your thinking. … The upshot of the case was the children were permanently placed with their extended family on the tribe’s reservation and they thrived.      

Q: What should lawyers do to prepare if they’re going to be appearing in tribal court, they’re not familiar with the system, or haven’t done it before?  

Tremaine: They really, really need to read the tribe’s law and order code—however they define their own set of laws. … When I was the presiding judge at Kalispel, we made changes to the document that you had to sign [as] part of the oath of admission to practice to make sure that people were absolutely, positively clear on the fact that there were requirements that they know and understand the tribal code; and although a more difficult thing to discern, that they would learn and understand the standards of behavior and communication so that they could behave consistently with, and argue within the boundaries of the expectations of, the tribal community.    

 

Q: Did you find that lawyers generally, when they would come into a tribal court, if they were not familiar with it, had done the research and made sure that they knew the tribal codes and the standards of behavior? Or did you find that you were having to educate people?  

Tremaine: It’s still a problem, but less of a problem. … I guess my most important operating principle has always been: know what I don’t know and make sure that I ask the right questions. One of the things that I [have] worked really hard at is trying to have the standards, as I understood them in the communities where I was serving as a judge, reflected in the way that I treated … the parties, the witnesses, and the lawyers. …

Here’s kind of the central theme: Have respect for the court that you’re in. Have respect for the laws that apply, the behavioral and practice expectation of that court, and don’t treat it differently than you would any other court that you go into in any other jurisdiction—local, state, or federal. And if you fail to do that, you do that at your own peril. I remember an opposing attorney in one of my cases could not help himself. His manner of [adversarial] advocacy was baked in, and he ended up getting sanctioned because he couldn’t slow himself down. There are lots of things that go into being an effective advocate; acting in a way that assures you’ll be listened to seems pretty fundamental.      

Q: When you’re looking back on your career, what are the things that you remember fondly?  

Tremaine: [T]he thing that I am really grateful for is I have had the opportunity to know and work with a lot of amazing people: Clients who taught invaluable lessons on grace, perseverance, and taking responsibility; non-law-trained tribal court judges, members of their tribes, that probably better reflected the application of justice, the process of doing justice, than an awful lot of state and federal court judges that I have appeared before.

There have been colleagues at legal services that have been both a joy to work with … who had a sense of what they were about—that melded well with mine, and it just made for a great practice. People who are incredibly well-versed and who are articulate. … Because Indian law can be complicated; it can just be complicated. …

Some of the most amazing people have been the clerks and the court administrators in the communities where I have had the honor to practice, or be a judge. Welcoming, warm, helpful—sometimes in the face of incredible odds. … They’re the ones that have to then have the conversations with community members. …

Some community and tribal leaders that I’ve had the opportunity to work with who are just amazing in the face of overwhelming power from federal agencies. Hostility from a whole variety of outside interests. [They] kept at it, had the vision, and have done really amazing, incredible jobs of helping the tribes to fully assert their sovereignty, to improve the lives, the prosperity of their people and their communities. Those are the folks that really made everything happen, and I feel like most of the time I was riding the crest of their wave. They made it happen and I had the great good fortune to be in the right place at the right time, and they had the grace to tolerate me.

Child welfare is a difficult practice. There is so much heartbreak involved, and it is amazing to me when people can keep at it day after day, week after week, year after year. And there is, I can’t think of another way to describe it, a love of the people and the purpose from which they serve. …

The people, the tribal leaders, the Indian advocates, just kept at it. Heroes.

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