Harring, Sidney L --- "American Indian Law: Tribal Courts & Tribal Justice in the Us" [2002] ALRCRefJl 8; (2002) 80 Australian Law Reform Commission Reform Journal 37

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Reform Issue 80 Autumn 2002

This article appeared on pages 37 – 41 & 71 -72 of the original journal.

American Indian law: tribal courts & tribal justice in the US

By Sidney L Harring*

In Australia, as in most other nations with substantial tribal minority populations, the issue of ‘self determination’ in local matters, including the administration of law, is regularly put forward.

This demand becomes especially important in nations where tribal minorities are identified as having high rates of crime, alcoholism, family disorganisation, and other social problems. The argument for this position is that the legal institutions of the dominant society are, for various reasons, unable to operate effectively in tribal communities. This could be for any number of reasons ranging from simple cultural differences and insensitivity, to overt accusations of racism, political domination, and neo-colonialism. The discussion of the wisdom or appropriateness of the clear policy option of the devolution of law and justice to indigenous communities then proceeds along these lines. At its most basic level, however, there is an underlying lack of understanding about the basic ‘workability’ of native court and justice systems. How can it work?

One way to proceed is to simply describe one model of tribal law: in the United States, the Indian nations have the basic legal right to their own courts and to use their own law, both criminal and civil. Modern developments have structured and limited this basic right, but at present, over 250 Indian communities (out of about 400 outside of Alaska) have a functioning system of law and justice on their reservations. These legal systems operate on a regular basis, and hand down many thousands of judgments a year that are fully accepted by both the participants and the broader American legal system. Under the basic principle of comity, the judgment of a tribal court must be recognised by all other American courts. Various appellate procedures exist but, by and large, the final judgments of tribal courts can only be appealed within the tribal legal system, and not to the parallel state or federal courts. Thus, the system of tribal law is a complete legal system.

US tribal courts - the legal history

American federalism began when the States and the people created the Constitution in 1787 and ceded to the federal government clearly delineated and limited legal powers. All powers not ceded to the federal government were ‘retained’ by the States and the people. Although no one apparently thought about it at the time, the Indian tribes, at the making of the Constitution, exercised full legal authority over both their members and their physical territories. While there was a certain amount of legal chaos through the early 1800s with different States dealing with tribal law in different ways, by the 1830s the United States Supreme Court, in a series of opinions now called the ‘Cherokee cases’, held that the Indian tribes were ‘domestic dependent nations’ entitled to govern their own internal matters under their own law.¹ This is still the basic paradigm, and has survived many thousands of legal opinions.

The ‘domestic dependent nations’ language, however, is oxymoronic – nations are ordinarily neither ‘dependent’ (but they sometimes are) nor ‘domestic’, although there were some models in post-Napoleonic Europe at the time. By the end of the 19th century, in response to a 1883 case, ex parte Crow Dog – in which a Brule Sioux killed his chief in a political struggle over accommodation with the United States government and had his death penalty conviction overturned by the United States Supreme Court on the ground that the tribe, and not the federal government, had criminal jurisdiction – Congress enacted the Major Crimes Act (1885) taking federal jurisdiction over major felony crimes in ‘Indian country’.² This statute was upheld in 1886 by the US Supreme Court in ex parte Kagama in a reading of the ‘domestic dependent nation’ language, which held that tribal sovereignty was an anomalous kind of sovereignty because of their ‘dependency’.³ Therefore, Congress, for their welfare, could choose, unilaterally, to limit that sovereignty. This is now called the ‘plenary power doctrine’, and it has survived parallel to the ‘domestic dependent nations’ doctrine in a tenuous relationship that essentially means that the Indian nations retain their sovereign powers unless Congress clearly and unambiguously limits them. While this means that Congress could abolish the legal and political function of the Indian nations, it has not done so. In fact, the specific policy of the federal government since the 1960s is to promote and defend tribal sovereignty in order to strengthen and maintain vital Indian communities.⁴ This policy is, somewhat amazingly given the polarisation of American politics, bipartisan, with Republicans often as committed to tribal sovereignty as Democrats.⁵ There is, however, substantial resistance to these policies in the rural West. The current United States Supreme Court has been hostile to extensions of tribal sovereignty into such traditionally state government areas as taxation and regulation, but has basically left internal tribal jurisdictional matters alone.⁶

Tribal courts in operation

With this legal basis, about 250 Indian communities, mostly the larger reservations in the West, but also all over the country, maintain their own legal systems. This also means that over 100 other Indian communities do not do so, a set of issues that I will return to. The basic requirement for an Indian community to maintain its own law is that it must apply its law within ‘Indian country’, which now, more or less, means a designated reservation, although Indian villages in Alaska are clearly in ‘Indian country’ without holding reservations. ‘Indian law’ only applies within ‘Indian country’: because about half of all American Indians live off reservation, in neighbouring communities or farther away in major cities, these Indians all live under the same law, state or federal, as any other person.

The 200 Indian communities with their own law can operate their courts in any way they choose, based on any law adopted by tribal authorities. In general, there are three distinct types of legal systems. Some number of tribes, at least 20 or 30, and mostly in the south-west, still apply ‘customary law’ through customary legal processes. This means that the chiefs and councillors are also judges and juries, meeting in any form they choose and applying an unwritten ‘customary law’ as they understand it. Since these tribes do not have to account for their law to anybody, because it is largely unwritten, and because there is no appeal from the decisions of these bodies, we know relatively little about these legal processes. It is clear, however, that this ‘customary law’ has become an evolving law, which works effectively in keeping community conflicts within manageable limits. These tribes are maintaining a continuity in their law, dating back to time immemorial.⁷

A second type of tribal legal system is the few remaining Bureau of Indian Affairs (BIA) Courts of Indian Offenses. These courts were originally set up by the BIA, an agency of the federal government, under the authority of individual Indian agents to ‘train’ Indian tribes in self-government and to maintain order. The Indian agent appointed ‘judges’, who held ‘trials’ in much the same way as a school, for example, might have ‘disciplinary tribunals’. In a federal court case, ex parte Clapox, in fact, the Court held that these tribunals were analogues to school disciplinary bodies and their judgments not appealable to federal courts.⁸ That these courts even still exist is anomalous, because they truly are remnants of 19th century colonialism, but some number – more than 20 – still exist for a number of reasons. A few small tribes have such systems. Others have histories of political struggle that have impeded setting up a tribal government. Others choose not to cooperate with the federal government in creating a tribal government, leaving these historical BIA institutions in control.

Most tribal court systems, more than 150 of them, are administered by tribal governments under the Indian Reorganization Act of 1934 (IRA). The IRA was the Roosevelt administration’s ‘new deal’ for Indians. While it is still controversial, the essential model was one of municipal self-government in order to ‘encourage’ Indian tribes to develop self-responsibility and avoid models of dependence. Indian tribes were required to organise elections, then elect a chief and councillors, who were, in turn, responsible for local self-government. This local government included tribal courts, organised on the model of municipal courts. Judges were either elected or appointed, and applied a ‘legal code’ passed by the tribal council.

These ‘tribal codes’, in turn, are most often copied from other American jurisdictions. The federal government, in fact, distributed copies of ‘model’ tribal codes for the various tribal councils to adopt. Thus, the tribal criminal codes often look very much like the state criminal codes of adjacent non-Indian communities. As tribal government became more well organised, tribes moved on to take control of civil law, state environmental, family, traffic, and hunting and fishing codes were also modified and adopted. The Navajo Tribe has even adopted most of the Uniform Commercial Code. But the exact character of ‘Indian law’ is complex and the subject of much discussion. Even when the formal ‘law’ appears to resemble that of other American jurisdictions, tribal courts may apply indigenous values or meaning to those rules.⁹

While the substantive law applied in these IRA tribal courts is very similar to the substantive law of the States, it does not have to be. Each respective tribal council makes its own legal and political decision as they address the legal problems of their respective tribes.¹⁰

Tribal legal procedures are also, perhaps not surprisingly, similar. The Indian Civil Rights Act of 1968 imposed many provisions of the US Constitution’s Bill of Rights on the tribes. Accordingly, a defendant in a tribal court has the right to a jury trial in ‘non-petty’ cases, the right to counsel, the right to confront his accusers and call witnesses. Observing a modern tribal court in operation is not much different than observing a criminal court in a small town. Some tribes operate appellate courts, but most do not. The decisions of tribal courts cannot, ordinarily, be appealed to state or federal courts because they do not operate under state or federal law. Rather, they operate under tribal law.

While this has given tribal courts a great deal of legitimacy, it has also raised a criticism that tribal courts should consciously be more ‘Indian’ and apply tribal customs and values in their decisions. Specifically, an argument is that they should be more concerned with native values such as collective unity and harmony, and more interested in securing restitution and rehabilitation in criminal cases rather than in routinely imposing jail sentences not unlike might be imposed in non-Indian courts.¹¹

Perhaps most importantly, the Indian Civil Rights Act limited the jail term a tribal court could impose to six months. This provision clearly weakens the scope of tribal authority in more serious cases. The Major Crimes Act, now applying to 14 serious crimes – basically everything more serious than car theft and felony assault – effectively removes all serious offences to federal courts. This means that the Federal Bureau of Investigation (FBI) functions as a ‘local’ law enforcement agency in Indian country, investigating ordinary felony crimes and making routine arrests. These ‘major’ criminal cases are prosecuted by United States attorneys in federal district courts. Federal jurisdiction is based on the fact that the Indian tribes and their lands are under federal protection and supervision.

Since this system has now been in place well over 100 years, it ordinarily operates quite efficiently. But, in describing it to people who do not understand it, it looks complex and unwieldy. A big bar fight, for example, might involve both federal and tribal jurisdiction. If one of the parties drove off drunk and hit somebody over the reservation border, it would also involve state jurisdiction. But, the reality of modern American criminal justice is that competing jurisdictions are everywhere and it is up to the respective authorities to ‘sort it out’. It is clear that tribal and federal jurisdiction is concurrent, therefore, even if the Major Crimes Act has been violated, if the FBI does not choose to make an arrest, tribal police can. Therefore, even cases of homicide may be tried in tribal courts – as long as the sentence imposed is no more than six months. In many cases, this result is routine. For example, although cases of car theft are under federal jurisdiction, routine car theft cases, especially involving youths, are often left to the tribal courts on the theory that a six-month sentence is probably sufficient and the tribal legal process is cheaper and more efficient.

These competing jurisdictions, called ‘checkerboard’ jurisdiction, becomes even more complex because it is now clear that the tribal courts have no jurisdiction over whites and non-resident Indians (although they do have jurisdiction over resident Indians who are members of different tribes).¹² The respective States retain jurisdiction in such cases. Using the bar fight as an example again, tribal police have jurisdiction over tribe members and resident Indians, until the crime charged becomes federal under the Major Crimes Act. If a non-Indian or non-resident Indian is involved, they are under state jurisdiction, whether the crime is petty or not. Thus, the bar fight might be prosecuted in three courts, and the fighters subject to three different sets of penalties. The law of ‘equal protection’ does not apply to the legal status of Indians because it has been held to be a constitutionally recognised political status, so the respective offenders cannot appeal against their unequal sentences on this basis. This logic has already come to its most extreme result: in a felony murder on an Indian reservation, the Indian offender did not face the death penalty because there is no federal death penalty for the offence, but the white offender, because the State did provide for a death penalty under those circumstances, did. While this is clearly not fair, this routinely happens everywhere when offences are prosecuted in different jurisdictions.

Indian communities without tribal courts

As outlined above, of the roughly 400 Indian reservations in the continental United States, only about two-thirds live under any form of tribal court, although informal community-based ‘peacemaker courts’ may still function outside of tribal government. Most of the eastern tribes do not have tribal courts, although a few do. Many of these reservations are very small in population, often with only a few hundred residents. In such communities, there may not be either sufficient population, or a sufficient economic base to support the courts.¹³ Others may be occupied by Indian communities that have long been acculturated into local legal systems. A few have a level of poverty and social disorganisation that makes it impossible to establish and maintain a court system.

In about 10 States, mostly in the east, but also including California, state law was extended over most Indian communities by federal statute, mostly in the 1940s and 1950s. Some of these tribes, like the Seneca in New York and the Menominee in Wisconsin, have had their tribal court systems restored after having lost it for some period of years. For those tribes without their own court systems, law enforcement is a matter for federal authorities unless Congress has specifically put the tribe under state jurisdiction. The plenary power doctrine has permitted Congress to make a wide range of provisions for tribal law, varying from tribe to tribe and State to State.

Conclusions

In general, the operation of tribal courts in the United States is so well established that it simply is not much of an issue. This is not to say that small town and rural whites in the West do not resent or criticise the tribal courts, because they certainly do. Within legal circles, however, the system operates efficiently. No scholar of Indian law fails to recognise that the tribal courts are a positive force in Indian communities.¹⁴ At the simplest level, it means that minor criminal matters, probably more than 95 per cent of all criminal cases, are dealt with at the community level by a tribal judge, and tribal court officials. Even if jail terms are applied, they are spent in a tribal jail, tended by Indian jailers. All of this matters.

At a broader level, few would also question that it strengthens Indian communities to operate their own political and legal systems. It is empowering. Having legal responsibility for your own community is a powerful force in human society. Similarly, the legitimacy of the courts is beyond question: they are not imposed from outside, but are composed of the neighbours of the defendants. Tribal courts also carry clear economic benefits: Indian communities with few jobs might have 10 or 20 people working in law enforcement and for the tribal courts.

While the tribal courts have been criticised for operating too much like American courts in general, they have also carved out some uniquely Indian jurisprudence. Studies of tribal courts conclude that there are differences in the way that cases are disposed of.¹⁵ Tribal courts have taken a leading role in diverting drug and alcohol addicted defendants into their own tribal treatment institutions. There have been experiments with using community leaders and elders actively in probation or jail diversion programs with young people. Beyond criminal law, the involvement of tribal courts in family law matters has been credited with assisting in efforts to strengthen Native American families, particularly in the area of adoption law. Tribal regulation of hunting, fishing, and the environment has largely been successful. Indians involved in civil lawsuits can expect more help and support in tribal courts than in the local non-Indian courts.

Law is a powerful force in the social life of any community, and it is deeply interrelated with all other aspects of human life. If tribal communities are to be supported in a multicultural society, expected to not only survive but to prosper, they need real power in determining what happens in their communities. The law is powerful in many ways: not only do tribal police officers directly intervene in problem situations, but tribal judges hold the offender to account the next day. These actions are unequivocal symbols of the tribe’s vitality. One Monday morning in the Navajo Tribal Court the usual crowd of troubled young people were brought up from jail after a Saturday night binge. The judge addressed each prisoner first in Navajo. One young man snapped back in a hostile tone, “I don’t speak Navajo.” The judge just stared at him for a long, silent moment, and then said in a low measured tone in English, “Well, then I will speak to you in your language.” The symbolism was evident: whatever language that young man spoke, he was a defendant in a Navajo court – and you can be assured that he knew it.

* Professor Sidney L Harring teaches at the City University of New York Law School.

Professor Harring has done extensive research and writing on juries, police, American Indians and the social history of American law.

Endnotes

1. Worcester v Georgia [1832] USSC 39; 31 US 515 (1832). G Edward White, The Marshall Court and Cultural Change, 1815-1835 (1988), Macmillan, New York; John Wunder, Retained by the People: A History of American Indians and the Bill of Rights (1994) Oxford University Press, New York.

2. [1883] USSC 252; 109 US 556 (1883); Sidney L Harring, Crow Dog’s Case: American Indian Sovereignty, Tribal Law, and United States Law in the Nineteenth Century (1994) Cambridge University Press, Cambridge.

3. [1886] USSC 194; 118 US 375 (1886).

4. For a complete survey of American Indian law see David Getches, Charles F Wilkinson and Robert Williams Jr, Federal Indian Law: Cases and Materials, (4th ed, 1998) West Publishing Company, St Paul; and Charles F Wilkinson, American Indians, Time, and the Law (1987) Yale University Press, New Haven.

5. One of the ironies of Indian America is that many of the tribes have staunchly Republican values, a product of their place in the rural American west. Senator Ben Nighthorse Campbell, the only Indian in Congress, changed his party affiliation from Democratic to Republican.

6. The Rehnquist Court has, however, regularly sacrificed tribal power to broader concerns of states rights doctrine. David Getches, ‘Beyond Indian Law: Athe Rehnquist Court’s Pursuit of States’ Rights, Color-Blind Justice and Mainstream Values’ (2001) 86 Minnesota Law Review 267. David Wilkins, American Indian Sovereignty and the US Supreme Court (1997) University of Texas Press, Austin.

7. Sidney L Harring, ‘Indian Law, Sovereignty, and State Law: Native People and the Law’ in Philip J Deloria and Neal Salisbury, A Companion to American Indian History (2002) Blackwell, Oxford, 441-459.

8. 34 Fed Rep 575 (1888).

9. Tom Tso, ‘The Process of Decision Making in Tribal Courts’ (1989) 31 Arizona Law Review 225; James Zion, ‘The Navajo Justice and Harmony Ceremony’ (`1993) 10 Mediation Quarterly 327.

10. There is a wide range of practices among the 200 tribal courts. General discussions of tribal court practices are Robert Cooter and Wolfgang Fikentscher, ‘Indian Common Law: The Role of Custom in American Indian Tribal Courts’ (1998) The American Journal of Comparative Law 46, Part I, 287-337; Part II, 509-580; Nell Jessup Newton, ‘Tribal Court Praxis: One Year in the Life of Twenty Tribal Courts’ (1998) American Indian Law Review 22, 285-353.

11. Robert B. Porter, ‘Strengthening Tribal Sovereignty Through Peacemaking: How the Anglo-American Legal Tradition Destroys Indigenous Societies’ (1997) Columbia Human Rights Law Review 28, 235-296.

12. In Oliphant v Suquamish [1978] USSC 34; 435 US 191 (1978) the US Supreme Court held that tribal courts did not have jurisdiction over non-Indians, a decision that limits the sovereignty of Indian tribes over their lands, but not over their members. Until this case was decided, tribal courts routinely exercised criminal jurisdiction over non-members.

13. Tribal courts, police, and jails are financed through tribal revenues, although the federal government provides a variety of financial support schemes for tribal governments. Therefore, a choice to operate a tribal court system does represent a substantial financial commitment on the part of a tribe, and some tribes cannot easily afford it.

14. Frank Pommersheim, Braid of Feathers: American Indian Law in Contemporary Tribal Life (1995) University of California Press, Berkeley.

15. Nell Jessup Newton, ‘Tribal Court Praxis: One Year in the Life of Twenty Tribal Courts’ (1998) American Indian Law Review 22, 285-353.