Independent tribal courts are judicial systems that are established and operated by Native American tribes within the United States. As of 2022, there are more than 330 Tribal Courts that stem from the 570 federally recognized tribal nations. These courts are separate from the federal and state court systems and are designed to handle legal matters within the tribe's jurisdiction.
The purpose of independent tribal courts is to provide a legal framework for Native American tribes to govern themselves and to resolve disputes within their communities, without interference from the United States federal or state governments. The independent tribal court system is an important tool for tribes to maintain their own legal traditions and to resolve disputes within their communities.
Tribal courts are also important for preserving tribal sovereignty and self-determination. However, they are limited in jurisdiction and funding.
History The history of independent tribal courts is complex and has been shaped by the federal government's policies towards Native American tribes. The establishment of independent tribal courts was a result of the Indian Reorganization Act of 1934, which aimed to promote tribal self-government and to preserve Native American culture and traditions. However, the federal government's policies towards Native American tribes have been inconsistent, and the relationship between the federal government and tribal courts has been fraught with tension. Despite these challenges, independent tribal courts remain an important part of indigenous resistance to western legal and cultural influence.
Pre-Indian Reorganization Act of 1934 Research shows that before contact with British settlers, tribal nations had contrasting conceptions of justice and community responsibility from those of the English and subsequent U.S legal jurisprudence. While English law emphasizes individual rights, many tribal nations believed in "reciprocal responsibilities." Thus, it was common for tribal nations to not have formalized “codes, rules, regulations, cases, or statutes.” However, once the U.S. government began its assimilation policies towards Indigenous people, it began to enforce its jurisprudence over tribal nations. The U.S. Bureau of Indian Affairs established the Code of Indian Offenses Courts, also known as the Code of Federal Regulation Courts (CFR Courts), which authorized U.S. Indian Agents to enforce federal law. CFR courts, with their objective to “remove savage practices," have been greatly criticized for their disregard of tribal sovereignty, and attack on cultural practices like the Scalp Dance, polygamy, and ceremonial dances. Furthermore, this system of enforced settler jurisprudence over Native nations harmed traditional justice practices in communities such as the Navajo Nation: “it imposed criminal laws and incarceration as punishment—a sanction incompatible with traditional, Navajo justice—and police and courts to enforce them.”
Indian Reorganization Act of 1934 The Indian Reorganization Act of 1934 had a significant impact on how Native American tribal courts operate. The Act aimed to promote tribal self-government and to preserve Native American culture and traditions. It allowed tribes to establish their own governments and to adopt constitutions and bylaws. This gave tribes the power to create their own legal systems and to establish independent tribal courts. Some tribes choose not to adopt these new constitutions, such as the Navajo Nation, which as of 2022, does not use a written constitution. The Act also provided funding for tribal courts and allowed tribes to contract with the federal government for law enforcement services. As a result, independent tribal courts became an important tool for tribes to maintain their own legal traditions and to resolve disputes within their communities.
The Indian Reorganization Act of 1934 also had a broader impact on the relationship between Native American tribes and the federal government. The Act recognized the importance of tribal sovereignty and self-determination and aimed to promote these values. It allowed tribes to establish their own governments and to make decisions about their own affairs. This was a significant departure from previous federal policies, which had sought to assimilate Native Americans into mainstream American culture. The Act also provided funding for economic development and education, which helped to improve the lives of Native Americans. Overall, the Indian Reorganization Act of 1934 played a crucial role in promoting tribal sovereignty and self-determination.
Post-Indian Reorganization Act Policies However, despite these advances towards Native sovereignty, the U.S. federal policy regarding tribal sovereignty in the second half of the century has been criticized for limiting the potential for self-determination. For instance, the Supreme Court ruled in the consequential 1978 Oliphant v. Suquamish case that tribal courts did not have jurisdiction to criminally prosecute non-native people who committed crimes on tribal land against Native people. This interference from the federal and state government to review and limit tribal jurisdiction is an example of the plenary power doctrine, the ability for the government to have “complete and exclusive authority,” within constitutional bounds. Scholar Angelique EagleWoman criticizes this doctrine as it applies to Indigenous sovereignty arguing the two main federal statutes that are often invoked by the government are not, "authorized by the U.S. constitution or consented to by the Tribal Nations."
Court Structure Many Tribal Courts are designed in a similar fashion to a state or federal court, and have increasingly expanded in jurisdiction and capacity. However structure and jurisdiction vary greatly across courts, for instance, some Tribes have more traditional justice systems such as the peacekeeping Courts of the Navajo Nation. The Indian Civil Rights Act of 1968 (ICRA) during the creation of tribal courts encouraged tribes to adopt a Bill of Rights that is similar to the U.S.’s bill of rights. However, there were differences as “Native courts were not “required to convene a jury in civil trials or criminal cases, to issue grand jury indictments, or appoint counsel for poor defendants.” Furthermore, there are three main kinds of Tribal Appellate Courts. They can either function as an individual entity, a body part of a larger regional system, or a court adjudicated by the tribal council rather than judges.
Funding Native American tribal courts receive funding from various sources, including tribal, state, and federal funding. Tribal funding is the primary source of funding for tribal courts, and it is often used to cover the costs of court operations, salaries for judges and court staff, and other related expenses. State funding is another source of funding for tribal courts, and it is often used to support court operations and to provide training and technical assistance to tribal court personnel.FY 2022 Funding Opportunities to Support Tribal Justice Systems. Washington, D.C: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance, 2022. Federal funding is also available for tribal courts, and it is often used to support court operations, provide training and technical assistance, and to fund specific programs and initiatives.
Under Title 25 US Code 3601, the federal government provides funding for tribal courts through the Indian Tribal Justice Support program. This program provides funding for tribal courts to improve their operations, provide training and technical assistance, and to fund specific programs and initiatives. The program is designed to support the development of effective and efficient tribal justice systems that are consistent with tribal traditions and values. The program also provides funding for tribal courts to address issues related to domestic violence, child abuse, and other crimes that are prevalent in Indian country. Overall, the funding sources for Native American tribal courts are diverse and are designed to support the development of effective and efficient tribal justice systems that are consistent with tribal traditions and values.
Bureau of Indian Affairs Tribal Priority Allocations (TPA) TPA provide federal funding for Tribal courts through a collection of programs. For example, in 2018, $28,698,000 was granted to tribal governments through TPA programs. Although TPA funds allow tribal governments to operate more effectively, the programs have long been criticized for not allocating adequate funds to the tribes most in need of federal support.
Jurisdiction
Tribal Jurisdiction Native American tribal courts have jurisdiction over a wide range of cases that occur within their respective tribes' territories. Tribal courts have the authority to hear both civil and criminal cases, including disputes over property, contracts, and family law matters such as child custody and adoption. Tribal courts also have jurisdiction over criminal offenses committed by Native Americans within their territories, including offenses related to drugs, alcohol, and domestic violence. 21st century legislation has increased tribal jurisdiction, however a tribal court’s authority depends on the backgrounds of the parties involved, involving different privileges if the conflict is between two Native tribe members, a tribe member and non-tribe member, with additional exceptions depending on the gender of the two parties, and the severity of the crimes.
Limits to Tribal Court Jurisdiction
Federal and State Jurisdiction over Native Americans Cases that involve non-Native Americans are typically referred to state or federal courts. The Major Crimes Act of 1885 gives the federal government jurisdiction over certain major crimes committed by Native Americans on tribal lands, including murder, manslaughter, and kidnapping. While Tribal Courts also have jurisdiction in some cases, the Indian Civil Rights Act limits the sentencing authority of tribal courts with only a few exceptions, resulting in cases often being heard by federal courts instead. For some Public Law 280 states such as Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin, state courts have criminal jurisdiction over crimes committed by Native Americans on Native lands that lie within state boundaries. While some legal scholars view federal and state jurisdiction as necessary, derived from the treaties that incorporated Indian land into the U.S.,Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978): 209 https://tile.loc.gov/storage-services/service/ll/usrep/usrep435/usrep435191/usrep435191.pdf others see federal interference as a limitation to tribal sovereignty and a hindrance to criminal justice, as jurisdictional issues can prolong the justice process, some even citing federal involvement as a form of neocolonialism.
Federal and State Jurisdiction of non-Native Americans on Tribal Land