Kara Sears
Native American law, also referred to as American Indian law, encompasses legal issues arising between tribes, the federal government, and states. Federally recognized tribes are governed by federal law and the law of their sovereign governments, which include executive, legislative, and judicial bodies. Tribal law, deeply rooted in tradition and culture, is a set of legal principles and practices that govern the affairs of Native American tribes within the United States. It is unique in that it applies only to Native American tribes and their members, with its own court system independent of federal and state courts. Common law, a body of unwritten laws based on legal precedents, influences the decision-making process in unusual cases where existing statutes or written rules of law are inadequate or unjust. It is used in Native American cases to navigate the complex interplay between tribal law and federal laws, particularly in areas such as criminal law and environmental regulation.
| Characteristics | Values |
|---|---|
| Tribal law is unique to Native American tribes and their members | |
| Tribal law has its own court system | |
| Tribal law must comply with federal and state laws | |
| Tribal law is enforced by tribal courts and law enforcement agencies | |
| Tribal law allows Native American tribes to govern themselves and protect their cultural heritage and resources | |
| Tribal law is deeply rooted in tradition and culture | |
| Tribal law is not uniform across all Native American tribes | Each tribe has its own distinct legal system |
| Tribal law shares common principles, such as a focus on community harmony and restorative justice | |
| Tribal law is influenced by customary law – unwritten principles and practices that have been passed down through generations | |
| Tribal law is influenced by federal Indian education legislation, such as the Indian Education Act of 1972 | |
| Tribal law is influenced by federal statutes dealing with Indian rights and governance, such as the Indian Reorganization Act and the Indian Civil Rights Act | |
| Tribal law is influenced by Public Law 280, which gave certain states jurisdiction over crimes committed on Indian reservations | |
| Tribal law is influenced by the Indian Child Welfare Act (ICWA), which specifies the circumstances under which cases can be transferred from state to tribal court | |
| Tribal law is influenced by the discovery doctrine, which states that title to lands discovered by Europeans vested in the discovering European sovereign | |
| Tribal law is influenced by the Supreme Court's decisions in cases such as Oliphant v. Suquamish Indian Tribe and Plains Commerce Bank v. Long Family Cattle Co. |
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What You'll Learn
Tribal sovereignty and the federal government
Tribal sovereignty in the United States is the concept of the inherent authority of Indigenous tribes to govern themselves within the country's borders. The U.S. federal government has recognised American Indian tribes as independent nations and entered into policy agreements with them via treaties.
The recognition of tribal sovereignty in the U.S. Constitution did not prevent centuries of settler and colonial violence, state-sanctioned genocide, and U.S. government-directed efforts to forcibly remove, dispossess, assimilate, and terminate tribal nations. It wasn't until the 1970s that the federal government began to actively support, rather than undermine, tribal self-governance.
The Indian Reorganization Act of 1934 is widely considered to be the year when tribal authority gave legitimacy to tribal courts, instead of U.S. authority. An opinion issued by John Collier and Nathan Margold, solicitors, stated that "sovereign powers inhered in Indian tribes except for where they were restricted by Congress".
Congress has enacted sovereign authority to protect Indian groups from state authority. This authority extends to Indian tribal courts, which handle matters relating to Indian affairs. Tribal sovereignty includes the right to govern one's community, preserve one's culture, and control one's economy. Tribal nations are guaranteed the power and/or right to determine their form of government, define citizenship, make and enforce laws through their own police force and courts, collect taxes, and regulate property use.
Tribal sovereignty is dependent on, and subordinate to, only the federal government, not states. While tribal nations do not have direct access to U.S. courts to bring cases against individual states, they do enjoy immunity against many lawsuits. The sovereignty extends to tribal enterprises and tribal casinos or gaming commissions.
The federal government has special obligations to protect tribal lands and resources, defend tribal rights to self-government, and provide for the education and economic development of Native Americans.
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Tribal law and common law differences
Tribal law and common law are distinct from each other. Tribal law is the law that tribes develop and apply to their members and territories. Each tribe has distinct cultures and laws, and tribal governments have the power to determine their governance structures, pass laws, and enforce laws through police departments and tribal courts.
Tribal constitutions and codes are at the heart of self-government for over 500 federally recognized tribes. Most tribes have written constitutions, with provisions equivalent or analogous to the Bill of Rights provisions. Tribal governments are responsible for a broad range of governmental functions on tribal lands, including education, law enforcement, judicial systems, healthcare, environmental protection, and natural resource management.
Common law, on the other hand, refers to a body of law developed based on precedents set by previous court decisions. In the context of Native American law, federal common law doctrines, such as the "discovery doctrine", have been used to shape the relationship between federal, state, and tribal governments. This doctrine, introduced in Johnson v. M'Intosh in 1823, asserted European sovereignty over Native American lands upon their discovery of the New World, depriving tribes of the power to alienate their lands freely.
While tribal courts primarily handle civil and criminal cases involving tribal members, federal intervention may be warranted in certain circumstances, such as when criminal behaviour goes under-prosecuted or in cases involving non-tribal members. The Indian Child Welfare Act of 1978 (ICWA) is an example of federal legislation that intersects with tribal law, as it places Native American children under the jurisdiction of tribal courts in custody proceedings.
In summary, tribal law reflects the unique cultures and legal norms of specific tribes, while common law principles, as interpreted by federal courts, shape the broader legal framework within which tribal law operates.
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Tribal court systems
The tribal court system is deeply rooted in tradition and culture, with customary law, or unwritten principles and practices passed down through generations, playing a vital role in decision-making and conflict resolution. This customary law is often applied when written law is deemed inadequate or unjust, reflecting the community's focus on harmony and restorative justice. Tribal courts are empowered to arrest, prosecute, and punish tribal members who violate tribal laws, upholding tribal sovereignty and protecting the rights and cultural heritage of tribal communities.
However, the interplay between tribal law and federal and state laws adds complexity to the legal landscape. Federally recognized tribes are governed by federal law and their own sovereign laws, and conflicts can arise, particularly in areas such as criminal law and environmental regulation. While tribal courts have their own jurisdiction, they must still comply with federal and state laws, and disputes involving non-tribal entities may fall under federal or state jurisdiction.
The Indian Child Welfare Act (ICWA) is a notable example of the interplay between tribal and federal laws. The ICWA provides for the transfer of cases from state to tribal court under specific circumstances, ensuring that Native American children residing on reservations fall under the jurisdiction of the tribal court in custody proceedings. Additionally, the Indian Civil Rights Act, also known as the Indian Bill of Rights, imposes certain limitations on tribal governments, such as restrictions on sentencing in criminal cases.
In conclusion, tribal court systems are an essential component of tribal law, allowing Native American tribes to govern themselves and protect their cultural identity. While tribal courts vary in structure and authority, they share a common goal of administering justice and preserving community harmony within their respective tribes. The complex interplay between tribal, federal, and state laws presents ongoing challenges and highlights the unique nature of the tribal legal system in the United States.
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Common law's influence on tribal law
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law influences the decision-making process in unusual cases where the outcome cannot be determined based on existing statutes or written rules of law. The U.S. common-law system evolved from British traditions that spread to North America during the 17th and 18th centuries.
Tribal law is a set of legal principles and practices that govern the affairs of Native American tribes within the United States. Each tribe has its own distinct legal system, shaped by historical and cultural factors, as well as contemporary legal developments. Despite these differences, tribal law shares common principles, such as a focus on community harmony and restorative justice. Tribal law is deeply rooted in tradition and culture and plays a crucial role in preserving the identity and sovereignty of indigenous communities. It encompasses a wide range of issues, from settling disputes to protecting natural resources.
The relationship between tribal law and federal law is complex. Federally recognized tribes are governed by federal law and their own sovereign governments. In many cases, the federal government has deferred to tribal law and recognized its jurisdiction over certain legal issues. However, conflicts can arise when tribal law clashes with federal law, particularly in areas such as criminal law and environmental regulation. The Supreme Court, as the custodian of federal common law, has placed limits on the scope of tribal sovereign power. For instance, in the 1823 case of Johnson v. M'Intosh, the discovery doctrine was introduced, asserting European sovereignty over discovered lands and depriving tribes of the power to alienate their lands freely.
Tribal law has its own court system, independent of federal and state courts, with tribal courts and law enforcement agencies authorized to enforce tribal law. Tribal courts hear both civil and criminal cases, providing non-Indians with exposure to tribal political culture. However, tribal courts do not have jurisdiction over non-tribal members who commit crimes on non-tribal lands. While tribal law must comply with federal and state laws, it allows Native American tribes to govern themselves and protect their cultural heritage and resources.
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Tribal law and criminal cases
Tribal justice systems are in place throughout the US, with approximately 400 Tribal courts, which are partially funded through Public Law 638 Tribal Priority Allocations (TPA). These courts hear both civil and criminal cases, with criminal punishments including labour, prison time, and/or the payment of court costs and fines.
Tribes have the sovereign authority to establish and operate their own justice systems, which are directly oriented to the needs of tribal members. This authority was reaffirmed in the 2008 case Plains Commerce Bank v. Long Family Cattle Co. (07-411), where the Supreme Court ruled that tribes do not have jurisdiction over non-Indians conducting activity on a non-Indian fee simple, even on an Indian reservation, unless the activity threatens the tribe's welfare.
Tribal courts are established by agreement between the BIA and the Tribe, or if there are health and safety concerns that must be addressed. They are also protected by the Tribal justice system or through a traditional court. The BIA provides training, technical support, and funding to all Tribal courts, including CFR Courts.
Tribal police may be the first law enforcement officials to arrive at the scene of a crime, and if their investigation determines that federal intervention is warranted, federal law enforcement personnel (usually the FBI) are notified. If federal agents become involved, the case may be referred to the U.S. Attorney's Office.
There are several resources available for researching Tribal Law, including the Tribal Law Gateway, which includes links to codes, constitutions, and legal publications of hundreds of tribes. West's American Tribal Law Reporter includes Tribal, Appeals, and Supreme Court decisions from approximately 24 tribal courts.
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Frequently asked questions
Common law principles are applied to Native American cases because Native American tribes exist within the framework of the United States federal legal system. Therefore, there is a complex interplay between tribal law and federal laws and regulations.
Common law, also known as case law, is a body of unwritten laws based on legal precedents established by the courts. It draws from institutionalized opinions and interpretations from judicial authorities and public juries. Common law is practised in the United States, the United Kingdom, Australia, Canada, Hong Kong, India, and New Zealand.
Tribal law is a set of legal principles and practices that govern the affairs of Native American tribes within the United States. Each tribe has its own distinct legal system, shaped by historical and cultural factors, as well as contemporary legal developments. Tribal law shares common principles, such as a focus on community harmony and restorative justice.
