There are 562 federal recognized tribal governments in the United States, of which 107 are found in California. Like other governments throughout the world, Indian nations are typically organized around a constitution, a legal document that affirms both the nation’s sovereignty as well as the rights of its citizens.
Yet, despite the long history of tribal government in the United States, the practice and institutions of tribal law are fledgling.
Here to discuss this fascinating and critical field of legal scholarship and practice are Prof. Pat Sekaquaptewa of the UCLA School of Law and its clinic for Tribal Legal Development and Prof. Carole Goldberg, also of the UCLA School of Law.
My opening question is: Why now?
After almost two centuries of formal relations between American Indian nations and the United States of America, I wonder why it is now, in 2004, that tribal nations are developing their own courts?
In other words: Is the a need for tribal law a result of deficits in U.S. law? Is there a historical explanation for the absence of tribal courts prior to the last few decades? Finally, does the growth of tribal law mark a change in the political or cultural aspirations of Native Americans?
Tribal courts are not a brand new phenomenon. They’re just new for many of the Indian nations in California.
Tribes have always had mechanisms for resolving disputes and dealing with socially disruptive behavior. Before the arrival of Europeans, these tribal mechanisms did not function like Anglo-American courts, which employ an adversarial process and operate on a winner-take-all basis. But like Anglo-American courts, they did apply community norms and values in the course of addressing conflicts and misbehavior.
The first Indian nation to establish an Anglo-American-style court system was the Cherokee Nation, which did so as part of its Constitution of 1827. Thereafter a number of other southeastern tribes followed suit. These courts functioned even after the removal of these tribes to Oklahoma Territory in the 1830’s. But tribal courts did not become widespread until Congress passed the Indian Reorganization Act of 1934. Under this Act, tribes were pressured to adopt constitutions, and many of these constitutions authorized the tribal governing body to establish a tribal court. Development of tribal courts accelerated even further in the 1960’s, after the United States Supreme Court rendered a decision affirming the tribes’ exclusive authority over lawsuits against tribal members based on disputes occuring within reservations.
Part of the reason is political — tribes realize that courts are essential if they are to assert control over matters that occur within their boundaries.
By 1980, most Indian nations outside California had tribal courts, and were receiving federal funding through the Department of the Interior to support these courts. California, however, was getting none of this funding, and as a consequence had almost no tribal courts. Partly it was because of Public Law 280, a federal statute that gave certain designated states (California among them) criminal and civil authority over Indians on reservations that they would otherwise lack. But California was the only state designated in Public Law 280 that received NO support for tribal courts from the Department of the Interior.
Twenty-five years later, California’s Indian nations are showing much greater interest in establishing tribal courts. Why now? Part of the reason is financial — the US Department of Justice (not Interior) is providing funding for tribal court development and enhancement, and some tribes are able to fund court systems with revenue from gaming and other forms of economic development. Part of the reason is political — tribes realize that courts are essential if they are to assert control over matters that occur within their boundaries, such as environmental pollution and child dependency. And part of the reason is cultural — tribes understand that courts are vehicles for articulating and sustaining norms and values while adapting them to changing conditions. With a tribal court, Indian nations can ensure that children in need of care are placed in the homes of tribal members, and that individuals engaged in disruptive behavior can be treated in a secure place, healed, and returned as productive members of the community. I could also add that part of the reason is that support and assistance are available through organizations such as UCLA’s Tribal Legal Development Clinic. The Tribal Law and Policy Institute and California Indian Legal Services have likewise provided support and assistance.
In short, tribes need tribal courts because they are governments that have communities with basic needs like any other community. However, tribal government institutions, including courts, will often look different given the culture and worldview of the particular tribe. “Tribal courts” take numerous forms, as do forums world-wide. Internally, Native governments nationwide have functioned with their traditional dispute resolution authorities and mechanisms since before European contact. All societies need governance and dispute resolution forums. The traditional process is often generalized as one of a respected leader or elder facilitating, mediating, arbitrating, or via consensus-building, resolving a dispute between parties with the goal being to “right their relationships” rather than to “truth-find, or to determine guilt or liability”. Even this, however is a generalization (especially when we consider that we are generalizing across 562 different cultures and histories).
To make this concrete, I will use my tribe, the Hopi Tribe as an example. We are a confederation of 12 villages located in northern Arizona and have about 12,000 members. Since the adoption of our Constitution in 1936 and the establishment of our courts in 1972, we have recognized the crucial need for carefully tailored hybrid institutions — meshing both western and traditional governance mechanisms. This is important for three reasons: (1) No Hopi would consent to a wholesale importation of a foreign (U.S.) model; (2) At the time (1936), the U.S. model made little or no sense culturally or otherwise to Hopis who already had, and continue to have, their own functioning governments and dispute resolution authorities/mechanisms based on Hopi culture and worldview; and (3) Complex modern problems and technology, and the need to strategically inter-face with the outside world requires some importation.
Tribal courts are both an end of, and a means for, tailoring tribal and western values.
Traditionally, and still today, dispute resolution over certain issues, such as village and clan lands, family disputes, and religious issues, are reserved to the villages and clan leaders (both female and male and in some cases elected boards). Other issues may be handled by the central, western-style tribal courts. Where a village, clan, or party shows that the traditional process included at least notice and an opportunity to be heard, the tribal court will issue orders backing the decisions of the village or clan and the tribal police will carry them out. Criminal matters are handled at the tribal court level based on the tribal criminal code. The villages, clans, and central tribal court treat custom and tradition as applicable, mandatory authority (law) where the Tribal Council has not enacted preemptive legislation for good policy reasons. The failure to tailor a hybrid system at Hopi would leave Hopis feeling that their system was unjust, ineffective, and foreign.
Our more difficult problems today include: (1) Financing and locating housing; (2) Resolving land and property disputes; (3) Dealing with high rates of substance abuse and family violence; (4) Increasing complex governance and business related disputes (requiring an understanding of western contract and tort law for example); and (5) Changes in tribal member expectations — greater demands for individual civil rights protections from government and law enforcement. Also, as with any western-style government, we need our courts to be able to interpret and apply our constitutional and statutory law case by case — thus requiring some western adversarial court process. This gives you some idea of the choices the Hopi Tribe has made. Other tribes will make different choices to fit their needs and culture.
Only tribes can work this tailoring out for themselves. Even beyond the requirements of the U.S. Constitution and federal-Indian law and their recognition of a government-to-government relationship with tribes, the American value that government should be undertaken by consent of the governed, is a primary justification for supporting tribal self-governance and self-determination. Tribal courts are both an end of, and a means for, tailoring tribal and western values, meeting changing member expectations, and for dealing with internal problems and the problems that arise from dealing with the outside world.
Prof. Pat Sekaquaptewa, UCLA Tribal Legal Development Clinic, Justice Pro Tem, Hopi Supreme Court
A follow-up question for Professors Goldberg and Sekaquaptewa:
In your accounts of the evolution of tribal courts and their history in California, in particular, I was impressed by the rare and monumental opportunity this process affords Indian nations.
If, as you both suggest, tribal government are currently combining what they perceive to be the best elements of Anglo-American courts and Native American traditions, this development could potentially pave the way for fresh insights on the law.
Do you believe innovations in the tribal courts could potentially filter back into the U.S. legal system?
Cross-fertilization is always good so long as the sharing is mutual and respectful. The question of whether tribal traditional ways, hybrid dispute resolution systems, and/or innovations would be more broadly applicable is a more difficult question.
While it is true that there is a real benefit to requiring or annexing alternative dispute resolution processes to a state or local court process — providing a way for people to work things out outside of lengthy, costly litigation — it is not so clear that known tribal models can be successfully replicated.
This is due to the fact that much of the tribal process and and substantive custom and tradition come from the ground up. Extended family members and kin are born into a large web of biological, social/ceremonial relationships and each person is understood to have duties and obligations to another based on these relationships.
Traditional tribal dispute resolution process re-inforces these relationships, duties and obligations and appeals to a person’s sense of what is right based on these understandings. In non-Native communities where these types of extended family/kin structures do exist, such communities might be served well by known hybrid traditional dispute resolution models like Navajo peacemaking.
However, for non-Native communities that lack large family/kin structure and an understanding of the obligations to these extended familiy members, the “glue” that makes traditional dispute resolution process and value system work is missing.
Some argue that a community with common values is likely to have a more stable, effective, dispute resolution system. This may be a reason why diverse societies like our American society, require very proceedure heavy dispute resolution — substituting equal process for a lack of agreed upon common values.
So, can the larger society use tribal models? The answer depends on what pocket of the larger society we are looking at and whether it shares a similar sense of family/kin and duties and obligations with the comparative tribe.