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History, Jurisdiction, Functions of Contemporary Tribal Courts

5/13/2012. 2. What are the different types of tribal courts?. Traditional, CFR, IRATrial, Appellate,

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History, Jurisdiction, Functions of Contemporary Tribal Courts

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    1. 5/13/2012 1 History, Jurisdiction, & Functions of Contemporary Tribal Courts

    2. 5/13/2012 2 What are the different types of tribal courts? Traditional, CFR, IRA Trial, Appellate, & Inter-tribal

    3. 5/13/2012 3 Traditional Courts Aim of “repairing relationships” vs. deciding rights of parties Mediation by respected relatives/leaders Navajo Peacemaker Courts Formal Courts Peacemaker Courts of Iroquois* Pueblo Religious Courts* Pueblo “Traditional Secular Courts” *Federal, state, and tribal authorities may not recognize the jurisdiction of these courts; consequently they may not be able to exercise coercive powers. “Pueblo Religious Courts” serve as mediators and adjudicators in ceremonial matters. Once sanction of such a tribunal may be exclusion from a kiva for revealing ceremonial secrets to outsiders. Fikentscher’s guess is that historically the religious traditional courts were of three kinds: Disciplinary courts of the societies, disciplinary courts of each moiety, and a court consisting of the two moiety heads who decided ceremonial matters of the whole tribe. Pueblo “Traditional Secular Courts” are public courts developed in response to Spanish and Mexican administrators. They meet in public under the direction of secular officials. The composition of these varies from Pueblo to Pueblo but in some may consist of the governor and the two lieutenant governors, often assisted by the tribal council? Or a tribal attorney. Other Pueblos hire judges who have no other tribal office. Cooter & Fikentscher (1998)*Federal, state, and tribal authorities may not recognize the jurisdiction of these courts; consequently they may not be able to exercise coercive powers. “Pueblo Religious Courts” serve as mediators and adjudicators in ceremonial matters. Once sanction of such a tribunal may be exclusion from a kiva for revealing ceremonial secrets to outsiders. Fikentscher’s guess is that historically the religious traditional courts were of three kinds: Disciplinary courts of the societies, disciplinary courts of each moiety, and a court consisting of the two moiety heads who decided ceremonial matters of the whole tribe. Pueblo “Traditional Secular Courts” are public courts developed in response to Spanish and Mexican administrators. They meet in public under the direction of secular officials. The composition of these varies from Pueblo to Pueblo but in some may consist of the governor and the two lieutenant governors, often assisted by the tribal council? Or a tribal attorney. Other Pueblos hire judges who have no other tribal office. Cooter & Fikentscher (1998)

    4. 5/13/2012 4 Courts of Indian Offenses Courts of Indian Offenses (“CFR Courts”) Established by the Secretary of Interior in early 1880s Purpose to promote acculturation of Indians “The primary task of [these] courts was to serve as mere educational and disciplinary instrumentalities by which the Government of the United States is endeavoring to improve and elevate the condition of these dependent tribes to whom it sustains the relation of guardian.” U.S. v. Clapox, 35 F. 575 (D.C. Or. 1888) 1883 civil and criminal code Tribal judges picked and served at pleasure of Indian agent Around 1900 CFR courts operated on 2/3rds of all reservations (approximately 21)

    5. 5/13/2012 5 Modern Tribal Courts/IRA Courts Source of authority derives from inherent powers of tribe Many established under the Indian Reorganization Act (“IRA”) and/or the model constitutions of the Bureau of Indian Affairs (“BIA”) Answerable to Tribal legislature not to the BIA Have broader jurisdiction (power) Usually adversarial in structure but not always in function

    6. 5/13/2012 6 Alternative Structures Stand Alone Court System Inter-tribal Appellate Court w/Stand Alone Trial Court Inter-tribal Appellate & Trial Court

    7. 5/13/2012 7 Stand Alone Court System: One Tribe One Court System

    8. 5/13/2012 8 Inter-Tribal (Appellate Only)

    9. 5/13/2012 9 Inter-Tribal (Appellate & Trial Ct.)

    10. 5/13/2012 10 What powers (jurisdiction) do tribal courts have?

    11. 5/13/2012 11 Powers of the Tribal Court Power = “Jurisdiction” What jurisdiction do tribal courts have? U.S. Federal Government limitations of tribal “adjudicatory jurisdiction” Tribal Council delegations of “subject matter jurisdiction” to tribal court The reach of a tribal court’s power over individual defendants where it already has adjudicatory/subject matter jurisdiction is called “personal jurisdiction”

    12. 5/13/2012 12 Powers (Criminal Jurisdiction) Factors that matter for determining tribal court’s criminal jurisdiction: Indian perpetrator? Interracial or Major Crime(s)? OR Do we have to be concerned with the state’s concurrent criminal jurisdiction (PL280 state)? Limited sentencing power (1 year/$5,000)

    13. 5/13/2012 13 Powers (Civil Jurisdiction) Factors that matter for determining the tribal court’s civil jurisdiction: Member vs. Non-member Status of land where events arose Tribal Trust, Allotted Trust, Fee, Right of Way Whether non-members have entered into consensual relations with the Tribe or its members? Whether the actions of non-members threaten the political integrity of the tribe or the health and welfare of its members?

    14. 5/13/2012 14 What should be the scope of tribal court power and what law should be applied?

    15. 5/13/2012 15 Sample “choice of law” provisions in tribal governing document or statute/code

    16. 5/13/2012 16 Sample Provision for Setting the Choice & Order of Laws to be Applied by Court(s)

    17. 5/13/2012 17 Laws to be Applied by Court(s) Persuasive Authorities

    18. 5/13/2012 18 When are tribal court decisions reviewed by the U.S. federal government and why?

    19. 5/13/2012 19 When are tribal court decisions reviewed by the federal government? No federal review of tribal criminal convictions of Indians UNLESS tribe exceeds its jurisdiction (example: conviction of non-Indian) Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) Indian Civil Rights Act (“ICRA”) Based “Civil Rights” Cases Only where a person is detained in violation of ICRA rights Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) Other Civil Cases Only to decide whether a tribal court has jurisdiction National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985) OR Where the parties suing each other are from different states and the dispute involves a matter involving money or property that exceeds $75,000 in value AND the dispute includes a dispute over tribal jurisdiction Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987) Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985) Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987)Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978) Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978) National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985) Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987)

    20. 5/13/2012 20 “Exhaustion Rule” As a matter of respect, U.S. federal courts let the tribes determine their jurisdiction first up through their highest tribal court … (National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985)) The exception to this is where the assertion of tribal jurisdiction would be … Motivated by a desire to harass Conducted in bad faith An action that patently violates express jurisdictional prohibitions in federal law OR WHERE Exhaustion would be futile because of lack of an adequate opportunity to challenge the court’s jurisdiction (for example where there is no tribal court) National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985) National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845 (1985)

    21. 5/13/2012 21 What are the implications of federal court review for tribal court development? Federal courts (and possibly Congress) are more likely to interfere with a tribe’s sovereignty if it doesn’t … have an appellate court have written laws authorizing the tribal court to function with a fair process actually follow its law (especially governing documents) clearly set out traditional dispute resolution processes

    22. 5/13/2012 22 End.

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