We are grateful to the following institutions
for supporting various phases of our field research: Deutsche Forschungsgemeinschaft
for the 1995-96 period, Stiftung Volkswagenwerk, Gruter Institute for Law
and Behavioral Research for support from 1992 to 1995, and the Santa Fe
Institute for providing technical assistance. We also benefited from conversations
with various Indian scholars, especially Ben Chavis, Professor of Education
at Pembroke State University, who arranged some of our interviews and helped
interpret the results. The paper benefited from seminars at the American
Bar Foundation and the Law School of the University of Arizona. James Sanders
and S.D. Kang corrected the manuscript. Deanne Joy Chechile and Chris Swain
commented on the text and helped us with footnotes and bibliography.
Our field research consisted of interviews
with tribal judges as well as other Indian officials. The reservations
that we visited once or more were Flathead, Blackfoot, Gila River Indian
Community (Pima-Maricopa), Hopi, Navajo, Nishga, Nez Perce, Pascua Yaqui,
San Carlos Apache, San Xavier District and the main reservation of Tohono
O'odham, Warm Springs, White Mountain Apache, Jicarilla Apache, the Yavapai-Apache
Community, Kaibab Paiute, Moapa Paiute, Las Vegas Paiute and the Pueblos
of Acoma, Isleta, Jemez, Laguna, Picuris, San Ildefonso, San Juan, Santa
Ana, Santa Clara, Santo Domingo, Tesuque, Taos, Zia, Pojoaque, Nambe, Cochiti,
San Felipe, Sandia and Zuni. Since Indian communities are small and intimate,
facts about them are personal and sensitive. We respected the wishes of
people who did not want their names mentioned. In crediting those who described
customary rules or real cases, we sometimes use fictitious initials. (We
keep a confidential list of the real names.) We appreciate the time taken
by tribal officials from their demanding schedules for discussions with
us. We hope that the exchange of ideas benefitted them directly and that
publication of this study will benefit them indirectly by increasing respect
for, and compliance with, Indian law by outsiders.
We would like to thank the following people
for discussions with us.
289 Adakai, Frank
Bird, Stanley A.
Bradley, Carmen M.
Burke, Louise C.
Dupuis, Donald D.
Garcia, Albert V.
Hall, Edward T.
Johnson, William Bluehouse
Ladd, Edmund J.
Martin, Edward (Ned)
Milda, Darlina C.
Mitre, Alfreda L.
Myers, Karlin S.
Naranjo, P. Bert
Occhialino, Edward (Ted)
Peters, Renay R.
Preston, Danile L.
Quandelacy, Sandra R.
Randall, Vincent E.
Steward, Annette J.
*290 Swazo, Paul
Tsosie, H. Paul
"The greatest challenge faced by the modern
tribal court system is in the harmonizing of past Indian customs and traditions
with the dictates of contemporary jurisprudence."
--Vine Deloria, Jr., and Clifford M. Lytle. [FN3]
A way of life expresses itself in norms
sustained by institutions. Scholars have long studied the distinctive norms
of American Indians, but no one has studied systematically whether or how
tribal courts sustain these norms. Have custom and tradition worked their
way into judge-made law on reservations and created distinctively Indian
common law? This article provides an answer based upon interviews with
judges on Indian reservations throughout the western United States.
The study of American Indian norms can
be divided into three phases. Before contact with Europeans or the acquisition
of writing, some tribes reflected upon their own norms and collected them.
[FN4] After contact, Europeans and Americans recorded their observations
of Indian norms, [FN5] and some tribes reformed their own governments by
adopting written constitutions. [FN6] In the late 19th century, the modern
discipline of anthropology emerged and Indian studies became more systematic.
Thus, the study of Indian norms took place in three stages: 1) reported
"ways" before contact with Europeans; 2) written accounts after contact;
and 3) anthropological studies beginning in the late 19 th century.
The third stage culminated in the publication
of Llewellyn and Hoebel's The Cheyenne Way (1941) which helped establish
legal anthropology as a distinct sub-discipline. By the end of the 19th
century, all tribes were confined to reservations or had lost their lands
through allotment. In the 1930's, only a few Cheyennes remained who could
recall their former life as a free people. Llewellyn and Hoebel used historical
records and the recollections of elderly Indians *291 to reconstruct
Cheyenne law as it existed during the 1860's and 1870's.
Llewellyn and Hoebel's book is the most
thorough, penetrating, and lively study in Indian legal anthropology. Other
scholars produced a modest number of useful accounts of the legal customs
of various tribes, which we describe briefly. Two short articles written
in the 1930's concern what the authors describe as the "common law" of
the Hopi and Navajos. [FN7] Four monographs written in the 1940's or early
1950's describe the customary law of four additional tribes. [FN8] Property
and inheritance rules for the Hopi are the subject of several studies over
a period of years. [FN9] In the 1940's and 1950's, the last Indians died
who could recall life before confinement to reservations, so retrospectives
like Llewellyn and Hoebel's became impossible. From the 1950's to the present,
the amount of scholarship on Indian legal norms failed to increase and
may have diminished. [FN10]
After Indians were forced onto reservations
in the 19th century, their affairs were administered by federal officials
and, to a limited extent, by local Indians. In the 1930's, however, many
reservations adopted Western-style democratic government with an elected
legislature and modern courts. As the memory of an older freedom faded,
tribal government experienced a renaissance. The rebirth of tribal self-government
enlarged the scope for making Indian norms into laws. Did the tribes draw
upon their moral and legal heritage to make distinctively Indian laws,
or did they simply adopt state and federal law? Scholars have neglected
this question almost entirely.
*292 To illustrate, Llewellyn and
Hoebel drew no connections between the Cheyenne's historical and contemporary
law. Llewellyn and Hoebel did not investigate whether the Cheyenne Way
influenced modern Cheyenne legislation and court decisions. This omission
was not limited to Llewellyn and Hoebel alone. Sources concerning actual
practice in tribal courts are scarce. [FN11] Some tribal constitutions
and codes are published, [FN12] and one reservation published the decisions
of its highest court. [FN13] However, our review disclosed little writing
in law journals concerning the content of tribal codes and constitutions,
the procedures of tribal courts, or the distinctively Indian characteristics
of criminal, civil, or administrative law on reservations. [FN14]
What explains this gap in scholarship?
In form, tribal governments often look much like local governments anywhere
in America. Perhaps scholars assume from appearances that Indian laws are
not distinct enough to warrant separate study. State and federal law pre-empts
much tribal law. [FN15] Perhaps scholars assumed that the tribes lack the
power to make distinctive laws. Or perhaps legal scholars were deterred
from field research by the cool reception given them on some reservations.
[FN16] For whatever reason, scholars have neglected the study of tribal
While scholars neglected tribal law, another
kind of Indian legal scholarship flourished. Under United States law, Indian
tribes are "sovereign," which conveys unique powers upon them. However,
the tribes are also legally "dependent," which exposes them to intrusions
*293 by federal authorities. [FN17] The paradox of being sovereign
and dependent raises vexing legal questions about the scope of tribal power
relative to federal and state governments. These questions became more
urgent after the Second World War as budgets for Indian programs increased,
land values rose, and Indians asserted their legal rights more aggressively.
Legal scholarship responded with a flow of articles and books on Indian
jurisdiction and policy, [FN18] as well as research and meditations on
cultural conflicts and the law. [FN19] Thus, while Indian legal scholarship
such as Llewellyn and Hoebel's atrophied, the study of federal Indian law
and tribal jurisdiction in particular matured and flourished.
Litigation of tribal jurisdiction turns
upon the interpretation of treaties, acts of Congress, and decisions of
federal courts, all of which were imposed upon the tribes. This litigation
usually requires limited knowledge of Indian society, just as litigation
in international public law requires limited knowledge of the countries
who are parties to the disputes. In contrast, litigating the laws that
Indians make for themselves in tribal councils and tribal courts requires
detailed knowledge of Indian society. Like Llewellyn and Hoebel, we study
law made by Indians (called "tribal law"), rather than law made for Indians
(called "Indian law"), but unlike these scholars, we study tribal law as
it is, not as it was. [FN20]
Philosophers agree that a tree exists in the forest when no one is looking at it. We began our study with the belief that Indian common law exists when no scholar notices it. To test this belief, we conducted more than 120 interviews with tribal officials on 37 reservations in the West. [FN21] We sought answers to four questions:
(1) Is there Indian common law? Specifically,
does custom work its way into judge-made law on reservations?
(2) Is Indian common law specific to each
tribe or generic to many tribes?
*294 (3) How does Indian common
law develop? Is the process different in tribal courts than in American
(4) Should public policy encourage or discourage
the development of distinctively Indian common law?
The Anglo-American legal tradition identifies
the common law as a body of substantive rules and a process. [FN22] The
substantive rules come from judges selectively enforcing social norms,
and the common law process comes from judges systematically refining precedent.
Mark Twain quipped that reports of his death were greatly exaggerated.
Similarly, Tom Tso, whom we interviewed in 1990 when he was Chief Judge
of the Navajo Reservation, thinks that reports of the death of Navajo common
law are greatly exaggerated. He used Navajo social norms daily to decide
cases. Our field research concludes that all tribal courts selectively
enforce social norms and few tribal courts systematically refine precedent.
These conclusions coincide with the conclusions of legal anthropologists
about the general character of dispute resolution in tribes. [FN23]
Unlike other minority groups in America,
many Indian tribes have their own lands and governments. The U.S. Constitution
recognizes tribal sovereignty. [FN24] In recent years, Indian and non-Indian
officials have stressed that sovereignty should be a fact, not just a slogan.
If tribes exercise sovereignty, they would presumably absorb social norms
into tribal laws. Thus our research reports on progress towards the realizing
Indian legal sovereignty.
This Article is divided into six parts.
Part I, entitled "Sovereignty," briefly explains the extent to which Indian
tribes possess the legal power to govern themselves. Part II explains our
methods of research, which we used to test the hypotheses formulated in
Part III. Our findings concerning procedural and substantive tribal law
are reported in Part IV and Part V, respectively, and concerning conflicts
of law in Part VI.
The Declaration of Independence begins
with the words, "We, the People", but this phrase did not include most
Indians living within the new nation's boundaries. They were members of
sovereign nations that had been, or soon would be, conquered in war or
otherwise forced to submit to the authority of the United States. The United
States Constitution acknowledges the distinct legal status of persisting
Indian tribes. The Commerce Clause (Art. I, section 8, clause 3) provides
that Congress shall have the power, not only to regulate commerce with
foreign nations, and among the several states, but also with Indian tribes.
Furthermore, Art. II, section 2, clause 2, empowers the President to make
treaties, including treaties with Indian tribes, with the consent of the
Senate. (In 1871 Congress withdrew this power from the President. [FN25])
Only sovereign nations can make treaties, so this section of the Constitution
implicitly acknowledges tribal sovereignty.
In addition to the Constitution, international
law governs relations between the tribes and the United States. International
law acknowledges the authority of conquerors and imposes obligations on
them. The character of the obligations depends partly upon the nature of
the conquest. The term debellatio refers to a conquered people who dissolved,
leaving no one to assert their rights as a people. Occupatio bellica refers
to a conquered people who persist, leaving the defeated nation as a legal
subject. Germany after 1945 provides an example of the latter situation.
Under rules of international public law, the victor has obligations to
the defeated, such as the obligation to recognize its delegates, negotiate
a peace treaty, and possibly acknowledge the existence of a state with
some residual powers. Upon conquest, some Indian tribes dissolved and others
persisted. In principle, the American government's power over the persisting
tribes is rooted in, and limited by, occupatio bellica. [FN26]
Occupatio bellica received a distinctly
American interpretation along lines initially laid down by Chief Justice
Marshall and expressed in the famous oxymoron, "domestic dependent nation."
[FN27] In *296 Worcester v. Georgia, Justice Marshall pronounced
that the tribes in Georgia are "distinct political communities, having
territorial boundaries, within which their authority is exclusive." [FN28]
So the tribes are nations. However, Marshall held that the exclusive authority
of tribal nations is limited. The tribes retain "their original natural
rights" in matters of local government, but the United States has exclusive
power to deal with foreign states. [FN29] So the tribes are dependent in
Marshall's formula for allocating power
survived in spite of persistent attempts by states to extend their jurisdiction
over tribes. The formula solidified into the principle that states may
legislate, adjudicate, or administer Indian affairs only to the extent
that Congress empowers them to do so. Furthermore, Congress may not assign
all of its powers over the tribes to the states. The relevant statutes
and cases--called "Indian law"--have been studied intensively by others.
[FN30] We distinguish three phases in the development of Indian law and
describe some of its contours.
*297 A. Three Phases
Before contact with Europeans, few tribes
in North America created empires or subordinated others. [FN31] Most tribes,
consequently, enjoyed independence and autonomy. The advance of the frontier
*298 brought violence, warfare, and relocation on an unprecedented
scale. Conquest and submission to American authority resulted in the confinement
of many tribes to reservations, where they were legally and economically
dependent upon the federal government. In the 1930's, reservation governments
were reformed and the tribes began to elect their own officials. The new
tribal governments recovered some sovereignty while remaining dependent.
These facts suggest dividing legal relations between the American government
and the tribes into three historical phases: (i) independence and autonomy;
(ii) conquest and submission; and (iii) modern tribal government with dependent
Many tribal histories roughly fit these
three phases, but no tribe fits perfectly and some tribes do not fit at
all. To illustrate a tribe that fits well, various Apache bands hunted
and farmed in the White Mountains of Arizona, and raided the farms and
towns to the south that belonged to Papagos and Mexicans. In the second
half of the 19th century, they were subjugated by the U.S. Army and confined
to reservations at San Carlos and White Mountain. In the 20th century,
the Apaches adopted a democratically elected government. Thus the history
of the White Mountain Apaches approximates the three phases. The same could
be said of other western tribes that we studied, including the Navajo.
The Pueblo tribes fit the pattern more
roughly. They were subjugated by the Spanish, rebelled in 1680, and most
were re-conquered before American authority extended into the area. [FN34]
Instead of receiving land grants from the U.S. government, the Pueblos
acquired their lands from the Spanish, and the U.S. subsequently recognized
these titles in fee simple. [FN35] The Pueblos already had well-organized
village governments and a long history of responding to outside authorities
*299 before they were brought into the American reservation system.
Unlike the White Mountain Apaches and the
Pueblos, the three phases do not fit the Yaquis. In the early decades of
this century, they migrated to Tucson to escape an extermination campaign
conducted in their Sonoran homeland by the Mexican government and settlers.
[FN37] After extensive negotiations, the U.S. government recognized in
1978 the large Yaqui community on the southwestern boundary of Tucson as
an Indian reservation. [FN38] Thus, the Yaquis were never conquered by
outsiders, never lived under officials of the federal government, and actively
campaigned for federal recognition as a tribe and creation of a reservation.
B. Three Courts
The three historical phases outlined above
roughly correspond to the historical and legal bases of contemporary Indian
courts. A few courts existed before contact, some were imposed after conquest,
and others were created during the rebirth of sovereignty in this century.
We will briefly describe each type of court.
Anthropologists stress that dispute resolution
in a tribe usually aims to repair relationships, rather than decide the
rights of the parties. [FN39] Repairing relationships is best accomplished,
not by a court, but by the mediation of a chief, an elder, a clan-mother,
a medicine man, a religious leader, or a respected relative. Informal means
of resolving disputes and repairing relationships developed before contact
with Europeans and persist today in many tribes. When successful, these
informal processes resolve disputes through mediation before they reach
tribal courts. [FN40] To promote harmony and reduce reliance on courts,
the Navajo government is trying to organize "Peacemakers Courts", and other
tribes may follow their lead. [FN41]
Besides informal dispute resolution, some
tribes still have formal courts with a long history, possibly pre-dating
the conquest. Examples include the "Peacemakers Courts" of the Iroquois
and the Pueblo religious courts. [FN42] Federal, state, and most tribal
authorities do not *300 recognize the jurisdiction of these courts.
Consequently, these courts cannot legally exercise coercive powers. [FN43]
Some Pueblos have public courts developed
in response to Spanish and Mexican administrators. Pueblos call these courts
"traditional," but, to avoid confusion with traditional religious courts,
we call them "traditional secular courts". Traditional secular courts meet
in public under the direction of secular officials. The composition of
traditional secular courts varies from one Pueblo to another. In some Pueblos
the court consists of the governor and the two lieutenant governors, often
assisted by tribal counsel or a tribal attorney. [FN44] Other Pueblos hire
judges who have no other tribal office. [FN45]
Now we turn from the traditional courts
to the second type of court, which developed after Indians were confined
to reservations and their affairs were brought under federal administration.
[FN46] "Indian agents" were assigned by the Bureau of Indian Affairs (BIA)
to most reservations. [FN47] The Indian agents, who had wide discretionary
powers under the federal government, recruited Indians as judges for so-called
"Courts of Indian Offenses." In 1883, these courts were made a regular
part of the Bureau of Indian Affairs. Since they operated under the Code
of Federal Regulations, the Courts of Indian Offenses became known as "CFR
courts." The Indian agent usually dominated the CFR courts by his power
to appoint judges and prescribe rules. [FN48]
Some CFR courts remain today, but most
of them were replaced by courts with newer origins. To understand the newer
courts, one must consider how American- style democracy came to the reservations.
Reservations in the 19th century were governed by an uneasy and unequal
interchange between the Indian agent and traditional Indian leaders. The
Indian agent responded to Washington officials, who demanded peace and
compliance with administrative orders. After *301 satisfying these
constraints, traditional Indian leaders had some scope to exercise their
authority. This situation fundamentally changed with passage of the Indian
Reorganization Act (IRA) in 1934 and the accompanying shift in Indian policy.
After 1934, many tribes adopted constitutions providing for an elected
council and chairman, and an appointed judiciary. Tribes that did not formally
adopt such constitutions tended to acquire similar institutions by other
means. [FN49] The IRA shifted power from outside officials to the tribes,
and redistributed power within the reservations. Specifically, the IRA
took power away from the Indian agent and traditional Indian leaders, and
gave it to elected Indian officials.
Some reservations welcomed these changes
and others resisted. To illustrate, the Navajos developed a system of "chapter
houses" that brought a high level of community participation in ward politics
to the reservation. In contrast, modernization fragmented the Hopis and
triggered bitter disputes about whether customary authorities should yield
power to elected officials. Some Hopis still speak of the elected tribal
government as a foreign imposition. [FN50] Other tribes like the White
Mountain Apaches accepted American-style democracy reluctantly, but without
fragmenting into modern ("friendly") and traditional ("hostile") factions.
[FN51] The Pueblos responded by adding additional institutions of government
to the ones that already existed. Instead of fragmenting socially, the
Pueblos fragmented institutionally, so they now have multiple courts. [FN52]
Although responses *302 differed from one reservation to another,
modernization in the 1930's brought the form of government that prevails
on most Indian reservations today. [FN53]
After 1934, most tribes tribe abolished
the CFR courts and established new courts, which we call "IRA courts."
The IRA court must obey the tribal constitution and apply laws enacted
by the tribal council. Most tribal constitutions stipulate that the elected
tribal chairman appoints judges to the IRA court, subject to confirmation
by the council. As time passed, the remaining CFR courts came to resemble
the IRA courts in these respects. [FN54] IRA courts, or courts just like
them, are the only formal courts on most reservations today. [FN55]
We have shown that the three kinds of tribal
courts (traditional, CFR, and IRA) correspond to three phases of Indian
political history (independence, conquest, and modernization). [FN56]
C. Cycles of Ideology
Federal policy towards Indians vacillates
between the objectives of assimilation and autonomy. When the former predominates,
federal officials seek to dissolve the reservations and integrate Indians
into the surrounding society. When the latter predominates, many officials
foster cultural identity and promote self-determination on reservations.
The tension between assimilation and autonomy has been present from the
beginning of Indian policy, but we will only *303 describe the shifts
that shaped tribal government over the last hundred years. [FN57]
Dissolution and absorption were the objectives
in 1887 when Congress passed the Allotment Act ("Dawes Act"). [FN58] Before
allotment, federal law regarded reservation land as the property of the
tribe. After allotment, federal law considered the land as the property
of individuals. (In a subsequent section we correct some misconceptions
about the difference between tribal ownership and individual ownership.)
[FN59] Allotment transferred vast tracts of land to non-Indians, [FN60]
reduced the reach of Indian customary law, diminished the power of tribal
government, and created a complicated legal patchwork. "With all this imposed
slash and burn, cultural and institutional lost was inevitable." [FN61]
One irony of the allotment era was the
dissolution of democratic governments created by the "Five Civilized Tribes"
in Oklahoma. To illustrate by one of these tribes, Andrew Jackson's administration
removed the Cherokees from their mountain homeland in the southeast to
Oklahoma. The removal to Oklahoma is known by the infamous title, the "Trail
of Tears," because many of the young and old died from exposure and hardship.
[FN62] Left to their own in the Oklahoma Territory for several decades,
the Cherokees restructured their government as a democracy, complete with
a constitution, president, legislature, and supreme court. Although it
mirrored the standard American form, the Cherokee government was dissolved
Since 1790, Congress has used the phrase
"Indian country" to refer to land subject to tribal and federal law, as
opposed to state law. [FN63] "Indian country" includes all land within
the limits of any Indian reservations, *304 all "dependent sovereign"
Indian communities like the Pueblos, and all allotments to which Indian
titles have not been extinguished. [FN64] Although greatly reduced in size,
"Indian country" survived allotment. Most tribes persisted as sovereign
polities and distinctive cultures apart from the American mainstream. The
policy of termination and absorption was repudiated officially in 1934
by passage of the Indian Reorganization Act (IRA). As explained, the IRA
recreated the institutional forms of American democracy on the reservation.
Elected Indian officials displaced traditional Indian officials and federal
Some Marxists believed that communism would
eliminate social conflict and "end history". Similarly, some proponents
of American democracy thought that it would eliminate conflicts in Indian
policy and end its dismal history. Events proved otherwise. The arrival
of democracy on reservations did not end the swings in Indian policy. The
stress on sovereignty ended in the 1950's and the BIA returned to the objective
of assimilation. In the 1950's and 1960's, some tribes were terminated
and their official existence as sovereign peoples ended. [FN65] Occupatio
bellica gave way to debellatio. In addition, Congress curtailed the authority
of some tribal governments by enacting a complex of laws in 1953 which
became known as "Public Law 280." [FN66] The Indian Civil Rights Act of
1967 further limited tribal governments. Later we explain some features
of these two complex laws.
In the 1970's and 1980's, the goals of
termination and absorption reversed and policy swung back to emphasize
sovereignty. The swing in policy reflected and promoted the ascent of Indians
in the federal administration of Indian programs. Indians acquired high
offices in the BIA, and the federal government began to contract with Indian
organizations to supply more services to reservations. [FN67] Now Indian
political entrepreneurs compete vigorously with each other to implement
*305 Indian policy. In our opinion, the transfer of offices and contracts
from non-Indians to Indians impacted reservations more than changes in
formal law. Whether increased control by Indians over federal Indian policy
will result in greater sovereignty for the tribes remains to be seen.
D. Tribal Jurisdiction
How much scope exists for Indians to make
law? We will describe the pattern of jurisdiction that evolved through
Congressional enactment and interpretation of federal laws by the courts
and BIA officials, beginning with criminal law. An Indian tribe cannot
exercise criminal jurisdiction over non- Indians on reservations, unless
Congress has expressly given this power. [FN68] Likewise, states cannot
regulate criminal conduct of Indians on reservations, unless Congress has
expressly given this power. [FN69] Thus when crimes occur on reservations,
non-Indians are typically subject to state or federal courts, and Indians
are typically subject to tribal or federal courts. If an Indian defendant
is charged with certain major felonies, however, the federal courts have
jurisdiction on reservations. [FN70] In sum, the tribes have broad jurisdiction
to maintain peace and order on the reservation, including the prosecution
of many crimes in which the injurer and victim are Indians. [FN71]
In civil matters, an Indian tribe has the
inherent right to exercise jurisdiction over wrongs occurring within the
territory it controls. [FN72] Like criminal matters, this right extends
to disputes between members of the tribe. Unlike criminal matters, this
right also extends to non-Indians whose activities affect a substantial
tribal interest. [FN73] Thus, the tribal courts usually resolve civil disputes
*306 Tribal governments can tax
and regulate on reservations as provided in tribal constitutions. However,
the Secretary of the Interior retains veto power over all decisions affecting
the federal government's trust responsibility for reservation lands. According
to the officials with whom we talked, federal authorities now use this
power to interfere with tribal government less than in the past.
Drawing conclusions from generalizations
about the jurisdiction of tribal courts demands caution. [FN74] Large,
irregular curtailments of tribal jurisdiction have occurred, notably those
created by "Public Law 280" in 1953. [FN75] In this complex legislation,
Congress empowered six states to enforce state criminal laws in Indian
country situated within their borders. [FN76] Thus state authority replaced
tribal authority over crimes in the six "P.L. 280 states," which are also
called the six "mandatory states." Congress also authorized all other states
(the "optional states") to acquire criminal jurisdiction over Indian country
at their option. These states exercised their option piecemeal. [FN77]
(By chance, the tribal judges whom we interviewed mostly preside over courts
in optional states. [FN78]) The Indian Civil Rights Act of 1968 removed
*307 the option of states unilaterally to acquire criminal jurisdiction
over the tribes and no pre-emptions occurred subsequently. [FN79]
In spite of P.L. 280, substantial powers
remain with the tribes. Civil law remains open to tribal jurisdiction in
all states. [FN80] The trust status of Indian property, the right to tax
business and property on reservations, and the general regulatory power
over Indians in Indian country remain outside of the scope of P.L. 280.
[FN81] In criminal law, tribes pre-empted under P.L. 280 may exercise authority
in those areas from which P.L. 280 excludes state jurisdiction, notably
the regulation of hunting and fishing guaranteed by treaty or statute.
In family law, federal statutes give the tribes the power to pre-empt state
In addition to pre-emptions under federal
law, states have acquired a variety of powers over tribes by agreement
or other means. Roads, power lines, and aqueducts often cross reservations,
thus requiring cooperation between tribal governments and state governments.
Similarly, pollution does not respect jurisdictional boundaries. The extent
to which these interdependencies enable state or local government to acquire
jurisdiction depends upon prior agreements with the tribe and the tribal
interests affected by the activity. [FN83] The tribe and state may share
concurrent jurisdiction, the tribe may cede jurisdiction to the state,
or each one may exercise independent jurisdiction within its territory.
For example, Arizona acquired extensive control over air and water on reservations
within the state, [FN84] and Arizona extended its criminal and civil jurisdiction
over the trust land of a specific tribe that we visited. [FN85]
The U.S. Constitution regulates federal
and state behavior towards tribes, but the tribes, being sovereign, are
not bound by it. Consequently, the tribes are free to include or omit human
rights in *308 their own constitutions, and tribal members cannot
sue tribal governments for violating the U.S. Bill of Rights. In the 1960's,
some Indians complained bitterly that tribal constitutions did not extend
human rights far enough and that tribal courts did not provide adequate
remedies for violations of human rights by tribal governments. Complaints
of misconduct and abuse by tribal officials eventually moved Congress to
The Tenth Amendment of the U.S. constitution reserves powers for the states in order to protect them against a tyrannical majority in Congress. As Indians, the tribes probably have more to fear from a majority in Congress than the states. As sovereigns, the tribes allegedly have more independence than the states. However, the "plenary power" asserted by Congress allows a majority of its members to impose laws on the tribes without restriction. Congress exercised this power when it enacted the Indian Civil Rights Act in 1967, whose stated purpose is
"to ensure that the American Indian is
afforded the broad Constitutional rights secured to other Americans [to]
protect individual Indians from arbitrary and unjust actions of tribal
This Act extended most, but not all, provisions
of the Bill of Rights to Indians, thus limiting tribal sovereignty. [FN87]
*309 To conclude with a rough generalization,
the jurisdiction of tribal governments on reservations includes civil law,
family law, taxes, regulations, and minor crimes committed by Indians.
Pre-emptions of tribal jurisdiction include major crimes on all reservations
and all crimes on some reservations. In addition, the exercise of tribal
jurisdiction must be consistent with the federal government's trust responsibility
and with the Indian Civil Rights Act. Tribal jurisdiction apparently has
scope to apply and develop Indian norms in the legal process, civil law,
family law, regulations, and some crimes. This paper surveys legal process,
property and land, inheritance, environment, contracts, torts, crimes,
family law, and conflict of laws. We omit four important topics which demand
separate study: gaming or gambling, [FN88] domestic violence, child abuse
and child welfare, [FN89] protection and repatriation of cultural and religious
objects, [FN90] and theprotection of graves and repatriation of human remains.
In addition to library research, we visited
thirty-seven western reservations in the summer of 1990, winter, spring
and summer of 1992, winter and spring of 1995-96, and spring of 1998, where
we conducted more than one hundred and twenty open-ended interviews with
legal officials, and examined tribal court records. [FN92] Many reservations,
particularly the Rio Grande Pueblos, were visited more than once. All together,
in the Rio Grande Pueblos, fifty-seven interviews were held, five in 1990,
thirty-three in 1991-92, and nineteen in 1995-96. Indian friends, especially
Ben Chavis and Robert K. Thomas, arranged some interviews for us. Sometimes
we simply showed up at the tribal courthouse and asked whether the judges
would talk with us.
Tribal judges typically received us with
hospitality and welcomed the opportunity to exchange ideas. Communication
was usually *311 easy and productive. Most tribal judges recognize
that disseminating knowledge about indigenous Indian law increases its
effectiveness and vitality, thus strengthening Indian cultures. Researchers
without personal ties, however, cannot be certain of their welcome on reservations.
Conducting interviews on Pueblo law often requires careful preparation,
several recommendations by insiders, and much patience. Some tribes have
legal mechanisms to fend off outsiders, including legal scholars. [FN93]
Some tribal courts are politicized, which makes judges cautious and eager
to project a politically approved image of the tribe. The chief judge on
one reservation forbade us to talk with any tribal judges, [FN94] and one
other judge refused to see us. Our questions about property law once provoked
the suspicion that we were real estate developers. [FN95] In most tribal
courts, however, we felt welcome and we made friends. When asked what we
could do for them, one Indian judge replied: "Remember us and come again."
Legal anthropologists know that different
societies use legal terms differently. [FN96] The differences provoke some
of anthropology's deepest musings, [FN97] concerning, for example, whether
the laws of one society can be compared with another. [FN98] The fact that
our interviews were conducted in English raises questions about barriers
to communication. On all of the reservations that we visited, some people
can speak Indian languages, but Indian languages do not dominate private
or public life. Except for some Pueblos, a minority of the Indians on every
reservation that we visited speak an Indian language in *312 the
home. [FN99] Some reservations require fluency in the local Indian language
as a prerequisite for becoming a judge, while other reservations have no
such prerequisite and some of their judges can only speak English. [FN100]
Far more trials are conducted in English in the tribal courts than in an
Indian language. [FN101] To our knowledge, tribal courts keep written records
exclusively in English, [FN102] so we were able to read all trial transcripts
that were shown to us. The quality of transcripts varies from one court
to another. The Navajo Supreme Court publishes its major cases. [FN103]
The Hopi tribal court has neat hanging files of its cases. In most of the
other courts, we saw a few written cases and, in some courts, the only
case records are a heap of cassettes containing tape recordings of trials.
Since tribal courts hear and record most cases in English, officials must formulate legal concepts in English. Tribal judges have already struggled with the problem of translation, which reduces misunderstandings when communicating with outsiders. Nevertheless, several judges asserted that English is inadequate for discussing some Indian legal concepts. [FN104] In our interviews, we were sometimes brought short by statements suggesting a chasm between legal cultures, such as the following: [FN105]
"Whites fear the law. Indians live it."--FK
*313 "In a culture in which so much
rests on oral tradition, a given word weighs much more than in a culture
that writes." -Anonymous
"We say we don't own anything." -ET
Everywhere the tribal judges and advocates
gave us thoughtful, circumspect answers that were grounded in their experience.
The facts, however, may seem confusing and inconsistent to the reader.
The reader should bear in mind that on Indian reservations, as everywhere,
people dispute and disagree about law. The range of dispute is especially
broad in so far as law resides in oral traditions. With these caveats in
mind, we will report the facts to you as they were reported to us by tribal
judges and advocates.
In the introduction we mentioned four questions that guided our research on tribal law:
(1) Does custom work its way into judge-made
law on reservations?
(2) Is Indian common law specific to each
tribe or generic to many tribes?
(3) Is the process for developing Indian
common law different in tribal courts than in American state courts?
(4) Should public policy encourage or discourage
the development of distinctively Indian common law?
In this section we refine these four questions
Conquest and confinement to reservations
ended most aboriginal political institutions, but customs and traditions
survived. Imbedded in customs and traditions are concepts of justice and
fairness relevant to legal disputes. Our first hypothesis is that Indian
judges inevitably draw upon their own sense of justice and fairness in
deciding cases and interpreting legislation.
The extent to which judges explicitly rely
upon custom should vary systematically with the three types of courts that
we distinguished above. Custom and tradition should prevail in traditional
*314 courts, such as the Peacemakers Court of the Iroquois, other traditional
tribal courts, and the traditional secular courts of the Pueblos. [FN106]
Similarly, custom and tradition should play a central role in informal
dispute resolution, such as peacemaking, mediating, and settlement negotiations.
Our observations, however, concern CFR or IRA courts. In these courts we
anticipate heavy reliance by judges upon the sense of justice, which customs
and norms shape, and modest reliance upon explicit social norms.
Turning to the second question, we hypothesize
that Indian common law can be distinguished according to whether it is
unique to a tribe, characteristic of groups of tribes, or common to all
Indians. We will discuss briefly the causes of different levels of generality
in Indian common law. Earlier we divided Indian history into three phases--autonomy
and independence, conquest and submission, sovereignty and dependence.
In thinking about tradition, Indians often try to reach back to the first
phase for guidance. Most traditional Indians believe that their tribe originally
had its law or "Way." A tribe's way of life is the sum of its customs and
traditions, which are often imbedded in stories beginning with the creation
of the world. The customs and traditions provide an encompassing guide
to living backed by sacred sanction. The Way of the tribe should shape
the tribal judge's sense of justice.
Although each tribe had its own "way,"
anthropologists group tribes into cultural areas in which the tribes share
many attributes, such as the Great Plains, the Eastern Woodlands, the Northwest
Coast, and the Pueblos of the southwest. In addition, the tribes can be
divided into language groups that sometimes indicate common ancestry or
cultural similarity. Law should follow culture. Consequently, we expect
to find some common law specific to each tribe, and some common law shared
by cultural groups.
Anthropologists have identified general
differences in dispute resolution between tribes and industrial societies.
Tribal people live their lives among kin, so a dispute indicates a rupture
in these relationships. Dispute resolution in the tribe typically aims
to repair relationships. To repair relationships, adjudicators examine
the character of the parties and the history of their interaction, not
just the particular event in the legal complaint. Compared to other American
courts, we expect tribal courts to attend to relationships more than rules.
In this respect, we anticipate similarities in the common law of all tribes.
Another reason suggests similarities among
all tribes. Conquest subjugated all the tribes to similar forces. Thus
the Bureau of Indian Affairs, like all bureaucracies, strives for uniformity
in its practices. *315 Different tribes may have adopted similar
legal strategies to respond to similar external pressures.
Now we turn to the third question, which
concerns the process by which tribal judges make law. Common law evolves
in American state courts through reasoned elaboration of rules in formal
proceedings. As noted, anthropological studies of dispute resolution in
tribes typically observe less reliance on rules and more reliance on informal
proceedings. America's aboriginal tribes did not possess writing or a professional
bar. Most modern tribal courts keep few written records and conduct many
trials without lawyers. We hypothesize that the common law process in tribal
courts focuses more on relationships and less on rules in resolving disputes.
When making Indian common law, tribal judges
confront a central problem in legal anthropology: How to distinguish customary
obligations that are enforceable at law (which can be called "common law")
from customary obligations that are not enforceable at law (which can be
called "mere customs")? Put succinctly, the problem is to distinguish "law
from custom." [FN107] If a custom is law, then legal officials are obligated
to enforce it, whereas if custom is not law, then legal officials require
an independent justification for enforcing it. Thus disagreements about
how to solve this problem involve values and policies, not mere linguistic
convention for defining words. [FN108] Distinguishing law from custom inevitably
involves our fourth question - whether public policy should encourage the
development of Indian common law.
Some theorists identify law with a formal
apparatus of making rules and enforcing them, which implies that stateless
societies lack law. [FN109] For example, H.L.A. Hart defines law as the
conjunction of "primary rules" for regulating behavior and "secondary rules"
for creating, modifying, or extinguishing primary rules. Custom lacks secondary
rules, so it is not recognized as law under this definition. At the opposite
extreme, some theorists identify law with rules of social organization.
[FN110] Pospisil goes so far as to argue that each distinct unit of social
organization, including the family, has its own law. [FN111]
*316 These theories are not so useful
to tribal judges who must decide which customs to enforce. A more useful
approach comes from the study of enduring relationships by social scientists.
In economic jargon, an "efficient" rule enables people to accomplish their
ends as fully as possible given the constraints on their resources, whereas
an "inefficient" rule frustrates people unnecessarily. Theory and research
have identified specific features of the interaction that cause efficient
rules to emerge, and also deficiencies in the interaction that cause inefficient
rules to emerge. [FN112] Theory and empirical research suggest that people
in enduring relationships tend to create efficient rules for interacting
that allow them to accomplish their ends. Consequently, many customs (but
not all) tend towards efficiency. In addition to efficiency, when the same
activity has been repeated for years without objection or apparent harm,
people often feel that they have a right to go on doing it. Consequently,
many customs (but not all) tend towards fairness. Our final hypothesis
asserts that aligning law with custom in tribal courts promotes efficiency
and fairness. [FN113]
Efficiency and fairness concern the treatment
of individuals, whereas culture belongs to a society. Like some other ethnic
groups in America, Indian cultures are in peril. Unlike other ethnic groups
who emigrated to America, however, Indians have no homeland abroad where
their original culture will persist. Consequently, the assimilation of
Indians in America extinguishes cultures. Enforcing Indian customs in tribal
courts can contribute to the survival of Indian cultures. This reason for
promoting Indian common law stands apart from efficiency and fairness.
Now we turn to the results of our field
research, beginning with legal procedure and proceeding to substantive
*317 A. Independent versus Amalgamated
The American constitution creates separate
offices for judges and insulates them from politics. In contrast, aboriginal
tribes in America apparently amalgamated judicial activities with other
activities. Do modern tribal courts conform to the old principle of amalgamation
or the new principle of independence?
The answer is complicated. Formal independence
requires separating the judiciary from the legislature, executive, and
electorate. At the level of the appeals courts, tribes differ with respect
to the separation of judges from politics. The Navajo and Hopi reservations
have independent courts of appeal, thus following the principle of separation
of powers. In contrast, the tribal council acts as appeals court at Acoma,
Taos, and some other reservations, thus following the principle of amalgamation.
In Warm Springs, the voters directly elect a large appeals court consisting
of people without training in law or experience with courts. Some tribes
have joined together to share an appeals court. [FN114] Other reservations
have no appeals court. [FN115]
Compared to appeals courts, tribal constitutions
prescribe relatively uniform organization for trial courts. Except for
some of Pueblos, government on each of the reservations that we visited
divides power among a court (judiciary), an elected council (legislature),
and an elected chairman or governor (executive). On most of the reservations
that we visited, "trial judge" is a distinct job performed by someone with
no other tribal office. [FN116] Different reservations use different methods
for selecting and replacing judges. To illustrate, the Navajo tribal council,
elected by the Navajo people, appoints the seventeen Navajo judges, including
the three Navajo Supreme Court judges. After a two year probation period,
Navajo judges may be appointed permanently to serve until the age of seventy.
This method of selection insulates the Navajo judiciary from politics.
Similarly, in many Pueblos, the tribal council elects the judge or judges,
who are sometimes hired from outside the tribe. [FN117]
*318 Separation of powers at the
level of the trial court achieves formal independence for judges. In reality,
however, the influence of the tribal council and chairman upon judges varies
from one tribe to another, and from one historical period to another. Effective
independence requires that politicians do not influence the decisions of
judges. To achieve effective independence, the income and power of judges
must not depend upon the evaluation of their decisions by politicians.
Alternatively, the judiciary and politics intertwine when politicians can
dismiss or promote judges in response to their decisions in cases. The
extent to which officials tribal politicians can influence judges depends
in part upon formal laws for removing judges, and in part upon informal
traditions and personalities.
To illustrate, the Navajo Supreme Court
showed its political independence during a series of recent cases triggered
by crimes allegedly committed by the former chairman. [FN118] In the San
Carlos Apache Reservation, any judge can be dismissed for just cause by
a two-thirds vote of the council. We were told, however, that judges at
San Carlos are not usually dismissed when a new group assumes elected office.
Some judges, such as the Chief Judge at Hopi, remain in office for many
years as politicians come and go. On most reservations, however, the council
can impeach or dismiss judges, and politicians sometimes use this power
to force judges to resign. For example, elections in recent years at the
White Mountain Apache Reservation have been bitter and many officials,
including judges, have been replaced after a new chairman assumed office.
Similarly, the chief judge at Warm Springs told us that he brooks no intrusion
of the council into the activities of his court, but he was subsequently
compelled by the council to resign.
To remain in office, tribal judges on many
reservations must balance a diverse set of interests. Judges cannot appear
partisan in adjudication, but neither can they appear unresponsive to the
electorate or disloyal to the council and chairman. Three U.S. Senate and
House bills contemplate creating incentives for tribes to increase the
independence of judges. The bills offer more money for tribal courts on
reservations whose constitutions separate powers and protect judicial independence
much as in the federal constitution. [FN119] For tribes that follow the
traditional practice of amalgamation, such an offer poses a *319
familiar tradeoff between tribal autonomy and federal funding. Tribal politicians
want federal money, but they also want to be sovereign. [FN120] We cannot
predict which of these contradictory tendencies will prevail in the future.
Before leaving the topic of judicial independence,
we want to say something more about the character of tribal politics. To
most Americans, the legitimacy of elections and the right of the majority
to govern seem self- evident. In contrast, tribal elections often cause
enduring bitterness and rancor. To understand why, one must understand
Indian political history. The role of leaders in aboriginal government
has been described as assisting people to reach a consensus. [FN121] A
consensus is reached when everyone sufficiently agrees with a proposal
so that no one objects in public. If someone persists in public dissent,
preserving a consensus requires either abandoning the proposal or having
the dissenter withdraw from the group. The abrupt change from consensus
methods to majority rule among the tribes in the 1930's caused much of
the bitterness in tribal politics.
A critique of majority rule based on modern
political theory explains why a small community might prefer government
by consensus. Under majority rule, the majority can make decisions without
taking into account the minority's strength of feeling. In the jargon of
political theory, a majority vote reflects the ordering of preferences
by individuals, but not their intensity. [FN122] In contrast, rule by consensus
requires the group to continue its discussions until everyone remaining
in it accepts the decision. In the jargon of political theory, rule by
consensus has high transaction costs and risks fragmentation or paralysis.
A large nation adopts majority rule to reduce transaction costs and avoid
political paralysis. [FN123] A small, intimate community, however, might
prefer to retain rule by consensus in order to reflect more fully the intensity
of peoples' feelings. However, majority rule avoids paralysis caused by
the absence of a consensus in a large, heterogeneous group.
Being accustomed to majority rule, Americans
have difficulty appreciating consensus politics. In an aboriginal band
where people interacted*320 face-to-face each day, political leadership
often depended upon personal prestige more than formal office. [FN124]
To illustrate, a Sioux man could decide on his own initiative to form a
war party against a neighboring tribe, and each young man would then decide
whether to join by gauging the leader's prestige and spiritual power. [FN125]
Besides informal leaders, some tribes had formal offices such as the "council
of forty-four" among the Cheyenne. [FN126] The Pueblos even have hierarchical
offices with clearly prescribed duties and terms. [FN127] Most offices
in the tribes, however, were filled by hereditary chiefs. Principles of
inheritance might make several different males eligible to inherit the
office of a particular chief. [FN128] Selection among several eligible
heirs might occur through divination or acclamation.
Some tribal mechanisms for maintaining
balance and harmony in government were ingenious and utterly unfamiliar
to Americans. To illustrate, some Pueblos maintain a system of parallel
sub-units called "moieties" by anthropologists. [FN129] The two moieties
of a Pueblo form a dual organization, often represented by two kivas (winter-summer;
north-south; redeye-blackeye; Turquoise-Squash; Badger-Tree; etc.), each
of which has its own officers. The head officers in the dual organizations
may take turns governing. For example, the officers of the "winter people"
may govern in the cold months, and the officers of the "summer people"
may govern in the warm months. This device creates a succession of alternating
governments. The checks and balances in the moiety system apparently stabilize
politics and may reduce conflicts. In modern times, the moiety heads share
power with elected or appointed officials, with details varying from Pueblo
to Pueblo. [FN130]
When tribal government was reorganized
and modernized in the 1930's, the older principles of government were not
allowed to compromise democracy. For example, tribal constitutions did
not allow a "House of Lords" for hereditary chiefs. Instead, all key offices
were *321 filled by elections. Nor did tribal constitutions require
a consensus for legislation or executive action. Instead, tribal constitutions
permit the majority to rule. Few tribes have formalized institutional protection
of such traditional minorities. Majority rule can neglect and alienate
groups within the tribe. For example, modernist elites may attract the
most votes and disregard legitimate interests of a tradition-minded minority
(Deloria & Lytle (1983), 2-24; Comment (1972), 973; Churchill (1992),
Modern tribal government broke completely
with the older principles of heredity and consensus, and established the
new principles of election and majority rule. With hundreds of years of
experience in dealing with powerful outsiders and divergent political interests
among themselves, the Pueblos sometimes added modern tribal government
to traditional government, and the two regimes co-exist in a system of
parallel authority. In most other tribes which lacked the experience and
tradition of the Pueblos, however, modern government pre-empted traditional
government, and the latter disappeared.
A sharp break with traditional political
principles destabilizes government by creating confusion about legitimacy
and authority. Little wonder that traditional Indians doubt the legitimacy
and authority of tribal government on some reservations today. In a society
based upon consensus, withdrawal and non-participation express dissent,
not apathy or passivity. Low voter turn-out in tribal elections sometimes
expresses disapproval rather than indifference. To illustrate, the Hopi
tribal government has been crippled in recent years because many of the
villages refuse to send representatives to the council, which deprives
the council of the quorum it needs to enact laws. [FN131] Hereditary chiefs
seldom compete for elected office. On some reservations, the tribal chairman
is chosen from a small, unrepresentative faction of the tribe. To illustrate,
the overwhelming majority of the Tohono O'odham are Catholics, but the
recent tribal chairman was Protestant. Similarly, the recent tribal chairman
of the Hopis was a Mormon, although Mormons are a small minority of Hopis.
[FN132] Some Indians told us that traditional Indians prefer to elect assimilated
Indians to tribal office so that they can work better with whites and provide
a buffer against the surrounding society.
The different types of Indian institutions
for resolving disputes are confusing. To help the reader, Figure 1 depicts
the types that we *322 have distinguished (cf. similar distinctions
in Deloria & Lytle (1983), 112):
B. Qualifications of Judges
Do tribal judges have the knowledge and
inclination to apply tradition to cases? Once again, the situation varies
from one reservation to another. Navajo law stipulates that a tribal judge
must be fluent in Navajo, knowledgeable in Navajo customs, have at least
two years of experience in a law-related area, and be over 30 years of
age. [FN133] In contrast, some reservations have no law stipulating qualifications
for judges based upon age, experience, or ability to speak an Indian language.
We estimate that at least half of the judges whom we interviewed were not
fluent in a native language spoken on the reservation where they preside.
Some tribal judges and almost all jurors
have no formal training in law. People without legal education who must
make legal decisions inevitably draw upon their own sense of justice, which
in turn draws upon custom and tradition. For example, we were told that
Navajo jurors in wrongful death cases award damages in light of the specifics
of Navajo culture, such as as marital practices and family structure. [FN134]
Similarly, we were told that judges on the Blackfeet tribal court take
specific cultural considerations into account when awarding damages. [FN135]
*323 Some of the judges were deeply
rooted in the culture of the tribe where they presided in court, whereas
others were outsiders. The outsiders might be Indians from other tribes,
Indians returning to their own reservation after a long absence, or non-Indians.
Outsiders have the advantage of not being implicated in political factions
and family feuds that affect reservation politics. For example, one of
the three non-Indian judges whom we met said that he was hired to restore
integrity and prestige to a court previously compromised by political infighting.
He predicted, accurately as it turned out, that he would finish the process
and be replaced with a tribal member. [FN136]
C. Procedural Provisions for Custom in
Tribal law everywhere distinguishes between custom as law and custom as fact. Custom as law draws its contents and strength from custom as fact. Tribal law, which cannot be identified with custom, draws much of its authority from custom. Many tribal constitutions or codes, therefore, recognize the authority of custom and some assign an explicit role to it. To illustrate, Art. VIII, Sec. 2 of the Constitution of the Pascua Yaqui Tribe of 1987 says:
"The jurisdiction of the courts shall extend
to all cases in law and equity arising under this constitution and the
laws, traditions, customs or enactments of the Pascua Yaqui Tribe. . ."
Thus the Pascua Yaqui constitution recognizes custom as a source of law, without providing any details about when or how to enforce it. Title 7, Article 204 of the Navajo Tribal Code not only recognizes custom as a source of law, but provides the courts with a process for its authoritative determination:
Law applicable (a): In all cases the Courts
of the Navajo Nation shall apply any laws of the United States that may
be applicable and any laws or customs of the Navajo Nation not prohibited
by applicable federal laws. (b) Where any doubts arise as to the customs
and usages of the Navajo Nation the court may request the advice of counselors
familiar with these customs and usages. (c) Any matters not covered by
the traditional customs and usages or laws or regulations of the Navajo
Nation or by applicable federal laws and regulations, may be decided by
the Courts of the Navajo Nation according to the laws of the state in which
the matter in dispute may lie."
Some judges whom we interviewed, notably
Chief Judge Don Costello at Warm Springs, actively seek counsel on custom
as authorized in the tribal constitution. Even where explicit constitutional
authorization *324 is lacking, assembling elders to discuss custom
or tradition is common practice in the Pueblos. Many courts assign cases
involving custom to a particularly expert judge. The judicial expert on
custom is typically an older person who grew up on the reservation and
speaks its language or languages. This was the approach at the Flathead
and White Mountain Apache reservations. [FN137] However, the most traditional
members of the tribe, including the elders who are most immersed in the
old way of life, often seem to avoid connection with tribal government
and do not participate in court deliberations. One person observed wryly
that much unwritten law "eludes the organizers of modern tribal life."--ES.
D. Procedure in Trials
As remarked earlier, anthropological studies
around the world have found that dispute resolution in tribes aims at repairing
relationships. Thus judges at Laguna and Acoma described four steps to
resolving a dispute along traditional lines. [FN138] First, the person
who commits the wrong must admit what he has done and promise not to do
it again. Second, he must apologize to the victim. Third, he must pay damages
to the victim, usually as compensation but sometimes as punishment. [FN139]
If the offender does not have enough money to pay damages, either a symbolic
payment will do, or, under a new procedure being tried at Laguna, the offender
works for the victim or for wages passed to the victim. Fourth, the injurer
must "make it up" to the community by service. One judge illustrated the
fourth point by explaining that his courtroom was decorated by somebody
"who had to make good to us for what he had done." In Tesuque, a delinquent
was ordered to repair a "fence that was down." On a Paiute reservation,
"washing windows" was the penalty for a light offense.
Repairing a relationship requires going
deeper into the dispute than the immediate cause of the disagreement. Anthropologists
have found that tribal people frequently treat everything about the relationship
between the parties as relevant to a dispute, including the character and
feelings of the parties. In contrast, rules of procedure in federal and
state courts narrow the dispute to the specific wrongdoing alleged by the
plaintiff. These facts raise the question, "To what extent do tribal courts
examine the relationship and character of the parties, rather than the
specific act in dispute?"
*325 Within certain limits prescribed
by federal law, [FN140] tribal judges are free in principle, to regulate
the conduct of parties, witnesses, and experts in tribal courts. Many tribal
judges take the federal rules of procedure as their model, especially in
disputes involving large stakes. Given large stakes, the parties usually
have counsel provided by lawyers or "legal advocates," [FN141] who may
prefer standard, adversarial procedures. However, we heard many complaints
against the claim-isolating procedures of modern courts, which were described
as "cultural impositions" that create antagonisms over "non-issues." Some
tribal judges whom we surveyed seemed reluctant to follow the federal rules
of evidence or Anglo-American common law rules of evidence.
Some judges and some courts explicitly follow alternative procedures in an effort to adapt procedure to local needs. To illustrate, before hearing the case, Judge Frank A. Demolli of Pojoaque Pueblo announces the following rules of Pojoaque Pueblo procedure to the parties:
1. In addition to evidence admitted according
to generally accepted rules of evidence, hearsay will be given due consideration.
2. The judge may direct questions to the
parties and their witnesses.
3. A party who wants to keep silent may
do so. However, there will be no "counsel's privilege."
4. An appeal from the decisions of the
Pojoaque Tribal Court goes to the Tribal Council, whose decisions are binding
and trigger res judicata.
Judge Demolli announces these rules to
the parties. We found that outside legal counsel has no difficulties in
submitting to these tribal procedural rules, and welcomes the advance information.
In admitting hearsay, Pojoaque law ressembles
the "Rule of Free Evaluation of Evidence" found in continental law (France,
Italy, Germany, etc.) more closely than the common law rule against hearsay.
[FN142] Other variations exist. Jicarilla Apache law takes a "middle ground"
between free evaluation of proofs including hearsay, and the Federal Rules
of Civil Procedure. Thus, hearsay there has "minimal weight" because evidence
must be "reliable and trustworthy."--CV. *326 By allowing the judge
to direct questions to the parties and witnesses, Pojoaque law assigns
a more active role to judges resembling the so-called "inquisitorial system"
of continental Europe rather than the role of passive umpire assigned to
judges in the common law's "adversarial system." [FN143]
Some tribal judges say that they need freedom
from formal procedural rules to make the legal process congenial to Indians.
A Hopi legal scholar remarked to us, "We apply law holistically."--ES.
Such judges proceed informally in their courts. To illustrate, the court
in the Gila River Pima-Maricopa Community handles offenses committed within
the family "as informally as possible." In one case, the court required
the offender to hug his mother with the entire family present.--RP. An
apology to the victim, along with the promise not to repeat the wrong,
is commonly required of defendants.--FC.
Tribal judges often try to channel cases
outside the courtroom. A Hopi judge told us that a good legal practice
is to tell the litigants what his decision may be before the trial ("If
you don't find a solution, I will, and it's going to be . . . ."--RA),
and then recommend an out-of-court settlement based on village traditions.
A judge in Zuni told us that if the families of the criminal and the victim
in a rape case settle their dispute by mutual agreement (for example, by
apology and compensation), then the court might accept the settlement rather
than prosecuting the offender.--MZ.
An older way of deciding disputes apparently
persists in tribal courts, sometimes resulting in formal rules different
from the federal rules of procedure, and sometimes resulting in informality.
As explained, tribal judges adapt procedures to make courts more congenial
to Indians. In addition, outside counsel and non-members of a tribe may
prefer a tribal court proceeding, because it is faster and more flexible
than state or federal trials. On the other hand, and different from our
experience in Pojoaque, outside attorneys sometimes have little trust in
the fairness of a trial conducted on a reservation. Unfamiliarity with
tribal law and procedures increases mistrust by outsiders.
E. Common Law Process?
A social norm exists in the practices of
people. Anthropologists sometimes describe dispute resolution in tribes
as the application of inchoate social norms. [FN144] An inchoate norm is
not fully explicit. Flexibility and responsiveness are advantages of inchoate
social norms, which especially appeal to small, intimate communities. In
contrast to "social law," Anglo-American "common law" stresses the reasoned
elaboration of rules by judges. Reasoned elaboration aspires to a fully
*327 explicit statement of rules, which exist in the decisions of judges,
not just the practices of people. Predictability and boundedness are advantages
of common law, which especially appeal to large, diverse societies. To
achieve predictability and boundedness, common law rules are promulgated
authoritatively. Consequently, changing common law rules requires an official
revision. In contrast, social norms are not promulgated, so they can change
without an official revision. In deciding how far to formalize law, predictability
and boundedness apparently trade-off with flexibility and responsiveness.
Does the development of law in tribal courts
correspond more closely to the process of social law or to the process
common law? The judges in all the courts that we visited expressed respect
for precedent and the desire to follow past practices in current decisions.
Lawyers or legal advocates argue the more important cases before the judges.
However, the reasoned elaboration of rules requires institutional memory.
The tribal courts that we visited sometimes record cases on cassette tapes.
The tapes may be poorly organized and difficult to use. Only the most important
cases are transcribed. When we asked tribal judges for files from previous
cases, many judges did not have any to show us. Most tribal judges cannot
consult records of rules and principles articulated in past decisions in
their own courts. Some tribal judges apparently read many federal cases
and some state cases, but they seldom read cases decided in tribal courts.
Courts without adequate written records
must rely upon individual memory about past decisions. [FN146] Face-to-face
conversations and telephone calls substitute for retrieving court records
when researching a case. All the judges whom we visited have participated
in training programs and conferences, which provide an opportunity to exchange
experiences and ideas. [FN147] Some tribal judges remain in office for
years, have a good memory for cases, and discuss them over many years.
Through the work of such judges, Indian common law evolves orally and informally.
Other tribal judges, who change jobs rapidly or remain intellectually isolated,
make single decisions rather than lasting rules of law. (An interesting
historical question is whether the courts of the "Five Civilized Tribes"
in 19th century *328 Oklahoma, which apparently kept good written
records, had a formal common law process. [FN148])
There is one notable exception to these
generalizations. The Navajos, who have the largest, most populous, and
one of the richest reservations in America, also have the best funded tribal
court system. The Navajo Supreme Court hears many cases each year argued
by lawyers who continually refer back to its past decisions, which are
published and stored in an impressive library. The Navajo judges speak
about "Navajo common law" and regard themselves as participating in its
elaboration and development.
Most tribal courts have some, but not all,
of the features necessary for the Anglo-American common law process. Some
aspects of the common law processes are at work in all of the tribal courts
that we visited, but it seems to us that few--possibly only Navajo--have
a formal common law process like those found in state courts. Are these
facts to be interpreted as a deficiency in the tribal courts, or as a preference
for social law over common law? Most tribal judges would like better funding
to improve the quality of legal records. Providing tribal courts with more
institutional memory would facilitate the common law processes in the tribes.
Many tribal judges, however, might want to stop far short of the Anglo-American
common law process. Stopping short represents, according to the preceding
analysis, a choice in favor of more flexibility and responsiveness, and
less predictability and boundedness.
Thus, in essence, Indian customary law
develops into Indian common law, which sometimes resembles the Anglo-American
common law process, sometimes not. The latter situations are certainly
more frequent. Hence, there is a "folk common law" in most tribes, and
it is tribe-specific.
James Zion relates Indian customary law
and Indian common law in the following way:
"For the purpose of a rational discussion
of Indian customary law, it is best to use the term 'Indian Common Law.'
Indian government, law and daily life are founded upon long-standing and
strong customs, and since the stated rationale for the English Common Law
is that it is a product of custom, that approach maybe used for Indian
law as well.
Indians have every right to assert that
their law stands on the same footing as the laws of the United States and
Canada. It is unfortunate that the term 'custom' implies something that
is somehow less or of lower degree than 'law'." Zion (1988), at 123.
*329 On the whole we agree with
this statement by Zion. However, we would add two remarks: (1) Common law
is a process-related term referring to a source of law, while customary
law concerns a part of substantive law regardless of process; and (2) the
common law of an Indian tribe includes tribal legal developments in which
tribal judge-made law refers to customs as being part of the law, or as
being of a mere factual, not legal nature; or which is not based on custom
at all but represents recent tribal judge-made law, for example in cases
of consumer protection in "rent-to-own" contracts. Therefore, we prefer
a definition of Indian common law that comprises tribal judge-made law,
developed either in a common law process according to the Anglo-American
tradition, or in a tribe specific legal process different from the Anglo-
American model; but in each case including both customs of legal nature
and force, judge-made law using customs as mere facts, and judge-made non-
customary "new law" answering to contemporary tribal social needs. Figure
2 attempts to illustrate this:
The existence of customary law is a fact
that influences many cases. For example, social norms influence the way
people understand contractual obligations, property rights, and fair punishments
for crimes. While social norms influence altitudes in most cases, most
customs--whether Indian or Anglo- American--are unsuitable for legal enforcement.
For example, most customary promises given in daily life should be enforced
informally, not legally. Legal enforcement *330 of daily promises
would inject a coercive, bureaucratic element into human relationships.
Promises are the source of contracts, but most promises are not contracts.
In general, the common law process requires judges to enforce custom selectively.
Moreover, the foundation of any common
law system is a vibrant intellectual community of legal experts. An intellectual
community that emphasizes oral communication needs frequent face-to-face
interaction. Tribal judges especially need conferences, seminars, and telephone
calls. In contrast, the Anglo-American common law process relies relatively
more on the circulation of written documents. As compared to Anglo-American
common law, support of Indian common law requires a different emphasis.
Finally, tribal judges often make law by
interpreting statutes. As in Anglo- American law, making law by interpreting
statutes differs in important ways from making law by enforcing customs.
A discussion of Indian common law must recognize that judge-made law encompasses
both sources of law.
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Robert D. Cooter is Professor of Law, University of California at Berkeley.
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FN1. For their ethnographic fieldwork in tribal laws, the authors received the Max-Planck Research Prize in Bonn in 1994. This award was the second time a lawyer received the prize and the first time it was awarded for anthropology of law.
FN2. Emic (insiders') use clearly prefers
"Indian". The term "Native American" is etic, that is, outsiders' usage.
Thus, the people whom we interviewed referred to themselves as "Indians"
in almost every case, and only occasionally used the phrase "Native Americans."
Our paper respects their practice. For the distinction between emic and
etic, see Headland et al. (1990).
FN3. Deloria & Lytle (1983), page 120.
FN4. The larger alliances and confederations
among tribes prior to contact presumably required a legal foundation. The
best known example is the Iroquois, whose form of government may have influenced
the American constitution. See Fenton (1968).
FN5. For the argument that the idea of
federation passed from the Iroquois League to the USA and then to Switzerland,
see Vanoni (1998).
FN6. Strickland (1975).
FN7. See Colton (1934) on the Hopi and
Van Valkenburgh (1936-1938) on the Navajo. A proposal to use the term "Indian
common law": Zion (1988).
FN8. See Richardson (1940) on the Kiowa,
Hoebel (1940) on the Comanches, Noon (1949) on the Grand River Iroquois,
and the more substantial and systematic study by Smith & Roberts (1954a
and 1954b) on Zuni law. Note that Smith and Roberts state in the introduction
at page 3 that there is "no major specialized study of the law-ways of
any Southwestern Indian tribe" and then list the relevant studies that
they could find. Out of the 97 cases reported by Smith and Roberts, 25
are taken out of earlier works on Zuni (by Bunzel, Cushing, Curtis, Ealy,
Kirk, Kroeber, E.C. Parsons, Scott, Stevensen and others). 21 cases are
reported by informants but date back to the years 1933 and before. 51 cases
concern contemporary problems.
FN9. For research on land, ownership, and
inheritance among the Hopi, see Beaglehole (1935), Page (1954), Cox (1967),
Ellis (1974), and Kennard (1979).
FN10. Father Haile (1954) gave a useful
analysis of Navajo property concepts. Reina's (1967) study of ritual laws
refers to a pueblo in Guatemala. Only chapter 3 of Bruce A. Cox's insightful
doctoral dissertation on Hopi law and conflict resolution was published.
See Cox, (1967, 1968). Dan Vicente (1972) contributed a book on Navajo
legal education. Navajo public law was treated by Mary Shepardson (1963,
1970). Gary Witherspoon (1975) gave a useful account of Navajo kinship
and marriage law. John W. Ragsdale (1987) discusses questions of Hopi law;
he quotes literary sources but does not indicate whether he did additional
field work. E. Adamson Hoebel reported on Keresan witchcraft (1952) and
Keresan law (1968 and 1969). Hoebel (1969 at page 100) stated, "The most
distinctive feature of Pueblo law, among tribal systems, is that there
is no private law." This claim was contradicted by the wealth of private
law rules we discovered in all the Pueblos we visited, including the Keresan
FN11. See Pevar (1992), 129ff.; Canby (1988),
181; Wilkinson (1987); Clinton, Newton & Price (1991); Getches, Wilkinson,
& Williams (1993); and Deloria & Lytle (1983). It is worth noting
that Linda Fritz's 167 page bibliography of "native law" contains three
entries under the heading "Customary Law."
FN12. Fay (1970a, 1970b), R. Johnson (1981).
Some examples: Navajo Tribal Code (1978). Jicarilla Apache Tribal Code
(1987), Pueblo of Isleta Tribal Constitution (1947, revised 1991). Constitution
and Bylaws of the Pueblo of Santa Clara New Mexico (1935). Also see The
National Indian Law Library Tribal Code Project of the Native American
FN13. Navajo Law Reporter (1969 through
FN14. "To date, no developed literature
exists concerning the legal codes of U.S. tribes..."--B. G. Miller, "Contemporary
Tribal Codes and Gender Issues," 18 American Indian Culture and Research
Journal 43-74 (1994) at page 68. One of the few articles actually concerned
with what tribal courts do is Tso (1989). Also see Pommersheim (1988),
Brakel (1978), and National American Indian Court Judges Association Long
Range Planning Project (1978). Fredric Brandfon (1991) calls for tribal
courts to review legislation by tribal councils in light of Indian traditions.
FN15. Floyd Kezele, who was judge at Acoma,
reported to us that an attorney recently argued before the Acoma Tribal
Court that the Indian Civil Rights Act of 1968 "did away" with all Indian
common law. The Indian Civil Rights Act is discussed at page 308 in this
article. Nothing in the Act can be construed to this effect. Judge Kezele
told us that he thinks that the Indian common law of crimes and some civil
wrongs have been pre-empted on those reservations located in the so-called
"P.L. 280" states. "P.L. 280" is discussed on page 521f.
FN16. Partly under the influence of Vine
Deloria's (1969) attack on anthropologists, some reservations now require
researchers to apply to a tribal board for permission to enter the reservation
and conduct research. These boards, which have little to lose from denying
an application, proceed cautiously and slowly. For a reply to Deloria,
see the introduction to Hunn (1990).
FN17. The legal basis of sovereign dependency
is explained on page 511f.
FN18. See Cohen (1982). Subsequently, surveys
of jurisdictional Indian law were written by Pevar (1983, 1992) and Canby
(1981, 1988). Also see National American Indian Court Judges Association
(1974); Falkowski (1992). A study in greater depth is by Deloria &
Lytle (1983). For cases and materials, see Getches, Wilkinson & Williams
(1993), and Clinton, Newton & Price (1991). For relevant articles,
see student note in Laurence (1988), Resnik (1989). For policy studies
Rosen (1976), Taylor (1983), Prucha (1985).
FN19. Weber (1982), Wilkins (1991), Wilkinson
(1987), Williams (1986, 1989, 1990).
FN20. Some scholars use the phrase "Indian
law" for the law imposed upon the tribes, and "tribal law" to refer to
the laws made by Indians. For example, Canby defines "American Indian Law"
as that body of law dealing with the status of the Indian tribes and their
relationship to the federal government, with all the consequences for the
tribes, their members, the states, their citizens, and the federal government
itself. In contrast, Canby defines "American Tribal Law" as the constitutional,
statutory, and customary laws of the various tribes. Canby (1981, 1988),
page 1 and 3.
FN21. The reservations that we visited
once or more, and the names of judges and tribal officials, are listed
in the acknowledgments.
FN22. Eisenberg (1988), Cardozo (1921),
Llewellyn (1951), Goodhart (1959), Levi (1949). For a discussion of common
law theorists prior to 1975, see Fikentscher (1975).
FN23. For descriptions of these processes
by anthropologists, see Bohannan (1957), Gluckman (1955), Pospisil (1978),
Nader (1990), Josselin de Jong (1969); cf. Pannenberg (1983).
FN24. Johnson v. McIntosh, 21 U.S. (8 Wheat.)
543 (1823) enunciating a principle of "discovery" as an alleged European
doctrine; Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); Worcester
v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832); United States v. Kagama,
118 U.S. 375 (1886); Williams v. Lee, 358 U.S. 217 (1959); Santa Clara
Pueblo v. Martinez, 436 U.S. 49 (1977); Oliphant v. Suquamish Indian Tribe,
435 U.S. 191 (1978) U.S. v. Wheeler, 435 U.S. 313, 327 (1978); Montana
v. U.S., 450 U.S. 544 (1981); Merrion v. Jicarilla Apache Tribe, 455 U.S.
130, 149, 102 S.Ct. 834 (1982), dissent of Justice Stevens, joined by Chief
Justice Burger and Justice Rehnquist, in S. Ct. at 918-920.
FN25. 16 Stat. 544, 566, codified as 25
FN26. Cf. Verdross & Simma (1984) 391.
Examples for debellatio include the Northern Kingdom of Israel (Bible,
"2 Kings", Chapter 17); an intended and publicly proclaimed debellatio
was the conquest of Kuwait by Iraq on Aug. 2, 1990. Examples for occupatio
bellica include France in 1940 and Japan after World War II.
FN27. Chief Justice Marshall, in Cherokee
Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); see the discussion in Canby
14 ff., 66 ff. Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823) on "discovery"
giving title to discoverers; Cherokee Nation v. Georgia, 30 U.S. (5 Pet.)
1 (1831) on Cherokees having a "state"; Worcester v. Georgia, 31 U.S. (6
Pet.) 515, 519 (1832) on tribes having no ability to deal with foreign
powers but being "distinct, independent political communities, retaining
their original natural rights" in matters of local government; Menominee
Tribe v. U.S., 391 U.S. 404 (1968); Antoine v. Washington, 420 U.S. 194
(1975). For details see Pevar (1983), 41 ff.; Canby (1988), 66 ff.; Deloria,
Jr. (1969) and (1974); Josephy (1971); Quinn (1990). This principle of
"dependent sovereignty" is opposed to the theory of the "three sovereignties"
because it (correctly) keeps Indian sovereignty out of the U.S. federal
system (cf. Resnick (1995); O'Connor (1997)). For chronology of cases see
Holt & Forrester (1990).
FN28. 31 U.S. (6 Pet.) 515 (1832), at 561.
FN29. 31 U.S. (6 Pet.) 515, at 519. See
also U.S. v. Kagama, 118 U.S. 375, 381-383 (1886) on quasi-sovereignty
and semi-independence; Talton v. Mayes, 163 U.S. 376 (1896) on tribal governmental
powers; Menominee Tribe v. U.S., 391 U.S. 404 (1968); Antoine v. Washington,
420 U.S. 194 (1975). For details see Pevar (1992), 37 ff.; Canby (1988),
14 ff., 66 ff.; Deloria (1969) and (1974); Josephy (1971); Green &
Work. This allocation of power made practical sense at the time. The appetite
of non-Indians for Indian land threatened to provoke new Indian wars. To
avoid conflict, the frontier states were denied power over the tribes,
and the federal government regulated commerce with them. See Canby (1988),
10; Cornell & Kalt (1991).
FN30. See the authorities cited in note 18, supra; also Pommersheim (1995); Reno (1995); Wallace (1995); Feldman & Withey (1995). Felix Cohen, op.cit., identifies constitutional powers that, apart from U.S. Constitution, article I, § 8, cl. 3, deal with the management of Indian tribes, including the Treaty Clause, the Property Clause, the Necessary and Proper Clause, and the Supremacy Clause. However, none of these clauses gives direct power over Indian tribes, Cohen, at 207-211. By comparison, the Articles of Confederation specifically gave Congress "the sole and exclusive right and power of regulating the trade and managing all affairs with the Indians not members of any of the states, provided that the legislative right of any state within its limits be not infringed or violated," Articles of Confederation, Article IX, which leaves no room for the application of the X Amendment. However, the attempted compromise caused many problems between Congress and the states, and ultimately for the tribes. This ungovernable situation led to the Constitution's terse and concise grant of power: Robert N. Clinton, "Isolated In Their Own Country: A Defense of Federal Protection of Indian Autonomy and Self-Government," (1981); Lester J. Marston & David A. Fink, "The Indian Commerce Clause," (1986) for the historical background, and details. Justice Thurgood Marshall wrote, "[t]he source of federal authority over Indian matters has been the subject of some confusion, but it is now generally recognized that the power derives from federal responsibility for regulating commerce with Indian tribes and for treaty making, McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 172n. 7 (1973).
The Supremacy Clause in Article 6 of the Constitution says that a federal treaty with an Indian tribe is the supreme law of the land. Moreover, a legislative ratification by Congress of an agreement between the federal executive branch and an Indian tribe is a law of the United States made pursuant to the Constitution and, therefore, like treaties, is made binding upon the affected stated by the Supremacy Clause notwithstanding that an affected state is not a party to the agreement, Knickerbocker, Anne E., American Jurisprudence, Second Edition, Volume 41 (1995) Current Through April 1997 Cumulative Supplement, §§34-57, §55. Cases dealing with the supremacy clause are Stephens v. Cherokee Nation, Wiggan v. Conolly, 163 U.S. 56, 41 L.Ed. 69, 16 S. Ct. 914; 174 U.S. 445, 43 L. Ed. 1041, 19 S. Ct. 722; Blackfeather v. United States, Cherokee Nation v. Hitchcock, 187 U.S. 294, 47 L.Ed. 183, 23 S.Ct. 115; 190 U.S. 368, 47 L. Ed. 1099, 23 S. Ct. 772; Sac & Fox Indians v. Sac & Fox Indians, 220 U.S. 481, 55 L.Ed. 552, 31 S. Ct. 473; Eastern Cherokees v. United States, 225 U.S. 572, 56 L. Ed. 1212, 32 S. Ct. 707; Lane v. Morrison, 246 U.S. 214, 62 L. Ed. 674, 38 S. Ct. 252; Menominee Tribe of Indians v. United States, 391 U.S. 404, 20 L. Ed. 2d 697, 88 S. Ct. 1705 (hunting and fishing rights upheld); Antoine v. Washington, 420 U.S. 194, 43 L. Ed. 129, 95 S. Ct. 944; Washington v. Washington State Commercial Passenger Fishing Vessel Asso., 443 U.S. 658, 61 L. Ed. 823, 99 S. Ct. 3055, 9 ELR 20517, on remand (CA9 Wash) 605 F.2d 492, appeal after remand (CA9 Wash) 641 F2d 1311, 8 Fed. Rules Evid. Serv. 382 and on remand 92 Wash. 2d 939, 603 P.2d 819 and modified on other grounds 444 U.S. 816, 62 L. Ed. 2d 24, 100 S. Ct. 34; United States v. Dion, 476 U.S. 734, 90 L. Ed. 767, 196 S. Ct. 2216, 16 ELR 20676; Utah Mining & Mfg. Co. v. Dickert & Myers Sulphur Co., 6 Utah 183, 21 P 1002.
Therefore, state jurisdiction or regulatory authority over activities on Indian tribal lands is preempted by the operation of federal law if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state's interests at stake are sufficient to justify the assertion of state authority. Where a detailed federal regulatory scheme exists and where its general thrust will be impaired by incompatible state action, that state action, without more, may be ruled preempted by federal law, Knickerbocker, loc. cit., §48; Cases dealing with the premption issue are New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 76 L. Ed 2d 611, 103 S. Ct. 2378; Mattz v. Superior Court, 46 Cal. 3d 355, 250 Cal. Rptr. 278, 758 P.2d 606, reh. den. (Cal) 1988 Cal LEXIS 1572, and cert. den. 489 U.S. 1078, 103 L. Ed. 2d 834, 109 S. Ct. 1529; People ex rel. Department of Transportation v. Naegele Outdoor Advertising Co., 38 Cal. 3d 509, 213 Cal. Rptr. 247, 698 P.2d 150, cert. den. 475 U.S. 1045, 89 L. Ed. 2d 570, 106 S. Ct. 1260: responsibility of enforcement of the Highway Beautification Act(23 USCA §§ 131 et seq.) on Indian reservations is reserved to federal employees, and state's regulatory authority over outdoor advertising on Indian tribal lands is preempted by the operation of federal law; Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Engineering, P.C., 476 U.S. 877, 90 L. Ed. 2d 881, 106 S.Ct. 2305, later proceeding (ND) 419 N.W.2d 920; California v. Cabazon Band of of Mission Indians, 480 U.S. 202, 94 L. Ed. 2d 244, 107 S. Ct. 1083; White Mountain Apache Tribe v. Williams, (CA9 Ariz), 798 F.2d 1205, 810 F.2d 844, cert. den. 479 U.S. 1060, 93 L. Ed. 2d 990, 107 S. Ct. 940, reh. den. 480 U.S. 941, 94 L. Ed. 2d 783, 107 S. Ct. 1594.
From this, a theory of "multiple sovereignties"
has been developed, Resnick (1995), O'Connor (1997), note 27, supra; see
also Monette (1994); however, tribes, states, and federal government are
not parts of a tripartite system of sovereignties since the tribes are
outside of the federal system that only connects states and the federation;
see for this R.M. Hills, Jr. (1998); by ratifying the Constitution, states
accepted the notion of sole Congressional authority over Indian affairs.
Hence, tribes rather enjoy a "dependent sovereignty" of their own that
is non-federal but quasi-inter-national; see notes 26f., supra, and accompanying
FN31. In North America the tribes often
engaged in warfare and extracted tribute from each other, and some tribes
were apparently coerced to join confederations. The best known example
is the Iroquois confederation, which apparently exterminated some tribes
and incorporated others. See Morgan (1851); Warren (1984), 146 ff.; Murdock
(1934), 291-323. However, most anthropologists deny that there were kingdoms
or empires of the type that feudalism makes possible. Tribal hunters had
limited use for slaves and lack the administrative apparatus for colonialism.
See Eggan (1950); Llewellyn & Hoebel (1941).
FN32. A good discussion of the cycles in
law is in O'Brien (1991). Recent cycles in policy are reviewed in Stuart
(1991), pages 93 and 102. Special mention should be made of the Indian
Self-determination and Education Assistance Act of January 4, 1975, Publ.
L. 93-638, 88 Stat. 2203, 2203-72209- 10, 2212-13, as amended at 25 U.S.C.A.
SS450a-450n (1994); concerning Pub. L. 93-638, see Getches et al., (1993),
at 652; Iadarola (1979a,b); Johnson & Knowlton (1995).
FN33. Spicer (1962), 21ff.; 343ff; 371ff.
FN34. Spicer (1962), 152ff. The Hopi were
never conquered, Mays (1985), 21f.
FN35. Recognition was stipulated in the
Mexican peace treaty of Guadeloupe Hidalgo of July 4, 1848. The Pueblos
of New Mexico accordingly own most of their land, rather than having the
United States hold legal title for them, Canby (1988), 272; cf., Simmons
(1977), 132 f. President Abraham Lincoln renewed and confirmed this distinctive
form of ownership by issuing to each Pueblo a ceremonial cane similar to
the ones that the Pueblos had received from the Spanish. At inauguration
rites for newly elected or appointed Pueblo governors, both canes are presented
to the public to recall the Pueblos' titles in their territories as not
having been derived from the United States.--CS.
FN36. In his report of 1598 to the King
of Spain, the conquistador Juan Onate called the pueblos "republics"; as
for the pueblo governments that vary from pueblo to pueblo see Ortiz, A.
(1969); Dozier (1970/1983), 133 ff., 151 f. 166/167; Lange (1959/1990);
Simmons (1977), 45ff.; Sando (1976/1982; 1982; 1992); Fikentscher (1995b),
FN37. Spicer (1962), 46ff., 61ff., 334ff.
FN38. Spicer (1988), page 310, note 7.
FN39. Nader (1990); Bohannan (1957); Pospisil
FN40. Deloria & Lytle (1983), 112.
FN41. We were told that peacemakers are
not merely envisioned, but actively working in some places on the main
Navajo reservation and in the district of Rama. We could not find any documents
on the peacemakers and we did not attempt field research on their activities.
FN42. Cushing, who was the first American
to live among the Zuni, describes the operation of such a court. It is
not certain whether such courts still exist.
FN43. Attempting research on such courts
would be an impropriety in our opinion. One sanction of a traditional religious
tribunal may be exclusion from the kiva for revealing ceremonial secrets
to outsiders. Because the traditional religious courts serve as mediators
and adjudicators in ceremonial matters, the judges of the traditional secular
or modern Pueblo courts can concentrate on secular issues. Fikentscher's
guess is that historically the religious traditional courts were three
kinds: Disciplinary courts of the societies (described for instance of
the "Delight Makers", Bandelier (1890)), disciplinary courts of each moiety,
and a court consisting of the two moiety heads who decided ceremonial matters
of the whole tribe.
FN44. Santa Ana, Sandia, Zia, Cochiti,
San Felipe, Santo Domingo, and Jemez. Of Zia Pueblo it is said that "they
are thinking about hiring a judge," by which they mean establishing an
FN45. See note 52, infra.
FN46. Warfare between the tribes and the
U.S. diminished so far by 1849 that the BIA was removed from the Department
of War. It might have been relocated in the State Department, which generally
deals with other nations, but instead it was transferred to the newly created
Interior Department, which suggests that these nations were more dependent
FN47. Not all reservations were placed
in charge of an Indian agent, e.g., Acoma. See, however, Canby(1988), 18.
FN48. Deloria & Lytle (1983), 114;
Canby (1988), 18, 61.
FN49. For example, the Navajos never adopted
such a constitution, yet their government is much the same as that of neighboring
tribes like the Papagos or Apaches who did.
FN50. This is approximately true of the "traditionalist" villages--Hotevilla, Bacabi, Shingopovi, and Walpi. We were told that the traditional villages, which enjoy much autonomy, do not cooperate with the tribal government in the way the Hopi Constitution and tribal statutory law envisions, but rather on the basis of personal contacts between the Tribal Chairman and the traditional village leaders.
The label "traditional" is potentially
misleading here. For a fascinating account of how a professional anthropologist
was duped by Hopi factionalism, see Geertz (1987). See also Danaqyumptewa,
Basmettler & Schmid (1991).
FN51. These remarks are based upon conversations
with Robert K. Thomas, Ben Chavis, and our own observations at White Mountain.
FN52. It seems to us that in 1992 the Pueblos had the following five courts. (1) IRA courts (Hopi, Laguna, Zuni, San Juan, Santa Clara, Isleta); (2) modern non-IRA courts (Acoma, Pojoaque, Tesuque, San Ildefonso); (3) traditional secular courts with the governor, lieutenant-governor, or similar appointed official serving as judge (Jemez, Zia, Cochiti, San Felipe, Santa Ana, Santo Domingo, Sandia); (4) courts of type (2) or (3) but with an outsider "hired" as judge (type 2 are Picuris and Tesuque, and type 3 is Nambe); (5) multi-court systems such as that at Taos, where the Tribal Council delegates land, cattle, and other "traditional" matters to the War Chiefs and all the other matters, including domestic affairs, to the Governor, who in turn delegates the daily court business (but not domestic affairs) to the English speaking Pueblo Court.
This description is our best guess about
a situation in flux. A second visit in 1995/96 to a number of pueblos re-confirmed
the above picture--a situation in flux--with a tendency in favor of returning
to traditional secular courts (type 3) and a pronounced interest in a multi-court
system (type 5), with occasional reference to the Taos Pueblo court system.
In Sandia Pueblo, the parties appear to be able to choose between tribal
arbitration (by the tribal council, elders, etc.) and the traditional secular
tribal court, represented by the Lieutenant Governor. He may decide according
to traditional tribal law or New Mexico state law, whatever the parties
prefer. This somehow resembles the Taos model. Mixed systems such as this
are flexible enough to respond to multi-cultural exigencies. Our impression
is that the Draft Tribal Justice Act backfired, contributing to the mutual
estrangement between Native and "Anglo" law: Indian justice goes underground
wherever it is forbidden.
FN53. Some Indian tribes and Pueblos persist
with traditional government. See A. Ortiz (1969a), Dozier (1983), Lange
(1990), Simmons (1977), Fikentscher (1995a, 1995b), at 267-85.
FN54. Referring to CFR courts, Deloria & Lytle (1983), 115 quote Kerr (1969), at 321 as follows:
"With the authorization of the IRA corporate
form of tribal government, all but a few tribes assumed judicial functions
as a manifestation of self- government and rid themselves of this hated
FN55. In Laguna Pueblo it appeared to us
that plaintiffs can choose between the traditional secular court and the
IRA court in bringing a dispute. Taos has a four-court system that consists
of an English-speaking Pueblo court, the Governor's Court, the War Chiefs'
Court, and the Tribal Council, see note 52, supra.
FN56. Note that the three phases demarcate
other significant features of tribal history, such as the development of
U.S. citizenship for Indians. Indians were originally regarded as citizens
of their own sovereign nations. They remained as such after conquest, except
individuals and some groups became citizens by various means including
the allotment process. Finally, in 1924, all Indians were unilaterally
declared U.S. citizens (8 U.S.C.A 1401 (a)(2)). However, this left open
the issue of double citizenship (U.S.A. and tribe).
FN57. See the text accompanying footnote
27ff. supra, referring to Chief Justice Marshall's decisions. With the
passage of the Major Crimes Act, 23 Stat. 362, 385 (1885), Congress established
federal jurisdiction over seven crimes (including murder) committed by
Indians against other Indians and non- Indians alike; for the legislative
history see Canby (1988), 105.
FN58. Hunn (1990), 279f.
FN59. "Customary ownership" should not
be confused with "group ownership." See section entitled on land in Part
FN60. For statistics see O'Brien (1991),
FN61. Pommersheim (1989), at 258. Allotment
also weakened the power of Indian customary law by replacing traditional
ownership with a form of freehold ownership. Allotment diminished the power
of tribal government by eliminating or reducing the regulatory power of
tribal government over Indian lands. Allotment often proceeded piecemeal,
so that adjoining properties have different legal status. Legal confusion
was aggravated by clouded titles resulting from unconscionable contracts.
For more discussion, see the section on land in Part II. Allotment created
complicated situations with regard to inheritance. The Indian Land Consolidation
Act of 1983 tried to remedy the "quagmire" Lindo (1997), 25 U.S.C.§
2206 (Supp. I 1983) (codified as amended at 25 U.S.C. §2206 (1994).
However, in Hodel v. Irving, 481 U.S. 704 (1987) and Youpee v. Babbitt,
117 S. Ct. 727 (1997), the U.S. Supreme Court held essentials parts of
the (amended) Indian Land Consolidation Act unconstitutional, see for details
Lindo (1997) who offers proposals for a solution.
FN62. Thornton (1990), 63ff., 73.
FN63. 1 Stat. 137; Pevar (1992), 12ff.
FN64. 18 U.S.C. Sec. 1151. Pevar (1992),
17ff. explains: "Finally, section 1151 includes as Indian country all "trust"
and all "restricted" allotments of land, whether or not these allotments
are inside the boundaries of an Indian reservation. (Trust allotment is
federal land which has been set aside for the exclusive use of an Indian,
who is called the "allottee." A restricted allotment is land for which
federal approval must be obtained before it can be sold, leased or mortgaged,
whether the land is owned by the federal government or not. These terms
are further discussed in Chapter 10). Even a "non-trust" allotment outside
the reservation is considered Indian country so long as the allottee retains
ownership. (A non-trust allotment is land which the federal government
has given to an Indian with full rights of ownership, as opposed to a trust
allotment, ownership of which is retained by the United States)....".
FN65. Major examples are the Menominee
(Wisconsin) and the Klamath (Oregon).
FN66. The "mandatory states" are Alaska,
California, Minnesota, Nebraska, Oregon, and Wisconsin. The legislation
stipulates some exceptions to the preemption by these states, such as Red
Lake Reservation in Minnesota and Warm Springs Reservation in Oregon.
FN67. See Stuart (1991). In several conversations
on reservations, officials remarked upon the increasing practice of governments
to contract with Indians for the provision of reservation services.
FN68. Oliphant v. Suquamish Indian Tribe,
435 U.S. 191 (1978).
FN69. Pevar (1992) 112; Scoles & Hay
(1982) 376ff., 381 note 32.
FN70. Jurisdiction is obtained by the federal
Major Crimes Act, see note 57, supra.
FN71. The situation is more complicated
than these remarks suggest since jurisdiction can depend upon whether the
Indians involved in the crime are enrolled members of the tribe where the
crime occurred, enrolled members of another tribe, or Indians not enrolled
in any tribe. See Deloria & Newton (1991).
FN72. Pevar (1992), 154ff.
FN73. Pevar (1992), 156; Washington v. Confederated Tribes of the Colville Indian Reservation, 447 U.S. 134, 152 f. (1980). St. Clara Pueblo v. Martinez, 436 U.S. 49, 65 (1978) (rules that habeas corpus is the only mechanism for judicial review provided by the Indian Civil Rights Act). A recent article described the judicial history as follows:
In the years surrounding the passage of
the ICRA, the Supreme Court struggled with the limits of tribal sovereignty.
One attempt to define the scope of this sovereignty is the preemptive test,
which was set out in Williams v. Lee [358 U.S. 217 (1959)]. In that case,
the Supreme Court held a state law inapplicable if it infringed on a tribe's
right to make its own laws and to be governed by them. The Williams court
favored protecting tribal autonomy, but the 1978 Supreme Court limited
tribal autonomy by holding in Oliphant v. Suquamish Indian Tribe [435 U.S.
191 (1978)] that Indian tribes did not have criminal authority over non-Indians
on the reservation except as permitted by Congress. Three months later,
the Court switched sides again in Santa Clara Pueblo v. Martinez [436 U.S.
49 (1978)]. By denying federal protection against gender discrimination
to an Indian woman, the Court refused to encroach upon the sovereignty
of a tribe; Christofferson, "Tribal courts' Failure to Protect Native American
Women: A Reevaluation of the Indian Civil Rights Act," 101 Yale L. R. 169-85
(1991), at 171-72.
FN74. Practitioners of tribal law, including
tribal judges, frequently refer to the charts on page 170 and 171 of Canby
(1988) as a quick guide to jurisdiction.
FN75. Apparently the section of P.L. 280
on civil jurisdiction was rushed through at the last minute and its drafting
was poor. See Pevar (1992), 142ff.; Deloria & Lytle (1983), 203; but
see Scoles & Hay (1982), 379, note 2. Canby notes that this grant of
civil jurisdiction "was added to Public Law 280 as an afterthought, and
there is consequently little legislative history concerning it;" Canby
(1988), 180; Deloria & Lytle 177. This section of P.L. 280 apparently
conferred upon the option states the power to adjudicate civil actions
against Indians that arise in Indian country, but the precise meaning of
the section was unclear; Canby (1988), 181. Whether the statute allowed
states to pre-empt the civil jurisdiction of tribes was disputed until
the Supreme Court resolved the matter in Bryan v. Itasca Country, 426 U.S.
373 (1976); Canby (1988), 165; Pevar (1983), 144. In a unanimous decision
Bryan held that, appearances to the contrary, section 1360 (a) did not
confer upon states regulatory control over Indian reservations in civil
matters. It is now settled that Publ. L. 280 did not authorize a state
to impose its civil laws in Indian country. On the situation under P.O.
280 in California, see Goldberg-Ambrose (1997).
FN76. Originally they were five states:
California, Minnesota, Nebraska, Oregon, and Wisconsin. Alaska was added
in 1958. See Canby (1988), 159, and Canby (1988), 161. At the same time,
any federal criminal law formerly applicable was declared inapplicable.
67 Stat. 588; 18 U.S.C. 1162, 28 U.S.C. 1360. For the "optional states,"
see the next footnote.
FN77. Florida opted to pre-empt all Indian
criminal and civil jurisdiction, West's Fla. Stat. Ann. §285.16 ((c)
West Group 1997) (1975). Some other option states imposed part of their
jurisdiction. For Idaho, Iowa, Montana, Nevada, North Dakota, South Dakota,
Utah, and Washington, see Pevar (1988), 105ff. The U.S. Supreme Court subsequently
struck down pre-emption of tribal civil law by the states under P.L. 280.
See the preceding footnote.
FN78. One reservation in our survey--Warm
Springs--is in Oregon, which is a P.L. 280 state. However, this reservation
was exempted by name in the Congressional legislation. The other reservations
in our survey are outside the P.L. 280 states, the exceptions mentioned
in the text.
FN79. P.L. 280 exemplified a policy of
termination and absorption whose momentum was exhausted by the time of
passage of the Indian Civil Rights Act. In fact, the Indian Civil Rights
Act provided that henceforth states could not opt to pre-empt tribal jurisdiction
as provided in P.L. 280 without the consent of the affected tribe. Unilateral
extension of state criminal and civil law by states to Indian country is
no-longer permitted. Section 403(b) of Publ. L. 90-284, Title IV, April
2, II, 1968, 82 Stat. 79. As that consent is not forthcoming, it is not
to be expected that additional accessions will occur in the future.
FN80. Bryan v. Itasca County, 426 U.S.
373 (1976), at 388, a case involving a Minnesota law attempting to assess
a state and local property tax against personal property owned by an Indian
in Indian country; the tax was held as not authorized under P.L. 280; similarly,
in California v. Cabazon Band of Mission Indians, 107 S. Ct. 1083 (1987),
a Riverside County gambling ordinance was held "civil and regulatory" (and
not "criminal and prohibitory") and thus not applicable to a high-stake
bingo place on a reservation.
FN81. 28 U.S.C.A. 1162 (b); 28 U.S.C.A
FN82. See section on Family Law in the
next installment of this article.
FN83. Pevar (1992), 154, 158, 160; Canby
(1988), 145 ff.; Williams v. Lee, 358 U.S. 217 (1959).
FN84. Ariz. Rev. Stat. Ann. 36-1801, 36-1865
FN85. The Pascua Yaqui: 1300 f (c) of Title
25, Act of Aug. 15, 1953, (67 Stat 588), as amended by Act of April 11,
1968 (82 Stat. 79). Ariz. Rev. Stat. Ann.
FN86. 25 U.S.C. 1301-41. The quote is from
S. Rep. Na 841, 90th Cong., 1st Sess. (1967), 6; Brewer (1995), at 469.
See, however, note 30 supra, where we agree that Art. IX of the Confederation
gave Congress the "sole and exclusive right and power" to regulate Indian
affairs, so that there can be no room left for the states invocation of
the 10th Amendment. The language of the 10th Amendment which speaks of
the states or "the people," reinforces this point. Indians were and are
not "people" in the sense of the Declaration of Independence and the Constitution,
see page 295, supra, at I. Hence, the 10th Amendment does not refer to
FN87. 83 Indian Civil Rights Act of 1968, 25 U.S.C.A. 1301. 1302 provides, under the title "Constitutional rights":
No Indian tribe in exercising powers of self-government shall
(1) make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances;
(2) violate the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizures, nor issue warrants, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized;
(3) subject any person for the same offense to be put twice in jeopardy;
(4) compel any person in any criminal case to be a witness against himself;
(5) take any private property for a public use without just compensation;
(6) deny to any person in a criminal proceeding the right to a speedy and public trial, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and at his own expense to have the assistance of counsel for his defense;
7) require excessive bail, impose excessive fines, inflict cruel and unusual punishments, and in no event impose for conviction of any one offense any penalty or punishment greater than imprisonment for a term of one year and a fine of $5,000, or both;
(8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law;
(9) pass any bill of attainder or ex post facto law; or
(10) deny to any person accused of an offense punishable by imprisonment the right, upon request, to a trial by jury of not less than six persons.
This is not the complete list of rights
contained in the Bill of Rights. Clause (1) permits the establishment of
a preferred tribal religion (which is important, for example, for the 20
pueblos of New Mexico and Arizona where government and religion are closely
connected). Clause (6) requires that a tribal member hire a counsel of
defense "at his own expense." Congress did not want to burden the tribes
with expenses for supplying counsel to indigents. (But this has led to
an unwarranted discrimination against defendants who are Indians.--StB.)
The right to jury in Clause (10) is impractical in small pueblos.--FK.
Some years ago, Picuris Pueblo had a population of about 200 (Mays (1985),
46). Today it may be 350.
FN88. In 1995-96, Wolfgang Fikentscher
studied the gaming law situation in some Rio Grande Pueblos (Isleta, San
Felipe, San Juan). In spite of rich details offered, most of all in Isleta
Pueblo, more research will be necessary before this field of law can be
covered in another paper. See, e.g., Brewer (1995).
FN89. Here are some articles which cover
this important topic and provide bibliographies: Valencia-Weber & Zuni
(1995); Zion & Zion (1993); San Juan County (1993); Duran, Duran, Woodis
& Woodis (no year); Fikentscher (1997a, 1998). On child welfare and
the Indian Child Welfare Act, see Jones (1995), and Canby (1988), 173.
FN90. This topic includes rights of property
in images and designs, protection of ceremonials, dances, music, stories,
and designs from misuse, and the recovery by the tribes of objects in museums
and private collections. To illustrate, Pojoaque Pueblo protected its tribal
emblem as a trademark. A grievance widely shared by many Indian people
is the commercial appropriation of Indian names, images, designs, patterns,
stories, and religious or ceremonial practices; Newton (1995); the article
deals with the Crazy Horse case in which a malt liquor was marketed under
the name of a revered Lakota figure known as Tasunke Witko, or Crazy Horse;
see Harshell Brewing Co. v. The Rosebud Tribal Court et al., 1998 U.S.
App. Lexis 405 (8th Cir. 1998). Similar situations concern the use of trademarks
that include Native American "nicknames" such as Redskins, Braves, etc.;
see Kelber (1994); Guest (1996); and Loving (1992). On intellectual property
rights for plant genetic resources developed by indigenous peoples, see
Hannig (1996). On the Indian Arts and Crafts Board, established as an independent
federal agency located in the U.S. Department of the Interior, see Publ.
Law 74-355 (1935), as amended by Publ. Law 101-644 of Nov. 29, 1990.
FN91. See, e.g., Native American Graves
Protection and Repatriation Act; Echo- Hawk (1986); Harding (1997); Roberts
(1997); Ochoa & Newman (1997).
FN92. The reservations are listed in the acknowledgments. To our knowledge, the only previous survey of this kind was done by the National American Indian Court Judges Association (1978). Consultants were hired to visit 23 reservations and provide basic facts about the operation of the tribal courts. We summarize some of the main conclusions as follows:
variety of courts: "Data from the BIA as of March, 1977 indicated that there are 16 traditional courts and 32 Courts of Indian Offenses (CFR courts), with the remainder (71) being tribal courts and conservation (hunting and fishing) courts." p. 42
cultural distinctiveness: "As stated before, tribal law and order codes are similar if not identical to the Code of Indian tribal Offenses (CFR code) which was published by the Bureau of Indian Affairs soon after passage and implementation of the Indian Reorganization Act. This code has been revised only once since then. Of the twenty-three reservations surveyed, nineteen have law and order codes patterned to some degree after the CFR code. Some tribes have expanded on the code by adding additional chapters and provisions to meet their particular needs. The CFR code is very Anglo oriented, makes no provision for inclusion of tribal culture, and is outdated in that it includes many offenses which are no longer crimes in most jurisdictions or which are unenforceable." p. 38..."Except in some of the Pueblos, tradition plays a small part in modern-day Indian courts. In other tribes the use of tradition in courts tends to be in the civil, domestic relations, and hunting and fishing cases. Remarkably, no tribe among those  surveyed reported that it incorporates any traditional substantive law in criminal proceedings in the tribal court." p. 43.
reception of tribal courts: "tribal courts were originally alien institutions imposed on tribes by the government. Even today they are seen by some as arms of a conquering nation." p. 39 independent judiciary: "A lack of independence of the judiciary seems to be a serious problem with many tribes..."p. 40
proceedings: "Court proceedings observed indicate that generally courtroom operations are smooth, efficient, and rapid...Indian courts have been compared by several people to non-Indian rural judicial systems. Common characteristics of these two systems are: (1) close acquaintance between the judge and the parties; (2) smaller volume of cases; (3) lack of resources because of low population and tax base; and (4) space and separation." p. 61
caseload: "All reservations reported that adult and juvenile alcoholism is the major cause of crime and cases before Indian courts. As reported earlier in this chapter, alcohol accounts for perhaps 90 percent of all cases in Indian courts..."p. 78
recommendation: The first principle commended
as a guide for the future is "The use of tradition and custom should govern
whenever it is applicable in the Indian judicial system in tribal member
controversies." p. 105. Yet the concrete recommendations discuss codification
and process, but say nothing about the development of Indian common law.
FN93. We witnessed a French television
crew on the Hopi reservation trying to record curing rituals. Many Indians
are tired of such activities. Indian intellectuals have criticized anthropologists.
See note 16 supra. Note the joke that the typical Navajo family consists
of husband, wife, children, grandparents, uncle or two, and an anthropologist.
Some tribes have created government boards to license researchers who want
to conduct studies on the reservation. These boards risk something from
licensing researchers and lose nothing from stalling applications.
FN94. The reservation in question is Tohono
O'odham. The Chief Judges prevented us from interviewing anyone without
first going through a cumbersome application process to do research on
the reservation. The tribal council instituted the process by legislation.
Some Pueblos require permission from the tribal council to interview officials.
This was granted to us in all cases with one exception.
FN95. Specifically, at the White Mountain
FN96. Bischof (1985), 54 ff., referring
to concepts such as "father," "son," and so forth.
FN97. See discussions by Chagnon (1982),
pages 281-318; Gluckman (1955); Pospisil (1971); Muller (1962).
FN98. Bohannan (1957) and Zake (1962) hold
the view that law in different societies is incomparable or nearly so.
See the discussion in Pospisil (1978), 10f. Other theorists provide a single
criteria for defining law and making comparisons, such as Barkun (1964)
(manipulable symbol of social structure), Radcliffe-Brown (1952) and Davis
et al. (1962) (social control through political organization). In contrast,
Fikentscher (1979, page 167; 1988, page 25; 1991, page 320; 1995b, at 28)
advocates a three-criteria definition for purposes of comparison: Law exists
when there is (i) a human authority established that may impose (ii) sanctions
in pursuit of (iii) an ought. Pospisil (1974) uses four criteria: authority,
obligatio, intent of general application, and sanction; see for this discussion
Pospisil (1978), pp. 8-13, Fikentscher (1988), 3ff.
FN99. We know of no survey evidence confirming
this fact, but it is our impression, as well as the impression of the researchers
with whom we have talked. Many Pueblo Indians are trilingual (English,
Spanish, tribal language), with the tribal language preferred in the home.
FN100. For example, the Navajo reservation
requires its judges to speak Navajo, whereas the three judges on another
major reservation that we visited only speak English.
FN101. Many reservations have one judge
who specializes in cases involving traditional disputants that may be conducted
in an Indian language. Often the other judges are not proficient in a native
language. To illustrate an exception to this pattern, Taos Pueblo has four
courts, one of which uses English while the other three use Northern Tiwa.
FN102. Trials conducted in an Indian language
must be translated into English when a written transcript is required.
This fact is not surprising since most Indian children are not taught to
write in Indian languages at school.
FN103. Cases involving children are not
open for study by scholars on any reservation that we visited.
FN104. This fact has prompted a Hopi scholar,
Emory Sekaquaptewa of the University of Arizona, who has degrees in law
and anthropology, to devote himself to constructing a dictionary suitable
for Hopi courts.
FN105. We sometimes use coded letters to protect the identity of Indian officials whom we quote. Here are some more quotations that suggest a chasm between legal cultures: "Indian people have the law in them, they know how to live it."--BSt
"We apply law holistically."--WT
"Better a blue nose than black eyes."--RP, SE (a person who cannot be trusted has "black eyes")
"Having courts is not the Hopi way."--EN
"In tort law, pain and suffering are not compensated. It's give and take of life. You live with it."--BR
"Don't think this is traditional Indian law, it's law we are developing to meet our daily needs."--CV
"The principle of 'not guilty unless proven guilty' does not work in a community where everybody knows everybody. It leads the defendants to make up stories."--JS
"Our goal is to re-integrate the offender into society, not to lock him up."--FC, WBJ,PT,PSW (all to this effect).
"It is our law that a promise should be kept, both among living persons, and in making a will."--PS
"Bad law always forces people to go into subterfuges."--CV
"Concepts are instruments of suppression."--CV
"The juvenile system is not only about justice, it's also about education."-- CV
"Call a duck a duck, and a plane a plane,
also in law."--CV "Keep customs oral. As soon as a custom is written down,
it petrifies, and no longer develops; it dies and is no longer a living
FN106. Some Pueblos with traditional secular
courts have neither constitutions nor codes, such as Picuris, Santa Ana,
and Jemez. It is difficult to imagine what law they could apply except
FN107. The anthropological literature on
the relationship between law and custom encompasses a range of opinions.
An early, insightful discussion in Malinowski (1926), 20, on the Trobrianders.
For general accounts of customary law in tribal societies, see Twining
(1964); Josselin de Jong (1948); Pospisil (1980).
FN108. "Law" and "custom" are what philosophers
call "contestable concepts." See Gallie (1955-56). Fikentscher (1977, 1979,
1980, 1988, 1995b) calls the best approach to such legal debates "synepeics,"
which is a Greek word translatable as "consequential thinking" or "reasoning
from effects." In other words, the answer to the debate is to be found
in practical consequences of law. In his view, the causes of the "effects"
are modes of thought which determine the cultures, Fikentscher (1995b),
19, 21, 130ff.
FN109. See Radin (1938); also Hartland
(1924), Rivers (1924), Hobhouse (1906), and Meggitt (1962). For an account
of these theories, see Pospisil (1978) 8ff.
FN110. Radcliffe-Brown (1952) 212; Davis
FN111. Pospisil (1971) on the multiplicity
of cultures. See also Malinowski (1926), 20, and Carter (1907), 362. "Strict
law" has been contrasted with "definite social and personal pressures"
that are not law (Llewellyn & Hoebel (1941), 213ff., for the Cheyenne).
Pospisil (1980) asserts that law is what binds, in contrast to morals which
recommend. Each social unit has what it thinks is a "must" (law) and what
it thinks is "desirable" (custom). Bodenheimer (1974), 375, asserts "...there
is every reason for ascribing legal character to a custom as long as its
practice is accompanied by an intent to create relations which are definite,
circumscribed, and important enough to produce obligatory rights and duties."
For Indian customary law, to the same effect Zion (1988), at 123.
FN112. Cooter (1996, 1997a).
FN113. We also recognize that custom can
be unfair and inefficient. For example, customary racial discrimination
can be unfair, and customary dumping of refuse in rivers can be inefficient.
A thorough statement of the general conditions under which we predict that
customs will be efficient and fair goes beyond this article. See e.g.,
Nader & Sursock (1986). A more thorough account of the structure of
human interaction under which customs will evolve towards efficiency is
in Hirshleifer & Coll (1988), Cooter (1996), and Cooter (1996, 1997a).
FN114. For example, the Southwestern Intertribal
Court of Appeals encompasses the Gila River Indian Community, Isleta, Laguna,
Mescalero Apache, Mohave, Nambe, Pascua Yaqui, San Juan, Santa Ana, Santa
Clara, Southern Ute, Tohono O'odham, Zuni, and Cocopah. It serves as the
court of last resort for some tribes such as Southern Ute, and an intermediate
court of appeals for others such as San Juan Pueblo (the tribal council
being the court of last resort). Furthermore, intertribal appellate courts
may be invited to send judges to IRA tribes, such as Pascua Yaqui, and
to give advisory opinions.
FN115. An appellate court is lacking at
White Mountain Apache, San Carlos Apache, and Zuni. Pima-Maricopa, Pascua
Yaqui, and Tohono O'odham cooperate together in forming an appeals court
of special judges from time to time.
FN116. Some small reservations appoint
an outsider as judge to hear cases regularly or from time to time as they
accumulate. Also, the Pueblos have several different courts as explained
on page 301-302. Otherwise, trial judge is a full time position.
FN117. Current examples are Picuris, Nambe,
Tesuque, see note 52, supra.
FN118. The former Chairman, Peter McDonald,
has been accused, tried, and convicted of financial wrongdoing. His indictment
and conviction in turn raised constitutional issues concerning the election
and disqualification of a chairman. As the dispute unfolded, it was covered
from time to time by national newspapers such as the New York Times. For
example, see New York Times, February 12, 1989, Section 4, page 7.
FN119. House of Representatives Bill 4004,
"Indian Tribal Justice Act"; Senate Bill 1752 "Indian Tribal Courts Act";
and Senate Bill 667 "Tribal Judicial Enhancement Act"). A survey on the
issues involved: Judicature, The Journal of the American Judicature Society
(ed.). Indian Tribal Courts and Justice, A Symposium, vol. 79 (1995) No.
FN120. "...Traditional religion and customs
are widely believed to be the real solution to many of the pressing social
problems plaguing Indian communities today. Within a decade, it will be
necessary to be a traditional religious leader to be elected to office
in many tribes...."--Deloria (1992), page 19.
FN121. Pospisil (1978); Kottak (1987),
195-214; Kottak (1994), 123-36; Fikentscher (1995b), 275, 470.
FN122. The relationship between preferences,
intensities, and voting rules has been studied by political theorists who
adopt an economic approach. For a good summary discussion, see Mueller
FN123. The only institution of modern western
government that formally operates by consensus is the jury. However, Japanese
say that their government proceeds by consensus, Poland cherishes memories
of its traditional "liberum veto" system, and some business of the United
Nations is conducted by a consensus technique under the direction of the
Secretary General (so-called "consensus resolutions" under Art. 10 of the
FN124. Max Weber referred to such leadership
FN125. These remarks are based on unpublished
accounts of Sioux warfare collected by Robert K. Thomas on Pine Ridge Reservation
in 1956. Also see Fredrick Gearing, Priests and Warriors (1962).
FN126. Llewellyn & Hoebel (1941), 67ff.
FN127. Parsons (1925); Eggan (1950); Dozier
(1970); Fox (1967, 1972); Lange (1959); Ortiz (1965, 1969); Fikentscher
(1995a, 1995b), 272ff.
FN128. To our knowledge, all tribes with
hereditary chiefs reserve the positions for men. However, the relationship
between gender and power among the tribes was (and is) very complicated.
Many tribes were organized into matriarchal clans headed by women. In addition,
a few examples exist of councils of women exercising political power, notably
among the Iroquois. These councils are exceptions, not the rule.
FN129. Ortiz, A. (1969); Dozier (1970/1983),
133ff., 151f., 166/167; Lange (1959/1990); Simmons (1977), 45ff.; Sando
(1976/1982; 1982; 1992); Fikentscher (1995a).
FN130. In Fikentscher's view (1993 at 462;
1995a; 1995b, at 272-85), the moiety structure is an alternative to a traditional
social order based on kinship metaphors, but rather resembles the corporate
unit invented in Ancient Greece and among some Germanic tribes (especially
FN131. The Hopis are considering dissolution
of the tribal government. In its place, they would have the villages deal
directly with outside authorities. See "BIA to Hopis: Change of gov't may
cause void," 105 Independent, March 9, pages 1-2 (1992), (Gallup, New Mexico,
FN132. Indians converted by proselytizing
Christians often enjoy exceptional economic success and closer integration
into the larger society. This connection between the "Protestant ethic"
and the success of Indian "capitalists" has not escaped the notice of scholars.
For example, see Pozas (1962).
FN133. Campbell, Murray, "Taking the Law
into Their Own Hands," The Globe and Mail, Window Rock, AZ, Sept. 13, 1991,
FN134. "Children are highly valued by Navajo
families. Parents depend upon their children. They are resourceful in terms
of future financial support and education. Youth should have full life
to gain money, property, and good life." Ella Louise Bryant, et al., v.
Mary I. Bryant, Personal Representative of the Estate of Allison Bryant,
deceased, 3 Navajo Law Reporter 194 (1981), at 212.
FN135. Fitzgerald v. Fitzgerald, 1 Tribal
Court Law Reports A-1(1979).
FN136. The individual in question, who
was Chief Judge of a large western reservation, resigned under pressure
while we were revising this article.
FN137. Traditional cases tended to be assigned
to Judge Dodge at the Flathead Tribal Court and to Judge Garland at White
Mountain. Our interviews with them were especially enlightening. In Taos
(see note 52, supra) ordinary matters may go to the Governor's court and,
in special cases, to the War Chiefs' court. On the value of custom for
law in general, see Glenn (1997).
FN138. FK and FC.
FN139. Standard damages aim at compensation,
but punitive damages are not unknown. We were told that Acoma sometimes
trebles damages, and that damages in Zuni go up to tenfold--FK.
FN140. The limits come from the due process
clause of the Indian Civil Rights Act (see note 87, supra).
FN141. Legal advocates have some legal
training and are authorized to argue cases in tribal court even though
they are not members of the bar. As to the right to counsel, see discussion
of Indian Civil Rights Act of 1968 in footnote 87, under (6), supra.
FN142. § 286 German Code of Civil
Procedure of 1877: "The Court has to decide on the basis of free evaluation,
by taking into consideration the entire contents of the trial and the result
of an eventual faking of evidence, whether a factual allegation is to be
regarded true or false. In giving the reasons for its decision, the Court
has to indicate the reasons that were conducive for that evaluation." -translation
by Wolfgang Fikentscher.
FN143. See Langbein, "The German Advantage
in Civil Procedure," 52 U. of Chicago L. Rev. 823 (1985).
FN144. Bohannan (1957); Gluckman (1955);
Pospisil (1978); Nader (1990).
FN145. The Indian Law Reporter, which is
a national publication available to many Indian judges, reprints reports
of tribal cases submitted to it. We scoured back issues to find cases involving
custom and tradition that might indicate the generation of precedent, but
found virtually nothing of interest.
FN146. G. Miller (1993) has argued that
Biblical stories were made as vivid as possible in part to overcome limited
memory in an oral culture. He believes that the use of such stories must
play a prominent role in organizing law and morality in such a society.
FN147. Many such programs are organized
by Joseph Myers of the National Indian Justice Center in Petaluma, California,
and recently by the Tribal Law and Policy Institute, San Francisco, CA.
FN148. The microfilm catalog of the Oklahoma
Historical Society in Oklahoma City has extensive listing of Cherokee court
records. We were unable to go to Oklahoma to examine them. For a discussion,
see Strickland (1975), Chapter VIII, 158-67, concerning the Cherokee Supreme