CURRENT ISSUE

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
Adams, Ruth
Aquino, David
Ames, Robert
Archuleto, Leonardo
Baca, Patrick
Banyakya, Fermina
Begay, Denise
Bird, Stanley A.
Bradley, Carmen M.
Brown, Tommie
Burke, Louise C.
Calica, Larry
Cerno, Floyd
Chavis, Ben
Corella, Mrs.
Costello, Don
Demolli, Frank
Dupuis, Donald D.
Ethelbach, Paul
Etsitty, Kathy
Etsitty, Stuart
Flores, Floyd
Garcia, Albert V.
Garland, George
Goseyun, Anna
Griffing, Virginia
Gumerman, George
Hall, Edward T.
Harte, John
Hibbard, Joe
Holgate, Thomas
Hughes, Richard
James, Genevieve
James, Jim
Johnson, George
Johnson, William Bluehouse
Juan, Mary
Juste, Wayne
Kezele, Floyd
Ladd, Edmund J.
Langnese, Walter
Lauriano, Phillip
Lawson, Mhyretta
Leslie, Delford
Louis, Roger
Lujan, Alex
Lupe, Gertie
Lupe, Roger
Lupe, Ronnie
Lupe, Rupert
Manuel, Relman
Martin, Edward (Ned)
Martinez, Pete
McConnell, June
McConnell, Taylor
Milda, Darlina C.
Miles, Wanda
Mitre, Alfreda L.
Morrison, Henry
Myers, Karlin S.
Myers, Ray
Naranjo, P. Bert
Nevamsa, Ben
Norton, Elvin
Numkena, Lawrence
Nunez, Austin
Nunez, Elizabeth
Nunez, Joe
Occhialino, Edward (Ted)
Ortiz, Alfonso
Padilla, Terrence
Patt, Everett
Pavlik, Steve
Peters, Renay R.
Pino, Clair
Poocha, Amos
Preston, Danile L.
Quandelacy, Sandra R.
Quintana, Edie
Randall, Vincent E.
Rhodes, William
Rodgers, Ann
Rushing, Betty
Sakiestewa, Willard
Sallas, Benny
Sanchez, Clyde
Sandoval, Doris
Sando, Joe
Sekaquaptewa, Emory
Sekaquaptewa, Pat
Seowtiwa, Alex
Seowtiwa, Ken
Simpson, H.B.
Sneezy, Velasquez
Stago, Phillip
Starr, Benny
Steward, Annette J.
*290 Swazo, Paul
Thomas, Leona
Thomas, Robert
Thomas, Stanley
Tso, Tom
Tsosie, H. Paul
Tsosie, William
Vicenti, Carey
Ware, John
Yandric, Michael
Yepa, David
Zion, James
Zuni, Christine
Zunie, Michael

"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 courts.
 

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 state courts?
 

(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 foreign affairs.
 

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 sovereignty. [FN32]
 

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. [FN33]
 

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. [FN36]
 

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 by Congress.
 

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 administrators.
 

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 on reservations.
 

*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 law. [FN82]
 

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 act.
 

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 governments". [FN86]
 

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. [FN91]
 

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 into hypotheses.
 

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 law.
 

*317 A. Independent versus Amalgamated Judiciary
 

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), 9).
 

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 Law
 

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. [FN145]
 

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.
 

Part II of this article will appear in the next issue of the Journal.
 

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