Tribal Courts in Practice

787. Workload. In addition to these legal complexities, many practical law enforcement problems exist on Indian reservations.

Major problems of enforcement include unequal treatment of Indian and non. Indian offenders, infrequent prosecution of non-Indians for reservation offences, uncertainty over which laws apply in a given situation, poor co-operation between tribal and off-reservation police agencies, and isolation of many reservation communities from state and county courts and police.[1180]

There are few reliable statistics of crime rates on reservations, or of the workload of the tribal courts in civil and criminal cases. However, there is evidence of a high level of ‘crime’ on Indian reservations.[1181] Much of this is attributable to the large number of street offences (e.g. public drunkenness, disorderly conduct) dealt with by tribal courts. These offences, together with many other reservation offences are usually alcohol related. Reservations typically have high levels of alcoholism and unemployment.[1182] Most cases involve pleas of ‘guilty’, and summary justice is the norm. The tribal courts deal with many more criminal cases then civil cases.[1183]

788. Criticisms of Tribal Courts. The courts are not free from criticisms, which have been made from very different perspectives. Criticisms include the following:

  • the procedure of the court is often very informal, and can lead to a lack of respect towards judges and court officials;

  • the absence of due process requirements;

  • shortcomings in the tribal codes the courts administer. The codes do not cover all matters coming before tribal courts, and have to be supplemented by State legislation. Furthermore the codes contain little of what might be called indigenous or traditional Indian law;

  • the lack of trained personnel. This includes tribal judges who are usually chosen from local reservations and have no legal training;[1184]

  • the physical facilities of the courts, including the lack of clerical and technical support;

  • the fact that the courts are modelled on the general court system, and apart from staffing have nothing uniquely ‘Indian’ about them;

  • the insertion of tribal politics into the court system, including in many cases the selection of judges;

  • the low status of the judges which is said to result in a general lack of confidence in, and respect for, the tribal court. This may be one of the reasons for the high turnover of tribal judges.[1185]

The courts are also criticised in more basic respects. One such criticism is directed at the concept of separate courts for one ethnic group:

… it appears anomalous in the latter part of the twentieth century that one small ethnic group should be separated from the judicial system that extends to all other citizens of the United States.[1186]

The validity of the notion that Indian courts are a form of traditional Indian justice which is thus more appropriate for Indians living on reservations has also been challenged. Brakel argues that ‘Indian justice’ as dispensed by Indian courts ‘represents nothing more or less than an effort to copy white man’s precepts and white man’s institutions’.[1187] They are not essential to the preservation of Indian culture, nor are they necessarily what Indian people themselves really want.[1188] He suggests the system should be abolished.

789. Support for the Courts. But this is by no means a universal view. Many commentators have argued that the courts work successfully, at least within the confined jurisdiction they exercise:

Success of Indian courts today is attributed primarily to the judges. Visitors to the courts were impressed by the judges’ dedication, notwithstanding negative factors — low pay, tribal politics, and inadequate personnel, facilities, and training. Most judges said they are doing as good a job as conditions permit, and thought they easily could improve their courts if conditions were improved.[1189]

The tribal courts’ shortcomings, and special needs, are recognised not only by commentators but by Indian judges, tribal councils and organisations:

Tribal courts today face a monumental task. They must comply with the mandates imposed by the federal government, yet maintain the uniqueness and cultural relevance that makes them ‘tribal courts’ and not merely arms of the federal government operated by Indians in Indian country. Accomplishment of these goals depends, to a great extent, on the availability of adequate funding and relevant and pervasive training programs. In addition, tribes must address the need for separation of powers in those courts which are not traditional or customary, in order to assure procedural due process, fundamental fairness, stability and credibility. Moreover, tribes must demand, and other government entities, both within and outside the tribe, must give recognition to the judgments of tribal courts.[1190]

790. Navajo Peacemaker Court. There are moves on many Indian reservations to make the court system and the laws operating on Indian reservations reflect Indian custom and traditions more closely. The Navajo Peacemaker Court is a recent experiment of this kind. It was established in 1982 as an attempt to blend traditional Navajo methods of mediating disputes with the existing Indian tribal courts.[1191] Matters come before the Peacemaker Court on referral from the Navajo District Court. A peacemaker[1192] is then appointed by the Court to mediate. Disputes between family members or neighbours and business matters involving less than $US1500, are the type of matters with which the Peacemaker Court may deal. In addition a judge may refer a matter to the Peacemaker Court where he considers it appropriate. Disputes are to be resolved primarily by mediation; however where agreement cannot be reached the parties can allow the peacemaker to arbitrate the dispute. The peacemaker has power to summon any member of the Navajo tribe to assist and his decisions are binding on all Navajos. No lawyers are permitted to appear.

791. Assessment. In these and other ways, much work is being done to improve the courts. They have a long history and appear to be regarded by Indians as important institutions. In the words of one Australian lawyer who worked in one of the Indian courts for a time:

The justification that I see for the tribal courts that operate along similar lines to a European court under a written law and order code is that they are a visible aspect of the tribes sovereignty. Generally neither the procedures nor the substantive law have anything to do with traditional Indian law. The present move is largely toward tightening up the procedures through. training to ensure due process. ‘Due process’ is used entirely in the Anglo sense. I believe that many of the judges and others who were involved in tribal government are aware that ‘due process’ may not reflect the Indian way of doing things but, especially following the Indian Civil Rights Act, it is seen as another imposed value (which may or may not be good) that must be observed if the right to run one’s own affairs is to be preserved.[1193]

But, as these comments suggest, the problems the Indian courts have had demonstrate dangers to be avoided when considering any similar system for Australia. In addition, the vastly different history of Indian law in the United States, and especially the continuing doctrine of Indian sovereignty, must be kept in mind, as these form the basis of the Indian court system.