780. Different Kinds of Courts. The relatively recent development of village courts in Papua New Guinea may be contrasted with the long-established systems of tribal courts in the United States. Three general categories of Indian tribal courts exist: (1) tribal courts, (2) courts of Indian offences (often called CFR courts because they are governed by the Code of Federal Regulations) and (3) ‘traditional’ or ‘customary’ courts. These courts, which vary considerably in their operation, serve over a hundred different Indian tribes throughout the United States, although they are principally located in the States of Arizona, New Mexico, Montana and the Dakotas. In fact 24 States contain reservations and approximately 85% of American Indians live in these States. Approximately 59% (about 452,000 Indians) live on or near reservations in these States.
781. Customary or Pueblo Courts. The three categories of Indian tribal courts have changed little over the last 50 years. The smallest category remains the ‘customary’ or ‘traditional’ courts of the Pueblos, of which there are approximately 18. They in no way resemble the other categories of Indian courts which are modelled on the general legal system. The tribal Governor of the Pueblo performs judicial functions and the laws he enforces are based on long-standing oral custom. The Pueblos have no written constitutions or codes of offences. Considerable power is, however, exercised by the Pueblo Council, composed of ex-Governors, which is responsible for appointing a new Governor annually and also occasionally conducts preliminary hearings of cases. The Council rarely hears appeals.
782. Tribal and CFR Courts. There are important differences between these two forms of Indian courts, despite similarities in their actual operation. The fundamental difference is that tribal courts operate directly under the authority of the tribe, whereas CFR courts operate under federal law and are subject to the Bureau of Indian Affairs. In tribal courts judges are either elected by tribal members or appointed by the tribal council. All adult members of the tribe are eligible to be appointed judges provided they have no serious convictions. No formal legal qualifications or knowledge of customary law is required. Appellate systems exist on most reservations: the review power generally resides in either the tribal council or an appellate court of tribal judges. The tribal council is the dominant authority on most reservations: it is often vested with the power to appoint judges and its decisions are usually not subject to review by the tribal court. On the other hand the approximately 17 CFR courts which can be classified as courts of Indian offences are under the formal control of the Secretary of the Interior. The Bureau of Indian Affairs, after consultation with the tribal council, appoints judges for a four year term.
783. Reservations without Courts. Not all Indian reservations have tribal courts. Some never adopted court systems, others have abandoned them. In addition tribal governments are able to delegate their judicial function to the State, although this requires a specific enabling Act of Congress.
784. Constitutional Basis. So far as tribal courts are concerned the authority which forms the basis of the Indian court system flows not from statute but from the inherent self-governing power of American Indian tribes based on original sovereignty.
The present right of tribes to govern their members and territories flows from a pre-existing sovereignty limited, but not abolished, by their inclusion within the territorial bounds of the United States. Tribal powers of self-government today are recognized by the Constitution, legislation, treaties, judicial decisions, and administrative practice. They necessarily are observed and protected by the federal government in accordance with a relationship designed to insure continued viability of Indian self-government insofar as governing powers have not been limited or extinguished.
The Federal Government however has an overriding responsibility in Indian matters under the Constitution. The principal provision is the Indian Commerce Clause, by which Congress is empowered ‘to regulate Commerce with Foreign Nations and among the several States, and with the Indian Tribes’. This Clause places Indian tribes in the same category as other sovereign nations for commerce purposes. It has been interpreted as giving exclusive federal authority in this area.
785. Jurisdiction. Perhaps the most vexed issue confronting the Indian courts (tribal courts and CFR courts) is that of jurisdiction. This has been a contentious issue since the first recognition of Indian sovereignty, and it has become more complex over time. In both the civil and criminal areas there is still uncertainty in some cases over whether Federal, state, or tribal government has jurisdiction. Such factors as whether the persons involved are Indian or non-Indian, the nature of the offence or action to be brought and the location of the offence, may determine which court or courts have jurisdiction. The reality of these difficulties and uncertainties cannot be underestimated: they arise from legislative encroachments on Indian sovereignty and from conflicting decisions of the Supreme Court. It is worth outlining briefly the principal legislation which determines jurisdiction.
The Indian Country Crimes Act (1778-1877). The broad effect of the Act is that Indian tribes and the federal government share concurrent jurisdiction over offences committed by Indians against non-Indians in Indian country.
Major Crimes Act (1885). This Act was passed to overcome the decision of the Supreme Court in Ex parte Crow Dog, which had upheld the right of Indian tribes to hear offences between Indians on reservations. The Act specified 7, since extended to 14, major offences which were to be dealt with in federal courts.
Public Law 280 (1953). Civil and criminal jurisdiction over Indians was transferred to the State in five States, with additional States being given the option of taking over jurisdiction.
Indian Civil Rights Act (1968). This Act aimed ‘to ensure the American Indian is afforded the broad Constitutional rights secured to other Americans’. The requirements that defendants in criminal cases be given the right of counsel at their own expense and that trial by jury be available for any offence punishable by imprisonment have been particularly difficult for tribal courts to meet. This Act also restricted sentencing powers to a maximum of a $500 fine or 6 months imprisonment or both.
Indian Child Welfare Act (1978). The power of State courts over Indian child custody cases was limited by this Act. Tribal jurisdiction is now exclusive over any child domiciled or residing on a reservation or who is a ward of the court, unless federal jurisdiction already vests jurisdiction in a State. In addition tribes must be given notice of Indian children being dealt with by State courts and have a right of intervention in such proceedings. Proceedings must be transferred to tribal courts where they will accept it and the parents agree.
The trend of the legislation, together with the impact of a number of Supreme Court decisions such as Oliphant v Suquamish Indian Tribewhich held that tribal courts have no criminal jurisdiction over non-Indians unless Congress delegates it to them, has severely reduced the jurisdiction of the tribal courts. It has also created a perceived need by Indians to professionalise and formalise the court system previously run informally by non experts. The vast majority of Indian tribal judges are not trained lawyers nor have many had specific training for the job. The appearance of professional legal counsel before them, not surprisingly, makes many feel uneasy.
786. Current Jurisdictional Problems. The combined effect of the various Acts relating to Indians and the many Supreme Court decisions on jurisdictional issues leaves a confused picture of federal, State and tribal jurisdictions. In very general terms the following categorisation can be made:
· Offences occurring off reservations (i.e. non-Indian land) will come within State or federal jurisdiction regardless of whether the offender is Indian or non-Indian. The principal exception to this rule is that certain tribal fishing areas off reservations are recognised by treaties, and tribal courts retain jurisdiction to prosecute their own members for breaches of any tribal fishing regulations in such areas.
· Offences occurring on reservations (i.e. Indian land) create most jurisdictional disputes. Generally, tribal courts have jurisdiction over Indian offenders, with the following exceptions: (1) the 14 enumerated offences in the Major Crimes Act which come within federal jurisdiction, and (2) in those States where Public Law 280 applies. Tribal courts have no jurisdiction over non-Indians, even if there is an Indian victim. Offences involving only non-Indians (as offender and victim) are matters for State courts.
· If both plaintiff and defendant are Indian, the tribal court has jurisdiction unless a federal question is involved.
· An Indian plaintiff suing a non-Indian may choose between the State or tribal court (or a federal court if federal jurisdiction is involved).
· The tribal court has jurisdiction over a non-Indian plaintiff suing an Indian with respect to a transaction occurring on the reservation (except in States where Public Law 280 applies). If the transaction occurs off the reservation State jurisdiction prevails unless federal law otherwise provides (as with the Indian Child Welfare Act 1978).
The complicated jurisdictional problems that arise are far from satisfactory and rationalisation of the system is clearly necessary. Many tribal courts are in doubt as to their powers; while some appear not to be unduly concerned about such problems, others have declined to hear certain cases for fear of acting beyond their powers. This can have an undermining effect on the authority of the tribal court.