There is 574 Federal Recognition Each American Indian tribe has its own legal system. This explanator provides a brief overview of the tribal courts, laws and constitutions.
Overview of the American Indian Tribe
The American Indian Tribes are sovereign organizations within the geographical boundaries of the United States. Under federal law, they sayDomestic dependent countries“They are both autonomous and are subject to the power to determine their own structure of governance, including their own laws and court system, and the full power of parliament recognized by the Constitution. It has all the powers of a sovereign state Except those I gave it away They were repealed by treaty or federal law, and as the US Supreme Court explained in 1978, they were “It will inevitably be sold“As part of the tribe’s “establishment within US territory and acceptance of its protection.” ”
While the nation has No permissions Unless approved by Congress, intergovernmental coordination between states and tribes is required for American Indian tribes. General. For example, some states and tribes employ it. Comity rules While other states have it, they mutually recognize the effectiveness of each other’s court system judgments. Formal collaboration Between state and tribal judges.
According to Federal Census Datahas identified approximately 9.7 million Americans as American Indians or part of Alaska. 3.7 million people Identify only as American Indian or Alaska native. Since 1924members of the American Indian tribe were dual citizens of both their tribe and the state in which they resided. The American Indian tribes do not have official voting representatives in Congress, but tribe members You can vote in local, state and federal elections based on state citizenship. But tribal members continue to face Critical barriers Complete and equal political participation.
Tribal Governance and Constitutional Law
The governing structure of the American Indian tribes It’s quite different. Many tribes have tribal councils that have legislative powers to write tribal laws, while some have executive power and jurisdiction. Some tribes choose tribal councillors through districts or large elections, while others choose councillors through traditional processes. It also exists in most tribes Chairman, President, Chief, or Governor Those who are permitted to engage with the federal government on behalf of the tribe.
In 1934, as part of the Indian New Deal, Reorganization Method in India (IRA) provided a mechanism by which tribes formalize and institutionalize government. Many tribes There was a constitution before the IRAIRA has increased significantly Tribal Constitution, Many of them were modeled after local governments. The IRA itself did not apply to Oklahoma, Oklahoma Indian Welfare Act In 1936, the IRA was expanded to Oklahoma.
That’s the history of adoption of the IRA constitution Fraaught and complicated. They have scholars and tribal members It was criticized The IRA constitution, which often fails to incorporate traditional tribal values, cultures, and institutions, has resulted in a poor lot suitable for tribal communities. Furthermore, many older IRA constitutions It did not provide tribal justice systems or other checks and balances.and the paternalism of the federal government has been pushing for constitutional formation. For example, part of the original IRA constitution contained provisions that required approval by the Secretary of the Interior for passing tribal laws. (All of these provisions have been abolished, but many, but not all, have been abolished.)
The American Indian National Congress reports that Approximately 60% Tribal governments have an IRA constitution. these IRA Constitution It includes provisions relating to tribal territories and jurisdiction, membership, governmental organizations, tribal councils, judicial systems, tribal administrations, elections, removals, removals, land management, initiatives, referendums, ordinances, and resolutions. Dozens of tribes adopted the IRA constitution before they were amended.
The rest of the American Indian tribes do not have either written or non-IRA constitutions. For example, the largest American Indian tribe in the country – the Navajo tribe – There is a detailed tribal code Although there is no written constitution in some respects due to laws, the Cherokee people are Non-IRA Constitution.
Interpretation of tribal courts, jurisdiction and constitutions
The IRA has recognized the rights of American Indian tribes In Create your own coat system. The number of tribal courts between 1978 and 2013 It’s doubledand there is today Up to 400 tribal judicial systems In the US. There are five Indian Crime Courta unique federal tribal court for use by American Indian tribes to enforce tribal jurisdiction if they do not have their own court system. Appeals from those courts are Indian Court of Appealsthis is a semi-federal court of appeals. Some tribes with tribal courts have chosen different structures for these courts. There are western style courts, some others have traditional courts, while others use hybrid models. Tribal judges are normal elected or appointed by the Tribal Council; And some tribes rely on Not only judges, but tribal elders and peace houses are also lying around. With their judicial system.
Tribes generally have Civil Regulations and Arbitration Authority The federal court has it, but to all parties involved in the Indian land of India limited Its authority From a state officer. However, on non-Indian lands in the Indian country, such as private property on reservations. oWned by non-indiansthe problem is more complicated. The US Supreme Court was held The tribe generally does not have civil jurisdiction Non-tribal members of such areas Or on The right to the road, Sidewalks and roads. However, there are exceptions. The tribes are Consensual relationship When the activity in question is threatened between non-tribal members and tribes or between the activity of the matterPolitical integrity, economic security, or tribal health or welfare;. “Whether tribes may exercise civil jurisdiction over non-Indians; Federal CourtHowever, federal courts generally do not hear such cases until the parties have. Tribal remedies have been exhaustedincluding appeals from tribal courts.
The tribes have more limited criminal jurisdiction. The tribes have criminal jurisdiction All American Indians (Not only members of tribes exercising jurisdiction) in 1978, United States Supreme Court held The tribe no longer had criminal jurisdiction over non-Indians. Since then, Congress has restored the tribe’s inherent criminal jurisdiction to prosecute non-Indians for domestic violence and other listed crimes. Violent behavior against women. If tribes lack the authority to prosecute non-Indians, they still have authority Stop and Frisk Non-Indians are based on reasonable doubts of criminal conduct and will, if necessary, detain them until they can be handed over to state or federal authorities.
When it comes to interpreting the constitution, tribal courts function in several ways similarly to state courts. Federal Constitution Does not apply to tribal governmentsHowever, in 1968, the Congress passed the Indian Civil Rights Act (ICRA).It’s the same, but not the same,” To the Federal Bill of Rights. ICRA is federal law, but tribal courts have jurisdiction over ICRA’s claims. Therefore, as a practical problem, Most Any claims arising under the statute are being sued in tribal courts.
in Santa Clara Pueblo V. Martinezthe Supreme Court confirmed that in interpreting the ICRA, the tribal courts are not obligated to comply with the federal interpretation of the Bill of Rights. Tribal courts have I have come to my own conclusions regularly About Protection provided by law, Relating to due process, equal protection, search and seizures, freedom of speech, rights to ju trials, expedited trials, and appropriate support from lawyers.. These rulings have sometimes discovered that there is an ICRA More protective More than federal and state analog. A federal court considering ICRA’s claims responded with a Mixing methodsometimes it depends on tribal interpretations and federal precedents.
Tribal courts are also run Unique structural constraints. For example, many tribal court systems do not have sufficient resources to consistently staff and run the justice system. Poverty among many American Indian tribes significantly limits the ability of tribal courts to corrective actions.
Most importantly, many IRA constitutions place structural limitations on the authority of tribal judges. Some concentration Legislation, enforcement, and jurisdiction in the Tribal Council, do not have or have any restrictions on the constitutional authority to review the actions of tribal governments. For example, X X Crow Tribal Constitution The judiciary provides that it does not review the enumerated power exercises of the administrative divisions of the Crow Tribal Government, and has limited powers to assess whether the law is in compliance with the Crow Tribal Constitution. Some IRA councils have it One-sided authority over judicial appointment, removal, or pay;. Some even grant councillors the authority to sit as appellate tribe judges. However, some tribes have amended constitutional or tribal laws to provide greater separation of power. General trends The judicial independence from the political sector after the IRA’s constitution is increasing.
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Tribal courts and constitutions share several characteristics with federal and state analogues, but occupy a unique position in the United States, shaped by the unique history and sovereign status of American Indian tribes.
Michael Milovcordova is an advisor to the Judicial Program at the Brennan Judicial Center.
Dan Lewentz is an assistant professor at the University of North Dakota Law School.
