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Independent Tribal Courts
EstablishedIndian Reorganization Act of 1934
LocationVarious Native American tribal territories
Composition methodTribal judiciary
Authorized byTribal sovereignty, Tribal constitutions
Number of positionsVaries by tribe

Independent tribal courts are judicial systems that are established and operated by Native American tribes within the United States.[1] These courts are separate from the federal and state court systems and are designed to handle legal matters within the tribe's jurisdiction. The purpose of independent tribal courts is to provide a legal framework for Native American tribes to govern themselves and to resolve disputes within their communities, without interference from the United States federal or state governments.[2] The independent tribal court system is an important tool for tribes to maintain their own legal traditions and to resolve disputes within their communities.[3]

Tribal courts are also important for preserving tribal sovereignty and self-determination.[4] However, they are limited in jurisdiction and funding.[attribution needed]

History

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The history of independent tribal courts is complex and has been shaped by the federal government's policies towards Native American tribes.[5] The establishment of independent tribal courts was a result of the Indian Reorganization Act of 1934, which aimed to promote tribal self-government and to preserve Native American culture and traditions.[6] However, the federal government's policies towards Native American tribes have been inconsistent, and the relationship between the federal government and tribal courts has been fraught with tension.[7] Despite these challenges, independent tribal courts remain an important part of indigenous resistance to western legal and cultural influence.

Indian Reorganization Act of 1934

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The Indian Reorganization Act of 1934 had a significant impact on how Native American tribal courts operate. The Act aimed to promote tribal self-government and to preserve Native American culture and traditions. It allowed tribes to establish their own governments and to adopt constitutions and bylaws.[8] This gave tribes the power to create their own legal systems and to establish independent tribal courts[9] The Act also provided funding for tribal courts and allowed tribes to contract with the federal government for law enforcement services.[10] As a result, independent tribal courts became an important tool for tribes to maintain their own legal traditions and to resolve disputes within their communities.[11]

The Indian Reorganization Act of 1934 also had a broader impact on the relationship between Native American tribes and the federal government.[12] The Act recognized the importance of tribal sovereignty and self-determination and aimed to promote these values.[13] It allowed tribes to establish their own governments and to make decisions about their own affairs. This was a significant departure from previous federal policies, which had sought to assimilate Native Americans into mainstream American culture.[9] The Act also provided funding for economic development and education, which helped to improve the lives of Native Americans. Overall, the Indian Reorganization Act of 1934 played a crucial role in promoting tribal sovereignty and self-determination.

Funding

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Native American tribal courts receive funding from various sources, including tribal, state, and federal funding. Tribal funding is the primary source of funding for tribal courts, and it is often used to cover the costs of court operations, salaries for judges and court staff, and other related expenses.[14] State funding is another source of funding for tribal courts, and it is often used to support court operations and to provide training and technical assistance to tribal court personnel.[15] Federal funding is also available for tribal courts, and it is often used to support court operations, provide training and technical assistance, and to fund specific programs and initiatives.[16]

Under Title 25 US Code 3601, the federal government provides funding for tribal courts through the Indian Tribal Justice Support program.[17] This program provides funding for tribal courts to improve their operations, provide training and technical assistance, and to fund specific programs and initiatives.[15] The program is designed to support the development of effective and efficient tribal justice systems that are consistent with tribal traditions and values. The program also provides funding for tribal courts to address issues related to domestic violence, child abuse, and other crimes that are prevalent in Indian country.[18] Overall, the funding sources for Native American tribal courts are diverse and are designed to support the development of effective and efficient tribal justice systems that are consistent with tribal traditions and values.[19]

Bureau of Indian Affairs Tribal Priority Allocations (TPA)

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TPA provide federal funding for Tribal courts through a collection of programs. For example, in 2018, $28,698,000 was granted to tribal governments through TPA programs.[20] Although TPA funds allow tribal governments to operate more effectively, the programs have long been criticized for not allocating adequate funds to the tribes most in need of federal support.[21]

Jurisdiction

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Native American tribal courts have jurisdiction over a wide range of cases that occur within their respective tribes' territories. Tribal courts have the authority to hear both civil and criminal cases, including disputes over property, contracts, and family law matters such as child custody and adoption.[22] Tribal courts also have jurisdiction over criminal offenses committed by Native Americans within their territories, including offenses related to drugs, alcohol, and domestic violence.[23] However, tribal courts do not have jurisdiction over non-Native Americans who commit crimes within tribal territories, except in limited circumstances.[24]

Cases that involve non-Native Americans are typically referred to state or federal courts. The Major Crimes Act of 1885[25] gives the federal government jurisdiction over certain major crimes committed by Native Americans on tribal lands, including murder, manslaughter, and kidnapping.[26] The Indian Civil Rights Act of 1968 also allows for the federal government to prosecute non-Native Americans who commit crimes against Native Americans on tribal lands.[27] In addition, some states have entered into agreements with tribes to allow for state jurisdiction over certain crimes committed by non-Native Americans within tribal territories.[28]

Interaction with the state and federal court system

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Title 25 United States Code 3601

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Title 25 was a congressional procedure passed in 2010 to provide federal support and protections for tribal courts.[29] The declaration officially established:[30]

  • "there is a government-to-government relationship between the United States and each Indian tribe;
  • the United States has a trust responsibility to each tribal government that includes the protection of the sovereignty of each tribal government;
  • Congress, through statutes, treaties, and the exercise of administrative authorities, has recognized the self-determination, self-reliance, and inherent sovereignty of Indian tribes;
  • Indian tribes possess the inherent authority to establish their own form of government, including tribal justice systems;
  • tribal justice systems are an essential part of tribal governments and serve as important forums for ensuring public health and safety and the political integrity of tribal governments;
  • Congress and the Federal courts have repeatedly recognized tribal justice systems as the appropriate forums for the adjudication of disputes affecting personal and property rights;
  • traditional tribal justice practices are essential to the maintenance of the culture and identity of Indian tribes and to the goals of this chapter;
  • tribal justice systems are inadequately funded, and the lack of adequate funding impairs their operation; and
  • tribal government involvement in and commitment to improving tribal justice systems is essential to the accomplishment of the goals of this chapter."

Denezpi v. United States

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In 2022, the Supreme Court ruled in Denezpi v. United States that the Double Jeopardy clause of the Bill of Rights does not bar successive prosecutions of distinct offenses arising from a single act, if the case is heard in both a tribal and federal court under the dual sovereignty principle.[citation needed]

Sentencing authority

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The sentencing process in Native American tribal courts varies depending on the tribe and the nature of the case. In general, tribal courts aim to incorporate traditional tribal values and customs into their sentencing practices.[31] This may involve a focus on rehabilitation and restoration rather than punishment.[31] Sentences may include community service, restitution, or participation in traditional healing ceremonies. In some cases, tribal courts may also work with state or federal courts to develop joint sentencing agreements.[32] These agreements allow for the coordination of sentencing between tribal and non-tribal courts and can help to ensure that sentences are consistent and fair. Overall, the sentencing process in Native American tribal courts is designed to reflect the unique cultural and legal traditions of each tribe and to promote the well-being of the community as a whole.[24]

Tribal Law and Order Act of 2010

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The Tribal Law and Order Act of 2010 is a federal law that was enacted to address the issue of crime and violence in Native American communities. The Act aims to improve public safety in Indian country by increasing the authority of tribal courts and law enforcement agencies.[33] It provides funding for tribal courts and law enforcement agencies, and it allows tribes to exercise greater control over their own justice systems.[34] The Act also includes provisions to improve coordination between tribal, state, and federal law enforcement agencies, and it provides for the appointment of special prosecutors to handle cases involving violence against Native American women.[35]

See also

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References

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  1. ^ "Federal Indian Law — Tribal Jurisdiction — Fifth Circuit Disclaims Independent Obligation to Ensure that Tribal Courts Have Subject Matter Jurisdiction in Disputes Involving Nonmembers. — Dolgencorp, Inc. v. Mississippi Band of Choctaw Indians, 746 F.3d 167 (5th Cir.), reh'g en banc denied, 746 F.3d 588 (5th Cir. 2014)". Harvard Law Review. 128 (3): 1035–1044. 2015. JSTOR 24643875.
  2. ^ Miller, Robert (October 2022). "Tribal Sovereignty and Economic Efficiency Versus the Courts". Washington Law Review. 97 (3): 775. doi:10.2139/ssrn.4071223. S2CID 248019034. SSRN 4071223. ProQuest 2735925610.
  3. ^ Salmon, Sue (1976). "Jurisdiction: Exhaustion of Remedies and the Status of Tribal Courts". American Indian Law Review. 4 (2): 295–301. doi:10.2307/20067996. JSTOR 20067996.
  4. ^ Keogh, Greg S. (2018). "Extending Tribal Criminal Jurisdiction Outside of Indian Country: Kelsey V. Pope". American Indian Law Review. 43 (1): 223–242. JSTOR 26632878.
  5. ^ Rosen, Deborah A. (2007). "Tribal Sovereignty and State Jurisdiction". American Indians and State Law: Sovereignty, Race, and Citizenship, 1790-1880. University of Nebraska Press. pp. 19–50. doi:10.2307/j.ctt1djmgrn.5. ISBN 978-0-8032-3968-5. JSTOR j.ctt1djmgrn.5.
  6. ^ Kloeckner, Jane (2012). "Hold on to Tribal Sovereignty: Establishing Tribal Pesticide Programs that Recognize Inherent Tribal Authority and Promote Federal/Tribal Partnerships". Environmental Law Reporter. 42 (1): 10057. doi:10.2139/ssrn.1768410. S2CID 153006983. SSRN 1768410.
  7. ^ Killsback, Leo (2021). "Federal Indian Law". Anthropology. doi:10.1093/obo/9780199766567-0263. ISBN 978-0-19-976656-7.
  8. ^ Rosier, Paul C. (1 January 1999). "'The Old System Is No Success': The Blackfeet Nation's Decision to Adopt the Indian Reorganization Act of 1934". American Indian Culture and Research Journal. 23 (1): 1–37. doi:10.17953/aicr.23.1.hk2r70m37837n237.
  9. ^ a b Washburn, Wilcomb E. (June 1984). "A Fifty‐Year Perspective on the Indian Reorganization Act". American Anthropologist. 86 (2): 279–289. doi:10.1525/aa.1984.86.2.02a00040.
  10. ^ Kelly, Lawrence C. (August 1975). "The Indian Reorganization Act: The Dream and the Reality". Pacific Historical Review. 44 (3): 291–312. doi:10.2307/3638029. JSTOR 3638029.
  11. ^ Wilson, Raymond; Rusco, Elmer R. (June 2002). "A Fateful Time: The Background and Legislative History of the Indian Reorganization Act". The Journal of American History. 89 (1): 277. doi:10.2307/2700890. JSTOR 2700890.
  12. ^ "Indian Reorganization Act (1934)", Encyclopedia of United States Indian Policy and Law, 2300 N Street, NW, Suite 800, Washington DC 20037 United States: CQ Press, 2009, doi:10.4135/9781604265767.n314, ISBN 9781933116983, retrieved 2023-10-30{{citation}}: CS1 maint: location (link)
  13. ^ Clemmer, Richard O. (1986). "Hopis, Western Shoshones, and Southern Utes: Three Different Responses to the Indian Reorganization Act of 1934". American Indian Culture and Research Journal. 10 (2): 15–40. doi:10.17953/aicr.10.2.b60q70g353272087.
  14. ^ "$934,000 Funding Available for Tribal Court Improvement". Targeted News Service. 11 February 2018. ProQuest 2000744432.
  15. ^ a b FY 2022 Funding Opportunities to Support Tribal Justice Systems. Washington, D.C: U.S. Department of Justice, Office of Justice Programs, Bureau of Justice Assistance, 2022.[verification needed]
  16. ^ "Chippewa Cree Tribal Courts Receive Federal Funding". Targeted News Service. 5 October 2008. ProQuest 468758381.
  17. ^ "Justice Department Awards $87 Million To Enhance, Support Tribal Justice And Safety" (Press release). The Department of Justice. 22 September 2014. ProQuest 1564022985.
  18. ^ Branton, Regina; King, Kimi; Walsh, Justin (January 2022). "Criminal justice in Indian country: Examining declination rates of tribal cases". Social Science Quarterly. 103 (1): 69–81. doi:10.1111/ssqu.13100. S2CID 245045603.
  19. ^ "OVC Support for Tribal Communities". Office for Victims of Crime. Retrieved 2023-10-30.
  20. ^ Office, U. S. Government Accountability. "Tribal Funding: Actions Needed to Improve Information on Federal Funds That Benefit Native Americans | U.S. GAO". www.gao.gov. Retrieved 2023-11-12.
  21. ^ "Tribes and Tribal Branding – Where Do We Go from Here?", Tribal Marketing, Tribal Branding, Palgrave Macmillan, 2013, doi:10.1057/9781137349101.0012, ISBN 9781137349101, retrieved 2023-11-12
  22. ^ Henderson, M. Todd (2022-11-11), "What criminal authority do Indians have over non-Indians? Oliphant v. Suquamish Indian Tribe (1978)", Native Americans and the Supreme Court, Edward Elgar Publishing, pp. 101–129, doi:10.4337/9781803925165.00010, ISBN 978-1-80392-516-5, retrieved 2023-10-30
  23. ^ LUNA-GORDINIER, ANNE (2023-05-02), "RESTORING TRIBAL CRIMINAL JURISDICTION WITH THE VIOLENCE AGAINST WOMEN ACT", Indigenous Justice and Gender, University of Arizona Press, pp. 83–104, doi:10.2307/j.ctv35n8b93.10, ISBN 978-0-8165-4970-2, retrieved 2023-10-30
  24. ^ a b John, Krystal L. (2022-07-01), "Jurisdiction and Law in Indian Country", Tribal Administration Handbook, Michigan State University Press, pp. 193–208, doi:10.14321/j.cdbmfhq6x.17, ISBN 9781938065156, retrieved 2023-10-30
  25. ^ "Major Crimes Act (1885)", Encyclopedia of United States Indian Policy and Law, 2300 N Street, NW, Suite 800, Washington DC 20037 United States: CQ Press, 2009, doi:10.4135/9781604265767.n392, ISBN 9781933116983, retrieved 2023-10-30{{citation}}: CS1 maint: location (link)
  26. ^ Deer, Sarah (2018). "NATIVE PEOPLE AND VIOLENT CRIME: Gendered Violence and Tribal Jurisdiction". Du Bois Review: Social Science Research on Race. 15 (1): 89–106. doi:10.1017/S1742058X18000012. S2CID 149628254. ProQuest 2076892567.
  27. ^ "Indian Civil Rights Act (1968)", Multicultural America: A Multimedia Encyclopedia, 2455 Teller Road, Thousand Oaks California 91320 United States: SAGE Publications, Inc., 2013, doi:10.4135/9781452276274.n446, ISBN 9781452216836, retrieved 2023-10-30{{citation}}: CS1 maint: location (link)
  28. ^ Henderson, M. Todd (2022-11-11), "What criminal authority do Indians have over non-Indians? Oliphant v. Suquamish Indian Tribe (1978)", Native Americans and the Supreme Court, Edward Elgar Publishing, pp. 101–129, doi:10.4337/9781803925165.00010, ISBN 978-1-80392-516-5, retrieved 2023-10-30
  29. ^ "2010 US Code :: Title 25 - INDIANS :: CHAPTER 38 - INDIAN TRIBAL JUSTICE SUPPORT :: Sec. 3601 - Findings". Justia Law. Retrieved 2023-11-12.
  30. ^ "25 U.S. Code § 3601 - Findings". LII / Legal Information Institute. Retrieved 2023-11-12.
  31. ^ a b Canby, William C. (February 2005). "Commentary: Treatment of Tribal Court Convictions". Federal Sentencing Reporter. 17 (3): 220–221. doi:10.1525/fsr.2005.17.3.220.
  32. ^ Fulton, Neil (Fall 2019). "All Things Considered: The Effect on Tribal Sovereignty of Using Tribal Court Convictions in United States Sentencing Guideline Calculations". American Journal of Criminal Law. 46 (2): 241–281. ProQuest 2383404244.
  33. ^ "Tribal Justice and Safety | Tribal Law and Order Act". www.justice.gov. 2014-09-09. Retrieved 2023-10-30.
  34. ^ "Tribal Law and Order Act | Tribal Outreach and Communication". Alcohol and Substance Abuse Program. Retrieved 2023-10-30.
  35. ^ "The Tribal Law and Order Act of 2010: A Step Forward for Native Women". Targeted News Service. 29 July 2010. ProQuest 734325658.
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