Albion Monitor /News

Tribal Courts Fear Loss of Jurisdiction

by Binod Bhattarai

"We don't have a lot of say in federal court decisions that impact us"

(IPS) -- Despite an increase in the number of tribal courts, many Native American practitioners of law fear that their jurisdiction is shrinking.

This fear is the basis of one of the major issues facing tribal courts today: that federal and Supreme Court decisions have established troubling precedents formalizing constraints on Native American jurisdiction.

Although tribal courts try cases where disputing parties are Indians, the Major Crimes Act allows federal and state courts to try cases deemed "major," or where the two parties are non-Indians. Federal courts also handle cases between Indians and non-Indians.

Thus, "even if the tribes have jurisdiction, the Fed also has jurisdiction if the crime is a 'major' one," stated Richard Monette, a professor of law at the University of Wisconsin-Madison.

"The U.S. Supreme Court is on a course where every time it enters a decision, it shrinks tribal government power," added Associate Justice Raymond Austin.

"We don't have a lot of say in Washington; we don't have a lot of say in state politics; we don't have a lot of say in federal court decisions that impact us."

"When tribal sovereignty diminishes, there is a great deal of interference from outside in the lives of Indian people"

The issue points ultimately to one of sovereignty, says Monette. The jurisdiction of the tribal courts has, for the most part, depended on how the higher non-native courts have interpreted, and continue to interpret, early treaties as they relate to particular cases. The interpretation of treaties, however, has been fraught with conflict resulting from the gross inequities introduced by federal government.

The most recent conflict flared in northern Wisconsin in the late 1980s over the Native American "right" to spearfish in the lakes. Angry over a federal court order granting Native Americans fishing rights in lakes outside reservations, large crowds of non-Natives Americans gathered to protest and prevent the enactment of the court order.

Although the federal government staved off head-on confrontations, questions over the control of and access to resources are still unresolved.

The sovereignty of the Native American court system may also be changing as a result of another landmark case that made headlines early this year.

That case involved the Crow Nation and the Burlington Northern Railroad Co. A Crow Nation tribal jury in Montana ordered BNR to pay $250 million in compensatory damages to relatives of three people killed in a 1993 accident at a rural crossing on the reservation.

BNR has said that it would appeal to the Crow Tribal Appellate Court and, if unsuccessful, to the federal district court.

"Lots of time the tribal courts try to make a point because Congress tries to suggest that tribes can't issue a fine great than a $1,000," said Monette, who grew up in the Turtle Mountain Chippewa Indian Reservation in North Dakota.

In turn, "the tribes are basically trying to tell (Congress) to go to hell."

Although the behavior of the jury in this instance is exceptional, "regardless of the dimensions and issues of the cases, these (types of) events represent tribal sovereignty in action." said Frank Pommersheim, professor of law at the University of South Dakota, wrote in his 1995-book "Braid of Feathers."

And it is sovereignty, even more than the interpretation of treaties, that Native peoples should focus on, said Justice Austin.

"Our energy should go towards expanding sovereignty because when tribal sovereignty diminishes, there is a great deal of interference from outside in the lives of Indian people."

Tribal courts represent a unique combination of traditional forms of justice and the Anglo-American system

The Navajo Nation held a Supreme Court hearing recently in part to counter fears regarding native sovereignty and in part to shed light on Native American legal procedures while promoting its use among other Native American groups.

The hearing was a part of the 10th annual "Coming Together People's Conference", organized by the Indian Law Students Association of the University of Wisconsin-Madison.

The Conference also helped shed light on the origins of the Navajo system of self-government.

In order to deal with American oil companies leasing tribal land for exploration, the Navajos set up their own government in 1923 and courts in 1959. The courts operate at two levels, trial courts and the Supreme Court. The lower court decisions can be appealed.

The Navajo Nation Supreme Court, which handles approximately 90,000 cases per year, also intended this forum to help repudiate long-held prejudices about the capacities of Native Americans to govern themselves.

"We wanted to introduce tribal courts to non-Indians who have no idea of what happens in Indian country," continued Austin. "We were here to show that we have a legal system which works."

The tribal courts represent a unique combination of traditional forms of justice and the Anglo-American adversarial system.

The Native American approach to problem-solving is through "peacemaker" courts which seek to bring communities together through reparation rather than punishment, according to Monette.

For example, juries can "requiere those found guilty of committing a crime to do community work such as cutting a certain amount of firewood or catching a certain number of fish for distribution to the elderly," said Monette.

The system evolved primarily out of practical concerns. "About 200 tribes have money enough for their own court systems, including jails," he said. "These have played a major role in exercising tribal sovereignty."

According to the Statistical Record of Native Americans (1995), there are 1.8 million Native Americans in the United States, 800,000 of whom live on the reservations. With average annual incomes of about $16,500, they constitute among the poorest people in the country.

There are 278 reservations with a "domestic dependent nation" or "guardian-ward" relationship with the U.S. government.

In this capacity, Native Americans exercise rights to run administrations on the reservations and elect leaders. They are also exempt from U.S. taxes.

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Albion Monitor April 15, 1996 (

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