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Nettheim, Garth --- "Tribal Courts in the USA: Some Glimpses" [2002] IndigLawB 34; (2002) 5(17) Indigenous Law Bulletin 15

Tribal Courts in the USA: Some Glimpses

by Garth Nettheim[1]

In March – April 2002 I spent some five weeks as a visiting professor in the Indigenous Peoples’ Law and Policy (‘IPLP’) Program at the James E Rogers College of Law at the University of Arizona in Tucson.[2] The co-chairs of the Program are Professors Robert A Williams Jr and S James Anaya. The visit provided an opportunity to gain some sense of the operation of tribal courts in that part of the world. Tribal courts are an important component of tribal governments. Might such governments be regarded as contemporary manifestations of the residual sovereignty retained by Indian nations, as affirmed in the Marshall cases from the 1820s and 1830s? Tsuk describes the historical background of tribal governments in the following paragraphs.

Throughout the nineteenth and early twentieth centuries, Indian tribes were at the outer boundaries of American society. Until the mid-nineteenth century, white settlers sought mainly to push Indian tribes westward and made no attempt to integrate the tribes into Anglo-American society. Unlike other minority groups, Indian tribes were regarded as ‘distinct political communities’ with limited sovereignty, as Chief Justice Marshall described them in his famous Worcester v. Georgia opinion. Their efforts to maintain their tribal organization, however, often proved futile in the face of military conquest, fraudulent or unfulfilled treaties, and the pressure of white settlement that forced them away from most of their lands. Beginning in the 1850s, Indians were forced onto reservations.

In the second half of the nineteenth century, the federal government took a more active role in Indian affairs, embracing a policy that legalized the devastating disintegration of Indian life. It sought to force assimilation and the disintegration of tribal organization, particularly through the distribution of communal lands to individual owners. The turn of the twentieth century thus witnessed the reduction of many tribal governments from ‘unalloyed internal sovereigns to virtual non-entities’.[3]

Commencing in 1933, in the ‘New Deal’ presidency of Franklin D Roosevelt, federal Indian policy was revisited. One of the first elements in the fresh approach was the Indian Reorganization Act [4] (‘IRA’), which Felix Cohen helped to draft. Tsuk describes the conflicting approaches to tribal self-government in the following paragraph.

The draft expressed the general view that Congress should abandon the breaking down of tribal organization and the assimilation of individual Indians as the objectives of its Indian policy and should instead encourage tribal self-government. New Dealers disagreed, however, on the structure of government that Indians should adopt. Some believed that the Indians would choose modern (American-style) constitutions; others hoped that they would follow their tribal traditions.[5]

The Act as eventually passed, departed in significant ways from the earlier drafts. Some commentators have described the IRA as a direct imposition, and a denigration of treaty rights. While it abandoned the notion of assimilation by land confiscation (until the policy of ‘termination’ of tribes in the 1940s and 1950s), the institutions established under the IRA were largely predicated on the idea that their primary function was to facilitate the administration of the US government’s relations with tribes. In the result, tribal governments and tribal courts are substantially American in both form and process.

This article does not attempt any substantial evaluation of tribal courts. It simply offers brief ‘snapshots’ of aspects of three such courts and of the tribal governments within which they operate, in the American Southwest.

Navajo

On Friday 22 March 2002 the Navajo Supreme Court held a sitting away from Navajo lands in the College of Law’s Appellate (Moot) Court in an important civil case. The issue was whether the tribal court had jurisdiction to deal with a dispute between Mobil Oil and Pacificorp arising from Mobil’s exploration activity on Navajo land for which Pacificorp supplied power. The dispute was as to which of the two companies should be responsible for the Business Activity Tax imposed by the Navajo Nation on Mobil. Mobil argued that there was jurisdiction, while Pacificorp argued against. The court comprised Chief Justice Robert Yazzie and Associate Justices Marcella King-Ben and Lorene Ferguson. After counsel completed their oral submissions, the court adjourned to consider its decision. They then returned informally to answer questions from ‘the audience’, from which the following information emerged.

Navajo lands are about 25,000 square miles in area, with a population of about 300,000. Over half of the population are 20 years old or younger. The court comprises 18 judges (11 of them women) of whom 15 are trial judges. They hear about 88,000 cases per year. Lawyers need to be licensed to argue cases by passing the Navajo Nation Bar Exam, which covers American law and Navajo law. Courses and certificates are offered through universities and colleges. One of the counsel said that the Navajo Nation court is the most sophisticated of the tribal courts and is in no way inferior to State courts. They have a body of recorded precedents going back to the ‘70s, or even the ‘60s, which are particularly significant with regard to Navajo customary law.[6] Also sitting in on the session were five members of the Navajo Nation legislature’s Judiciary Committee.

The Navajo Supreme Court appears to operate in the manner of any other American court, the most notable distinction lying in its capacity to take into account Navajo law.[7] By contrast, the Navajo Peacemaker Court represents an apparently rare example of a tribal court being supplemented by more traditional methods of dispute resolution.[8]

Tohono O’odham

On Monday 25 March, I travelled with Professor Rob Williams and eight visiting Tribal Clinic students from Harvard to Sells, the capital of the Tohono O’odham (‘People of the Desert’) nation. It comprises some 10,000 people (though some said many more) in 11 districts, and their country crosses the border into Mexico. Under the border treaty, the O’odham in Mexico have had the right to cross the border. We visited the court and associated facilities, which are funded substantially from income from tribal resources, including their two casinos. There are six judges on the court. Rob Williams himself serves as an occasional ‘pro tem’ judge. They deal with summary offences and the most serious offences may be dealt with federally. They have their own Constitution and civil laws. The court administrative arrangements and staff appear to be very professional. University of Arizona students have assisted the work of the court, and some argue cases on behalf of children and incapacitated adults in need of care. Rob Williams ranks this court among the top 20 percent of US tribal courts.

We visited the jail facilities, which are overcrowded. The adult jail, built for 36 prisoners, currently houses about 100. Funds are not currently available to increase capacity, but they have managed to improve the ambience (eg by painted murals) and facilities of the existing premises. More particularly, those in jail are in the care of their own people who know them and their families, and are able to deal with them in accordance with cultural concerns.

White Mountain Apache

On Friday 12 April I travelled with Professor Robert Hershey and 15 Arizona Law students for some three and a half hours north into high altitude country to Whiteriver, the principal town in the White Mountain Apache reserve. The reserve is about 1.6 million acres. The population is about 15,000-18,000, and increasing. Whiteriver is the center for the tribal government and court, and other public agencies and facilities. Robert Hershey had worked as an attorney with the White Mountain Apache since the 1980s and, as Director of the Indigenous Peoples Law Clinic, places students in the clinical program to assist with legal work.

The major sources of revenue for the tribe include:

(1) A major timber mill that is mainly for ponderosa pine. The reservation contains the largest stand of ponderosa in the nation. Trees are harvested, not clear-felled;
(2) The Hon-Dah Resort and Casino which is located near the border of the reservation, close to small towns which hold mountain retreats for people from the cities of Phoenix and Tucson;
(3) A ski resort; and
(4) Eco-tourism, including hunting and fishing, for which non-tribal members pay for permits. The main target for hunters is elk, which are plentiful (between 12,000-17,000). For fishing, the primary focus is trout.

We visited the tribal government’s fish and wildlife department where we were given a presentation about the program to reintroduce the Mexican Grey Wolf into the territory. We also visited the fish hatchery operated by the Federal Department of the Interior’s Fish and Wildlife division, in close co-operation with the tribe. Apart from these activities, the community graze cattle and farm.

We met George Hesse who is the principal attorney for the tribe. There are two other in-house attorneys. Some specialist work is farmed out to other lawyers, for example water rights litigation and breach of trust claims. Hesse has worked with the tribe for over nine years and described the work as fascinating in its range and diversity.

The tribal court began in 1976 as an outgrowth of the earlier ‘Secretarial Court’. It has very modest accommodation compared with the court facilities of the Tohono O’odham that we had seen at Sells. It is also a much smaller operation than the Navajo court system, which is probably the national leader among tribal courts. We talked to the court administrator, Vincent Craig, an impressive Navajo man whose experience with the Navajo Supreme Court allows him to lend his leadership skills to seek improvements for the White Mountain Apache court system.

For appeals, there is provision in the code for a Court of Appeals headed by recently appointed Chief Justice Violet Lui-Frank, but otherwise made up of outside ‘pro tem’ judges. The trial court comprises Chief Judge Durango Fall, and Associate Judges Georgina Stover-Hastings, Reagan Armstrong and Joanna Hinton, whom we met briefly. As with tribal courts generally, its criminal jurisdiction is confined to lesser offences. The court had about 7000 criminal cases last year. It also hears a range of civil cases, including a recent substantial insurance case, game and fishing cases and forestry cases. There is provision for jury trials in some civil cases but this has rarely occurred. There is one courtroom, claimed by staff to be inadequate who argue that they need three. The court also needs an improved computerised database, and more staff. Budget for the court comes from the Bureau of Indian Affairs in accordance with a rigid formula, but Craig is seeking a budget of $1million.

Legal representation before the court can be an issue. If a tribal member is not represented, he or she can object to the other tribal member in a dispute having an attorney in the courtroom. The attorney may end up sitting outside, offering advice during breaks. Currently only eight lay advocates have a right of appearance. Attorneys who are not tribal members need to be licensed by the Arizona State Bar. Law students may appear in some circumstances. Vincent Craig told us that a Tribal Advocacy course is about to be set up with a community college to certify people, who are not attorneys, to practise before the court. The course will include Indian common law and ethics amongst other areas. The court does not have a formal Bar exam of its own, unlike the Navajo Court or the San Carlos Apache Tribal Court nearby. There is a choice between formal rules of procedure (which apply to attorneys) and informal rules (which apply to others).

The system was tested in a matter arising from recent elections for the Chair of the tribal council. After some 5,600 votes were counted, only 15 votes separated the two candidates, even after the electoral commission conducted a recount. The disputed result was referred to the tribal court and the permanent judges referred the case to an external ‘pro tem’ judge. She issued an opinion upholding the election result.

One particularly interesting aspect of the tribal court is the appointment of Judge Joanna Hinton as Domestic Violence Judge. She was described as very well versed in cultural matters, and her father was a medicine man. The work of that court is funded by a traditional dispute resolution grant.

Jurisdiction

The extent of the jurisdiction of tribal courts is a matter of considerable contention. The case that we heard argued before the Navajo Supreme Court illustrates the point. In a series of cases over recent years in particular, the US Supreme Court has read down the jurisdiction of tribal courts, in favour of state or federal courts, on a variety of bases. A recent example is Nevada v Hicks[9], which refers to a number of the earlier decisions.

On the other hand, a state judge in New Mexico recently dismissed charges against a member of the Taos Pueblo for assault in a parking lot in the town on the basis of Spanish-era laws and customs that, she decided, have preserved certain lands throughout the Southwest as ‘Indian lands’, no matter where they are or who owns the buildings on them.[10] The defendant was thus immune from the jurisdiction of the state court. The state has lodged an appeal.

Decisions as to the jurisdiction of tribal courts, particularly in respect of non-tribal members, tend to turn, in part, on assessments of the quality of the tribal courts as compared with other American courts. Such assessments can be seen as continuing the colonising project, and as being fundamentally antithetical to the notion that tribes are exercising a continuing, if residual, sovereignty.[11] Such assessments also tend to gloss over the significant problems of resources for tribal courts in terms of budgets, personnel, training, facilities and systems.

Given such problems, it is impressive that so many tribal courts operate as well as they do.

Garth Nettheim is a member of the management committee of the Indigenous Law Centre, University of New South Wales.


[1] I am grateful to Professor Robert Hershey for his comments on an earlier draft of this paper.

[2] Information about the program is available at www.law.arizona.edu.

[3] Dalia Tsuk, ‘The new deal origins of American legal pluralism’ (2001) 29(1) Florida State University Law Review 189, 202-204 (footnotes omitted).

[4] 25 USC (1934).

[5] Dalia Tsuk, above n 4, 220.

[6] Reports of decisions are available on www.navajo.org. They are also reported in the Navajo Nation Supreme Court Reports and in the Indian Law Reporter.

[7] The Hon Robert Yazzie, ‘Life comes from it: Navajo justice concepts’ (1994) 24 New Mexico Law Review 175.

[8] James W Zion, ‘The Navajo Peacemaker Court: deference to the old and accommodation of the new’ (1983) 11 American Indian Law Review 89.

[9] [2001] USSC 58; 533 US 353 (2001).

[10] Michael Janofsky, ‘New Mexico Town is on Indian Land, and in Limbo’, New York Times, 12 April 2002.

[11] See David H Getches, ‘Beyond Indian Law: the Rehnquist Court’s pursuit of states’ rights, colour-blind justice and mainstream values’ (2001) 86(2) Minnesota Law Review 267.


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