Lecture Notes: Tribal Courts Overview

Introduction

• Part two of lecture by Professor Hager on tribal courts.
• Focus on broad overviews; more details covered in future classes on civil and criminal jurisdiction and Indian Child Welfare Act.

Key Concepts of Tribal Courts

Jurisdiction

• Limited and Extended Jurisdiction: Tribes exercise sovereignty but with varying jurisdictional limits.
• Pro Se Litigants: Many cases in tribal courts involve individuals representing themselves without attorneys.

Differences in Practice

• Variability in Court Practices:
  • Some courts require bar membership, others are open.
  • Judges may rotate in a circuit (similar to historical circuit riders).
• Cultural and Legal Flexibility:
  • Tribal courts can adapt different legal standards from state laws if the tribal code doesn’t cover certain issues.

Tribal Courts in Practice

Circuit Riding Judges

• Judges may serve in multiple courts across states.
• Example: Oklahoma judges serve in Kansas tribal courts.

Example of Tribal Court Function

• Adoption Case: Importance of consulting the tribal code for resolving legal conundrums.

Lawyer Responsibilities

• Must be honest, competent, and adhere to tribal laws.

Challenges

• New Court Systems: Many tribal courts are recently established and face operational hurdles.
• Perception Issues: Skepticism about the legitimacy and fairness of tribal courts.

Adversarial Systems and Healing to Wellness

• Adversarial System: Ensures legal procedures but often leaves both parties dissatisfied.
• Healing to Wellness Courts:
  • An alternative to traditional punitive measures.
  • Focus on rehabilitation and community integration.

Case Study: Dollar General

• Dolgen Case: Affirmation of tribal court jurisdiction by the U.S. Supreme Court.

Tribal Sovereignty and Legal Authority

• Sovereignty Definition: Authority of tribes over their lands and decisions.
• CFR Courts: Funded by the Department of Interior but derive authority from tribal sovereignty.

Diverse Legal Standards

• Tribal Court Independence:
  • Can adopt or reject state laws (e.g., insurance stacking, medical marijuana, gun laws).
  • Different legal standards require lawyers to adapt to various tribal codes.

Tribal Court Systems

Small vs. Large Tribal Courts

• Example Comparisons:
  • Kaw Nation: Small, limited court sessions.
  • Navajo Nation: Extensive court system similar to state courts.

Funding and Operations

• Financial Constraints: Impact the frequency and nature of court sessions.

Unique Judicial Practices

• Tribal Remedies:
  • Creative sentencing such as community service or cultural education.

Conclusion

• Tribal courts offer unique judicial processes that emphasize cultural integration, community service, and tailored justice solutions.