The Tribal Court Where Does it Fit

JurisdictionKansas,United States
CitationVol. 65 No. 10 Pg. 14
Publication year1996
Kansas Bar Journals
Volume 65.

65 J. Kan. Bar Assn. October, 14 (1996). THE TRIBAL COURT WHERE DOES IT FIT

The Journal of the Kansas Bar Association
October, 1996


Charles J. Hyland

Copyright (c) 1996 by the Kansas Bar Association; Charles J. Hyland

Introduction [FN1]

The advent of Indian gaming, as well as the renewed prominence of Indian tribes, requires that Kansas practitioners be aware of the existence of tribal courts, the extent of their jurisdiction, and how to prosecute or defend an action that must be brought in tribal court. Two tribes in Kansas, the Prairie Band Potawatomi in Jackson County and the Kickapoo Tribe of Kansas in Brown County, have tribal courts. [FN2] The Sac and Fox Nation of Missouri [FN3] and the Iowa Tribe of Kansas and Nebraska are working toward establishing tribal courts. [FN4] Kansas practitioners, particularly in Brown and Jackson counties, need to be aware of rulings from the Supreme Court and other federal courts that detail the tribal courts' power.

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In Montana v. United States, [FN5] the Supreme Court held that Indian tribes have inherent sovereign power to exercise some forms of jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, licensing or other means, the activities of non-members who enter consensual relationships with a tribe or its members through commercial dealing, contracts, leases or other arrangements. [FN6] A tribe may have the power to exercise jurisdiction over the conduct of non-Indians on fee lands within its reservation when the conduct threatens or has some direct effect on the political integrity, economic security, health or welfare of the tribe. [FN7] Thus, the question arises: When must an action be brought in tribal court? Cases involving an Indian tribe or member of an Indian tribe? Cases that occur within the boundaries of a reservation? Cases involving alleged criminal conduct occurring on a reservation? All cases interpreting Indian law or involving Native American culture? This article will address these questions and outline the civil and criminal jurisdiction of the tribal courts, as well as the interaction between the tribal courts and the federal courts.


Indian tribes occupy a unique legal status. [FN8] At one time, Indian tribes exercised virtually unlimited power over their own members, as well as those who were permitted to join their communities. [FN9] Today, however, the power of the federal government over Indian tribes is plenary. [FN10] Federal law, as enacted, provides protection for the rights of Indians and Indian tribes. Yet, the tribes do retain some of the inherent powers of self-governing political communities that were formed long before Europeans first settled in North America, including the right to operate a justice system. [FN11]

Whenever the jurisdiction of a tribal court is a possibility, the existence and extent of tribal court jurisdiction requires a careful examination of tribal sovereignty, the extent to which that sovereignty has been altered, divested or diminished, as well as a detailed study of relevant statutes, executive branch policy as embodied in treaties and elsewhere, and administrative and judicial decisions. [FN12]

A. Jurisdiction Over Members of a Tribe

The first place to look when attempting to determine whether a matter should be in tribal court is the tribe's code. By example, the Coeur d'Alene Tribe in Idaho has a statute that provides civil jurisdiction over "all civil suits wherein the parties are Indian and all other suits between Indian and non-Indians which are brought before the Court." [FN13] Under the Coeur d'Alene rule, any civil suit involving a tribe member could be brought in the tribal court. The Coeur d'Alene code applies criminal jurisdiction to Indians, as defined under the Tribal Code, who commit a criminal act within the reservation, commit a robbery outside the reservation and bring the stolen property to the reservation or are found within a reservation and have caused a crime to be committed within the reservation while outside the reservation. [FN14]

Generally, criminal jurisdiction of the tribal courts is limited to tribe members who commit crimes on the reservation. Each tribal code must be analyzed to determine jurisdiction. Civil jurisdiction is much broader and attaches generally if Indian tribe members are involved. The tribal courts will virtually always have jurisdiction over their members. The difficult questions arise when non-Indian tribe members are involved.

The extent of criminal and civil jurisdiction of tribal courts over non-Indians has been established by the Supreme Court. Any exercise of jurisdiction by a tribal court beyond the limits set by the Supreme Court should be challenged in federal court, generally after the issue has been fully litigated in tribal court.

B. Criminal Jurisdiction Over Non-Indians

In Oliphant v. Suquamish Indian Tribe, [FN15] the Supreme Court interpreted the Suquamish Indian Law and Order Code, which covered a variety of offenses from theft to rape, and purported to extend the tribe's criminal jurisdiction over Indians and non-Indians. The Suquamish code provided defendants with many of the due process protections afforded defendants in other criminal proceedings. However, the guarantees were not identical. For example, non-Indians could not serve on juries. [FN16]

The defendants, Oliphant and Belgarde, were non-Indians charged with assaulting a tribal officer and reckless driving on the reservation, respectively. Upon being charged, both defendants sought a writ of habeus corpus that the Suquamish Indian Provisional Court did not have criminal

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jurisdiction over non-Indians. [FN17] The lower courts disagreed. [FN18] The Supreme Court held that the tribal court did not have criminal jurisdiction over non-Indians for offenses committed on the reservation. [FN19]

After analyzing the history of the relationship between the federal government and the Indian nations, the Court reasoned that the Indian nations had given up full sovereignty, which included criminal jurisdiction over non-Indians, in exchange for the protection of the United States. [FN20] For support, the Court looked to the Trade and Intercourse Act of 1790, which extended basic criminal rights to offenses that occurred on or off Indian land. [FN21] As a result, the Court held that non-Indians are not subject to the criminal jurisdiction of Indian courts, and must be prosecuted by the local, state or federal authorities.

C. Civil Jurisdiction over Non-Indians

In National Farmers Union Ins. Co. v. Crow Tribe of Indians, [FN22] the defendant in tribal court asserted that the Oliphant rule prohibited the exercise of civil tribal court jurisdiction over non-Indians. The Supreme Court disagreed, holding that the tribal court is the entity that determines whether it has jurisdiction:

Our cases have often recognized that Congress is committed to a policy of supporting tribal self-government and self-determination. The policy favors a rule that will provide the forum whose jurisdiction is being challenged the first opportunity to evaluate the factual and legal bases for the challenge. Moreover, the orderly...

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