CHAPTER 5 Practice Before Tribal Courts

• Jurisdiction: United States

Mineral Development On Indian Lands
(Feb 1989)
CHAPTER 5
Practice Before Tribal Courts
James Jay Mason
Mason, Rosebrough & Isaacson, P.A.
Gallup, New Mexico

I. INTRODUCTION

In light of the United States Supreme Court's deference to Tribal Courts in the National Farmer's Union ¹ and Iowa Mutual ² decisions, the consideration of practice before the Tribal Courts has become a serious concern for those persons who contract with Indians and Indian Tribes and engage in development on Indian lands. It is difficult to generalize on the current state of development of Tribal Courts throughout Indian Country. There is a vast difference in the development of these courts. The reasons for the lack of uniformity are centered in the lack of uniformity among the Indian Tribes themselves. A small underdeveloped tribe is less likely to have an extensive and sophisticated court system when compared to a larger tribe, such as the Navajo Nation, which now has seven judicial districts³ and a Supreme Court. This article will first give a brief history of the development of Tribal Courts and then specifically address admission to Tribal Courts, practical problems of Tribal Court practice and procedure and the availability of appellate courts.

II. BRIEF HISTORY OF TRIBAL COURTS

Most Indian tribes traditionally had informal methods and procedures for dealing with disputes among themselves.⁴ In some instances these methods have been preserved or resurrected by the particular tribe. For example, the Navajo Tribe has instituted the Navajo Peacemaker Courts sanctioned by the Tribal Court and the Navajo Tribal Council. The new court was based on the ancient practice of the Navajo to choose a Naat'aanii, or head-man, who would arbitrate disputes, resolve family difficulties, try to reform wrongdoers and represent his group in its relations with the other communities, tribes and governments. The courts of the Navajo Nation developed a Navajo Peacemaker court manual to be used by judges, community leaders and court personnel in the formalization of this ancient practice.⁵

However, the current typical tribal court arose from the authorization from the Secretary of the Interior in 1883 to establish Courts of Indian Offenses.⁶ Prior to that time, local Indian agents had acted as Judges or delegated this responsibility to other persons under his supervision. These courts were organized without statutory authority under the general authority of the Department of Interior to supervise Indian affairs. Unfortunately, there were no statutory guidelines for the jurisdiction of the Courts of Indian Offenses.⁷

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By the year 1900, approximately two-thirds of the Indian agencies in the United States had established Courts of Indian Offenses.⁸ The increased contact between non-Indians and Indians made great difficulty for these courts as they attempted to establish jurisdictional guidelines. In addition, these courts were inadequately funded and thus were not equipped to engage in major litigation of these matters.⁹

The Indian Reorganization Act of 1934 brought needed reform and the first elements of tribal self-determination.¹⁰ The Indian tribes were given the express right to replace the Courts of Indian Offenses with their own courts and legal system. In fact, since 1935, most tribes have developed their own legal systems.¹¹

The original Courts of Indian Offenses from their inception were based on Anglo-American concepts of criminal and civil law.¹² As a result, the rules of evidence and procedure are patterned after those established in the State and Federal Courts, even if in some instances these tribal rules have been simplified or written in plain language to accomodate lay advocates and judges.

Tribal Courts can be divided into two broad categories. The first are the "CFR Courts" which succeeded the Bureau of Indian Affairs' Courts of Indian Offenses.¹³ The Code of Federal Regulations lists the following tribes with CFR Courts at 25 C.F.R. § 11.1(a) (1987):

(1) Omaha (Nebraska)

(2) Flandreau (South Dakota)

(3) Yankton (South Dakota)

(4) Wind River (Wyoming)

(5) Bois Forte (Minnesota)

(6) Red Lake (Minnesota)

(7) Cocopah (Arizona)

(8) Kaibab (Arizona)

(9) Hopi (Arizona)

(10) Fallon (Nevada)

(11) Goshute (Nevada)

(12) Lovelock (Nevada)

(13) Te-Moak (Nevada)

(14) Yomba (Nevada)

(15) Duckwater Shoshone (Nevada)

(16) Kootenai (Idaho)

(17) Shoalwater Bay (Washington)

(18) Hoopa (California)

(19) Anadarko Area Tribes (Oklahoma)

(20) Choctaw (Mississippi)

(21) Eastern Cherokee (North Carolina)

(22) Louisiana Area (Louisiana)

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The second broad category are the tribal courts established by the tribes themselves through constitutional and legislative enactment, such as the Navajo, Laguna, Acoma, Zuni and Mescalero Apache Tribal Courts. Generally, the CFR Courts are governed more extensively by federal administrative regulations.¹⁴ However, many tribes have exercised their sovereign powers to regulate their legal systems without extensive interference from the Bureau of Indian Affairs.

The current stage of development of a particular tribal court is largely determined by the amount of funding available for its operation and the need for judicial resolution of disputes between tribal members and those between Indians and non-Indians. For example, the Navajo Tribal Courts, the legal system of the largest Indian tribe in the United States, were first established in 1903 as the Navajo Court of Indian Offenses. In 1958, the Navajo Tribal Council created the Navajo Tribal Court by council resolution, and the Navajo Nation completely assumed control of its own courts on April 1, 1959.¹⁵ As the Navajo judicial system celebrates is 30th anniversary in 1989, there is a Supreme Court of the Navajo Nation, comprised of the Chief Justice and two Associate Justices, eight Navajo District Judges which are courts of general trial jurisdiction, a Navajo Children's Court, and the Peacemaker Court. The Navajo Tribal Court Judges must undergo continuing education and many have paralegal or law enforcement backgrounds. Currently one Trial Judge and one Supreme Court Justice are graduates of accredited law schools. All Judges are members of the Navajo Tribe.

The ongoing question of jurisdiction of tribal courts can be demonstrated by a specific example involving the Navajo Tribal and New Mexico judicial systems. The Navajo Tribal Code provides that the Navajo District Courts shall handle criminal misdemeanors, probates and "all civil actions in which the Defendant is a resident of Navajo Indian Country, or has caused an action to occur within the territorial jurisdiction of the Navajo Nation.¹⁶ Navajo Indian Country is generally defined as the Reservation itself, Eastern Navajo Agency lands, neighboring allotted lands, and other government lands held in trust for, owned in fee simple by, or leased by the United States to the Navajo Tribe.¹⁷

The Navajo Tribal Code in 7 N.T.C. §607 (1986 Supp.) provides that personal property of Navajo Indians shall not be taken from the territorial jurisdiction of the Navajo Nation without written consent or a tribal court order. Patrick Chischilly, a tribal member, purchased a truck from an Albuquerque dealer. The purchase was financed by General Motors Acceptance Corporation. When Mr. Chischilly became delinquent, the truck was repossessed from Chischilly at his residence on trust lands of the Navajo Nation. Chischilly sued for damages under violation of the tribal repossession statute. The trial court dismissed the case, and the New Mexico Supreme Court held in General Motors Accep. Corp. v. Chischilly, 96 N.M. 113, 628 P.2d 683 (1981) that the Navajo tribe could not sua sponte enlarge its jurisdiction over non-Indian defendants without express federal delegation which had not been given. The Supreme Court upheld the dismissal by the trial court.

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The Navajo Courts have consistently held that the tribal court has jurisdiction over non-Indian defendants who reside or do business within Navajo Indian Country¹⁸ and over non-Indian defendants by Tribal Code enactment, absent federal prohibition.¹⁹ Presumably, both the Navajo Supreme Court and the New Mexico Supreme Court continue to rely on these inconsistent precedents to decide the cases before them. Meanwhile, these jurisdictional dilemmas remain unresolved and pose serious concern for the potential litigator in tribal court. Ultimately, federal statutory or case law will resolve many of these jurisdictional disputes.

If the federal courts will now defer to tribal courts for the resolutions of disputes between Indians and non-Indians, the continued development and sophistication of the tribal courts are essential to the fair and impartial resolution of these disputes. The establishment of clear jurisdictional guidelines, the adoption of recognized rules of procedure and evidence and the continued education and raising of minimum standards for Judges must be pursued by all tribal governments. Indian tribes treasure their sovereignty, but if they wish to improve the credibility of tribal judicial systems, the above actions must be taken.

III. ADMISSION TO PRACTICE IN TRIBAL COURTS

The general rule is that...