TRIBAL BUSINESS LAWS: FAMILIARITY AND DIFFERENCE

• Jurisdiction: United States

Energy & Mineral Development in Indian Country
(Nov 2014)
CHAPTER 6A
TRIBAL BUSINESS LAWS: FAMILIARITY AND DIFFERENCE
Paul W. Spruhan
Navajo Nation Department of Justice
Window Rock, Arizona

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PAUL W. SPRUHAN is Assistant Attorney General for the Labor and Employment Unit at the Navajo Nation Department of Justice in Window Rock, Arizona. He received his A.B. in 1995 and his A.M. in 1996 from the University of Chicago. He received his J.D. in 2000 from the University of New Mexico. He graduated Order of the Coif and received an Indian law certificate. He has several Indian law articles published in law reviews, including A Legal History of Blood Quantum in Federal Indian Law to 1935, 51 South Dakota Law Review 1 (2006). He and his wife, Bidtah Becker, also an attorney for the Navajo Nation Department of Justice, have two children, and live on the Navajo Nation in Fort Defiance, Arizona.

TRIBAL BUSINESS LAWS: FAMILIARITY AND DIFFERENCE PAUL SPRUHAN, NAVAJO DEPARTMENT OF JUSTICE

As sovereign governments with general regulatory jurisdiction over their lands, Indian nations have enacted business laws that affect natural resource and energy development.

As each Indian nation acts as a separate government, however, those laws vary significantly in complexity and in their consistency with surrounding state laws. Some nations may have simply defaulted to state law, or adopted model or uniform laws, and therefore do not vary significantly from the laws of surrounding jurisdictions, if they have any commercial law at all. Others may have wholly unique structures reflecting their own culture, traditions, and public policy that vary significantly from state laws. Still others, like the Navajo Nation, may have a combination of model or uniform laws and unique tribal law.

Further, tribal court systems that apply and interpret such laws vary considerably in size, demographic make-up of the judiciary, and their independence or deference to the legislative and executive arms of the tribal governments. Some tribes require their judges to be members of the Indian nation, and may have other qualifications, such as speaking the tribal language, or to be members of the tribal bar association or a state bar association.¹ Other tribes may allow non-Indian attorneys to sit as judges or have law professors sit as judges pro tern. Further, some tribes, such as the Navajo Nation, have administrative tribunals with hearing officers who preside over specific types of commercial cases in lieu of district court judges.²

Each Indian nation can set up its appellate system, if any, as it sees fit, and such structures vary significantly. The Navajo Nation is unique in that it has a Supreme Court with

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permanent justices who hear appeals both from courts and from administrative tribunals. Other Indian nations have supreme courts or courts of appeals that sit when necessary, that may be made up of licensed attorneys, lay judges, law professors, or some combination. Still other tribes feed some or all of their appeals to a regional or national intertribal court of appeals.³ Other tribes may have their tribal council sit as the appellate body over their courts.

The rules of statutory interpretation and statutory validity may vary from tribe to tribe. Indian nations may have a written constitution, and the tribal court may interpret the business laws based on a bill of rights that parallels the United States Constitution's Bill of Rights or the federal Indian Civil Rights Act.⁴ The culture and traditions of the Indian nation may also be incorporated into the court's jurisprudence as a source of statutory interpretation or as "common law" of the tribe, and a tribe may invalidate some commercial laws if inconsistent with tribal traditions.⁵

The following is a general description of...