Modern Practice in the Indian Courts

• Publication year: 1986

UNIVERSITY OF PUGET SOUND LAW REVIEWVolume 10, No. 2WINTER 1987

Modern Practice in the Indian Courts

Michael Taylor(fn*)

I. Introduction

The recent decision of the United States Supreme Court in National Farmers Union Insurance Company v. Crow Tribe of Indians.(fn1) has the potential for significantly changing the practice of law on and near the approximately one hundred and fifty Indian reservations served by Indian courts. Rejecting arguments that Indian courts are generally prohibited by federal law from exercising jurisdiction in civil matters involving non-Indians, the Court in National Farmers Union Insurance unanimously held that Indian courts are, in the first instance, the exclusive forums for determining their own jurisdiction.

As a result, more suits involving Indian and non-Indian parties will be brought in the Indian courts when some of the incidents giving rise to the suit take place on the reservation. Even the lawyer who does not represent Indians has a substantially increased likelihood of being required to appear in an Indian court when clients have business dealings with one of the many hundreds of tribal governments, agencies, and enterprises; own property or a business on a reservation; marry into a family of Indian heritage; are involved in the welfare or adoption of children; engage in commercial relationships with individual Indians; or do business with companies belonging to individual Indians.

In many instances, the jurisdiction of the Indian court over issues arising on the reservation is exclusive.(fn2) The lawyer who practices in a state where tribal Indians are located should therefore have some familiarity with the local Indian courts, their jurisdiction, and sources of law that are being applied in them.

This article is intended to provide those affected by the decision a basic understanding of Indian court jurisdiction and practice. Part II discusses, in more detail, the National Farmers holding. Part III is an overview of the history, structure, and types of Indian courts. Part IV deals with the complexities of jurisdiction, and Part V, constitutional and civil rights issues in Indian courts. Part VI summarizes the basics of Indian court practice and procedure.

II. National Farmers Union Insurance Co. v. Crow Tribe

In National Farmers Union Insurance, the action arose when a Crow Indian was injured on land belonging to a state school district within the Crow Reservation. The plaintiff filed a tort action against the school district in the Crow Tribal Court and personally served the chairman of the school board. The chairman ignored the complaint and sent it to the school district's insurer only after the tribal court had entered a default judgment against the district.

The insurer, National Farmers, obtained a permanent injunction against the tribal court proceeding from the Federal District Court in Montana. The district court held that the Crow Tribal Court lacked subject matter jurisdiction over the tort that was the basis for the default judgment.(fn3) Without reaching the merits of the question of tribal court jurisdiction, the Ninth Circuit Court of Appeals, reversed on the ground that the district court lacked jurisdiction to adjudicate the questions raised by the insurer.(fn4) In essence, the court of appeals held that Congress, by enacting the Indian Civil Rights Act,(fn5) had limited federal court review of tribal court proceedings to hearings on writs of habeas corpus. The appellate panel concluded that a district court had no jurisdiction to entertain a claim that a tribal court had acted beyond the limits of its jurisdiction.

The Supreme Court reversed on the central issue of federal jurisdiction, finding that a claim of abuse of tribal jurisdiction raises a question "that must be answered by reference to federal law and is a federal question under section 1331."(fn6) In its conclusion, the Court pointed out that while Indian tribes exercise a separate sovereignty rooted in their precolumbian existence as Indian nations, the present scope of tribal sovereignty is generally controlled and limited by federal law.(fn7)

National Farmers Union answered two more questions important to the jurisdiction and effectiveness of Indian courts. The insurer had contended that under the rule in Oliphant v. Suquamish Tribe,(fn8) in which the Supreme Court held that tribes had lost the power to prosecute non-Indians for criminal offenses in their courts, the tribal court was absolutely barred from exercising jurisdiction over the "non-Indian" state school board. Noting, however, that the authorities on which the Oliphant Court had relied contained language affirming the legitimacy of tribal civil jurisdiction, the National Farmers Union Court stated:[W]e conclude that the answer to the question whether a tribal court has the power to exercise civil subject-matter jurisdiction over non-Indians is not automatically foreclosed, as an extension of Oliphant would require.(fn9) The Court directed that each assertion of tribal civil jurisdiction be reviewed in the first instance by the Indian Court itself to determine whether such jurisdiction had been altered, divested, or diminished by any one of a number of factors.(fn10)

Finally, the Court decided that based on the federal policy of tribal self-government and self-determination, examination of a tribe's civil jurisdiction should first be conducted by the tribal court:[T]he orderly administration of justice in the federal court will be served by allowing a full record to be developed in the Tribal Court before either the merits or any question concerning appropriate relief is addressed. The risks of . . . "procedural nightmare" . . . will be minimized if the federal court stays its hand until after the Tribal Court has had a full opportunity to determine its own jurisdiction and to rectify any errors it may have made.(fn11)

Thus, the federal courts are instructed to allow Indian courts to proceed through jurisdictional hearings, trial, and the tribal appeals process prior to any exercise of federal question jurisdiction to review the validity of tribal jurisdiction.(fn12)

National Farmers Insurance concludes a decade of extensive litigation, legislative action, and academic commentary regarding the jurisdiction of Indian courts.(fn13) The central issue upon which much of this activity has been focused is tribal jurisdiction over non-Indians and their property within Indian reservations.(fn14) In the great majority of cases where federal courts have considered this issue, tribal court jurisdiction has been upheld. Generally, the federal courts have decided that the civil jurisdiction of Indian tribes and their courts depends on factors other than the Indian status of the parties. The legal and political history of the tribe whose jurisdiction is being reviewed is important in defining the scope of that jurisdiction.

III. Background

A. Historic and Legal Roots of the Indian Courts

Most of the Indian courts operating today are located in western states, but Indian jurisdictions exist in all parts of the country from Maine to Florida, California to Alaska. The origins of these Indian courts are diverse and systems of justice created by Indian people prior to contact with Europeans(fn15) still influence practice on some reservations. Many contemporary Indian courts, such as the traditional, religious courts of some of the Pueblos, the courts of the Five Civilized Tribes, and the river courts of Pacific Coast fishing tribes have their origins in the Indian society which they serve. The majority of existing Indian courts are, however, based on the Bureau of Indian Affairs forums established by reservation superintendents in the nineteenth and early twentieth centuries.(fn16)

The historic recognition of the Indian nations as sovereigns separate and apart from the state and federal governments,(fn17) combined with the growth of tribal institutions away from the tutelage of the federal trustee, have led to the birth of the modern Indian court system. Contemporary Indian courts strive to preserve tradition and custom while applying modern policies developed to support the tribe's role as a modern government.(fn18)

B. Organization of Modern Indian Courts

The flagship tribal judicial system, pre-eminent because of its size, is that of the Navajo Nation. With several divisions and a fully staffed Supreme Court, the Navajo Tribal Courts process over 45,000 cases per year.(fn19) In contrast, some tribal jurisdictions are part-time operations with a docket of no more than 100 cases per year. A recent development in the Indian judiciary is the establishment of inter-tribal systems designed to efficiently serve several reservations.(fn20) Indian courts serving more than one tribe now operate in western Washington, Oklahoma, and on some of the Sioux Reservations. These systems provide some trial services and require that each participating tribe submit its appellate matters to an inter-tribal appellate forum.

Of the more than 1000 people now working in the Indian courts, an overwhelming number are Indians. In the past decade tribal councils have moved away from the practice of appointing local, non-Indian lawyers to tribal judgeships. The prevalence of Indians on the tribal bench is partially due to the availability of legally trained Indians has...