Tribal Courts Resource Guide

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Tribal courts are courts of general jurisdiction which continue to have broad criminal jurisdiction. The general rule is that states have no jurisdiction over the activities of Indians and tribes in Indian country. Public Law 280 (PL 280) created an exception to this rule in certain states. The U.S. Congress gave these states criminal jurisdiction over all offenses involving Native Americans on tribal lands. Through PL 280, the federal government transferred to these states the federal government’s criminal jurisdiction over Indian country, and it opened state courts up as forums for civil litigation that had previously only been able to be brought in tribal or federal courts. The effect of PL 280 is that in many areas state and tribal courts share jurisdiction.

Links to related online resources are listed below. Non-digitized publications may be borrowed from the NCSC Library; call numbers are provided.

Featured Links

Davis, Alicia K. and Gina Jackson. Meaningful and Ongoing Engagement of Tribes and State Courts in Child Protection. (2012). Future Trends in State Courts.

The Indian Child Welfare Act of 1978 requires states to “protect the best interests of Indian children.” Many states are collaborating with tribal courts and leaders in innovative ways to ensure permanency and safety for Native American children.

Review of NCSC Tribal Projects. (2009).

Since the early 1980s, the National Center for State Courts (NCSC) has provided expertise in over twenty projects involving various aspects of tribal courts.

General

Tribal Court Directory. Tribal Law and Policy Institute A directory of links to the various tribal courts and justice systems from across the nation.

Tribal Courts (Table 33), State Court Organization 2004. Williamsburg, VA: National Center for State Courts

Tribal Court Decisions. Tribal Law and Policy Institute

Motivans, Mark and Howard Snyder Tribal Youth in the Federal Justice System. (June 2011). Bureau of Justice Statistics Researchers from The Urban Institute investigated how youth from Indian Country were processed by the federal criminal justice system.

Strategies for Creating Offender Reentry Programs in Indian Country. (August 2010). Albuquerque, New Mexico: American Indian Development Associates This report provides an historical overview of offender reentry in Indian Country, gives guidance in developing reentry programs, provides general reentry policy considerations and recommendations, highlights tribal reentry programs, and provides federal and other resources.

Minton, Todd D. Jails in Indian Country, 2008. (December 2009). Bureau of Justice Statistics This BJS Bulletin looks at the number of inmates confined in Indian country and the number of American Indians and Alaska Natives confined or under correctional supervision outside of Indian country.

Hartney, Christopher Native American Youth and the Juvenile Justice System. (March 2008). The National Council on Crime and Delinquency (NCCD) This report reviews the national data on the disparity of treatment between Native American youth and other racial and ethnic groups in the juvenile justice system.

Building Brighter Futures in Indian Country: What`s on the Minds of Native Youth. (June 2007). Office of Juvenile Justice and Delinquency Prevention This report captures the meeting of the 2007 Tribal Youth Focus Group comprised of native youth ages 10-17 from 20 tribes across the United States.

Grandy, Clifton and H. Ted Rubin. Tribal Court-State Court Forums. (1993).

A How-To-Do-It-Guide to Prevent and Resolve Jurisdictional Disputes and Improve Cooperation Between Tribal and State Courts. This question and answer guide addresses the role of the forums in the Tribal Courts and State Courts: The Prevention and Resolution of Jurisdictional Disputes Project.

Child Welfare

Indian Child Welfare Act of 1978: A Court Resource Guide. (March 2011). Michigan State Court Administrative Office This court resource manual provides guidance for judges in implementing the Indian Child Welfare Act in Michigan.

Native American Children Involved in the Dependency Court . (July 2010). The Judge's Page This issue of The Judges' Page is dedicated to informing judges about the Indian Child Welfare Act.

Horne, Ashley et al. Court Reform and American Indian and Alaskan Native Children. (August 2009). National Council of Juvenile and Family Court Judges and the National Indian Child Welfare Association This Technical Assistance brief provides a preliminary examination of the Pew Commission on Children in Foster Care’s recommendations as they pertain to state and tribal court involvement in Indian child welfare matters.

Tribal-State Agreement Benefits Children. (March 2009). Children`s Bureau Express Online Digest This report provides an example of tribal-state agreements such as the formal agreement between the Port Gamble S'Klallam Tribe and the State of Washington, which provides title IV-E money for Tribal children in foster homes on their reservation.

Community-Based Services for Tribal Families. (December 2008). Children`s Bureau Express The Cahuilla Band of Mission Indians of Temecula, CA developed and implemented a community-based program adapted from the Incredible Years evidence-based parenting program to strengthen families and prevent child abuse and neglect.

The State and Federal Indian Child Welfare Act. (November 2008). Iowa Department of Health and Human Resources This practice bulletin explains state and federal ICWA requirements and provides guidance on implementation in the field.

Tribal State Relations. (January 2006). Child Welfare Information Gateway This article highlights key factors affecting Tribal-State relations and promising practices in successful relations regarding child welfare services and laws.

Ayazuta. Ayazuta is an internet service focused on improving ICWA compliance throughout the United States by validating noticing information for all Federally Registered Tribes.

The National Indian Child Welfare Association (NICWA) . This national nonprofit provides a comprehensive source of information on American Indian child welfare. NICWA also provides public policy, research, advocacy, information, training, and community development services. For courts seeking to contact a tribe regarding an ICWA matter NICWA includes the Bureau of Indian Affairs List of Designated Tribal Agents.

Codes and Procedures

Hoopa Valley Tribal Court-California.

Menominee Indian Tribe of Wisconsin Constitution and Bylaws. Menominee Indian Tribe of Wisconsin

Federal Laws

Robben, Janine Life in Indian Country How the Knot of Criminal Jurisdiction is Strangling Community Safety. (January 2012). Oregon State Bar Bulletin This article discusses the problems with tribal criminal jurisdiction over crimes committed in Indian Country and the passage of the Tribal Law and Order Act (TLOA) of 2010.

U.S. Department of Justice Declinations of Indian Country Criminal Matters. (2010). U.S. Government Accountability Office, REPORT NO. GAO-11-167R The Department of Justice (DOJ) has reported that crime rates experienced by American Indians are two and a half times higher than those experienced by the general population in the United States. This report addresses the following questions: 1) How many Indian country matters were referred to U.S. Attorneys' offices and what were the declination rates for those matters for fiscal years 2005 through 2009? 2) What are the reasons for the declinations as recorded in the Department of Justice's case management system?

Summary of the Tribal Law and Order Act of 2009. (March 2009). The act would allow tribal courts to impose sentences of up to three years and create a special office to review decisions by U.S. attorneys to decline prosecutions of reservation crimes.

Berger, Bethany R. Justice and the Outsider: Jurisdiction over Non-Members in Tribal Legal Systems. (2004). University of Connecticut School of Law Working Paper Series This paper describes the progression of limitations over tribal criminal, civil, and regulatory jurisdiction over nonmembers.

Melton, Ada Pecos, and Jerry Gardner. Public Law 280: Issues and Concerns for Victims of Crime in Indian Country. (2003). Tribal Court Clearinghouse A summary of the provisions of Public Law 280 and how it affects the jurisdiction of tribal and state courts.

Report of the Native American Advisory Group. (November 2003). This Advisory Group was formed in response to concerns raised that Native American defendants are treated more harshly by the federal sentencing system, than if they were prosecuted by their respective states.

Short Guide to the Lara Case. (2003). Tribal Court Clearinghouse An analysis of the impact of United States v. Lara, 324 F.3d 635 (8th Cir. 2003), on victims of crime.

Baca, Kim. The Changing Federal Role in Indian Country. (April 2001). National Institute of Justice Journal: 12 Describes two pilot programs in the Department of Justice’s Indian Country Justice Initiative. The Laguna Pueblo created a project to assign nonviolent offenders to work on various projects with leaders within their villages. The Mayordomo Project emphasized collaboration between traditional justice practices and the contemporary judicial system. The Northern Cheyenne’s CIRCLE Project is also described.

Nevada v. Hicks. (2001). 533 U.S. 353 The Supreme Court reverses the Ninth Circuit Court of Appeals and rules that tribal courts do not automatically have jurisdiction over disputes involving nonmembers just because the dispute occurs on reservation land. The state still has jurisdiction over reservation land when the dispute involves nonmembers, but the states’ jurisdiction is inapplicable when tribal jurisdiction is in the best interest of tribal self-governance.

Strate v. A-1 Contractors. (1997). 520 U.S. 538 The Supreme Court decided unanimously to uphold the Eighth Court of Appeals decision. The Court ruled that nonmembers could only be brought under tribal jurisdiction in rare circumstances, primarily when they are contracting with a tribe. In this case, the question was whether the tribe had jurisdiction over a federal highway that ran through the tribe’s reservation land. The Court answered no, unless a treaty was made with the federal government.

Hagen v. Utah. (1994). 510 U.S. 399 The Supreme Court affirmed the decision of the Utah Supreme Court. The Court ruled that tribal jurisdiction is based on current Native American reservation boundaries rather than the original boundaries. In this case, the defendant could be prosecuted in state court because he committed the offense on land outside of the current reservation boundaries since Congress diminished the original boundaries.

Montana v. U.S.. (1981). 450 U.S. 544 The Supreme Court reversed the decision of the Ninth Circuit Court of Appeals. The Court ruled that the tribal courts have jurisdiction over land absolutely owned by them but not on lands where nonmembers paid a fee. Tribes could not prohibit fishing on any lands not completely owned by the tribe.

State Tribal Relations

Arnold, Aaron F., Sarah Cumbie Reckess, and Robert V. Wolf State and Tribal Courts: Strategies for Bridging the Divide. (2011). Center for Court Innovation This document discusses the issues that affect collaboration between state and tribal justice systems.

Special Issue on Tribal Courts. (Fall 2009). Center for Court Innovation This special issue focuses on tribal issues including jurisdiction, state tribal relations, full faith and credit and pretrial release.

Walking on Common Ground: Pathways to Equal Justice. (July 2005). Green Bay, WI: Bureau of Justice Assistance and Fox Valley Technical College The binder contains information on the ACLU Guide to Indian and Tribal Rights, the Lower Sioux Community in Minnesota Tribal Court, Project Passport, independence of the judiciary, and the Indian Child Welfare Act.

Gardener, Jerry. Improving the Relationship between Indian Nations, the Federal Government, and State Governments. (2003). Tribal Court Clearinghouse To effectively address criminal justice issues and provide services for victims of crime in Indian country, it is vital that productive efforts are made to improve the relationship between Indian nations, the federal government, and state governments. The author outlines a three-step process to improve intergovernmental relationships.

Tribal Affairs . National Reentry Resource Center This resource center provides information on reentry into tribal communities and the unique challenges because of the ways in which local, state, federal, and tribal criminal justice systems intersect in Indian Country.

Traditional Courts

Mirsky, Laura. Restorative Practices of Native American, First Nation and Other Indigenous People of North America: Part Two. (2004). International Institute for Restorative Practices This is the second in a series of articles about restorative justice among Native Americans, First Nation, and other indigenous people of North America. It is a broad thematic overview of the subject that relates restorative justice to the native worldview with its connection between justice and spirituality. Harmony and balance are essential to both.

Mirsky, Laura. Restorative Justice Practices of Native American, First Nation and Other Indigenous People of North America: Part One. (2004). International Institute for Restorative Practices This is part one of a new series of articles about the restorative justice practices of Native American, First Nation, and other indigenous people of North America. This first segment includes interviews with three justice practitioners of the southwest United States—the Honorable Robert Yazzie, chief justice emeritus of the Navajo Nation Supreme Court; Judge Joseph Flies-Away of the Hualapai Nation; and James Zion, formerly solicitor to the Navajo Nation Courts and currently domestic abuse commissioner at Crownpoint, New Mexico, Family Court.

Tribal Healing to Wellness Courts: The Key Components. (2003). West Hollywood, CA: Tribal Law and Policy Institute This monograph was designed to provide suggested “key components” and recommended practices needed for Indian nations and tribal justice systems to consider as they design, develop, and implement adult drug courts that meet the needs of their individual communities.

Tribal Healing to Wellness Courts: Treatment Guidelines for Adults and Juveniles. (2002). West Hollywood, CA: Tribal Law and Policy Institute Tribal justice systems have often become separated from the provision of healing services. Holistically, this separation of function has made it very difficult to deal effectively with the physical and spiritual healing that is fundamental to tribal tradition. Many tribes have begun annexing their court systems with a range of treatment services that combine traditional healing with western treatment concepts through tribal drug courts—or healing to wellness courts. This publication examines guidelines that have been developed to provide tribal communities with an overview of substance abuse treatment strategies as they have been developed by drug court programs.

Frey, Heather E. Tribal Court CASA: A Guide to Program Development. (June 2002). OJJDP Fact Sheet, no. 9 Published by the U.S. Department of Justice, Office of Juvenile Justice and Delinquency Prevention. The guide, which is designed to lead tribal communities through each step of planning and running a tribal court CASA program, provides overviews of CASA and tribal court CASA programs and includes sections on planning a quality program, working with volunteers, and managing the program. The guide also includes an appendix with sample policies, forms, and other documents for use by tribal court CASA programs.

Tribal Healing to Wellness Courts: Program Development Guide. (2002). West Hollywood, CA: Tribal Law and Policy Institute This practical handbook provides step-by-step recommendations for design, development, and implementation of tribal healing to wellness courts. It is designed to assist steering committees and planning groups as they (1) use team-based approaches; (2) gain knowledge of healing-to-wellness-court concepts; (3) incorporate the ten key components; (4) help establish policies and procedures suitable to the needs of the tribal community; (5) guide the court to integrate available resources; (6) develop interagency agreements; (7) incorporate a management information system to track participants and services; and (8) identify possible problem areas.

Tribal Healing to Wellness Courts: The Judge`s Bench Book. (2002). West Hollywood, CA: Tribal Law and Policy Institute This bench book provides instruction and practical tools for judges in their efforts to guide those traveling on the road to wellness. This bench book is also useful for wellness court team members and community leaders who are interested in designing, creating, and implementing a wellness court program. Drug Courts Programs Office, Office of Justice Programs, U.S. Department of Justice.

Wakeling, Stewart, Miriam Jorgensen, Susan Michaelson, and Manley Begay. Policing on American Indian Reservations. (2001). Washington, DC: National Institute of Justice This study is a first effort to characterize the variety of arrangements for reservation policing combined with a more comprehensive effort to better understand the operations of a limited set of representative departments and their tribal contexts.

Tribal Court Resources

Case, Massey Mayo and Jill E. Tompkins A Guide for Tribal Court Law Clerks and Judges. (2007). University of Colorado Law School This resource provides information about the types of tribal courts, law clerk responsibilities, cultural considerations and ethical duties. It also includes a Judges' Guide on how best to wotk with a law clerk.

Tribal Court History. (2004). National Tribal Justice Resource Center A short summary of the history of tribal courts on the National Tribal Justice Resource Center web site, a project of the National American Indian Court Judges Association.

Jones, B.J. Role of Indian Tribal Courts in the Justice System. (March 2000). Native American Topic-Specific Monograph Series This paper is one of a series of papers discussing the unique characteristics of courts in Indian country. This specific report focuses on the history of tribal courts and the evolution of justice systems on various Indian reservations throughout the United States.

American Indian Law Review. The University of Oklahoma College of Law First produced in 1973, the American Indian Law Review is published biannually by the College of Law. This unique review offers articles by authorities on American Indian legal and cultural issues, student notes and comments, addresses by noted speakers, and recent developments of interest to tribal attorneys and scholars in Indian law. The Review is produced by an independent staff of law students.

History of Tribal Court Development. Prairie Island Indian Community This web site provides an overview of the development of tribal judiciaries across the country as created by Congress' Public Law 280 and the Indian Civil Rights Act of 1968, as well as several cases and laws specific to Minnesota Indian reservations.

National Indian Law Library. This is a public law library dedicated to federal Indian and tribal law.

Perry, Steven W. Census of Tribal Justice Agencies in Indian Country, 2002. (2005). Bureau of Justice Statistics This is the first comprehensive effort to identify which justice agencies are operating in tribal jurisdictions, what services those agencies provide, and what information they collect and keep.

The National American Indian Court Judges Association (NAICJA). NAICJA is a national voluntary association of tribal court judges. The mission of the NAICJA is to strengthen and enhance tribal justice systems.