The History of the Tribal Courts

Native American communities have administered justice on their territorial homelands since time immemorial, applying their own traditions and customs to affectively resolve disputes among Tribal members. Today, most Tribes employ a system of justice that is modeled on the United States federal courts and retain traditional mechanisms for purposes of sentencing and alternative dispute resolution. The result is a truly unique adjudicative process that has become a model among American court systems.

The development of modern tribal courts can be traced to the 1883 case Ex Parte Crow Dog, 109 US 557 (1883). The case concerned a Lakota tribal member, Crow Dog, who killed a fellow tribal member, Spotted Tail, on land which is the modern day Rosebud Sioux reservation in South Dakota. In their traditional way, the Tribe required Crow Dog to provide restitution to Spotted Tail’s family in the form of goods and provisions. Spotted Tail’s family was satisfied with the resolution, but the federal government disagreed with the arrangement and sought more severe punishment against Crow Dog. Shortly thereafter, the Department of the Interior set up the Court of Indian Offenses to handle minor crimes and to resolve disputes between tribal members. This federal intrusion into tribal governance was common in Indian affairs at the time as the federal government sought to transfer native people off their reservation communities and assimilate them into the general population.  The policy nearly eradicated Indian people and tribal systems of government.

The federal government radically changed Indian policy in 1934 with the passage of the Indian Reorganization Act.  Here tribes were encouraged to enact their own laws and to establish their own justice systems.  Many tribes, impoverished from years of devastating Indian policy, lacked the financial means to adopt their own tribal codes or develop courts. Left with no alternative, they chose instead to operate under provisions of the Code of Federal Regulations (CFR).  Today, there are several dozen CFR courts still in existence, many operating in Oklahoma.

Congress continued to pass laws and programs to assist tribes with education, economic development, and the creation of government structures.  These programs allowed many Tribes to rebuild their communities and governments quicker than they might otherwise have.  Several federal laws were passed solely to establish and strengthen tribal courts and police departments, for they are frequently perceived as cornerstones to the foundation of government.  The federal courts provided a ready model for these reconstruction efforts. 

Today, nearly 300 Indian nations and Alaskan Native villages have established formal tribal court systems. The courts vary in style, form, and procedure but the dominant system resembles the Western-style judiciaries where written laws and rules of court are applied. Yet they retain a strong undercurrent of tradition. 

By Adopting the American style judicial system, Tribal courts often see their Judgments reach beyond tribal lands where they are enforced by states on the principle of comity, or in federal court where particular and discrete federal laws allow for it.  In 1992, the Mashantucket Pequot Tribal Nation developed an American style judicial system and since that time, Mashantucket court judgments have been entered as valid judgments in every state that has considered them.