Q: Are they supported and/or accepted among tribal members?
A: It's impossible to generalize how tribal members feel about tribal courts, as there are over 560 federally-recognized tribes across the country, perhaps as many as half of which operate formal court systems. Moreover, tribal courts differ considerably in the kinds of cases they choose to hear and how they operate. However, I think it's safe to say that most tribal courts try very hard to be responsive to the needs of their tribal members and to administer justice in a way that is consistent with the community's traditions and values. My personal experience—having visited approximately 30 tribes—has been that tribal members are generally supportive of their tribe's court and are proud that their tribe operates its own, independent system of justice.
Q: What is their jurisdiction? What kinds of disputes can they hear?
A: Tribal court jurisdiction is extremely complicated. I highly recommend Stephen Pevar's "The Rights of Indians and Tribes" for anyone interested in learning more. In general, though, tribal courts have the authority to hear any kind of criminal or civil case authorized by tribal statute or customary law, unless federal law provides otherwise. Tribal courts routinely hear criminal cases, domestic relations cases (marriages, divorces, child welfare), probate cases, contract disputes, employment cases, and many other matters.
Although we've learned a great deal about these kinds of issues over the past five years, we are still learning. Along the way, we've been welcomed and supported by many experts. In particular, people like B.J. Jones, a tribal court judge and executive director of the Tribal Judicial Institute at the University of North Dakota School of Law, and Dave Raasch, a tribal court judge who also works with Fox Valley Technical College in Wisconsin, have helped us climb the steep learning curve that comes with this work. There are many others, too many to thank by name, who have been very generous with their time and expertise.
Q: What kinds of remedies can the courts impose?
A: Tribal courts can impose any remedy that is authorized by tribal statute or the tribe's customary law, unless prohibited by federal law. These remedies include jail, fines, community service, license revocations, money judgments, specific performance, custody and support orders and other remedies.
In fact, tribal courts often use a broader range of remedies than state courts do, as they have the authority to draw upon tribal tradition and custom. For example, tribal courts can order offenders to appear before a panel of elders to explain their actions and listen to the elders' teachings. They also use peacemaking, equine therapy, wilderness experiences, cultural and language instruction, and many other creative and meaningful responses to wrongful behavior.
The most important federal limitation on tribal court remedies is the Indian Civil Rights Act. Among other things, this law provides that tribes generally cannot incarcerate a convicted offender for more than one year.
A recent change in the law allows tribes to impose sentences up to three years if certain conditions are met. In practice, however, very few tribes have yet chosen to utilize this enhanced sentencing authority. In my understanding, the Hopi Tribe (in Arizona) may be the first and only tribe to date that has begun exercising this power.
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