Introduction
Tribal courts are a common phenomenon among American Indians/Native Americans. Their existence has been shaped and aligned along the Anglo-styled justice system that is dominant in the United States of America. There is a need to learn and understand the development of the tribal courts as relates to the American Indian approach. For instance, it is worth-noting that there exist several similarities between the 19th and 20th century American Indian experiences. The introduction of the Anglo-styled system of justice also means that the system to be used should be balanced. Whereas the tribal courts represent the past, the Anglo-styled system of justice represent the current practice. Marrying the two is necessary if justice is to be served equally. The fact that customary law plays a significant role in the justice system also implies that the two systems should be used in tandem. Simply put, when developing a new court system, one should borrow a leaf from the American Indian tribal courts in order to understand how easily they can incorporate customary law, in the practice (Carter., 2010). This paper gives a special analysis of the American Indian tribal courts and how best they can be used as models to bring about court development in the world. In doing this, it is crucial to note that tribal courts largely depended on customary law.
American Indian Tribal Court Vis a Vis the Federal Indian Law
The tribal court system of the American Indians presents the perfect example of how legal structures and customary law are incorporated in the Anglo-styled system of justice. The American Indian tribal court system in America exists outside the federal and state systems of justice. There is no defined structure of the tribal courts. Whereas some are quite traditional, some are similar the courts of the Anglo-styled system of justice. The fact that the tribal courts exist independently from federal and state justice systems means that they are autonomous, and may design their rules of procedure and substance (Carter., 2010).
There is a need to understand why there exist parallel judicial or court systems in the same jurisdiction. A number of reasons led to this development. Such legal developments gave rise to the two entities which are independent of each other. The American Indian tribal courts, it must be noted, widely serve American Indian tribes. These tribes can be said to be extra-constitutional as their existence is outside the Constitution of the United States. There are a number of authorities affirming the position that the tribal nations of the American Indians were separate entities. For instance, in the case of Cherokee Nation v Georgia, the court described American Indian tribes as being ‘domestic dependent nations.’ This holding points out to the separateness of the American Indian tribes from the federal and state governments (Vizenor., 2006). This separateness, legally speaking, implies that the federal and state courts lack jurisdiction to preside over matters instituted or touching on the American Indians. This decision was further espoused in the Supreme Court ruling in the case of Worcester v Georgia. In this case, the court gave a further clarification on how and why the two are separate. Of significance in this case is the argument that the court gave. The court held that federal and state laws have no effect or force if applied to the American Indian tribes. In the year 1934, the Congress would pass the Indian Reorganization Act (IRA), with the aim of increasing self-governance of the increasing local tribes. This explains the existence of the parallel justice systems.
How the American Indian Tribal Courts are Currently Perceived
The origin and existence of the tribal courts have already been established and discussed in the previous paragraph. Because the courts already exist, analyzing their success/failure as judged by internal and constituencies is inevitable (Vizenor., 2006). There is a need to carry out a comparative study to understand how these courts are performing in relation to the federal and state courts. This goes a long way in defining their effectiveness, and whether they justify their existence.
As already noted early, tribal courts exist autonomously, independent of the federal and state justice systems. This means that they ought to be subjected to numerous values, both internal and external. In this aspect, external values would include the US Supreme Court, the US Congress and other non-Indian communities that live in the Indian country. Internal values would include the subjects over which these courts have authority. It is only by understanding the prevailing perceptions that the validity of the tribal courts can be judged.
External Perceptions
The late twentieth century saw the development of a close relationship between the tribal courts and the federal and state courts. This was prompted by the move by the Supreme Court of the US and the Congress to limit the civil jurisdiction of the tribal courts. In addition to this, the Supreme Court eradicated the tribal courts’ jurisdiction over non-Indians. To address the vacuum that would be brought about by this move, the Indian Civil Rights Act was enacted by the Congress in 1968 (Vizenor., 2006).
Such a close relationship between the parallel justice systems is prove of the acceptance of the tribal court justice system of the Indian Americans by the external communities. The activities in the recent past point out to an improved association between the two systems, thereby significantly improving the perception towards them. The autonomous nature of the tribal courts also means that the Supreme Court and other federal and state justice systems appreciate the existence of the tribal courts. In the recent past, there has been a significant decrease in cases that challenge the authority of the tribal courts in federal courts. Remedies awarded in the tribal cases have been accepted by all stakeholders, with minimal and negligible appeals over the same pointing to the general acceptance.
In the year 2010, this perception and appreciation tremendously rose. The move to enact the Tribal Law and Order Act points out to the fact that the national perception towards the tribal courts was on a positive note. One significant impact of this Act was the move to grant these courts authority to increase their punishment up to 3 years, from the previously 1 year and the fine from $5000 to $15000. This trend shows that the external perception towards these courts is very positive.
Internal Perceptions
It is important to note at the earliest opportunity that there exist hundreds of tribal court systems. As such, it would be wrong to generalize on the findings under this armpit. The general trend and perceptions, however, point out to an improved appreciation of the tribal courts and their usage to promote justice. Different tribal court systems have jurisdiction over the members of their tribes. Their jurisdiction is spread across both civil and criminal matters (Newton., 2007).
Most tribal courts have embraced the Anglo-styled norms and attributes with the tribal law whenever necessary. The fact that the law is constantly evolving to cover emerging fields means that the law has to be consistently developed to meet the new demands. At times, it is necessary to borrow from external jurisdictions. The tribal courts have never shied away from borrowing from the federal and state courts.
The confidence that tribal communities have towards the tribal courts is a complete system of determining the validity of such courts. Unlike the past, tribal communities have increasingly accepted verdicts and remedies issued by the tribal courts, pointing out to increased appreciation of such courts. Judges of the tribal courts have also been accorded great respect as they go about their duties to ensure that justice is served to all without any form of prejudice. There has been a significant decrease in calls by the locals for tribal court judges to be removed. This is enough and adequate prove that the work of the judges has been duly appreciated in the long run.
Similar to the state and federal justice systems, there exist well-prescribed mechanisms on the process to remove a tribal court judge who is incompetent and whose work is not appreciated by the subjects (Newton., 2007). This process may either be through the appointment process or the election process. Such processes are often managed in the tribal or local levels. The decrease in the calls for the services of the judges to be terminated is evidence that the work done by the judges is conclusive and accepted.
It would be wrong to assume that all tribal court systems perform their functions and duties perfectly. It would also be wrong to imagine that the external and internal validity of the tribal courts is constant. Despite the above reservation and disclaimer, there is no doubt that the American Indian tribal court justice system is working. There would be several challenges if the federal and state justice systems were given the exclusive jurisdiction to address civil and criminal matters arising among the American Indians. One advantage of the tribal courts is that whenever there is a gap in the tribal law, they borrow from the federal and state justice systems. This way, they are able to address amicably a number of issues that may present various problems and challenges. In addition, the tribal courts help develop the traditional tribal jurisprudence. The tribal justice systems are seen as models for developing courts in areas where it is difficult to marry customary law and indigenous traditions with the new Anglo-justice systems.
Conclusion
The meticulous rise of the American Indian tribal courts is the perfect example of how the justice system should be designed to address all sorts of matters that it needs to address. There is no doubt that the legal system is met with a number of arising issues that determine its credibility. The American Indian tribal justice systems play a significant role in addressing pertinent issues that the federal courts and the state courts may find difficult to prosecute. The increased acceptance by both the natives and the foreigners of the tribal courts shows the increased confidence in them. As such, American Indian tribal courts are part and parcel of an effective justice system.
References
Carter, N. C. (2000). American Indian Tribal Governments, Law, and Courts. Legal Reference Services Quarterly, 18(2), 7-24. doi:10.1300/j113v18n02_02
Newton, N. J. (2007). Tribal Court Praxis: One Year in the Life of Twenty Indian Tribal Courts.American Indian Law Review, 22(2), 285. doi:10.2307/20068853
Vizenor, G. (2006). Bone Courts: The Rights and Narrative Representation of Tribal Bones.American Indian Quarterly, 10(4), 319. doi:10.2307/1183840
