In theory, if not reality, each tribal judiciary attempts to conscientiously serve the community that created it. This simple proposition likely binds jurists from across the globe regardless of race, ethnicity, or nationality. Beyond that similarity, tribal court systems differ in structure and substance, sometimes significantly and sometimes dramatically.
A tribal judiciary may emerge through tribal legislation or, at times, trace its origin to a constitutional source. In either instance, a tribal court functions pursuant to law, written and unwritten. This unique body of law, along with corresponding procedures, produces clear distinctions between tribal judiciaries. In fact, the jurisprudential distinctions that arise may appear more pronounced than those that exist within and between the federal and state systems. Some commonalities emerge, but similarities are easily overstated.
Consequently, one cannot examine a few, to even several, tribal court systems and offer a meaningful critique of tribal judiciaries in general. Extrapolation of common and consistent doctrines, principles, and theories within a single tribal system oftentimes proves difficult due to largely unpublished or fairly inaccessible case law. For this reason or others, most commentators do not typically dedicate attention to a single tribal judiciary. Perhaps such emphasis would not generate a sufficient audience, but an expanded survey risks losing genuine insight and usually affords only some rudimentary conclusions.
That being said, every tribal court encounters core issues when performing a judicial function. Each pursues an evolutionary arc, whether intentional or not, during its institutional development. As an initial matter, tribal courts primarily confront and resolve cases arising squarely under tribal, rather than federal, law. More commonly, a tribal judiciary will tangentially address federal Indian law issues in cases that derive from or coincide with state proceedings subject to overarching federal prerogatives.
In this article, the author provides a candid glimpse into the development of a tribal jurisprudential philosophy, drawing upon his unique experience as a tribal jurist and in-house legal counsel. The article examines the difficulty inherent in shaping and sustaining a tribal judiciary necessarily moored in tradition and custom yet integrating characteristics essential to all courts of competent jurisdiction. Part II briefly examines the doctrine of subject matter jurisdiction, which, at its core, must serve as a requisite to the exercise of judicial power. However, this fundamental, extrinsic doctrine—as well as others—has unfortunately become an amalgam of constitutional constraints and prudential considerations. The resulting confusion that permeates federal and state case law can easily confound a fledgling tribal judiciary’s attempt to resort to such persuasive authority even when seemingly called for by underlying tribal constitutional or statutory law. Moreover, the incorporation of or reliance upon external judicial analyses proves more problematic in a tribal setting since the respective courts must balance competing concerns largely absent within judicial systems of federal and state counterparts.
Part III focuses on the intersection between tribal tradition and custom in western jurisprudence. The degree of significance due to either common law tradition must vary depending upon the circumstances. The author highlights two tribal cases to illustrate the hazards of unwisely gravitating toward one tradition and seemingly excluding the other. Tribal courts must instead cautiously traverse the legal landscape, embracing and revitalizing sources of indigenous law while carefully assimilating foreign law to complement the emergence of a decidedly tribal jurisprudence.