Ais 102 American Indians and the U. S. Political System Fall 2004

Traditional justice systems varied by tribe. Often the tribal chief, religious leaders or some type of council served as the judicial body. Disputes were mediated. The role of the “judge” was to help the parties come to an agreement between themselves and enforce tribal custom to keep harmony within the tribe. The goal of punishment was to compensate for harm done, not to punish the criminal. Religious custom and tradition were the basis for Indian justice and the “judge” often offered to compensate the injured party himself just to keep harmony within the tribe. Banishment from tribes was very rare.

In contrast to traditional Indian justice systems, Anglo systems of justice are adversarial. There is always a winner and a loser and harmonious relations are generally irrelevant. The goal of punishment in Anglo systems is to punish those who break laws, often by putting them in prison and removing them from society.

Courts of Indian Offenses - CFR Courts

In the early 1800s, Indians were being pushed west to reservations. The BIA was part of the War Dept. and law and order was in the hands of the U.S. military. In 1849, the BIA became part of the Dept. Of Interior and was placed under civilian control. Indian agents were responsible for law and order on reservations, but some tribes retained some responsibility for law and order pursuant to treaties - mainly Indian vs. Indian offenses.

Courts of Indian Offenses, or CFR courts, were created by the BIA to deal with law and order on reservations and by 1883, the Courts of Indian Offenses were a regular part of BIA activities. The courts were administered using specific rules published by the BIA in the Code of Federal Regulations, hence the name, CFR courts. This marked the beginning of the evolution of separate branches of power within tribal governments.

The legal status of these courts is unclear - only one federal case discussed the courts and it said that they were merely educational and disciplinary instruments used by the U.S. government to improve the condition of the dependent tribes. What about the separation of powers in the federal government? The BIA is an executive agency that developed and implemented courts – a judicial function.

Allotment policies, beginning in 1887, increased the need for CFR courts because traditional forms of government were disrupted. Families were divided to assimilate more quickly and these courts banned some religious dances and ceremonies in the name of law and order. Indian judges staffed these courts but Indian agents, who were generally non-Indians working for the BIA, selected the judges. The agents often rewarded those Indians who were assimilating.

At their peak, CFR courts operated on about 2/3 of the reservations in the United States. Under the Indian Reorganization Act, tribes could take back their judicial functions but the courts have continued in existence on some reservations because some tribes lack resources to develop their own court systems.

Modern Tribal Courts

Tribal courts have extensive jurisdiction over civil matters within their boundaries and some criminal jurisdiction. The Indian Civil Rights Act limits the maximum penalty that can be imposed by a tribal court in criminal matters to one year in jail and/or a $5,000 fine. The result is that tribal courts generally only hear misdemeanor offenses.

The Indian Reorganization Act allowed tribes to re-establish their own tribal justice systems. Establishment of a tribal court system allowed tribes to use their customs and traditions in deciding matters before the court, but after the allotment era, most tribes weren’t in a position to recreate what they once had. Some traditional methods of dealing with disputes could not be revitalized because they depended on religious ceremonies that were long since forgotten. In addition, by this time, many tribal members were Christians and did not practice traditional justice that involved religious ceremonies so modern tribal courts often followed a BIA model.

Most tribes now have courts and tribal codes that have been passed by their legislative bodies and approved by the Secretary of Interior. The Tribal Justice Act was passed in 1994, which encourages development of tribal courts. There are, however, a limited number of tribal courts in California. This can be attributed to several factors. P.L. 280, by its grant of jurisdiction to the state, provides state forums for dispute resolution and criminal prosecution. Even if tribes had tribal courts, matters could still be heard in state court, unless jurisdiction is retroceded. Another obstacle to the development of tribal courts is the relatively small size of California tribes. Few tribes have more than 1,000 tribal members, others have less than 100 tribal members, and more than a few tribes have less than 20 tribal members. Federal resource allocations are based on the size of tribes, so California tribes have not received the financial support they would need to develop court systems. With the proliferation of gaming in California, the ability of tribes to develop their own courts is changing. The resources are now available to those tribes with casinos to develop tribal courts and casinos have created a need for forums to resolve disputes involving casino patrons and employees. Within the next 10 years, there will probably be a number of tribal courts in California to deal with these types of matters.

Some modern tribal courts are very formal, such as the Navajo court system. The tribe has its own bar exam. It also provides tribal prosecutors and defense advocates as well as a court of appeals that issues written opinions. Other tribal courts have single judges and operate on a part-time basis. Several tribes have pooled their resources and developed Inter-tribal Courts of Appeal, which hear appeals of cases from several different tribes.

Some tribes elect judges, just as is done in state courts. Other tribes appoint judges, usually by the tribal council. Judges are often tribal members, but unlike state and federal courts, judges are not usually lawyers. Judges generally get some sort of training, but this informality often results in judges relying on their own personal knowledge of cases in reaching their decision.