Understanding Tribal Courts is easiest with a familiarity of the stages of history. Professor Ray Austin breaks the past into three parts (not including our modern stage of development). According to Austin the stages are Pre-Reservation, BIA Reservations, post BIA-Res.

                The Pre-Reservation stage was Tribal society as it existed before European encroachment. The tribes were self-governed and most had intricate systems of law and order. They were self-policing and the basis for all decision making was culture and tradition.

                In the BIA era the tribes had their sovereignty stripped and all governance was replaced with BIA officials. There was widespread parentalism (a term coined by Prof. Jamie Ratner) and oversight. Courts were created to punish traditional practices (dancing, bride-price, ceremonies and festivals, etc.).

                Finally the BIA began shifting power back to the tribes and the Court of Indian Offenses were replaced with tribal courts. Today the tribes assert self-governance where they can and try to piece together the shambles of their sovereignty. Some have been successful some have not.

                Below is the information on the three phases in table format. The table is the brainchild of Prof. Ray Austin and I take no credit for its creation:

                The First column is things as they were, the second is the changes implemented, and the third is the result of the BIA policy. 

Disclaimer 1: This article does have an editorial slant, despite my attempt to be unbiased. I fully recognize that the table above may be subject to disputes of interpretation.

Disclaimer 2: Law Summaries are created by a non-barred individual, they are not meant to replace legal guidance or advice.

                Lawyers tend to see things in black and white, in statutes and legal fictions. In practice the waters are much muddier than they first appear. In this regard, consider Chairman Macdonald of the Navajo tribe.

                Chairman Macdonald continues to demand respect and, if inclined to study, a legal historian will find news articles replete with his struggle for tribal sovereignty. The scholar will also find numerous references to the Chairman’s legal troubles.

                Around 1978 Chairman Macdonald found himself in trouble for appropriating tribal funds for personal use. The Chairman decided to hire the most expensive defense attorney of the day . The tab for the attorney’s services came to around 70k. Never one to give up, the Chairman had the tribal council vote to give him the money.

                This resolution was challenged in the tribal courts, where the judges decided the resolution was improper. It was the tribes’ money, they said, he couldn’t use it for personal purposes. MacDonald then consulted legal professors who suggested the creation of a superior court to tribal court, with judges appointed by MacDonald. The Chairman quickly carried out their advice and appointed his allies as judges on his new Navajo Supreme Judicial Council. The new court overturned the decision; MacDonald got his money, and was acquitted.

                My Professor, Ray Austin, cites this story as a warning about the mixing of the branches of tribal government. The Navajo still govern themselves without a constitution, so there was no protection from MacDonald’s actions. However, the Navajo continue to use culture and tradition (particularly the practices of Dine’) as a prototypical constitution or guideline for practice.

                In the end, people and chairmen come and go and make mistakes, but the proper drafting of statutes and a firm foundation can a be a protection when things go wrong. As a follow up to the Chairman’s story, he ended up being acquitted of the initial crime (70k buys a darn good lawyer), but was later arrested along with his allies and convicted in Federal Court. This was not before the council tried to expel MacDonald who then urged his supporters to riot. The army got called in, mobs with 2x4s and nails…it became a mess. The history is too much to relate in a short post, but the principle of a strong foundation in culture & tradition or in a constitution (if culture and tradition are unavailable) are essential to the protection of tribal governments against humanity’s weakness.

Law Summaries are created by a Non-Barred Individual. These summaries are not meant to replace legal guidance or counsel.