Recently, the Supreme Court has whittled away at the jurisdiction of the nation’s 250 tribal courts. In 1978, it ruled that tribal courts lack criminal jurisdiction over non-Indians; in
1990, it held they lack criminal jurisdiction over non-member Indians, a ruling that Congress reversed in 1991 as to misdemeanors. Meanwhile, in 1981, it held that, while tribes “may regulate . . . the activities of nonmembers who enter consensual relationships with the tribe or its members,” tribes have civil jurisdiction only over “non-Indians on fee lands within its reservation when [their] conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Then, in 2001, it rejected a tribe’s claim of civil jurisdiction over non-Indians and three justices sounded a death knell for tribal courts by cataloguing their constitutional and procedural deficiencies.
The Anglo-American judicial system involves two parties who seek to win, through adversarial fact-finding, by focusing solely on the act involved. Moreover, it views separation of judicial, executive, and legislative branches as essential to fairness and justice, as is the separation of church and state. On the other hand, the American Indian judicial system uses a holistic process to repair relationships and strive for consensus, during which the guiding principles are unwritten laws, traditions, and practices learned by example and oral teaching, with no separation of powers or distinction between the sacred and the secular.
Moreover, Anglo-American common law seeks the reasoned elaboration of rules by judges, rules that are definite, predictable, and part of an institutional memory, whereas in the American Indian system, “values, mores, and norms” are largely unknown. In fact, during tribal court proceedings, it is not only the non-Indian or non-member Indian litigant who is unfamiliar with the controlling “common law,” most tribal members and the tribal judge are in the dark. Finally, there are 562 federally recognized Indian Tribes, each with its own customs, traditions, social norms, and “common law.”
Given the Court’s recent jurisprudence on the subject, a majority of the justices may be ready and willing to end all tribal jurisdiction over non-members with this case. It is long since time that they did so!