[Dis]Respecting the Role of Tribal Courts
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[dis]Respecting the Role of
Tribal Courts?
By Stacy L. Leeds
ribal courts in the United
States are referred to as
the third branch of the
third sovereign, placing
them, by stature, at the bottom of the
hierarchy of judicial systems within our
federal union. Tribal judges remain
nearly invisible as part of the American
judicial fraternity with the role of trib-
al judiciary often misunderstood, un-
dervalued, or simply unknown within
mainstream legal circles.
In the formal judicial opinions of
state and federal courts, tribal court
power and autonomy cause trepi-
dation. The U.S. Supreme Court has
questioned, in not-so-subtle terms, the
fairness and objectivity of tribal justice
systems. These cautionary approaches
to tribal court power are rarely based
on allegations of due process vio-
lations in the cases at hand, but on
speculation that future litigants might
someday encounter civil liberty in-
fringements, should judicial authority
be fully embraced.
The lack of faith in tribal courts is
typically limited to situations involv-
ing non-Indian litigants. Tribal court
jurisdiction is generally respected
when the underlying controversies are
considered wholly intra-tribal. For in-
stance, tribal courts are perceived to be
the appropriate judicial forum for tribal
political questions or internal family
law questions. When tribes attempt to
exercise civil adjudicatory jurisdiction
over contracts disputes and commer-
cial dealings involving non-Indians or
non-Indian business entities, very little
deference is afforded. Protracted legal
battles challenging tribal jurisdiction
is the norm, leaving cases in limbo for
years as the cases are fully exhausted.
Due to myriad federal laws that
span two centuries, tribal courts rou-
tinely exercise a limited form of crimi-
nal jurisdiction over American Indians,
including individuals who are not tribal
citizens of the prosecuting tribal gov-
ernment. In the prosecution of these
cases, defendants in tribal forums en-
joy both the due process protections of
the relevant tribal law and the federal
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[Dis]Respecting the Role of Tribal Courts
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