NCJ Number
46335
Journal
American Bar Association Journal Volume: 63 Dated: (JUNE 1977) Pages: 808-815
Date Published
1977
Length
8 pages
Annotation
A PREVIOUS ARTICLE CRITICAL OF THE AMERICAN INDIAN TRIBAL COURT SYSTEM IS REBUTTED AND ITS ASSERTIONS ARE REEXAMINED; STRENGTHENING THE SYSTEM IS ADVOCATED. THE PREVIOUS ARTICLE'S AUTHOR RESPONDS TO THE REBUTTAL.
Abstract
THE PREVIOUS ARTICLE, 'AMERICAN INDIAN TRIBAL COURTS: SEPARATE? 'YES' EQUAL? 'PROBABLY NOT,' 'BY SAMUEL BRAKEL (AMERICAN BAR ASSOCIATION JOURNAL, AUGUST 1976, PAGE 1002) CONTAINED A NUMBER OF OBSERVATIONS AND CONCLUSIONS ABOUT AMERICAN INDIAN COURTS. THE AUTHORS OF THE REBUTTAL ASSERT THAT THESE CONCLUSIONS ARE UNSUBSTANTIATED, DEROGATORY, AND INACCURATE. RICHARD COLLINS DISCUSSES TRIBAL COURTS IN THE SOUTHWEST, PRIMARILY IN ARIZONA AND NEW MEXICO. HE REVIEWS EACH OF BRAKEL'S INACCURACIES. INDIANS HAVE ALWAYS INSISTED ON THEIR RIGHT TO SEPARATISM, OF WHICH TRIBAL COURTS ARE A PART. ANY DISCONTENT WITH TRIBAL COURTS IS MOST LIKELY TO RESULT FROM THEIR BELIEF THAT THE COURTS ARE NOT TRADITIONAL ENOUGH, RATHER THAN FROM A PREFERENCE FOR RURAL STATE COURTS, AS BRAKEL SUGGESTS. TRIBAL COURTS DO NOT HAVE JURISDICTION OVER 'ALL CIVIL AND CRIMINAL MATTERS OCCURING AMONG INDIANS WITHIN RESERVATION BOUNDARIES, WITH CERTAIN EXCEPTIONS.' THE LAW IS MUCH MORE COMPLEX, AND TRIBAL COURT JURISDICTION IS SEVERELY LIMITED. COLLINS ASSERTS THAT, DESPITE BRAKEL'S STATEMENTS TO THE CONTRARY, TRIBAL COURTS DO HANDLE A NUMBER OF CIVIL CASES; MOST TRIBAL COURT PROCEEDINGS ARE CONDUCTED IN THE TRIBE'S LANGUAGE (AT LEAST IN THE CASE OF NAVAJO COURTS); AND TRIBAL JUDGES ARE TRADITIONAL AND DO NOT SEEK TO EMULATE WHITE JUDGES. IN THE NORTHWEST, ACCORDING TO KATHY PERKINS AND RALPH JOHNSON, INDIANS DO SUPPORT THEIR TRIBAL COURTS AND SHOW A STRONG DESIRE TO IMPROVE THEM RATHER THAN TO ABDICATE THEIR JUDICIAL JURISDICTION TO STATE OR FEDERAL COURTS. SPECIFIC QUESTIONS OF TRIBAL VERSUS STATE COURT JURISDICTION ARE DISCUSSED, AGAIN WITH THE CONCLUSION THAT BRAKEL OVERSIMPLIFIES THE SITUATION. PERKINS AND JOHNSON ALSO REFUTE BRAKEL'S ASSERTIONS THAT TRIBAL CODES ARE TYPICALLY UPDATED VERSIONS OF OLD BUREAU OF INDIAN AFFAIRS CODES AND THAT INDIAN COURT JUDGES ARE FREQUENTLY CHOSEN FROM THE RANKS OF THE TRIBAL POLICE. THEY CONCLUDE BY STATING THAT TRIBAL COURTS ARE BEING EXPANDED AND UPGRADED AND THAT THEY PLAY A VITAL ROLE IN INDIAN LIFE. BRAKEL, IN HIS RESPONSE TO THE REBUTTAL, STATES THAT NOT ALL INDIANS SUPPORT SEPARATISM, AND IN FACT, MORE THAN HALF OF THE NATIONS'S INDIANS LIVE INTEGRATED LIVES OFF THE RESERVATIONS; REGARDLESS OF LEGAL JURISDICTION, MOST TRIBES DO NOT IN PRACTICE HANDLE MUCH MORE THAN PETTY MISDEMEANORS; IN MOST TRIBAL COURTS, ENGLISH IS THE DOMINANT LANGUAGE; INDIAN JUDGES DO IN FACT OUTWARDLY LIMITATE WHITE JUDGES; MOST INDIAN TRIBAL CODES ARE ANGLO-AMERICAN DOCUMENTS, BECAUSE THEIR PROVISIONS READ LIKE STATE STATUTES; AND THE PRIOR POLICE EXPERIENCE OF MANY INDIAN JUDGES WAS POINTED OUT BY THE JUDGES THEMSELVES. BRAKEL CONCLUDES THAT THE INTEGRATED JUDICIAL EXPERIENCE IS THE ONLY PROMISING AND REALISTIC LONG-TERM PROSPECT FOR THE INDIAN PEOPLE IN THIS COUNTRY. (VDA)