Tribal laws are local ordinances that Native American populations within their territory enact and execute. Whether or not they are Native Americans, everybody living on Native American territory is subject to tribal regulations.
Under the interests of both truth and consistency, this article utilizes the terms “Indians,” “Indian tribes,” and “Indian reserves” as they are used in United States law to refer to Native Americans, their numbers, and the areas where they live.
Why do Indian tribes have their own laws?
The idea of “Indian tribes” has always been distinctive. This is why the Federal Congress has “the power… under Article I, Section 8 of the United States Constitution. The United States Supreme Court interpreted Article 1, Section 8 to mean that Indian tribes in the United States are separate political entities, but neither states nor foreign nations. This interpretation was made in a series of three court cases between 1823 and 1832, which are now known as the “Marshall Trilogy” (after John Marshall, the Chief Justice at the time).
In Johnson v. M’Intosh (1823), the Supreme Court ruled that although Native American tribes had always been “absolute owners” of (or “sovereigns over”) their lands, the “discovery” of North America by European colonial powers gave nations like Great Britain (and later the United States) the power to revoke the tribes’ right to occupy those lands. As a result, only the federal government, not private Americans, is permitted to buy Indian land. The Supreme Court determined that Indian tribes are “domestic dependent nations,” or effectively “wards,” of the federal government in Cherokee Nation v. Georgia (1831). The Supreme Court ruled in Worcester v. Georgia (1832) that only the federal government, not the specific state or states where an Indian tribe is located, has the authority to administer its own laws to tribal members.
The fundamental contours of the relationship between Indian tribes, the federal government, and state governments remain largely the same, particularly in Arizona, despite changes brought about by later United States Supreme Court decisions, congressional legislation, and federal government policy decisions. This effectively means that Indian tribes may create and uphold their own laws wherever and whenever Congress so permits.
When do tribal laws apply?
When an Indian tribe holds “jurisdiction” over a person in Indian nation, tribal laws are in effect. A person is said to have “jurisdiction” over an Indian tribe if the tribe’s legal system has the power to adjudicate cases involving them.
A plaintiff must file a complaint or “lawsuit” against a defendant in the tribe’s courts of law if the legal issue is a private civil matter and the tribe has jurisdiction over it. This is typically done in order to seek monetary damages from the defendant. The tribe’s courts of law are where the prosecution may try to convict and punish a defendant who has been charged of committing a criminal offense if the legal issue is a public criminal matter and the tribe has jurisdiction.
If the legal issue developed in Indian nation and whether or which party to the disagreement is “Indian” or “non-Indian,” those two factors will most likely determine whether tribal laws apply in a civil case.
If a crime was committed in an Indian reservation, whether the defendant is a “Indian” or “non-Indian,” and what kind of crime was committed are the main factors in determining if tribal laws apply.
If a person has some Native American ancestry and is acknowledged as a part of an Indian community, then that individual is considered “Indian” for the purposes of deciding jurisdiction. A person is considered “Indian” for the purposes of determining both civil and criminal jurisdiction if they are a member of a federally recognized Indian tribe.
Please be aware that these guidelines are quite general and only apply to specific states, including Arizona. Please contact a lawyer if you require or desire legal counsel regarding a particular civil or criminal case pertaining to Indian territory.
Finding Tribal Laws
Not all laws are codified or made public. Some tribes, but not all, have thorough coverage in sophisticated databases. While other tribal websites are frequently out of date, certain tribal courts have their written laws and judicial procedures available online.
The National Indian Law Library’s (NILL)
Researching Tribal Codes and Constitutions
The National Indian Law Library’s (NILL) (open access) Tribal Law Gateway includes the Codes and Constitutions database – this includes links to over 240 codes and over 400 constitutions. The NILL’s Tribal Law Gateway lists hundreds of tribes with references to their legal publications. NILL contains links to available online versions of tribal constitutions and codes. NILL also provides references for tribal constitutions, case law, and other sources of Indian and tribal law. Although some of the codes are several years old, and for some tribes there are no available laws, the Tribal Law Gateway is the most comprehensive source for tribal law materials, particularly the tribal codes.
Researching American Indian Tribal Law
American Indians and Alaska Natives have the right to self-government under the concept of tribal sovereignty. With a few exceptions, Indian tribes are recognized under the U.S. Constitution as distinct governments with the same authority to manage their internal affairs as the federal and state governments. Tribes have the legal authority to create their own systems of governance, membership requirements, legislation, law enforcement, and courts as part of their sovereignty.
According to the Constitution, the federal government, not the state governments, has jurisdiction over Indian matters. The United States engages with Indian tribes as governments, just as it does with states, rather than as special interest organizations, people, or another kind of non-governmental body. Through a variety of state recognition procedures, certain governments have expressly recognized the political status of Indian tribes.