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In 1953, Congress enacted Public Law 83-280
conferring jurisdiction over most criminal and civil actions arising in Indian
country to the courts in five particular states including Minnesota with the
exception of the Red Lake Indian reservation.
One of the objectives of Public Law 280 was to reduce federal costs for
tribal law enforcement by turning those functions over to state and county
governments. However, tribal court development has remained integral, because
Public Law 280 did not confer jurisdiction over "regulatory" as
opposed to prohibitory criminal matters.
Laws enacted after the passage of Public Law
280, such as the Indian Child Welfare Act, permitted all tribal courts,
including those in Public-Law-280 states, to exercise substantial jurisdiction
both inside and outside Indian country. However,
the exercise of such jurisdiction depended upon the existence of tribal dispute
resolution forums. The need for a
neutral, well-established judiciary may
be best illustrated by the United States Court of Appeals decision in Krempel
v. Prairie Island Indian Community, 125 F.3d 621, 622-23 (8th Cir. 1997),
where the Court noted that the Tribal Court, even though it existed on paper,
did not appear to be operational and as a result the Court permitted litigation
to go forward in the federal court that should have been brought in the tribal
court, thus resulting in a loss of the sovereign right of the Tribe to resolve
its own disputes.
Another federal statute which plays a major role in the creation of modern-day
tribal courts is the Indian Civil Rights Act (ICRA) of 1968.The ICRA is the
basis for the inherent uncertainties that exist in modern tribal justice
systems. It forces tribes to base their judicial systems upon Anglo-American
notions of due process by forcing many of the fundamental rights of the United
States Constitution upon tribal justice systems.
The ICRA, by 1) compelling Indian tribes to give jury trials to any
person charged with a criminal offense containing a possible penalty of
incarceration; 2) conferring upon the accused the right to remain silent; and 3)
debasing the resolution of disputes by consensus rather than by confrontation,
forces tribes to mimic their judicial systems upon state and federal courts.
Modern tribal courts are faced with
resolving complex disputes in a manner that is both loyal to tradition and
responsive to Anglo notions of due process. Tribal courts are in a unique
position to rediscover tribal customs and traditions as a manner of resolving
disputes and reintegrating those values into modern Indian life. The resolution
of a dispute in tribal court, however, must always be administered with a dose
of Anglo due process because of the need to have tribal judgments respected and
enforced by outside court systems.
CURRENT
SITUATION IN MINNESOTA REGARDING
TRIBAL-STATE
COURT AFFAIRS
Minnesota state courts have been fairly
deferential toward Tribal courts and have even adopted a state law
“abstention” doctrine for certain disputes that arise in Indian country. As
the Minnesota Supreme Court indicated in Gavle v. Little Six, Inc., 555
N.W.2d 284 (Minn. 1996), abstention by a state court is appropriate when the
exercise of state court jurisdiction would "undermine the authority of the
tribal courts over Reservation affairs"or "infringe on the right of
Indians to govern themselves." A
Tribe may also wish to assert aggressive jurisdiction over domestic relations
matters especially involving its children both on and off the reservation that
may implicate the Indian Child Welfare Act. Although tribal courts lack criminal
jurisdiction over non-Indians the federal courts have recognized that tribal
courts retain extensive authority to remove non-Indians from their territories.
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FULL FAITH AND CREDIT OR COMITY BETWEEN
TRIBAL AND STATE COURTS
In states recognizing that certain
proceedings must first be brought in the tribal forum, a level of deference
to the ultimate decision of the tribal court must also be recognized.
Similarly, if a state court has valid jurisdiction to resolve a dispute, yet its
resolution will be ignored by a tribal court whose jurisdiction may be necessary
to enforce the state court resolution, resolving the jurisdictional conflict
only leads to more conflicts regarding enforcement.
In some instances,
the United States has directed the state and tribal courts to honor each other's
orders. A federal circuit court, see In re
Larch, 872 F.2d 66, 68 (4th Cir. 1989); see also Dement v. Oglala Sioux
Tribal Court, 874 F.2d 510, 514 n.4 (8th Cir. 1989) (declining
to determine whether the term "territories" in the federal Parental
Kidnapping Precaution Act applies to Indian tribes because the plaintiff had not
yet raised the issue in the tribal court) as well as at least one tribal court, see
Eberhard v. Eberhard, No. 96-005-A, slip op. at 6 (Cheyenne River Sioux
Tribal Ct. App. Feb. 18, 1997), has concluded that the federal Parental
Kidnapping Prevention Act , 28 U.S.C. 1738A (1994) requires states and tribes to
honor each other's custody orders. Other
courts, however, including the Minnesota Court of Appeals in Desjairlait v.
Desjairlait, 379 N.W.2d 139, 144 (Minn. Ct. App. 1985), holding that
full faith and credit was intended between states, not between tribal courts and
states).
Public
Law 280 does not operate as a waiver of a Tribe’s sovereign immunity, nor does
it compel a tribal court, nor state court, to apply state law or to enact tribal
laws that assist in the enforcement of state law. Tribal courts retain the
jurisdiction to entertain civil causes of action arising within Indian country,
notwithstanding the enactment of Public Law 280, and retain the inherent
authority to enact their own laws and to be governed by them even when they
conflict with state laws.
In
sum, in enacting Public Law 280, Congress neither waived the sovereignty of the
tribes, nor granted state jurisdiction over Indian tribes. Full
faith and credit is an integral issue to tribal courts because without it tribal
courts lack the credibility and enforcement powers to truly provide justice for
all litigants. Similarly, it is important to state courts because of the
frequent need to use tribal forums to enforce state court judgments.
Tribal
Court Forms
Ordinances
Constitution
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