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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.
Last Updated: 06/17/2008 01:42 PM
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Prairie Island Indian Community • 5636 Sturgeon Lake Road • Welch, Minnesota • 55089 • 1-800-554-5473