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    Engaging the Third Sovereign: The Nature, Reach, and Sources of Tribal Law

    Although not all tribal law is easily accessible, you can find what is available to the public with this handy guide from a U.W. law librarian.

    Bonnie J. Shucha

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    Soaring eagle“Today, in the United States, we have three types of sovereign entities[:] the Federal government, the States, and the Indian tribes. Each of the three sovereigns has its own judicial system, and each plays an important role in the administration of justice in this country.”1 Despite the importance of tribal law, most people have little understanding of it. This unfamiliarity can create uncertainty for attorneys involved in Indian legal issues and generate public animosity when outcomes appear to reflect unfair racial preferences. It may also discourage non-Indians from engaging in potentially lucrative business relationships with tribes and tribe members.

    This article attempts to clarify some of the confusion surrounding tribal law, which, notably, is distinct from federal Indian law. Whereas federal Indian law concerns the relationship between federal, state, and tribal governments, tribal law is the law tribes develop and apply to their members and territories. This article explores the nature of tribal government, reviews tribes’ complex relationships with federal and state governments, examines the reach of tribal law, and highlights available sources of tribal law. [For more information, see the article “An Introduction: American Indian Tribes and Law in Wisconsin.”]

    The Nature of Tribal Government

    There are currently 566 federally recognized Indian tribes in the United States. In Wisconsin, there are 12 tribes, 11 of which are federally recognized. The U.S. Constitution recognizes that Indian tribes are sovereign governments with the authority to enact and enforce laws and rules and to adjudicate disputes for the welfare of the tribe, its people, and its lands. Like the federal and state governments, tribes are immune from suits against them, although a tribe can waive its sovereign immunity.

    Bonnie Shuchaedu bonnie.shucha wisc Bonnie Shucha, U.W. 2014, is the assistant director for public services at the U.W. Law Library. She has presented and published extensively on legal research and law-related technologies and is the creator and author of the U.W. Law Library blog, WisBlawg. She is a member of the American Association of Law Libraries and a past president of the Law Librarians Association of Wisconsin.

    Tribes organize in many different ways, which determines the distribution of power and delegation of authority within the tribe. Approximately 60 percent of tribes have established constitutions under the Indian Reorganization Act of 1934. Many of these constitutions are patterned after the Anglo-American model established by the Bureau of Indian Affairs and have numerous structural similarities, often including some form of separation of powers. Other tribes have chosen different constitutional and governmental structures, many emphasizing more traditional tribal values.

    Any tribe, regardless of its structure, can also incorporate. Incorporation serves as a vehicle for carrying out the tribe’s business activities and is significant because it creates a separate legal entity whose powers to contract, pledge assets, and be sued may differ significantly from that of the tribal government itself. It’s important that people doing business with tribes recognize these differences and engage with individuals who have the authority to act on behalf of the tribe.

    Tribes have had a very complex and turbulent relationship with the federal and state governments. At various times, the federal government has embraced two opposing policies – Indian assimilation and tribal autonomy. For a brief description of the history of tribes’ relationship to the federal government in the United States, see the accompanying sidebar.

    The Reach of Tribal Law

    The policy shifts between assimilation and autonomy have created numerous uncertainties about tribal jurisdiction. While pro-autonomy policies encouraged the development of tribal law and institutions, pro-assimilation policies fragmented the geographical integrity of reservation lands and imposed state jurisdiction on tribes. This resulted in an unintended hybrid: tribes that have strong tribal courts and institutions but that are geographically fragmented and share jurisdiction, sometimes uneasily, with the states.3

    Only Congress or the federal courts can establish state jurisdiction over Indian lands and, conversely, tribal jurisdiction over non-Indians. Under Public Law 83-280, Wisconsin shares concurrent criminal jurisdiction with tribes over Indians (except members of the Menominee tribe) for crimes committed on reservations. With respect to civil jurisdiction over Indians, Wisconsin also has concurrent civil adjudicatory jurisdiction over causes of action arising on a reservation (except the Menominee reservation). It does not, however, have civil regulatory jurisdiction – a distinction that has raised challenges over the categorization of state law as civil/regulatory or criminal/prohibitory.4

    Even if a state court does have subject-matter jurisdiction, it must also have personal jurisdiction. If the defendant is a tribe or tribal entity, an effective waiver of sovereign immunity may be required for personal jurisdiction. Where jurisdiction is indeed concurrent, state courts can transfer civil cases to tribal courts when deemed appropriate under Wis. Stat. section 801.54.

    As a general rule, tribal jurisdiction over non-Indians is limited, although the U.S. Supreme Court has recognized two exceptions.5 First, a tribe can regulate the activities of non-Indians who enter consensual relationships with the tribe or its members through commercial dealing, contracts, leases, or other arrangements. Second, a tribe can also regulate the conduct of non-Indians on reservation lands when that conduct threatens or has some direct effect on the tribe’s political integrity, economic security, or health or welfare.

    Although Congress has not legislated broadly on tribal jurisdiction, it did establish an additional exception in 2013. Under the Violence Against Women Reauthorization Act, tribal courts now also have jurisdiction over non-Indians who commit acts of domestic or dating violence against Indian partners or who violate certain protection orders on tribal lands.6

    Sources of Tribal Law

    Unlike federal and state law, tribal law can be very difficult if not impossible to locate. Although most federally recognized tribes do have written constitutions, codes, and judicial opinions, many have not made their law available to the public. Some would like to make their laws available but lack the funds to do so. Other tribes have affirmatively decided to keep their laws private for various reasons including a desire for privacy, concern that making law available will subject the tribe to criticism, worry about compromising the sacred nature of tribal law and culture, and internal tribal politics.

    In addition, many tribes have incorporated tradition and custom into their laws and decision making. For tribal courts especially, customary law plays an important role in linking justice with community values. When it is not written, customary law can be extremely difficult to discover and apply both within and outside the tribe.

    Tribal law that is available is scattered across numerous websites, databases, and print publications. Below is a compilation of publicly available sources of tribal law. Note that some of these sources might be out of date. To obtain the current law, try contacting the tribal secretary or clerk of court.

    Tribal Law Collections

    American Indian Law Collection, HeinOnline

    Select tribal constitutions, bylaws, and acts from 1800s-1980s. By subscription at www.heinonline.org and at U.W. Law Library.

    Indian Law Reporter, American Indian Lawyer Training Program

    Select tribal court opinions plus federal and state Indian law opinions, 1974-present. In print at U.W. Law Library and other libraries. Index of ILR tribal court opinions at www.narf.org/nill/ilr/.

    Indian Tribal Codes, Marian Gould Gallagher Law Library

    Select tribal constitutions, codes, and charters from 1940s-1988. On microfiche at U.W. Law Library and other libraries.

    Indigenous Law Portal, Law Library of Congress

    Select tribal constitutions, bylaws, codes, charters from 1800s-present. Free here.

    Kappler’s Indian Affairs: Laws and Treaties, Oklahoma State University Library

    Treaties with U.S. government and other federal Indian law sources, 1788-1971. Free at http://digital.library.okstate.edu/kappler/.

    Municode Library: Tribes & Tribal Nations, Municipal Code Corporation

    Very select tribal codes, current.

    Native American Collection, LLMC

    Select tribal constitutions, codes, charters, treaties, and more from 1800s-1950s. On microfiche (complete) and online (partial) at U.W. Law Library and other libraries, click here.

    Native American Constitution & Law Digitization Project, University of Oklahoma Law Center

    Select tribal constitutions, charters, and treaties from 1930s-present. Free at http://thorpe.ou.edu/.

    Native American Law, Westlaw

    Select tribal court opinions (including those from West’s American Tribal Law Reporter) and codes, 1990s-present. By subscription at www.westlaw.com. In WestlawNext, enter “Native American Law” into the main search box.

    Native American Tribal Courts, VersusLaw

    Select tribal court opinions, 1990s-present. By subscription at www.versuslaw.com/. Tribal court opinions in VersusLaw are also available at the Tribal Court Clearinghouse.

    Tribal Court Appellate Opinions, Northwest Intertribal Court System

    Appellate court opinions from 30 tribes in the Pacific Northwest, Alaska, and northern California, 1981-present. Free at www.codepublishing.com/wa/nics/.

    Tribal Court Clearinghouse, Tribal Law and Policy Institute

    Select tribal court opinions, 1990s-present. Free at www.tribal-institute.org/lists/tribal_law.htm. Opinions in Tribal Court Clearinghouse are also available in VersusLaw’s Native American Tribal Courts database.

    Tribal Law, LexisNexis

    Select tribal court opinions, very select constitutions and codes. By subscription at http://advance.lexis.com. In Lexis Advance, browse by source > jurisdiction > tribal.

    Tribal Law Gateway, National Indian Law Library (NILL)

    Large collection of tribal constitutions and codes with links to tribal opinions, 1800s-present. Free at www.narf.org/nill/triballaw/. For constitutions and codes not available online, contact NILL at www.narf.org/nill/asknill.html.

    West’s American Tribal Law Reporter, Thomson West

    Select tribal court opinions plus federal and state Indian law opinions, 1997-present. By subscription via Westlaw and in print at some libraries, click here.

    Wisconsin Tribal Court Opinions, U.W. Law School

    Select Wisconsin tribal court opinions, 2014-present. Forthcoming – For more information, contact edu Bonnie.Shucha wisc wisc Bonnie.Shucha edu. Tribes may contact com Amanda.WhiteEagle ho-chunk ho-chunk Amanda.WhiteEagle com to contribute opinions.

    For additional sources of both tribal and federal Indian law, see the U.W. Law Library’s guide to Native American Law & Legal Sources at http://law.wisc.libguides.com/nativeamericanlaw.

    Endnotes

    1 Sandra Day O’Connor, Lessons from the Third Sovereign: Indian Tribal Courts, 33 Tulsa L.J. 1, 1 (1997).

    2 Pub. L. No. 83-280, 67 Stat. 588 (1953).

    3 Katherine J. Florey, Choosing Tribal Law, 55 Am. U. L. Rev. 1627, 1638 (2006).

    4 Bryan v. Itasca Cnty., 426 U.S. 373 (1976).

    5 Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978); Montana v. United States, 450 U.S. 544 (1981).

    6 Pub. L. No. 113-4, 127 Stat. 54 (2013).