Tribal Courts, the Indian Civil Rights Act, and Customary Law: Preliminary Data

Abstract:     
This study is an attempt to assess the validity of my theory that tribal courts do not apply "unusually difficult" laws in cases involving nonmembers. I theorized that in most cases (if not the vast, overwhelming majority), tribal courts apply a kind of "intertribal common law," which consists of the application of tribal statutes that mirror federal and state statutes and the federal and state cases that interpret them.

Of the 120 cases involving an ICRA issue, tribal court judges applied federal and state case law as persuasive (and often controlling law) in 114 cases (95 percent). And, of the six cases in which the tribal court explicitly refused to apply federal or state case law, either the parties involved tribal members in a domestic dispute or else the tribal court held that its interpretation of the substantive provisions of ICRA were stronger or more protective of individual rights than would otherwise be available in parallel federal or state cases.

Keywords: tribal court, federal Indian law, Indian Civil Rights Act, customary law

Working Paper Series