Tribal Courts: Custom and Innovative Law

24 N.M. L. Rev. 225 (1994)

UNM School of Law Research Paper

40 Pages Posted: 18 May 2013

See all articles by Gloria Valencia-Weber

Gloria Valencia-Weber

University of New Mexico - School of Law

Abstract

The focus of this paper is the development of American Indian law derived from custom, especially common law, among the indigenous nations. Three major areas will be addressed. First, the American Indian tribes, as the third sovereign, present a legal need and opportunity distinguished from other minority groups. The development of Indian law is tied to the exercise of sovereign power by the Indian nations. Because the concepts and law produced by the Indian nations contribute to American jurisprudence and comparative law, perspectives from Indian law can help resolve doctrinal conflicts of other sovereigns. Second, the tribal courts are where the tribal government's legitimacy is challenged and demonstrated. Only the judicial branch can create tribal common law. The tribal courts must evoke respect and obedience from members and nonmembers. Yet, common law is dependent on the customary beliefs and regularized conduct of the tribal community. Anglo-American law also developed from custom, that is, generally held beliefs and conduct in compliance with beliefs. It is the culturally different perspective, not process, that distinguishes the common law created in tribal courts. Whether the similarity of process is a universal or coincidental evolution is collateral to this study of the tribal common law. A review of selected cases, from various tribal courts, reveals the use of indigenous custom and its complementary use with the knowledge provided by Anglo-American law training. The cases apply concepts of justice and fairness. The tribal cases reveal indigenous concepts and institutions borrowed from tribal systems and then established in Anglo-American law, specifically, alternative dispute resolution. The guiding principles used in the selected cases sometimes result in outcomes similar to those in non-Indian jurisdictions. Conversely, other outcomes will be different because of the Indian cultural viewpoint involved. The reasoning process reveals how the tribal custom and common law, to be understood, require an inquiry without stereotypic expectations. Third, the development of Indian law based on custom is the engine for innovation. The pervasive ability to change, in order to survive and maintain continuity, is the cultural characteristic of the indigenous people of the Americas. American Indian tribes have retained the capacity to integrate external concepts, technology, and life forms. Through adoption, adaptation, and appropriation the acceptance results in new meaning and value specific to tribal culture. The simultaneous pursuit of conservation and innovation is the historic pattern of native cultures. Twentieth-century American Indians are not copies of Anglo-Americans; as indigenous people they are engaged in jointly preserving and changing a cultural way' of life. Likewise, the product of tribal courts is not a jurisprudential laminate. Tribal courts can be the possible laboratories for new, beneficial concepts in law.

Suggested Citation

Valencia-Weber, Gloria, Tribal Courts: Custom and Innovative Law. 24 N.M. L. Rev. 225 (1994), UNM School of Law Research Paper, Available at SSRN: https://ssrn.com/abstract=2266560

Gloria Valencia-Weber (Contact Author)

University of New Mexico - School of Law ( email )

1117 Stanford, N.E.
Albuquerque, NM 87131
United States

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