American Judges Association
The Third Branch of the Third Sovereign: A Brief History of Tribal Courts and Their Perception in the Supreme Court
Date of this Version
Court Review, Volume 49, Issue 1 (2013)
No other branch of any government at any level in the United States faces the same sorts of unique challenges, jurisdictional quandaries,1 resource limitations, and threats to its authority than tribal courts. Yet, despite the challenges tribal courts face—not the least of which is a wariness and sometimes outright hostility from other American courts—tribal nations and especially tribal courts have grown increasingly adept and innovative at finding ways to overcome the myriad of hurdles that confront them.
The role of today’s tribal court often requires it to blend two different, although not necessarily competing, legal traditions: older tribal common law and more recent Western-inspired sources of law, such as constitutions and codes. Many tribal courts have risen to the challenge, finding innovative ways to make the teachings, traditions, and rules of previous generations—the common law of the tribal nation—speak to the issues of the present and provide guidance in how to read the contemporary law of the community. This valuable work has helped tribal nations develop and engage in American legal, political, and financial life like never before, with substantial benefits to tribal peoples in a changing world with greater opportunities.
Unfortunately, the innovative work that many tribal courts are engaged in is not always recognized and appreciated outside of Indian Country. As a consequence, there remains a fair amount of trepidation about tribal courts, particularly in other American courts and perhaps especially in the Supreme Court. This trepidation is often founded by the same presumptions about tribal peoples that existed in the nineteenth century and were expressed in the Indian law cases of that era.
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