Tribal Courts and Constitutions of American Indian Tribes

There are 574 federally recognized American Indian tribes in the United States, each with their own legal system. This explainer provides a brief overview of tribal courts, law, and constitutions.

Overview of American Indian Tribes

American Indian tribes are sovereign entities located within the geographic borders of the United States. Under federal law, they are considered to be “domestic dependent nations,” meaning they are both self-governing, with the authority to determine their own governing structures including their own laws and court systems, and subject to Congress’s plenary power granted by the Constitution. They possess all powers of a sovereign nation except those ceded by treaty or abrogated by federal law and, as the U.S. Supreme Court explained in 1978, those “necessarily divested” as part of tribes’ “incorporation within the territory of the United States, and their acceptance of its protection.” 

While states have no authority over American Indian tribes unless authorized by Congress, intergovernmental coordination between states and tribes is common. For example, some states and tribes have adopted rules of comity that mutually recognize the validity of the judgments of each other’s court systems, while other states have formalized collaborations between state and tribal judges.

According to federal census data, around 9.7 million Americans identify as some part American Indian or Alaska Native, with 3.7 million people identifying solely as American Indian or Alaska Native. Since 1924, members of American Indian tribes have been dual citizens of both their tribe and the state in which they reside. Although American Indian tribes have no formal voting representation in Congress, tribal members can vote in local, state, and federal elections based on their state citizenship. However, tribal members continue to face significant barriers to full and equal political participation. 

Tribal Governance and Constitutions

The governing structures of American Indian tribes vary considerably. Many tribes have a tribal council that possesses legislative authority to write tribal laws, and some tribal councils also have executive and judicial powers. Some tribes select tribal council members through districted or at-large elections, while others choose council members through a traditional process. Most tribes also have a chairperson, president, chief, or governor who is authorized to engage with the federal government on behalf of the tribe. 

In 1934, as part of the Indian New Deal, the Indian Reorganization Act (IRA) provided a mechanism for tribes to formalize and institutionalize their governments. While many tribes had constitutions before the IRA, the IRA spurred a significant increase in tribal constitutions, many of which were modeled on local governments. Although the IRA itself did not apply in Oklahoma, the Oklahoma Indian Welfare Act extended the IRA into Oklahoma in 1936.

The history of the adoption of IRA constitutions is fraught and complex. Scholars and tribal members alike have criticized IRA constitutions for often failing to incorporate traditional tribal values, culture, and institutions, resulting in many that remain poor fits for tribal communities. In addition, many older IRA constitutions did not provide for a tribal judicial system or other checks and balances, and federal paternalism has loomed large over constitutional formation. For example, some of the original IRA constitutions included a provision requiring approval by the Secretary of the Interior for the passage of tribal laws. (Many — though not all — of these provisions have since been repealed.)

The National Congress of American Indians reports that about 60 percent of tribal governments have IRA constitutions. These IRA constitutions contain provisions pertaining to the tribe’s territory and jurisdiction, membership, governmental organization, tribal councils, judicial system, tribal administration, elections, removal and recall of tribal officials, land administration, initiatives, referendums, ordinances, and resolutions. Dozens of tribes have amended their IRA constitutions since adopting them. 

The remainder of American Indian tribes have either no written constitution or non-IRA constitutions. For example, the country’s largest American Indian tribe — the Navajo Nation — has a detailed tribal code akin in some ways to statutes, but no written constitution, while the Cherokee Nation has a non-IRA constitution.  

Tribal Courts, Jurisdiction, and Constitutional Interpretation

The IRA recognized the rights of American Indian tribes to create their own court systems. Between 1978 and 2013 the number of tribal courts doubled, and today there are as many as 400 tribal justice systems in the United States. There are also five Courts of Indian Offences, which are unique federal-tribal courts for use by American Indian tribes to execute tribal jurisdiction if they do not have a court system of their own. Appeals from those courts are heard by the Court of Indian Appeals, which is a quasi-federal appellate court. Tribes with tribal courts have chosen different structures for those courts. Some have western-style courts, others traditional courts, and some use a hybrid model. Tribal judges are usually either elected or appointed by the tribal council, and some tribes rely on lay judges as well as tribal elders and peacemakers in their justice systems. 
 
Tribes generally have civil regulatory and adjudicatory authority over all parties on Indian lands within Indian country, although the federal courts have limited that authority over state officers. But on non-Indian lands in Indian country, such as private property located on a reservation but owned by a non-Indian, the issue is more complex. The U.S. Supreme Court has held that tribes generally do not have civil jurisdiction over non-tribal members in such areas or on public rights of way, such as a sidewalk or road. There are, however, exceptions: A tribe may have jurisdiction as the result of a consensual relationship between the non-tribal member and the tribe or if the activity in question threatens the “political integrity, the economic security, or the health or welfare of the tribe.” Whether a tribe may exercise civil jurisdiction over a non-Indian is a federal question within the purview of the federal courts, but the federal courts generally will not hear such a case until after the parties have exhausted any tribal remedies, including tribal court appeals. 

Tribes’ criminal jurisdiction is more limited. Although tribes have criminal jurisdiction over all American Indians (not just members of the tribe exercising jurisdiction), in 1978 the U.S. Supreme Court held that tribes no longer had criminal jurisdiction over non-Indians. Since then, Congress has restored tribes’ inherent criminal jurisdiction to prosecute non-Indians for crimes of domestic violence and other enumerated crimes pursuant to reauthorizations of the Violence Against Women Act. Where tribes lack authority to prosecute non-Indians, they still have authority to stop and frisk non-Indians based on a reasonable suspicion of criminal activity and, if necessary, to detain them until they can be turned over to state or federal authorities.

When it comes to constitutional interpretation, tribal courts function similarly to state courts in some ways. The federal Constitution does not apply to tribal governments, but in 1968 Congress passed the Indian Civil Rights Act (ICRA), which created a quasi-constitutional tribal bill of rights that is “similar, but not identical,” to the federal Bill of Rights. Although the ICRA is a federal statute, tribal courts have jurisdiction over ICRA claims. Thus, as a practical matter the vast majority of claims arising under the statute are litigated in tribal court. 

In Santa Clara Pueblo v. Martinez, the Supreme Court affirmed that tribal courts are not obligated to follow federal interpretations of the Bill of Rights when interpreting the ICRA. Tribal courts have regularly reached their own conclusions about the protections afforded under the act, such as those pertaining to due process, equal protection, search and seizure, free speech, and rights to a jury trial, a speedy trial, and adequate assistance of counsel. These rulings have sometimes found the ICRA to be more protective than federal and state analogs. Federal courts reviewing ICRA claims have responded in a mixed manner, sometimes deferring to tribal interpretations and other times relying on federal precedent. 

Tribal courts also operate under unique structural constraints. For example, many tribal court systems do not possess sufficient resources to consistently staff and operate a judicial system, and the poverty of many American Indian tribes considerably limits tribal courts’ remedial powers. 

Most significantly, many IRA constitutions have placed structural limitations on the authority of tribal judges. Some concentrate legislative, executive, and judicial power in tribal councils such that tribal judges have limited or no constitutional authority to review tribal government actions. For example, Article X of the Crow Tribe Constitution provides that the judiciary may not review exercises of the enumerated powers of the executive branch of the Crow tribal government and has limited power to assess whether legislation complies with the Crow Tribe Constitution. And some IRA councils have unilateral powers over judicial appointments, removal, and salaries. Some even grant council members the authority to sit as appellate tribal judges. However, some tribes have amended their constitutions or tribal law to provide greater separation of powers. The general trend of post-IRA-constitution-making has been toward greater judicial independence from tribal political branches. 

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Although tribal courts and constitutions share some characteristics with their federal and state analogs, they occupy a unique position in the United States shaped by the distinctive history and sovereign status of American Indian tribes.

Michael Milov-Cordoba is Counsel in the Judiciary Program at the Brennan Center for Justice. 

Dan Lewerenz is an assistant professor at the University of North Dakota School of Law.