Native Americans

Despite the often undermining influence of federal law, derivations of the earliest encountered Native American legal systems continue to function today in land set aside under federal protection for the residence of tribal Native Americans and in other areas collectively described in federal law as "Indian Country." Native American legal regimes have been transformed after years of contact with non-Native American law and culture, so that the formal institutions more closely resemble U.S. courts, legislative bodies, and regulatory apparatus; the formal rules of everyday conduct, too, codified in ordinances, more closely parallel U.S. norms. On some reservations, for example, there are tribal environmental protection agencies that regulate pollution, and tribal taxing authorities that levy and collect taxes.

Much of this transformation of tribal governments has occurred as a result of the Indian Reorganization Act of 1934, a federal statute that offered tribes some freedom from federal bureaucratic control if they would organize themselves under constitutions modeled after the U.S. Constitution. The Indian Reorganization Act provided that tribal members could take a vote on whether to accept its terms, and about three-fourths of the tribes that held referenda agreed to develop tribal constitutions under the act. The federal rules setting forth who could vote and how many votes were needed to accept the act did not always produce results that reflected the general wishes of tribal communities. Nonetheless, constitutions stimulated by the Indian Reorganization Act continue to prevail on many reservations. Some Native American nations, like the Navajo, preferred to develop their governing systems independent of the act; nothing in the act prevented them from doing so.

The protections of individual rights found in amendments to the U.S. Constitution do not apply to modern tribal governments, because those constitutional provisions control only activities of the federal government and of the states. However, a federal statute enacted in 1968, known as the Indian Civil Rights Act, limits the punishments that tribal courts may impose, and requires that tribal legal institutions comply with some, but not all, of the provisions of the Bill of Rights in the U.S. Constitution. For example, the federal constitutional prohibition against the establishment of religion and the federal requirement that criminal defendants be provided with free counsel do not apply to Native American tribes through the Indian Civil Rights Act. The reason for these and other exceptions was Congress' desire to preserve distinctive features of tribal cultures and to protect tribes against financially burdensome requirements that they could not reasonably fulfill. Furthermore, even when the Indian Civil Rights Act does incorporate provisions of the Bill of Rights, those requirements are interpreted, wherever possible, to accommodate the special features of tribal cultures. Thus, for example, the requirement of equal protection of the laws in the Indian Civil Rights Act uses the same language as a comparable Constitution. Equality, however, does not necessarily mean the same thing for the tribes as it does for the federal or state governments; one such example is when the issue is whether an Native American tribe may exclude non-Native Americans from juries or from voting in tribal elections.

Out of respect for tribal sovereignty, Congress generally provided that when an individual wants to challenge tribal actions as contrary to the terms of the Indian Civil Rights Act, she or he must do so in tribal court. There is no recourse to a federal court to enforce the Indian Civil Rights Act unless the individual is in a position to bring a petition for a writ of habeas corpus (a claim that she or he is being held in custody in violation of law). Normally this writ is only available to criminal defendants who have been convicted in tribal courts and who claim that their convictions were obtained without adherence to the Indian Civil Rights Act (for example, if evidence was improperly seized or if the criminal statute used as the basis for conviction violated the right to free speech).

Some tribes have protection for individual rights built into their own constitutions and fundamental laws. The Navajo, for example, have their own requirement that individuals be afforded due process of law if the government is acting to deprive them of life, liberty, or property. Thus, an individual who is unhappy with the actions of the tribal government can appeal to tribal law as well as to the Indian Civil Rights Act for redress. The Indian Civil Rights Act has been controversial among Native American people because it can be used to erode distinctive tribal cultures and legal systems, especially when those systems reflect values favoring informality, communal belonging and responsibility, and decision-making by consensus (universal agreement) rather than majority rule. As tribal governments have become more like the non-Native American U.S. government, however, it is possible that a corresponding need for the protection of individual rights has arisen.

Federal measures such as the Indian Reorganization Act and the Indian Civil Rights Act have put great pressure on tribal governments to conform to U.S. institutions. Nonetheless, tribal legal systems still have some distinctive features. First, informal traditional institutions and norms persist amidst the more formal legal systems. In some tribes, for example, religious leaders oversee dispute resolution despite the existence of tribal courts, and clan-based local groups control policy-making despite the existence of a centralized tribal council. Second, the values and procedures that are reflected in even formal tribal law sometimes differ from those embodied in U.S. law. Navajo inheritance law, for example, recognizes oral wills and prefers individuals who have cared for the deceased in his or her final years; American law does not. Also, many tribal legal systems reject the separation of powers and judicial review that are so fundamental to U.S. law. Some distinctive qualities of Native American justice, such as the emphasis on restitution to victims in criminal cases and special sensitivity to the interests of grandparents in child custody disputes, are finding a receptive audience among non-Native Americans today.

Thus, despite European and American claims to conquest and dominion over Native American lands and peoples, Native American law and government have not been extinguished. Tribal legal institutions perform important functions of defining tribal membership and office-holding requirements, regulating the use of tribal resources, establishing rules for everyday conduct, and resolving disputes. However, because of their different traditions and values, lack of resources, and the need to reconcile American and Native American forms, tribal governments need not and do not always behave like their non-Native American counterparts.