Native American (American Indian and Alaskan Native) tribal courts are grounded in the principle of sovereignty. Many of the more than 500 tribes recognized by the U.S. federal government have courts for the adjudication of civil and criminal cases. These courts vary in their judicial range and authority and are semiautonomous, consistent with their tribes’ histories and limited right to self-government. Accordingly, generalizations concerning their structure and function are unhelpful. To varying extents, the courts reflect the influence of both Native American cultures and European traditions of jurisprudence. They are subject to the limits imposed by federal law, and state jurisdiction is also authorized under some circumstances.
Early views of Native Americans as racially inferior to Whites endured in stereotypes reinforced by the use of Western psychiatric classification systems and assessment methods. More recent conceptualizations reflect respect for traditional aboriginal ways. Mental health interventions have become more collaborative and diverse, notably Tribal Healing to Wellness Courts. Mental health issues relevant to tribal legal proceedings include historical trauma as well as the heightened risk of Native Americans for substance abuse, sexual assault, and suicide relative to the general U.S. population.
History
The pre-Columbian aboriginal population of North America was nearly annihilated by diseases that were spread through their early contacts with Europeans. American Indian tribes were further reduced by wars and outright slaughter and damaged by policies—forced relocation and acculturation—that disrupted their societies and traditions. According to the 2010 U.S. Census, 1.7% of the U.S. population, 5.2 million persons, were Native American alone or in combination with one or more other races. As of 2017, there were 567 Indian tribes recognized by the U.S. federal government.
In signing treaties with aboriginal tribes on the North American continent, the British government legally recognized their sovereign status. This status was further acknowledged in the U.S. Constitution, and for nearly a century after the American Revolution, the U.S. government continued to negotiate and sign treaties with various tribes, although these were invariably violated by the government or by White settlers.
Early U.S. Supreme Court decisions also helped create the framework for the legal relationships of tribes, states, and the federal government. Notably, in Worcester v. Georgia, 31 U.S. 515 (1832), the majority held that the Cherokee tribe was a Nation, unbound by the laws of Georgia and subject only to those of the federal government. The first Courts of Indian Offenses, the forerunners of Native American tribal courts, were established by the Bureau of Indian Affairs in the 1880s. Some are still in existence, although most have since been replaced by courts established by the tribes themselves, as permitted under the Indian Reorganization Act of 1934. The act also gave tribes on reservations the right to adopt constitutions and to incorporate.
Current Status
Tribal court jurisdiction fundamentally pertains to Indian country, consisting of reservation lands, Indian trust allotments, and dependent Indian communities. As of 2017, 175 Native American tribes operate tribal courts. Courts of Indian Offenses still exist in some parts of Indian country, mostly in Oklahoma. Due to their respective tribes’ sovereignty, cultural histories, and the varying impact of statutes and case law, current tribal court systems are quite variable, with some structured more like traditional U.S. courts, having tribal prosecutors and defense advocates, while others have more informal systems, including alternative litigation tracks within tribal courts or alternative courts, such as the Navajo Peacemaker Court.
There are adult, juvenile, family, and wildlife conservation tribal courts. Indigenous forums (e.g., sentencing circles, council of elders, peacemaking) operate at a level below tribal courts and serve a dispute resolution function. Some tribal courts provide alternatives to incarceration, including probation, drug and alcohol rehabilitation, counseling, fines, restitution, and community service. Judges may be popularly elected or appointed, typically, in the latter case, by the tribal council. Many appellate courts have been established, and the Seminole Nation of Oklahoma has a supreme court. Tribal police serve as first responders for major crimes and misdemeanors. In civil matters, tribal courts have sole jurisdiction concerning claims arising in Indian country against a tribal member and brought by any person.
With respect to criminal law, jurisdictional matters are complex and subject to change. Public Law 83-280 (Public Law 280) gives six states— Alaska, California, Minnesota, Nebraska, Oregon, and Wisconsin—jurisdiction over criminal and civil offenses committed against or by Native Americans in Indian country within those states, with some exceptions. In the remaining states, tribal authority is shared with the federal government, although Public Law 280 gives these states the right, whether exercised or not, to assume concurrent law enforcement authority.
In non-Public Law 280 states, discretion regarding the prosecution of major crimes falls under federal jurisdiction. Federal prosecutors may elect to prosecute major crime cases or turn them over to state jurisdiction. Minor crimes involving Native American perpetrators and victims fall under tribal jurisdiction, and in those cases involving only non-Native Americans, the state has the authority.
As of 2016, there were 80 jails in Indian country housing a total of about 2,540 inmates. Most are located in states west of the Mississippi River, with Arizona having the greatest number of these facilities, at 21, and several states having only 1 facility each. Where tribal courts’ sentencing authority is ordinarily capped at 1 year, pursuant to the Tribal Law and Order Act of 2010, they have the authority to sentence selected offenders to up to 3 years’ incarceration in Indian country correctional institutions. On average, in 2016, jails in Indian country operated at 62% of rated capacity. Native Americans accused or convicted of crimes that fall outside the purview of tribal law and courts (those committed outside Indian country, and, generally, felonies) may be confined in non-Native American jails or state or federal prisons.
Related Mental Health Issues
Medicalized Racial Bias, Coerced Assimilation, and Historical Trauma
Mental health-care scholars and providers concerned with tribal criminal justice matters would benefit from an understanding of the historical framework in which beliefs about Native American pathology have been generated. Nineteenth- century phrenology texts portrayed Native Americans as intellectually and psychologically inferior to Whites, lending a pseudoscientific veneer of credibility to these stereotypes. During the early 20th century, anthropologists began studying Native American cultures and tribe members. However, their research was compromised by Eurocentric biases, that is, viewing Native American customs from the standpoint of White culture, including the use of tests and techniques such as the Minnesota Multiphasic Personality Inventory and Rorschach. These instruments were not normed or standardized on these populations, so their use effectively reinforced these crude racial constructions. It was only decades later that social and behavioral scientists began to understand the flaws in their methods and attempt a more culture-fair approach, a process that continues as part of a more general appreciation of and respect for ethnic and cultural diversity by the social and behavioral sciences.
Beginning in the late 19th century, as outright war between Whites and Native Americans drew to an end, and sympathy within the dominant culture increased toward remaining Native Americans, the Indian boarding school movement promoted forced acculturation. By government authorization, Native American children were removed, sometimes forcibly, from their homes and sent to boarding schools. In these institutions, now mostly closed, tribal languages, religion, and other aspects of their cultures were suppressed. Many Native American children were abused or died of infectious disease there.
Related Native American Mental Health Concerns
The victimization—through war, disease, dislocation, and intentional cultural destruction—of Native American tribes over the course of centuries has given rise to what has been termed historical trauma. This is chronic, collective, and transgenerational psychological disturbance that does not square readily with diagnostic categories in orthodox psychiatric classification systems, such as the Diagnostic and Statistical Manual of Mental Disorders, meant to define individual psychopathology.
Native Americans are at increased risk of emotional and behavioral disorders. Suicide rates for Native Americans are the highest for any racial group in the United States. Rates of substance abuse for Native Americans are also relatively high, and the criminal justice system generates nearly half of adult Native American substance abuse treatment admissions. Native Americans are more likely than members of any other race to be the victims of violent crime. Native Americans aged 12 years and older are twice as likely as the general population to be the victims of rape or sexual assault. These outcomes speak to the need for using appropriate screening and intervention procedures for Native Americans, including those involved with the criminal justice system, and then to implement culturally appropriate and effective therapeutic measures.
Tribal Healing to Wellness Courts
One particularly notable development with respect to the criminal justice system is the Tribal Healing to Wellness Court. Created with the support of the federal government and with input from tribal leaders, and with attention to the diverse needs of the various tribes, these courts are adaptations of the drug court model. Such courts have been implemented in more than 120 Native American communities. They can serve a diversion function, that is, as an alternative to incarceration, in adult, juvenile, and family courts. While Native Americans collectively constitute an understudied population, the Tribal Healing to Wellness Court model supports the utilization of evidence-based interventions.
Future Directions
Tribal courts and the larger criminal justice system in which they function will continue to be shaped by statute, case law, and American Indian/Alaskan Native tradition. With the Native American population growing at a rate faster than that of the general U.S. population, tribal courts will face new and complex challenges requiring substantial resources. The Department of Justice administers the Coordinated Tribal Assistance Solicitation, through which it funds a range of criminal justice and public safety initiatives (e.g., alcohol and substance abuse interventions) through grants. The Office of Juvenile Justice and Delinquency Prevention prioritizes programming on behalf of Native American youth. Since 2002, the Bureau of Justice Statistics periodically administers the National Survey of Tribal Court Systems in partnership with several public agencies and law schools, gathering data on tribal justice systems, including probation, pretrial and indigent defense services, and juvenile cases. Scholars, practitioners, and policy makers can use this information to support continued improvements in the functioning of Native American tribal courts.
Partnerships with academic institutions are also important. For example, several law schools operate Indian law clinics, providing consultation services regarding tribal laws, codes, and regulations, as well as training lawyers to specialize in Native American legal issues. The Indian Country Child Trauma Center at the University of Oklahoma Health Sciences Center is staffed by a small group of psychologists. Their mission is to develop targeted, culturally appropriate, outreach, and service delivery materials with an emphasis on dealing with the effects of trauma for Native American children and their families.
Reliable and adequate funding sources, along with culturally sensitive collaborations between Native American and non-Native American agencies and institutions, will be critical to the functioning of Native American tribal courts and to the well-being of the persons under their custody, care, and control.
References:
- Canby, W. C., Jr. (2015). American Indian law in a nutshell (6th ed.). St. Paul, MN: West.
- Flies-Away, J. T., Garrow, C., & Sekaquaptewa, P. (2014, May). Tribal Healing to Wellness Courts: The key components (2nd ed.). West Hollywood, CA: Tribal Law and Policy Institute. Retrieved from http:// wellnesscourts.org/files/Tribal%20Healing%20to%20Wellness%20Courts%20The%20Key%20Components.pdf
- La Roche, M. J., Fuentes, M. A., & Hinton, D. (2015). A cultural examination of the DSM-5: Research and clinical implications for cultural minorities. Professional Psychology: Research and Practice, 46, 183–189.
- Perry, S. W. (2015, July). Tribal crime data collection activities, 2015. Retrieved from http://www.bjs.gov/ content/pub/pdf/tcdca15.pdf
- Richland, J. B., & Deer, S. (2010). Introduction to tribal legal studies (2nd ed.). Lanham, MD: Alta Mira Press.
- Waldram, J. B. (2004). Revenge of the Windigo: The construction of the mind and mental health of North American aboriginal peoples. Toronto, Canada: University of Toronto Press.