Using Tribal Common Law to Effectively Represent Clients in Tribal Court

Image by Stephanie Perry. Victoria, BC.

If you are unfamiliar with tribal courts, you may be surprised to hear they apply tribal customs and traditions to resolve legal disputes. Indeed, I find this is one of the most interesting parts of working for a tribal court. This tribal common law is the foundational law of tribes, and may also govern certain disputes in state court, see RCW 36.12.070. It is critical to understand a particular tribe’s customs and traditions to effectively represent a client in tribal court.

Because tribal common law is not derived from European roots, it can provide a different perspective on common legal principles, and can lead to results differing from those reached under state law. Understanding a particular tribe’s customs and traditions can breathe life into an otherwise failing argument. It can also allow for legal arguments not existing under state law. Below are some examples of how customs and traditions have been applied.

A Veteran’s Privilege as a Defense to Defamation

Gardner v. Littlejohn, from the Ho-Chunk Nation in Wisconsin, provides a prime example of how tribal common law can lead to a different result than one would expect. In Gardner, the court first found a defamation cause of action existed under tribal common law, and that the plaintiff had been defamed. But the court found that, traditionally, warriors had a privilege to speak their mind, and the defendant veterans could assert this as a defense.

The Ability to Present Evidence

In S. Puget Sound Intertribal Housing Auth. v. Johnson, 1 NICS App. 29, 16 Indian L. Rep. 6019 (Skoalwater Bay App. Ct. 1988), the trial court excluded testimony under the state’s parol evidence rule. The Appellate Court reversed, in part because:

Traditionally, anyone who had something to say regarding a matter in controversy would have the opportunity to have their say prior to a decision being rendered by the tribal elders. It is fundamental to tribal culture that parties to a conflict be allowed to have their say without legal doctrines being unfairly imposed to limit this right.

Such views are common in tribal courts and can be helpful when presenting a case, particularly when a tribe court lacks substantial rules of evidence.

Civil Rights

Under the Indian Civil Rights Act, people subject to a tribe’s jurisdiction are afforded civil rights analogous to the Bill of Rights. But Congress left tribes to interpret these rights, and has led many tribal courts to look to their customs and traditions in defining these civil rights. For example, the Navajo Supreme Court in Eriacho v. Ramah Dist. Ct. stated, “A jury trial is a fundamental right in the Navajo Nation. A jury is a modern manifestation of the Navajo principle of participatory democracy in which the community talks out disputes and makes a collective decision.” Often, views like this do not lead to results far from what would be otherwise expected, but a careful analysis of the tribal common law foundations of civil rights can lead to differing results.