Original Jurisdiction: The Injustice Against Native American Justices

Yu Xuan Chia – Singapore

There are 326 Native American reservations in the United States of America as of 2016. 326 distinct societies, with their own histories, customs, and political structure. These 326 reservations also form extrajudicial bubbles. Native justices sitting on tribunals pass judgement in their own communities, developing a judicial traditional independent of the British roots of the  American legal system. On the surface, these enclaves do exist outside of the American judiciary and are allowed to freely practice indigenous law. It is not hard to find examples in which tribes have fully exercised their right to sentence their people in both civil and criminal court to penalties that do not exist outside of their borders. But in reality, all 326 unique systems of justice live under the thumb of the United States Federal Government. More specifically, they are under the thumb of a bureaucrat sitting on the 3rd floor of 7001 Lafayette Ave, Washington, DC, in the windowless room dedicated to the Office of Justice Services.

In the great tradition of western bureaucracy, the Office of Justice Services is not a free-standing organization within the executive branch. It is buried in the Bureau of Indian Affairs, which in turn receives paltry attention and funding from its parent organization: the Department of the Interior.

Everything about this chain of command flies in the face of a core principle of American government: the separation of power. The United States rarely subjugates the judiciary to the whims of another branch, so  the fact that the judicial systems of all 326 native american reservations, whose sovereignty the United States claims to respect, fall under the power of such an obscure office, represents enormous disrespect for the Native American communities and governments across the continent, an infantilization and coddling of what could be fully independent nation-states.

The link between the American executive branch and native justices has been forged and reforged by both legislative and executive actions over the past 150 years. In 1883, the Department of the Interior consented to providing courts unique to native americans in the form of Courts of Federal Regulations (CFR). Although these were the first step in crafting indigenous judicial systems, the CFRs were initially used by the government to prosecute and discourage cultural activities deemed heathen by the largely Christian national government, including ceremonial dancing and outfits.The CFRs were also, however, active in controlling crimes unique to reservations that had not been heretofore punished, including scalping and the buying and selling of native women.

For over 50 years, the CFRs imposed federal regulations on Native American reservations and served little purpose other than to bully and target an already disenfranchised minority. However, in 1934 an important step forward was made in the freeing of Native American judges with the Indian Reorganization Act of 1934. In this sweeping act, the Federal government gave Native  Americans the right to draft constitutions and impose those constitutions through official judicial channels. The CFRs were gutted and repurposed into Tribal courts and tribunals, although their powers were still limited and entirely at the discretion of the Secretary of the Interior.

Looming above the entire history of Native judicial sovereignty is the Major Crimes Act, enacted in 1883, which places natives who commit one of 13 crimes on a native reservation under the immediate jurisdiction of the federal government. The crimes include murder, rape, and incest among others, and while the law ensures consistency in the treatment of serious criminals throughout the United States, it is a major obstacle to both the legitimacy and independence of Native American judges.

Today, native tribunals have powers that are clearly defined and limited by a combination of laws, Supreme Court decisions, and executive actions. Judges on reservations are given total control of civil transgressions committed on their land by members of their own tribe and partial control over criminal cases committed by members of their own tribe. Crimes committed by other US citizens who are not registered with the tribe, however, fall under the jurisdiction of federal or state courts, depending on the exact nature of the crime.

Despite all the legal obstacles and the slow development of sovereignty, Native American judges have taken advantage of the 100+ year history of native judiciaries and used their limited powers to differentiate native justice from american jurisprudence. Many justices view the development of common law as being the most important way of establishing an independent judicial tradition. The Judges of the Hopi reservation conclude that “common law has been the key to ensuring tribal ownership over once imposed justice systems and often imported foreign legal standards.” All over the United States, native judges are attempting to reclaim ownership of their judicial systems by establishing unique judicial traditions that blend traditional concepts of justice with modern sensibilities.

Native American courts have time and time again shown their competence, effectiveness, and fiscal efficiency in the face of marginalization by the federal government. It is time that the United States recognize the crucial role that independent native judiciaries and native judges play in the health of native american reservations. The United States should continue on its path to withdraw control over these bodies, and show indigenous people the respect they deserve.

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