By: Shannon Pascal
The availability of Indian tribal law is an issue which continues to affect the sovereignty, long-term economic development, and social acceptance of Indian tribes. Indian tribes are one of the three sovereign entities within the United States, but unlike the other two sovereigns–state and federal governments–Indian tribes are not required to publish their law. In fact, for the majority of the 566 federally-recognized Indian tribes, no published law is available and no universal reporting system exists for tribes that choose to publish their law. Thus, tribal law is largely unavailable to federal and state courts, non-Indians living within or visiting Indian country, and outsiders wishing to do business with tribes.
The consequences of tribal law’s general lack of availability are far-reaching. Without access to tribal law, courts which might otherwise find tribal law persuasive are forced to disregard it. A non-Indian who is subject to tribal law may find himself unable to comply with tribal law if it is not widely known or available. Businesses may be reluctant to enter into contracts with tribes, thereby retarding economic development, if they are unable to access tribal law. Tribes may be barred from trying criminal cases under the Tribal Law and Order Act of 2010 and the Violence Against Women Reauthorization Act of 2013 if their criminal laws and procedures are not publicly available, weakening their overall sovereignty. Finally, misunderstandings can occur when the law is not made available, leading outsiders to believe that the tribal courts are motivated by unfair racial preferences. Making tribal law more widely available would address many of these issues.
Unfortunately, there are several barriers to making tribal laws more widely available. Certain tribes, for instance, fear that publishing their laws would lead to criticism, threaten the sacred nature of their culture, and embarrass those who have been the subject of legal action in the past. More prevalent, however, is the issue of cost. Tribal legal systems are poorly funded and many tribes simply cannot bear the costs of organizing, publishing and maintaining their laws.
As the third sovereign, Indian tribes have the extraordinary ability to write and enforce laws reflecting their own values and culture, but the effectiveness of such law is undermined by its inaccessibility. Overcoming the barriers to the publication of tribal law will require both a cultural shift away from secrecy within certain tribes, as well as greater funding for tribal legal systems. Over time, however, increased openness and accessibility should lead to greater tribal control and economic opportunity in Indian country.
Source: Bonnie Shucha, “Whatever Tribal Precedent There May Be”: The (Un)availability of Tribal Law, 106 Law Libr. J. 199 (2014).