August 1999

Native Justice:
A Look at Tribal Court Jurisdiction in Washington State

by Robert J. McCarthy
Northwest Justice Project

In Washington state, 25 tribal courts1 have jurisdiction over more than three million acres and 70,000 citizens residing in 21 of 39 counties.2 The typical tribal court litigant is likely to be a low-income tribal member,3 perhaps contesting the loss of a tribal job or public assistance, seeking custody of a child, or defending against a misdemeanor criminal charge. But tribal civil jurisdiction may extend as well to non-Indians who reside on Indian reservations, enter into consensual relationships with the tribe or its members, or whose conduct directly affects "the political integrity, the economic security, or the health and welfare of the tribe."4

Some question the role of tribal courts in the American judicial system,5 while others recognize their unique place alongside state and federal tribunals.6 Over the course of two centuries, traditional methods of tribal dispute resolution have slowly evolved to incorporate many aspects of Anglo-Saxon jurisprudence.7 Today, more than 500 federally recognized tribal governments8 have some system of civil dispute resolution and most have criminal court systems.9 Congress has acknowledged the need to make adequate resources available to tribal courts,10 although the reality continues to fall far short of that promise.11

This article offers a concise overview of the contours of tribal court jurisdiction, noting limitations placed on federal and state courts regarding matters arising within the boundaries of Indian reservations and identifying tribal and federal law which may apply in tribal forums.

Tribes exercise inherent jurisdiction over crimes committed in Indian Country12 by Indians,13 except as limited by federal law. Tribes have exclusive jurisdiction over non-major crimes committed by Indians against Indians, whereas the federal courts have concurrent jurisdiction over non-major crimes by Indians against non-Indians.14 Tribes share concurrent jurisdiction with the federal government over 14 named "major crimes" when committed by Indians in Indian Country.15 Tribes have no criminal jurisdiction over non-Indians,16 but retain the power to exclude unwanted persons from their reservations.17 A Supreme Court ruling that a tribal court has no jurisdiction over Indians who are not members of the tribe18 was overturned by Congress, affirming "the inherent power of Indian tribes … to exercise criminal jurisdiction over all Indians..."19

Tribal courts have jurisdiction over most civil actions against or between Indians for claims arising in Indian Country.20 Federal law also establishes tribal court jurisdiction in certain adoption and child custody proceedings involving Indian children.21 The parameters of tribal civil authority over non-Indians can be discerned from two Supreme Court cases. Montana v. United States22 held that a tribe has no authority to regulate hunting and fishing by non-Indians on non-Indian fee land within the reservation. The Supreme Court set forth "a general proposition that the inherent sovereign powers of an Indian tribe do not extend to the activities of nonmembers of the tribe."23 Yet the Court articulated two specific "exceptions" to the general rule: tribal jurisdiction will lie (1) in the context of "consensual relationships" between a nonmember and a tribe or a member of a tribe, and (2) where necessary to preserve tribal self-government.24

In Strate v. A-1 Contractors,25 the Supreme Court held that Montana applies equally to the adjudicatory authority of tribal courts. Strate termed Montana "the pathmarking case concerning tribal civil authority over nonmembers." The Court in Strate found no tribal court jurisdiction concerning a lawsuit between non-Indians arising from a car accident on a reservation highway maintained by the state under a federally granted right-of-way. The Ninth Circuit Court of Appeals has held that even a tribal member may not bring a tribal court action against a nonmember when the claim arose on a state highway within the reservation.26

Outside of Indian Country, the state has general criminal jurisdiction over Indians.27 Within Indian Country, the state has exclusive jurisdiction over crimes by non-Indians against non-Indians.28 The state generally has no jurisdiction over crimes by Indians or crimes by non-Indians against Indians.29 State courts are deprived of civil jurisdiction over a claim by a non-Indian against an Indian when the claim arises in Indian Country.30 Federal law permits state court adjudication of a tribe's reserved water rights as part of a general stream adjudication.31 Tribal court jurisdiction is generally exclusive of state jurisdiction, except to the extent that the state has been granted jurisdiction by federal law or tribal-state agreement.

Congress in 1953 enacted Public law 83-280,32 which authorized states to impose concurrent state jurisdiction in Indian Country with or without tribal consent. The Washington legislature responded to this invitation in 1957 by extending civil and/or criminal jurisdiction only to those reservations so requesting.33 In 1963, the state legislature further extended jurisdiction without tribal consent, to include state criminal and civil jurisdiction over all non-Indians in Indian Country, Indians on fee-patented land on reservations, and Indians on tribally owned or individually allotted lands held in trust by the federal government, but only as to compulsory school attendance, public assistance, domestic relations, mental illness, juvenile delinquency, adoptions, dependent children, and operation of motor vehicles.34

Nothing in federal law requires tribal courts to extend full faith and credit to state court judgments. Nevertheless, the courts of Washington state give full faith and credit to valid tribal court orders.35

Federal criminal jurisdiction in Indian Country exists under the Major Crimes Act for prosecution of major crimes committed by Indians.36 The General Crimes Act provides for federal prosecution of crimes by non-Indians against Indians.37 Federal jurisdiction also includes certain federal crimes of nationwide applicability, whether committed by Indians or non-Indians, and regardless of the situs of the crime.38

Federal courts may hear civil claims arising in Indian Country if there is federal question jurisdiction39 or diversity of citizenship.40 Federal statutes confer jurisdiction on federal courts to adjudicate certain kinds of disputes involving trust property.41 Federal courts generally require litigants to exhaust tribal court remedies before bringing a challenge to tribal court jurisdiction in federal court.42 Federal courts extend comity, but not full faith and credit, to tribal court decrees.43

Each tribal court operates under a tribal constitution and code of laws, and each is a creation not of the federal government, but rather of its respective tribal government.44 The extent and manner of codification of tribal law varies significantly among the tribes located within the borders of Washington state.45 Tribal codes often adopt federal or state law in the absence of applicable provisions in tribal law.46 The tribal governing body (generally the tribal council) most often appoints tribal judges and may remove them for cause.47 Most tribes have no standing appellate court. Instead, the council generally appoints a panel of three appellate judges upon the filing of an appeal.48 There is generally no requirement that a tribal judge be a lawyer or a tribal member, although these preferences may apply.49 Lawyers and lay "spokespersons" alike may be admitted to practice in tribal courts after indicating a familiarity with tribal law and swearing an oath to show proper respect for the tribal court.50

Most tribal codes include some authorization for the tribal court to consider tribal culture and tradition in deciding cases.51 This may be accomplished through testimony of tribal elders and historians, or by reference to previous decisions of the court. There is, however, no official reporter of tribal court decisions. Individual tribal courts may have decisions on file previously rendered by the court. There are, however, few readily accessible unofficial reporters of tribal court opinions. The Northwest Intertribal Court System (NICS), located in Edmonds, Washington, provides judicial services to several Northwest tribes. NICS judges often sit as trial or appellate judges for these courts, and NICS periodically publishes reports of appellate decisions.52 The much more extensive Indian Law Reporter, published by the American Indian Lawyer Training Program, publishes tribal court opinions from throughout the United States.53

Both volumes of Title 25 of the United States Code deal exclusively with Indian law, yet Congress has been reluctant to extend federal regulation into the practices of tribal courts. The most significant exception is the Indian Civil Rights Act (ICRA) of 1968,54 a complex compromise intended to guarantee that tribal governments respect civil rights while minimizing federal interference with tribal culture and tradition. The central purpose of the ICRA was to apply most of the provisions of the Constitution's Bill of Rights to tribal governments, and the "Indian Bill of Rights"55 is the centerpiece of the legislation.

Not all of the provisions of the U.S. Constitution's Bill of Rights apply to tribal governments. The ICRA guarantee of free exercise of religion does not prohibit a tribe from establishing a religion, in recognition of the fact that to many tribes religion is inseparable from government and other areas of life. Although the ICRA guarantees a criminal defendant the right to have an attorney at his own expense, there is no requirement that a tribe provide an attorney for a defendant who cannot afford to hire one.56 Tribes may not impose punishment greater than imprisonment for one year and a fine of $5,000 or both for conviction of any one offense.57

The ICRA does not require a tribe to provide the right to jury trial in civil cases.58 The statute provides only one federal court remedy for ICRA violations: "The privilege of the writ of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian Tribe."59 Ten years after the ICRA became law, the Supreme Court held that the ICRA authorized suit against neither the tribe nor tribal officials in federal courts, finding that Congress intended no such interference with tribal self-government.60 The Court stated: "Tribal forums are available to vindicate rights created by the ICRA…."61

In Santa Clara Pueblo v. Martinez, the Supreme Court held that suits against an Indian tribe are barred by the tribe's sovereign immunity.62 Tribal officers who exceed their authority are not protected by the tribe's immunity from suit.63 Except for habeas corpus, however, the ICRA creates no cause of action for equitable relief even against tribal officials in federal court. Most tribal courts have found the ICRA to be enforceable against tribal officials but not against the sovereign itself. Many tribal courts have held that tribes have greater flexibility in applying principles of due process (as found in the ICRA) than do state and federal courts in applying principles of due process found in state and federal constitutions. Even as they have recognized that the ICRA grants to tribal members rights comparable to those contained in the Bill of Rights, the courts routinely have ruled that the meaning and application of the ICRA is not determined by Anglo-American constitutional interpretations.64

No attorney practicing in Washington can afford to be unaware of the existence, jurisdiction and laws of the 25 tribal courts in the state. Anyone wishing to learn more about tribal courts or wanting to explore pro bono work on behalf of Native American clients should feel free to contact the courts in your area, the Northwest Justice Project, Columbia Legal Services, or your local bar association volunteer lawyer program.

1 All federally recognized tribes in Washington state have tribal courts, with two exceptions: the Jamestown S'Klallam Tribe and the newly recognized Samish Nation. See directory of tribal courts.

2 Veronica Tiller and Robert Chase, Economic Contributions of Indian Tribes to the Economy of Washington State (Governor's Office of Indian Affairs, 1999) at

3, 8.

3 Residents of the state's Indian reservations suffer unemployment and poverty rates several times higher than rates experienced by other Washington citizens. See, e.g., Bureau of the Census, 1990 Census of Population, Social and Economic Characteristics, United States 93, 95 (1993); Indian Service Population and Labor Force Estimates, U.S. Department of the Interior Bureau of Indian Affairs, Table 1, 1993.

4 Montana v. United States, 450 U.S. 544, 564 (1981).

5 Senator Slade Gorton has claimed that suing in tribal courts doesn't work, because, according to him, tribal courts are not adequate or neutral. Lynda V. Mapes, Backlash for Tribal Immunity, Seattle Times, April 5, 1998, at B1. A proposal by Senator Gorton would subject tribes to a wide range of suits in federal and state courts. S. 1691, the "American Indian Equal Justice Act," 105th Cong. Section 2 (1998), reprinted in 144 Cong. Rec. S1155-56 (daily ed. Feb. 27, 1998).

6 Roberta Cooper Ramo, during her recent term as president of the American Bar Association, wrote that traditional tribal courts should be seen as a model for alternative dispute resolution in the larger society. Roberta Cooper Ramo, Lawyers as Peacemakers, 81 A.B.A.J., Dec. 1995, at 6.

7 See, e.g., Rennard Strickland, Fire and the Spirits: Cherokee Law from Clan to Court (1975); Gloria Valencia-Weber, Tribal Courts: Custom and Innovative Law, 24 N.M.L. Rev. 225 (1994); Christine Zuni, Strengthening What Remains, 7 Kan. J.L. & Pub. Pol'y 17 (1997).

8 See 61 Fed. Reg. 58211-16 (1996) (listing 557 federally recognized tribes).

9 S. Rep. No. 103-88, at 3 (1993).

10 The Indian Tribal Justice Act of 1994 established an Office of Tribal Justice Support and authorized $59 million annually through the year 2000 to support tribal courts. 25 U.S.C. Sections 3601-3631 (1994).

11 As of April 1998, the National American Indian Court Judges Association complained, "Congress has yet to appropriate a single dollar under these authorizations." Economic Development: Hearing Before the Senate Comm. on Indian Affairs, 105th Cong. Section 2 (1998).

12 "Indian Country" includes all lands within the borders of an Indian reservation, "dependent Indian communities" located outside any reservation, and Indian allotments located outside a reservation and still held in trust status. 18 U.S.C. Section 1152.

13 Ex Parte Crow Dog, 109 U.S. 556 (1883).

14 General Crimes Act, 18 U.S.C. Section 1152.

15 Major Crimes Act, 18 U.S.C. Section 1153; see also Wetsit v. Stafne, 44 F.3d 823 (9th Cir. 1995) (holding tribes retain concurrent jurisdiction under the Major Crimes Act).

16 Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978).

17 See Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 144-45 (1982); Hardin v. Mountain Apache Tribe, 779 F.2d 476, 478-79 (9th Cir. 1985).

18 Duro v. Reina, 495 U.S. 676 (1990).

19 25 U.S.C. Section 1301(2).

20 E.g., Fisher v. District Court, 424 U.S. 382, 386 (1976).

21 25 U.S.C. Sections 1901-1963.

22 Montana v. United States, 450 U.S. 544 (1981).

23 Id., at 565.

24 Id., at 565-66.

25 Strate v. A-1 Contractors, 520 U.S. 438 (1997).

26 Wilson v. Marchington, 127 F.3d 805 (9th Cir. 1997), cert. denied 118 S. Ct. 1516 (1998).

27 See, e.g., Hagen v. Utah, 510 U.S. 399 (1994).

28 See, e.g., New York ex rel. Ray v. Martin, 326 U.S. 496 (1946).

29 See, e.g., Williams v. United States, 327 U.S. 711 (1946).

30 Williams v. Lee, 358 U.S. 217, 219-20 (1959). States may not, however, preclude an Indian from bringing in state court an action against a non-Indian for a claim which arose in Indian Country. Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, P.C., 467 U.S. 138, 148 (1984).

31 43 U.S.C. Section 666 ("McCarran Amendment"), see Arizona v. San Carlos Apache Tribe, 463 U.S. 545 (1983).

32 18 U.S.C. Section 1162, 25 U.S.C. Sections 1321-1326, and 28 U.S.C. Section 1360.

33 R.C.W. 37.12.021. Ten tribes requested at least partial state jurisdiction, including the Chehalis, Colville, Muckleshoot, Nisqually, Quileute, Quinault, Skoko-mish, Squaxin Island, Suquamish, Swinomish and Tulalip Tribes. The legislature subsequently provided a procedure for retrocession to the affected tribes of criminal jurisdiction over Indians for acts occurring on reservation trust lands. RCW 37.12.100.

34 RCW 37.12.010. Further extensions of state jurisdiction were prohibited as of 1968 with the passage of the Indian Civil Rights Act, 25 U.S.C. Sections 1301 et seq.

35 In re Buehl, 87 Wn.2d 649 (1976); see also, Washington Superior Court Rule 82.5.

36 18 U.S.C. Section 1153.

37 18 U.S.C. Section 1152. The General Crimes Act also provides for federal prosecution of non-major crimes by Indians against non-Indians, but only where there has been no tribal prosecution.

38 See, e.g., United States v. Begay, 42 F.3d 486 (9th Cir. 1994), cert. denied, 516 U.S. 826 (1995) (holding the federal conspiracy statute at 18 U.S.C. Section 371 provides a basis for federal jurisdiction regardless of whether the conspiracy occurred in Indian Country).

39 28 U.S.C. Sections 1331, 1343.

40 28 U.S.C. Section 1332.

41 E.g., 25 U.S.C. Sections 345-346, 28 U.S.C. Section 1353.

42 National Farmers Union Ins. Co. v. Crow Tribe, 471 U.S. 845 (1985); Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 (1987).

43 Wilson v. Marchington, 127 F. 3d 805, 809 (9th Cir. 1997).

44 See, e.g., Colville Tribe Law and Order Code, Section 1.2.01; Lummi Nation Code of Laws 1.01.010; Hoh Indian Tribe Law and Order Code, Court Procedures Ordinance Section 1.3; Quileute Tribal Code, Section 1.01; Suquamish Tribe Code Section 3.1.1.

45 The Lummi Nation, for example, published a comprehensive revised code in 1998. Some tribal codes, however, appear to consist of disparate chapters, codified piecemeal over time, and modified by resolutions and ordinances which may or may not be readily apparent. See, e.g., Tulalip Law and Order Code (Ordinance #49), various resolutions from the Bureau of Indian Affairs regarding approval of amendments to the Code, and Human Resource Ordinance 84.

46 E.g., Lummi Nation Code of Laws 3.04; Hoh Indian Tribe Law and Order Code, Court Procedures Ordinance Section IV.B; Suquamish Tribal Code Section 3.8.12.

47 E.g., Colville Tribe Law and Order Code, Section 1.4; Lummi Nation Code of Laws 1.03; Hoh Indian Tribe Law and Order Code, Court Proceedings Ordinance Section 1.6,8.; Quileute Tribal Code, Section 2.02, 2.06; Suquamish Tribal Code Section 3.3; Tulalip Law and Order Code Section 1.5.

48 E.g., Colville Tribe Law and Order Code Section 1.9; Lummi Nation Code of Laws 1.08; Quileute Tribal Code Section 3.01 (appellate panel may include three members of the tribal council).

49 E.g., Lummi Nation Code of Laws 1.03; Quileute Tribal Code Section 2.03; Suquamish Tribal Code Section 3.3. Some tribal codes do limit the judiciary to tribal members. See, e.g., Hoh Indian Tribe Law and Order Code, Court Procedures Ordinance Section 1.7; Spokane Tribal Code Sections 1-3.

50 E.g., Lummi Nation Code of Laws 1.07; Hoh Indian Tribe Law and Order Code, Court Procedures Ordinance Section II.B.; Quileute Tribal Code Section 7.02; Suquamish Tribal Code Section 3.8; Tulalip Law and Order Code Section 1.10. The Colville Tribe requires that lawyers and laypersons who wish to practice in tribal court first pass a tribal bar exam.

51 E.g., Lummi Nation Code of Laws 3.04.

52 NICS Tribal Appellate Court Opinions are published in four volumes from 1981 through 1997.

53 The Indian Law Reporter has published federal and state Indian law cases since 1974, and began including selected tribal court opinions in 1983.

54 25 U.S.C. Sections 1301-1341.

55 25 U.S.C. Section 1302.

56 25 U.S.C. Section 1302(6).

57 25 U.S.C. Section 1302(7).

58 25 U.S.C. Section 1302(10).

5925 U.S.C. Section 1303.

60 Martinez, 436 U.S. at 59, 72.

61 Martinez, 436 U.S. at 65.

62 Martinez, 436 U.S. at 58-59.

63 Imperial Granite Co. v. Pala Band, 940 F.2d 1269, 1271 (9th Cir 1991).

64 See generally, Robert J. McCarthy, Civil Rights in Tribal Courts: The Indian Bill of Rights at Thirty Years, 38 Idaho Law Review 465 (1998).

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