Along with the dramatic increase in tribal economic development is the increased interaction of tribes and non-tribal citizens who seek business, employment, or recreation on reservations. In turn, legal matters between Native American tribes and non-tribal members continue to increase. As Tribal law issues now intersect both litigation and transactional practices and virtually every niche of law, every attorney should be cognizant of the general Native American law principles at work and be prepared to answer common Native American law questions.
Tribal courts are significantly different from State and Federal Courts. Tribal courts operate under the tribes’ written and unwritten code of laws. Most tribal codes contain civil rules of procedure specific to tribal court, as well as tribal statutes and regulations. Such laws outline the powers of the tribal court and may set forth limitations on tribal court jurisdiction.
Tribal courts generally follow their own precedent and give significant deference to the decisions of other tribal courts. However, because there is no official tribal court reporter and because not all tribal courts keep previous decisions on file, finding such case law can be difficult. The opinions of federal and state courts are persuasive authority, but such precedents do not bind tribal judges.
Before handling a matter in tribal court, an advocate must appreciate the character of tribal courts, pay careful attention to tribal laws and statutes, and understand the fundamental differences between tribal courts and state and federal courts.
When filing a claim that arises on the reservation, the subject matter jurisdiction of tribal, state, or federal courts depends largely upon (1) whether the defendant is a Native American or non-Native American person or entity; and (2) whether the act occurred on tribal fee or allotted lands, non-tribal-owned reservation lands, or even a state right-of-way on the reservation. These two complex issues should be the first area of inquiry for any questions regarding civil jurisdiction over a dispute arising on a reservation.
State courts have jurisdiction over lawsuits between non-tribal members arising on the reservation. However, jurisdiction over a suit by any party—Native American or non-Native American—against a Native American person, a tribe, or tribal entity for a claim arising on the reservation, lies in tribal court.
In particular, state courts have jurisdiction over any dispute arising from an auto accident occurring on a state right-of-way through the reservation, including a dispute between non-Native American citizens, and a suit by a Native American against a non-Native American. As such, common claims that arise on South Dakota state highways running through reservations should be brought in state court.
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