Law

Law Article: Ruling shows need for strong tribal judiciary

Friday, November 4, 2011

"A court’s role is often similar to that of a dictionary: to define words. The current Supreme Court did just that last June. Here’s the latest addition to the Indian law lexicography, taken from a seven-justice majority in United States v. Jicarilla Apache Nation:

“Indian trust”: (n) not really a trust but rather a method of dealing with tribes that is whatever the federal government wants it to be.

Replace “trust” with “law” and you get the underpinnings of the Jicarilla decision:

“Indian law”: (n) not really law but rather a method of dealing with tribes that is whatever the federal government wants it to be.

This decision underscores the need for robust and independent tribal judiciaries. A well-maintained and independent tribal judiciary, exercising sovereign rights on sovereign land, helps build the foundations of a tribe’s civil government which in turn helps develop the settled expectations so necessary in a healthy economy. The Jicarilla ruling starkly exposes the lack of settled expectations or adherence to precedence or to the written or verbal word that has largely defined federal Indian law since the founding of the United States."

Get the Story:
Ben Fenner: Supreme Court Ruling Proves Again that Indian Country Needs Strong Tribal Judiciary (Indian Country Today 11/3)

Supreme Court Decision:
US v. Jicarilla Apache Nation (June 13, 2011)

Oral Argument Transcript:
US v. Jicarilla Apache Nation (April 20, 2011)

Federal Circuit Decision:
In Re United States (December 30, 2009)