Shifting Federal Policy Contributes to Instability of Tribal Courts
By Tom Robertson - April, 2001
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In the late 1800s, the U.S. Government imposed on tribes a European-style court system that was foreign to most Indian cultures. Since then, tribes have struggled with inconsistent federal policy, which has caused confusion and instability in Indian courts. The major federal policy shifts affecting Indian courts were:
- 1883: Reservation courts were established and administered by the Bureau of Indian Affairs, displacing traditional Indian methods of dispensing justice.
- 1885: Congress gave federal courts authority over major crimes on reservations.
- 1887: The federal government began breaking up the reservations by assigning land allotments to individual Indians and allowing the allotments to be sold (One exception is the Red Lake Reservation, which refused to go along with the allotment process). Indian governments were weakened and state's assumed jurisdiction over much reservation land.
- 1896: The U.S. Supreme Court ruled the U.S. Constitution does not apply to Indian tribes.
- 1934: Congress passed the Indian Reorganization Act, designed to revitalize reservations. Most tribes were reorganized under constitutions designed by the Bureau of Indian Affairs, and in nearly all cases, the constitutions included no clear separation of powers. They gave elected tribal officials authority over judges and court functions.
- 1953: Congress reversed itself and took steps toward integrating Indians into the larger society under a concept called termination. Public Law 280 gave five states, including Minnesota (but excluding Red Lake) authority over court functions on reservations and gave other states an option to assume such authority.
- 1968: Congress passed the Indian Civil Rights Act, offering reservation Indians most of the protections in the Bill of Rights. But the federal government provided no substantial increase in funding for Indian tribes to implement the act or defend themselves in appeals that began to be filed in federal courts.
- 1975: Congress again reversed itself and took steps to give tribes more voice in running their own governments, including courts, with the Indian Self Determination and Education Assistance Act. Tribes were still required, however, to comply with federal law, including civil rights regulations.
- 1978: The U.S. Supreme Court decided that the Indian Civil Rights Act did not give individual Indians the right to appeal civil rights violations to federal courts, except when they had been jailed unfairly (habeas corpus).
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