A Framework for Understanding Tribal Courts and the Application of Fundamental Law: Through the Voices of Scholars in the Field of Tribal Justice

Abstract

Through an examination of scholarly articles, this paper examines traditional tribal justice systems set in tribal communities in an effort to establish a framework for understanding tribal courts and the unique challenges they face. The research presented describes a spectrum of traditional aspects within tribal courts, and analyzes the impact that changing social dynamics have had on the tribal court construct.

A rigorous review of available research concerning traditional tribal courts showed scholars repeatedly arguing that traditional law, also called fundamental law, which existed before Western style courts, exists beyond the tribal court setting and is fundamental to a tribal member’s way of living and engaging the world. As a result, this paper draws four important conclusions. First, the concept of justice in indigenous communities is shaped by fundamental law. Second, through the application of fundamental law, a traditional tribal court expresses a sovereign tribal nation’s definition of justice, and reflects the values of a tribal nation. Third, the traditional tribal court model offers an opportunity to craft indigenous jurisprudence that serves to protect and sustain tribal justice concepts and customary life ways. Finally, the design of a tribal traditional justice system and the use of fundamental law create unique opportunities for traditional tribal courts to influence the court systems of other sovereigns.