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Around the country, jurisdictions are exploring new routes to expand access to justice by empowering community justice workers to provide legal services. Though such activities are often regarded as new, some have existed for decades -people without law licenses have long been authorized to provide representation in immigration matters, Tribal courts, and for those incarcerated in prisons and jails, as well as before a wide range of state and federal administrative agencies and otherfora. Recent eforts are seeking to expand community justice work, both by enlarging the labor force of justice workers and by empowering them to provide more useful and impactful legal assistance. For example, in November 2022, the Alaska Supreme Court approved a waiver of unauthorized practice of law restrictions that will allow Alaska Legal Services Corporation (ALSC), the largest civil legal aid provider in the state, to train and supervise community justice workers who live throughout Alaska's many rural and remote communities, including many where no attorneys live or even visit. Delaware's legislature took action on a key inequality in landlord-tenant law: in the past, landlords were permitted to employ non-lawyers for representation, but tenants were required to represent themselves or find an attorney. Delaware corrected this by permitting registered agents to appear in court on both sides of an eviction case. Andfornearlyfour years, the Utah Supreme Court has been operating the world'sfirst legal services regulatory sandbox, a regulatory space where traditional rules restricting legal advice and advocacy to lawyers can be relaxed in an environment where consumer protection is monitored in real time. This paper reviews established community justice worker models that have been serving low-income and excluded communities in the United States for more than 50 years, including accredited immigration representatives, Tribal lay advocates, and jailhouse lawyers and emerging justice worker models advanced in Alaska, Arizona, Delaware, and Utah in the last five years. These real-world activities offer opportunities for learning about whatfactors make justice work not only effective at resolving people's justice problems or encouraging their engagement with law, but also what makes justice worker programs sustainable over the long term and scalable to meet the enormous volume of Americans' unmet legal needs. To encourage that learning, we offer a people-centered and evidence-based framework for designing and evaluating community justice worker models that focus on program effectiveness, scalability, and sustainability. [ABSTRACT FROM AUTHOR]

The article focuses on the complexities of access to justice in Native communities, influenced by history of settler colonialism and the imposition of Anglo-American legal paradigms. Topics include the challenges tribal courts face in asserting sovereignty amidst federal legal constraints, the communal efforts within Native communities to redefine justice beyond colonial frameworks, and the evolution of innovative strategies addressing systemic injustices through a community-focused approach.

The article focuses on the annual John Paul Stevens Lecture, delivered by Chief Justice Angela R. Riley, hosted by the Byron R. White Center for the Study of American Constitutional Law at the University of Colorado-Boulder. Topics include discussions on the role of tribal courts as the "Third Sovereign" in the U.S., the complexities of federal Indian law, and the impact of landmark cases like McGirt v. Oklahoma and Brackeen v. Haaland on Indigenous sovereignty and jurisdiction.

In June of 2022, the Supreme Court reversed two hundred years of precedent in Oklahoma v. Castro-Huerta, holding in a 5-4 opinion that states have concurrent criminal jurisdiction over crimes committed by non-Indians against Indians in Indian country. In conducting the preemption analysis, Justice Kavanaugh’s majority opinion reasoned that while states have a strong interest in prosecuting crimes in Indian country in order to keep the community safe, tribes had functionally no interest because they generally lack criminal jurisdiction over non-Indians. The Court then reasoned that the lack of a tribal interest could not preempt the state interest. This Article suggests that, despite the general prohibition on tribes asserting criminal jurisdiction over non-Indians that was discovered by the Supreme Court in its 1978 Oliphant opinion, tribes can assert criminal jurisdiction over non-Indians who consent to the jurisdiction in tribal court. The argument extends to both affirmative and implied consent and draws its authority from both pre-Oliphant scholarship and precedent, as well as from recent developments by the Court, Congress, and dicta from the Ninth Circuit. If tribes are able to regularly assert some criminal jurisdiction over non-Indians, then when lower courts apply Castro-Huerta in the future, there will be a strong tribal interest to preempt state criminal jurisdiction in Indian country. [ABSTRACT FROM AUTHOR]

Few Indian reservations have any semblance of a private sector. Consequently, poverty and unemployment are major problems in much of Indian country. While there are many reasons why private enterprise is scarce in Indian country, one of the foremost reasons is businesses do not trust tribal courts. Businesses' distrust of tribal courts is not unique as outsiders often fear bias in foreign tribunals. Similarly, businesses are often concerned about a court's capacity to adjudicate complex disputes. Federal diversity jurisdiction was developed to allay fear of bias, and many states have developed business courts to address questions about court capacity. Tribes can overcome these issues by creating an intertribal business court (IBC). Tribes will be free to sculpt the IBC as they see fit. However, the IBC's intertribal nature will help reduce fears of bias, and an IBC's focus on business disputes will answer doubts about court capacity. An IBC will also make tribal law more accessible, further increasing confidence in this new tribunal. As businesses gain greater confidence in tribal legal institutions through the IBC, they will be more likely to operate in Indian country. Accordingly, the IBC could help to transform tribal economies. [ABSTRACT FROM AUTHOR]

The opioid epidemic has devastated communities throughout the United States over the last two decades. Native American and Alaska Native tribes faced disproportionate impacts and suffered the long-lasting consequences that opioid addiction causes families and communities. In response, states and municipalities across the United States sued the distributors and pharmacies responsible for illegally diverting opioids. In April of 2017, the Attorney General for the Cherokee Nation, Todd Hembree, initiated a civil suit against opioid pharmaceutical distributors and retailers: CVS, Walgreens, Wal-Mart (pharmacies), and McKesson, Cardinal Health, and AmerisourceBergen (distributors). Although other tribes in the United States also brought claims against the distributors and pharmacies, the Cherokee Nation took a unique approach: it brought a civil suit in tribal, rather than federal, court. In response, the distributors and pharmacies sought to enjoin the suit, asking the Federal District Court for the Northern District of Oklahoma to assert its jurisdiction over the pending case and halt proceedings. The court granted the distributors and pharmacies injunctive relief and stopped the case from proceeding in tribal court. As Felix Cohen,1 the author of the Handbook of Federal Indian Law, remarked, one of "the most basic principle[s] of all Indian law"2 is that a tribe's powers are "inherent powers of a limited sovereignty which [have] never been extinguished,"3 and "what is not expressly limited [by Congress] remains within the domain of tribal sovereignty."4 Congress has not expressly authorized the removal of cases from tribal court to federal court. Instead, the policy and decisional law of the United States requires federal courts to wait to assert jurisdiction over civil cases pending in tribal court until plaintiffs have exhausted tribal remedies. Known as the exhaustion doctrine, this requirement is based on the principle of comity, which has its roots in international law. Comity is a principle of restraint that encourages nations to acknowledge and enforce the fair and equitable decisions of foreign sovereigns in their jurisdiction. This Comment argues that by failing to apply the exhaustion doctrine, the Federal District Court for the Northern District of Oklahoma violated the principles of comity. The court erred in its decision to grant the distributors' and pharmacies' preliminary injunction against the Cherokee Nation's opioid litigation. In doing so, the court ignored well-established federal decisional law and policy developed to support tribal self-determination. Ultimately, to promote the federal interest in supporting the self-determination of tribes, federal courts must follow the exhaustion doctrine and principles of comity in matters regarding tribal court civil jurisdiction over non-members. [ABSTRACT FROM AUTHOR]

This paper provides novel evidence on the real and financial market effects of legal institutions. Our analysis exploits persistent and externally imposed differences in court enforcement that arose when the U.S. Congress assigned state courts to adjudicate contracts on a subset of Native American reservations. Using area-specific data on small business lending, we find that reservations assigned to state courts, which enforce contracts more predictably than tribal courts, have stronger credit markets. Moreover, the law-driven component of credit market development is associated with significantly higher per capita income, with stronger effects in sectors that depend more on external financing. [ABSTRACT FROM AUTHOR]

The article presents the discussion on Indian Child Welfare Act (ICWA) of 1978 redressing abuses by state and federal agencies. Topics include violating the rules governing personal jurisdiction of tribal courts among other things; and considering an "Indian child" lacking the biological criteria for membership.

The article recommends a government-to-government treaty agreement to set the framework for civil jurisdictional issues arising between Tribal Nations and the U.S. Topics discussed include history and function of tribal courts, limitations on tribal court civil jurisdiction set forth in U.S. Supreme Court decisions, and the ungrounded nature of the assertion of U.S. federal court review over tribal court decision-making.

Keeping in line with India's 'pro-arbitration' approach, the Calcutta High Court in Devi Resources Ltd v Ambo Exports Ltd recently refused an application seeking to restrain the enforcement of an arbitral award on the ground that the award was passed in violation of an interim anti-arbitration injunction. The Court based its reasoning on the fact that the injunction was ultimately vacated at a later stage (after the award had already been passed), and once such interim injunction has been set aside, it would imply that the injunction had never been passed. On the face of it, this decision seems to be an illustration of Indian courts' awareness of the importance of minimal intervention in the scheme of promoting international commercial arbitrations. However, on a closer look, one finds that the court's decision does more harm than good by legitimizing the violation of an anti-arbitration injunction without any consequences. The present article examines the ruling in Devi Resources. It also explores the policy implications of the Court's decision on the efficacy of anti-arbitration injunctions. [ABSTRACT FROM AUTHOR]

The article focuses on role of ethics in Tribal Courts which were historically compelled to take an adversarial shape, and while they defend against broad stroke attacks on legitimacy, ethical rules can help reinforce their structures while indigenizing their roots. It mentions American Bar Association (ABA) Model Rules of Professional Conduct provides that competent representation require legal knowledge. It also mentions Zealous advocacy is a quintessential American value and public trusts.

The article focuses on the need to expand the Tribal Courts criminal jurisdiction for crimes such as domestic violence against Native women and children. It mentions application and enforcement of tribal laws and step in creating funding and programs to assist victims of domestic violence after the passage of the Violence Against Women Act (VAWA). It also mentions a bill which expanded gun ownership restrictions and temporary orders on gun ownership in certain situations.

The article focuses on decision of the U.S. Court of Appeals for Fifth Circuit in the case Brackeen, et. al., v. Bernhardt, et. al. focusing on the tensions within the Indian Child Welfare Act of 1978 (ICWA) between tribes, biological parents, adoptive parents, state court systems, tribal courts, and Indian children. It mentions modifications to the ICWA, each aimed at recognizing the value of the tribe and promoting the best interests of Indian children.

The article discusses the influence of tribal court convictions on the sentencing guidelines in the U.S. Topics mentioned include the relation between the U.S. government and Indian tribes, the assessment of the relation of tribal sovereignty to federal sentencing policy, and the different views of Tribal Court Convictions regarding federal sentencing, and foundations of and problems with sovereignty as parity and as difference.

A bedrock feature of sovereignty is a court exercising jurisdiction.1 For Native nations, this is at risk. Through its judicial institution, a sovereign nation supports the force and effect of its laws, promotes respect for authority, and maintains culture.2 A rule in federal law, which this Article calls the "tribal remedies doctrine," provides vital support to tribal judiciaries: it requires litigants to exhaust tribal court remedies before pursuing claims in a nontribal court. While the doctrine is mandatory in federal court, state courts across the country have shown different perspectives on whether it applies to them. With growing disorder among state courts, tribal court authority varies throughout the country. Considering the importance of courts in Native nations, this result is not acceptable. Establishing a uniform approach is critical to supporting tribal sovereignty and preventing arbitrary geography from determining each tribe's authority. U.S. Supreme Court precedent, with special attention to Iowa Mutual, requires state courts to apply the tribal remedies doctrine. Separating the doctrine from the legal rules of administrative exhaustion and abstention confirms this conclusion and reveals that a pending tribal court action is not required before applying the tribal remedies doctrine in state courts. [ABSTRACT FROM AUTHOR]

The article discusses the Minnesota Supreme Court's adoption of a rule governing the recognition and enforcement of tribal court orders and judgments in the state's district courts, and it mentions judicial deference and the sovereignty and jurisdiction of tribal courts. According to the article, state legislatures in America should amend their state constitutions to give full faith and credit to tribal court orders.

Recognition continues to grow both within Canada, as well as the wider worldwide community, of the unique issues facing Indigenous people within Canada's justice system. We see this in the recent wholesale adoption by the Canadian Government of the United Nations Declaration on the Rights of Indigenous Peoples, as well as the Truth and Reconciliation Commission Calls to Action. This article examines the potential development of a system of Indigenous community courts as a way to end colonial suppression of Indigenous self-governance. The article suggests as a model for these courts the tribal courts in the United States, as a means by which Indigenous peoples can re-instate Indigenous law and legal principles. [ABSTRACT FROM AUTHOR]

Since 2015, at least a dozen tribal court banishments have been reported in Alaska, mainly involving alleged bootleggers and drug dealers in rural communities. Rural Alaska communities, which are predominantly Alaska Native, face high rates of alcoholism, drug abuse, and related crime. Faced with these drug and alcohol issues and insufficient access to law enforcement, it is not surprising that some communities have decided to banish offenders. However, banishment is not currently legal, at least when imposed upon non-Native citizens. Tribal courts lack sufficient jurisdiction over non-Natives to banish them for bootlegging or dealing drugs. Tribal governments are sovereigns with inherent powers, but they are subject to certain restrictions under the federal government. Land-based jurisdiction is insufficient to claim jurisdiction in these cases because Alaska lacks significant Indian country and the Montana factors fail to provide definitive support. Tribal jurisdiction, however, should be expanded to allow tribal courts to banish non-Natives for violations of drug and alcohol laws to improve access to justice, decrease the burden on state law enforcement, and improve welfare in rural Alaskan communities. [ABSTRACT FROM AUTHOR]

Given the absence of orthodox statistical analysis to evaluate Te Kooti Rangatahi and Te Kooti Matariki, this paper applies an indigenous lens, tikanga Māori, to ascertain the success or otherwise of Te Kooti Rangatahi and Te Kooti Matariki. To understand the significance of tikanga Māori within a non-indigenous legal framework, the paper analyses whether tikanga Māori is common law. To provide context for this analysis the Navajo Tribal Court system, a system that applies Navajo Common Law, is informative. The unfettered and yet practical approach of the Navajo Tribal Court system to extend the reach of Navajo common law to not only criminal law but also civil law is refreshing. This extension is tantalising and appealing particularly when the Navajo Common Law concepts are set against comparable tikanga Māori concepts, providing an air of confidence for the developing jurisprudence of tikanga Māori as common law. [ABSTRACT FROM AUTHOR]

Native Americans are US citizens, but they are also tribal nationals subject to complex and unique criminal jurisdiction arrangements over Indian lands. Tribal nations typically have tribal court jurisdiction over less serious crimes, but for serious crimes the federal justice system often supersedes tribal authority, exposing Native Americans to more severe punishments. In addition, recent federal programs have attempted to foster greater tribal/federal criminal justice coupling. Yet, examinations of criminal punishment of Native Americans are few, and most are outdated and/or of very limited generalizability. We examine the punishment of Native American defendants in federal court, focusing on 28 federal districts with substantial Indian presence. Using recent US Sentencing Commission data, as well as contextual data from the Bureau of Indian Affairs and tribal courts, we focus on differences in the federal sentencing of Native American defendants, and how these differences are conditioned by indicators of tribal-federal criminal justice coupling. [ABSTRACT FROM AUTHOR]

State courts have historically exercised jurisdiction over family law cases. However, under the Indian Child Welfare Act (ICWA), Indian child custody and adoption cases have been taken out of state jurisdiction and placed with Indian tribal governments. State courts have pushed back against proper deference to ICWA and violate ICWA by misapplying its provisions and refusing to transfer custody and adoption cases to tribal courts. This Note analyzes the state-tribal tensions surrounding ICWA and argues that the primary reason for the lack of full state acceptance of ICWA is that, historically, states have had nearly total jurisdiction over family law disputes, particularly those that go to the core of ICWA-child custody and adoption. In recent years, some states have changed their tune and have sought to appropriately apply ICWA. Even so, misapplication of the law remains a problem in many state courts. In December 2016, for the first time since ICWA was enacted, the Bureau of Indian Affairs published updated rules and guidelines to clarify ICWA requirements. This is a major step toward full compliance of ICWA in state courts, despite the resistance of states to relinquish their jurisdiction over Indian family law cases. [ABSTRACT FROM AUTHOR]

This Article makes the case that, despite being underused by U.S. scholars in the field of Indian and Indigenous peoples law, a legally pluralist approach can and does provide vital conceptual insights. Not only does legal pluralism supply an important framework through which to conceptualize and address existing power imbalances between Indian tribes and the federal government, but it also makes instances of interaction between these different and yet connected normative orders-or legal cultures-readily more apparent. Scholarly arguments within this research field in the United States tend to take the form of either wholehearted reliance on constitutional and human rights advocacy to address injustices or the wholesale rejection of the Anglo-American legal system as simply incompatible with indigenous norms and traditions. By contrast and in proposing an alternative to this academic deadlock, this Article submits that these distinct legal cultures must necessarily interact and that these interactions are always fertile ones. Drawing on Robert Cover's concept of "jurisgenerativity" to inform an interactive conception of legal culture, it is argued that this has the capacity to lay a foundation for discursive approaches capable of giving rise to new, mutual traditions. [ABSTRACT FROM AUTHOR]

This article documents the emergence of the Oneida Nation of Wisconsin's judiciary over the course of the past thirty years. It argues that judicial systems have become necessary tribal institutions in the federal Indian policy era of self-determination, but assimilating them to tribal societies that are characteristically organized by kinship presents serious challenges of legitimacy. The Oneida Nation needed a formal dispute resolution forum in order to qualify for certain federal programs under the policy regime. It created the Appeals Commission, which aspired to be a tribal court and separate branch of government integrating fundamental Oneida values and practices. As the commission expanded the scope of its jurisdiction and became more engaged with other tribal courts in the state, sectors within the Oneida community contested its legitimacy. Because of developments in the relationship between the state courts and tribal courts in Wisconsin, the commission began to take cases dealing with marriage, divorce, and children in the last several years. The contradictions between the community as society organized by kinship and a community organized as a tribal state precipitated a crisis that eventuated in the creation of a new institution. [ABSTRACT FROM AUTHOR]

The Native American tribes in the United States have maintained distinctive customs which they practice within their 'eviscerated' sovereignty. The tribes exercise their jurisdiction as 'sovereign' nations under devolution of their lands granted by the federal government, which still has a right of preemption and the power of alienation. The tribal courts exercise the restorative justice principles that are integral to their judicial procedures and where the emphasis is on healing. The disputes in tribal courts are settled by mediation through Peacekeeping Circles that restore the parties to the pre-trial status and there is input from elders in the community. The Native people not only have to differentiate and preserve their justice framework, but also claim title to land where it has been extinguished by treaty, eminent domain or Executive order of the US government. The argument in this paper is that the restorative justice principle is part of the customary law of the tribes in the US and in Canada, and their dormant land claims can be revisited if this judicial process is maintained in the context of sustaining their customs within the federal legal framework. [ABSTRACT FROM AUTHOR]

The article focuses on the historical position of the tribes in relation to the federal government and tribal courts in the U.S. Topics discussed include impact of U.S. Supreme Court to interfere with tribal matters on tribal sovereignty; treatment of tribes violating due process; and Dollar General Corp. v. Mississippi Band of Choctaw Indians court case determining Indian tribal court's jurisdiction for hearing a civil case.

The article focuses on rules of law that deny the positive contributions of customary alternative dispute resolution (ADR) which miss an opportunity to facilitate access to justice in rural areas of Afghanistan. It also mentions Navajo Nation faced a similar predicament when it created its formal Tribal Courts and introduction to customary ADR in Afghanistan. It also mentions legislative and policy changes that would need to be implemented in order to successfully integrate the two systems.

We show that court enforcement uncertainty hinders economic development using sharp variation in judiciaries across Native American reservations in the United States. Congressional legislation passed in 1953 assigned state courts the authority to resolve civil disputes on a subset of reservations, while tribal courts retained authority on unaffected reservations. Although affected and unaffected reservations had similar economic conditions when the law passed, reservations under state courts experienced significantly greater long-run growth. When we examine the distribution of incomes across reservations, the average difference in development is due to the lower incomes of the most impoverished reservations with tribal courts. We show that the relative underdevelopment of reservations with tribal courts is driven by reservations with the most uncertainty in court enforcement. [ABSTRACT FROM AUTHOR]

The article talks about the increase in domestic violence against Native American women and the issues related to the complexities of federal, state, and tribal law on it. Topics discussed include the challenges faced by tribal courts in enforcing their tribes' criminal laws against Native American perpetrators, the United States v. Bryant court case of the U.S. Supreme Court, and the legal aspects of tribal sovereignty.

The article focuses on the laws made for the indigent defendants under Violence Against Women Act Reauthorization of 2013, which is right to appointed council at public expense in the Tribal Court proceedings in the U.S. Topics include federal statute Indian Civil Rights Act (ICRA) which provides right to appointed counsel; role of Supreme Court in making constitutional rule requiring trial courts to provide counsel to poor defendants in felony cases; and Powell v. Alabama case on same.

The focus of this investigation is the helping professionals working within American Indian and Alaska Native (AI/AN) communities. This article looks at how innovative technology--in the form of automated case management software and Internet connectivity--can assist effective implementation of Strength-based Practice and agency services within tribal courts and the many other helping agencies that serve AI/AN populations. We seek to expand practice knowledge by reviewing the benefits that this software and Internet connectivity can offer to agency operations and exploring how they can assist case management services. [ABSTRACT FROM AUTHOR]

The article discusses the decisions of the U.S. Supreme Court setting the jurisdictional limits of both specific and general personal jurisdiction and its adverse impact on tribal courts. Topics discussed include nature of tribes, tribal sovereignty, tribal courts and the Constitution, the Court's interpretations of the Due Process Clause, and future of tribal court personal jurisdiction.

In United States v. Bryant, the United States Supreme Court held that tribal court convictions of uncounseled indigent defendants of domestic assault are sufficient to convict under 18 U.S.C. § 117(a), which is the federal offense of domestic assault in Indian country by a habitual offender. The Court found that because the Sixth Amendment does not apply to tribal court proceedings and Bryant’s convictions were valid under the Indian Civil Rights Act of 1968 there are no constitutional issues present when relying on such convictions as predicate offenses for an 18 U.S.C. § 117(a) prosecution. Bryant illustrates the striking differences that are still present in all levels of today’s judicial system, especially where indigent defendants are concerned. Moreover, due to the multiple Federal Indian Reservations within the State, this case will likely impact North Dakota tribal law by reaffirming the lack of Sixth Amendment protections for indigent, Native American defendants in tribal court. [ABSTRACT FROM AUTHOR]