TRIBAL LAW
Crow Tribal Court Chief Judge Dennis Bear Don’t Walk in the tribal courtroom. (Photo by Alexis Bonogofsky courtesy of Crow Tribal Court)
Know the differences and overlaps between tribal, state, federal law Continuing her series on tribal legal systems in the state of Montana, Kathryn Seaton (KS) of Montana Legal Services Association sat down with Chief Judge Dennis M. Bear Don’t Walk (JBDW) of the Crow Tribal Court and had a discussion about tribal law, its sources, and use in tribal courts. KS: How would you define tribal law, particularly as compared to federal Indian law? JBDW: Tribal law is understood to mean the body of rules established by a tribe to govern its people and its territory. Federal Indian law is established by non-Tribal authorities (i.e. the U.S. Congress and Supreme Court) that WWW.MONTANABAR.ORG
governs the relationship between the Tribe and federal or state governments. Of course, there may be some overlap between the two, e.g. tribal laws defining the Tribe’s relationship with other governments, Supreme Court precedent applying in tribal court, etc. KS: Are there times when state law would apply in a tribal forum? JBDW: It depends on the Tribe. Here, the Crow Law and Order Code (CLOC) § 3-1-104 (4) specifically identifies that state law does not apply in any proceeding, except when: a) a provision of the tribal code provides otherwise, or b) both parties agree and stipulate it applies, with the consent of the Court.
KS: That is a unique provision compared to other tribal codes I’ve seen. Have you had many cases where parties stipulate to state law applying? JBDW: Yes, I see it happen most often in the context of contract disputes. However, even if the parties agree in the terms of the contract that state law governs, the attorney must still cite the appropriate provision of tribal law that authorizes it to apply in this forum. Assuming that state laws, rules, and jurisprudence apply in tribal court in the exact same manner as in state court is disrespectful to the tribe, tribal lawmakers, and tribal court. It increases the burden on the judge, who will have to AUGUST/SEPTEMBER2021
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