The Anomaly of Judicial Activism in Indian Country

INTRODUCTION\nThe judicial function is no stranger to Native Americans. Prior to their contact with Europeans, American Indian tribes had various procedures for settling conflict among members. The aggrieved could seek dispute resolution directly or be assisted by an elder, a war chief, or a member of the tribal council. With the passage of time and altered circumstances, the judicial function became more formalized-for example, as an adjunct of the federal Indian agent or as a sovereign activity proceeding directly or indirectly from a constitution adopted by the tribe.\nThe power of emerging tribal courts has always been problematic, especially when the court was created by the tribal council pursuant to an authorization in an Indian Reorganization Act constitution. Particularly troubling has been the question whether such a "legislative" tribal court has jurisdiction to hear cases involving the legality of tribal council actions. Lacking an explicit judicial-review authorization in the court’s enabling ordinance, a follow-up issue has been whether the court could legitimately claim for itself an inherent power of judicial review

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• Negotiating Jurisprudence in Tribal Court and the Emergence of a Tribal State

  Larry Nesper•Current Anthropology•2007

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