My first day of law school began with contracts law. In the days leading up to the first day of class, we were assigned readings, mostly consisting of cases. I’m pretty sure most of us going into that first day of contracts law read the cases but understood less than 25% of what we read, or at least that’s how I felt. The case captions, citations, facts, procedural history, statement of law, analysis, and conclusion were pretty much a foreign language to me. Even after my father—who was a law professor, lawyer, and former justice of our nation’s supreme court—explained it to me, I still struggled to understand a lot of it.
The thing about law school is there is no introduction to law, or law 101. A first year law student is given a schedule consisting of the typical first year classes: contracts, torts, constitutional law, civil procedure, and legal writing. Professors assign students readings before each lecture. When students come to class, the professor will cold call on a student and drill the person on the specifics of the case. The student is put on the spot and asked questions like, “What happened in this case?” and “How would the court rule if this happened?” Professors will twist the facts of cases, throw out hypotheticals, and force students to explain the reasoning of the judge’s opinion. This law school teaching method, called the Socratic Method, is how professors teach their students how to think like lawyers. For most law students, it is cruel, inhumane, nerve-wracking, and sometimes a humiliating experience. For professors, it’s fun and enjoyable to watch nerdy people squirm and struggle.
In fact, I always tell prospective law students that law school is best summed up by Professor Kingsfield in the 1973 movie titled The Paper Chase, a movie that chronicles a young man’s journey through Harvard Law School. Like my first day of law school, the main character’s day began with contracts law. His professor was Charles Kingsfield, a no-nonsense, stoic older gentleman who stays true to the Socratic teaching method. A memorable scene in that movie is when Professor Kingsfield says to his students at the beginning of the semester: “You teach yourselves the law, but I train your minds. You come in here with a skull full of mush, and you leave thinking like a lawyer.”
Professor Kingsfield is correct in how law school works. You don’t go to law school to learn the law. Anybody can pick up a book of statutes/codes/ordinances and read what the law is. Even grade school kids know about the U.S. Constitution and that they have rights under it like the freedom of speech and right to religion. It does not take a lawyer for you to know that punching someone in the face is a crime under the law, assuming there are no issues of insanity. Along those same lines, we know people can argue insanity as a defense to a crime. Knowing the law is easy, or should be, but knowing how it applies and how to interpret it is quite another thing. Law school teaches you how to do that—to think like a lawyer.
I practiced law for a number of years in various jurisdictions, mostly tribal. I’ve given a number of lectures to law students on federal Indian law, and I’ve taught judges and lawyers about the importance of common law in tribal courts. My most recent work has been writing a doctoral dissertation and trying to figure out how Native Nations can do things differently, economically and politically, to help alleviate some of the problems on reservations.
In my experience working as a lawyer in tribal jurisdictions, I’ve come to see that a big problem is in the laws of the tribe and methods of jurisprudence. I’ve been in tribal courts where the criminal proceedings have become so routine and scripted that it’s like taking a trip to the DMV. The prosecutors are in the room with defense counsel and the defendant. Judges arrive shortly after. Usually everyone in the room knows each other like the judge, lawyers, bailiffs, and court reporter. Ironically, the only odd person out is almost always the defendant. When the proceedings start, the judge reads the charges, rights of the defendant, and asks if the defendant understands. The defendant will almost always say yes, especially if their lawyer is with them. The judge and lawyers then engage in conversations ranging from probable cause to bail to release conditions. All of those things are pretty much a foreign language to the defendant.
Witnessing cases, both criminal and civil, play out in a routine manner time and time again has made me wonder why courts allow that to happen. The parties to a case, whose liberty and rights are at stake, are usually the only ones in the courtroom who do not understand what is going on. For instance, I prosecuted a case awhile back in tribal court where the defendant was an elder in the community who spoke the Native language fluently. When the court proceeding started, the judge engaged in no informal conversation with anyone, made almost no eye contact with people in the room, and read off a script. During the judge’s scripted reading, the defendant looked around the room and at the judge a couple times. When he was asked by the judge, “Do you understand your rights as I have read them to you?” the defendant looked at me and then back at the judge. After a few moments of silence, he answered yes and the proceeding continued, even though it was clear that the defendant did not understand the proceedings, charges, or what was being said. He even indicated that his English was limited.
At that point, I requested that the court appoint the defendant a lawyer, stating that the defendant was an elder, and in every Native Nation, elders are afforded a great amount of respect. Not only that, but as a prosecutor, I took an oath to protect the nature of the proceedings and not take unfair advantage of defendants. Nonetheless, the judge declined my request, saying that the tribe’s criminal code was clear that if a defendant did not meet the income requirements for indigency (i.e. the defendant made too much money to qualify for a public defender), the court is unable to appoint the defendant a lawyer. The judge said his hands were tied. Not only was the judge’s statement completely untrue, but it also illustrates a major problem in tribal courts: tribal courts, in their operation and structure, have become foreign to the very people they serve.
When people do not understand the courts or laws being applied, they lose respect for the rule of law and institutions of justice. This is not only an occurrence in tribal courts, but courts across the country. Ask anyone out there (which I have done) what their opinion is regarding law, lawyers, judges, and courts. You’ll hear a wide range of opinions and jokes, most being negative and critical. This is especially problematic in Indian Country because of the staggering statistics regarding high crime rates, high recidivism, high incarceration rates etc. How can you expect to bring order to a nation when the people think of the courts as enemies of the people who follow laws that are, as one person put it, “nothing more than codified revenge”?
In the example I gave above, I was shocked by the judge’s statement not only as a lawyer but also as a Native person. I was put in a position where I had to prosecute an elder of the tribe. While there are cases, though very rare, where an elder is charged with serious criminal offenses, this case involved a minor, non-violent charge. Not only that, but prosecuting an elder went against my own culture and beliefs. Younger members of the community do not speak out against elders. I wondered what would happen if the tribal community found out that an elder, one of the few people who spoke the Native language fluently, was being prosecuted and denied a lawyer. Surely, the community would be outraged and they should be.
Accordingly, in many of my lectures and presentations to tribal judges and lawyers, I emphasize how important it is for those working in tribal courts to understand the culture, language, and way of life of the people they serve. It is within those things that you will find the common law and legal traditions of Native people, which are essential to building a judicial system. The common law and legal traditions are rooted in a people’s culture, language, customs, and traditions. Therefore, regardless of whether or not people are law trained, they know the system and recognize the laws; and when they know those things, they respect them. This is how judicial systems develop, and more importantly, this is how nations are built. Unfortunately for Native Nations, their judicial systems do not develop in this way because their systems are usually run and operated by people trained in American law schools.
Law students go to American law schools to learn how to be an American attorney in American courts that uses American methods of jurisprudence. When they graduate, they take an American bar exam, which they hopefully pass, in order to become licensed to practice in one of the American states. Law students who later become attorneys are trained to think American in all aspects of the law. They are not trained to think in terms of nation building, which is the state that Native Nations are in. If you put lawyers in a court room, most of them will do exactly what they were trained to do: argue, defend, and uphold the American rule of law. And that is precisely the problem I see in most tribal courts: lawyers arguing American law in cases involving Native people before tribal court judges who, most of the time, recognize and uphold American law as the law of the Native Nation. Before I say why I think the use of American law in tribal courts can be detrimental to Native Nations, it is important to understand the history of tribal courts.
The tribal courts you see today were not born out of Native legal traditions. They were born out of the western legal traditions going back to the courts of England and further. When America declared independence in 1776 and later organized itself under a constitution in 1787, the founders did not contemplate Native people, or any minority for that matter, becoming part of the new American nation. In fact, Native people were the last of all ethnic groups allowed to become citizens of the United States following the Indian Citizenship Act in 1924. Prior to the 20th century, the United States engaged in war with the Native Nations. Many were annihilated and many more were reduced to ruins through massacre, genocide, and most of all, disease.
Despite the American efforts to exterminate Native people, it could not be done. Fighting Native wars were costly. So the United States started a treaty-making policy where the preferred method of gaining Native lands and resources would be through the negotiation of treaties. Using shady tactics and deception, the United States made one-sided treaties with the Native Nations, resulting in them being pushed westward where they would be relocated from their traditional lands to reservations. Moreover, Native Nations were required to submit to the overriding authority of the United States who would from then on govern the affairs of Native people.
In order to keep order on reservations, the United States established the Courts of Indian Offenses, also known as CFR courts. The CFR courts handled cases arising on the reservations using criminal codes that were created by the Bureau of Indian Affairs. The CFR courts did not accommodate Native laws or legal traditions. To the contrary, their main purpose was to ensure that Native people did not behave or act like Native people. For instance, Native people who were caught practicing their religion, participating in traditional dances, or engaging in feasts were prosecuted in the CFR courts.
Many of the tribal courts you see today have their roots in the CFR courts. They were just renamed and now use tribal court codes instead of the BIA codes. Other tribal courts were established after tribes adopted the Indian Reorganization Act of 1934, a congressional law that provided federal funds to tribes who adopted western constitutional governments. Some of the tribes that gained federal recognition later on the 20th century voluntarily adopted western style court systems.
As shown above, tribal courts in their structure and form were not born out of Native legal traditions. They were born out of the western legal traditions and implanted into Native Nations via federal assimilation laws. In fact, it begs the questions, if Native Nations were undisturbed by European contact, how would their judicial systems have developed and what would they look like today? We can only surmise what the answer to those questions would be.
Perhaps it is possible that if Native Nations were left to their own devices, their judicial systems would eventually develop to the point where they had formalized court systems. Interestingly, if you look at the countries around the world, whose judicial systems were allowed to develop over time, every one of them has courts. Even dictator regimes like North Korea have courts. So could it be then that the concept of courts is not specific to any nation? They are institutions that eventually arise out of any judicial system, similar to how civilizations throughout history, despite having no contact with each other, eventually came to invent the bow and arrow. Thus, just as the bow and arrow are a universal human creation so too are courts.
Regardless, the fact of the matter is that European contact and federal assimilation efforts disrupted and stymied Native legal traditions. As Native laws and legal traditions fell to the wayside, they were supplanted with western style courts. I am not suggesting that the western style courts are a hindrance to Native governments or that they do not accommodate Native laws or legal traditions. To the contrary, I have argued, using the Navajo Nation judicial system as an example, that western style courts can be used in a way that fits with Native concepts of justice and jurisprudence. In my view, the structure and form of an institution is not as important as the way it is operated.
Tribal courts are modeled after the American courts which are modeled after the English courts. The English courts followed a common law legal tradition. Most tribes have laws and methods of jurisprudence that fit well within the common law legal tradition. However, many tribal courts do not recognize or develop the common law. Rather, they recognize, adopt, and apply American laws. To understand why this is problematic, one must understand the common law.
What is law? Where did it come from? What is its purpose? These three questions are rarely asked or discussed throughout the three-year law school journey and maybe they do not need to be for American law students. But when it comes to Native Nations whose judicial systems are relatively new and have been in existence, on average, for a little more than half a century, these questions are important.
Law is the foundation of everything in society and takes many forms. But there is one form, one type of law that has preceded all others. It is the law that has always governed humans and dictated how they should interact with each other even before there were formal institutions. No man, woman, or child was or is above it. It is this law, the primordial law, which created institutions.
Those law-making institutions that we know today such as legislatures, councils, and congresses were created through primordial law. The laws that they draft and promulgate are essentially man-made. We know them better as rules, ordinances, codes, and regulations. Their birth originated from the minds of a few men and thus have no force by themselves. The primordial law, which legal theorists have called natural law or common law, created the governmental institutions of nations and bestowed upon them the power to create man-made laws.
Those nations who have governed themselves according to man-made law were the kingdoms of old whose existence were premised on the monarchial principle rex lex, or “the king is law.” They were toppled by men like Thomas Paine who believed otherwise—the king is not law; the law is king. In fact, it was Sir Edward Coke, one of England’s most renowned legal theorists and jurists who sat on the King’s Bench in the early 16th century, who believed that “the law knows nothing of a sovereign power; all powers flow from the law itself, rendering king, parliament, and the courts of common law subordinate to the authority of the law. The common law, therefore, includes all that would now be counted as the ‘constitution,’ both the fundamental structure of government and the fundamental rights of subjects. Common law is fundamental law, composed of substantially unchangeable principles, lying halfway between the positive law generated by men in their political societies and the eternal law promulgated by God to govern creation.”
The views of Thomas Paine and Sir Edward Coke became the foundational principles of the United States government. Moreover, their idea that there was a primordial or fundamental law underlying all sovereign power became the bedrock of American jurisprudence. The Declaration of Independence, the instrument that declared America’s independence from the English crown, was thus worded:
"When in the Course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness."
The primordial or fundamental law that Paine and Coke spoke of was what we know today as the common law. The common law is the unwritten, and sometimes unspoken, law that governs how people interact with each other. It is the thing that prevents people from committing crimes against each other even when there is no law enforcement around. It comes from the customs and traditions of people. It governs marriages, divorce, family life, and community life. When two people come together to make a contract for whatever transaction, the unwritten, unspoken rules that govern how they negotiate and how the contract terms will be enforced is the common law. The common law, then, is simply a law common to the people of a nation.
Oliver Wendell Holmes, Jr., a famous American jurists who served on the United States Supreme Court in the early 20th century, is known for his book The Common Law in which he succinctly offers his view of the common law and its importance. In it, Holmes states, “The life of the law has not been logic; it has been experience… The law embodies the story of a nation’s development through many centuries…” Holmes’ view of the law is in line with that of Paine and Coke where institutions of men do not give life to the law. It is the experiences of people that give life to the law, and because the experiences of people and the law go hand-in-hand, the law tells the story of a nation’s development.
Indeed, Holmes, Paine, and Coke are correct that the common law should be the laws that develop and govern a nation. The notion of the common law—its definition, origination, and purpose—is the same for all nations. In the Navajo Nation, the common law has been defined by former Chief Justice Robert Yazzie as “higher law,” and Justice Emeritus Raymond Austin has defined it as familiar laws based on the customs and traditions of the people, rooted in the Navajo creation story and narratives. According to Austin, the common law not only governs humans but also everything thing in the universe and predates human existence. It maintains balance in the universe, a state called hózhǫ́. Therefore, in the Navajo view, before the creation of humans and animals; before the time when dinosaurs roamed the Earth; before there was an Earth to roam; preceding the birth of the planets, stars, galaxies, and the universe as we know it; one thing existed with all certainty—the common law.
While many legal theorists, including well-known Native legal jurists, have emphasized the importance of the common law and advocated for its recognition and use, in many Native Nations the common law of the people does not govern. It is rarely recognized or applied in tribal courts. Rather, American law is the pervasive law. The detrimental effects were illustrated in my example above involving the prosecution of an elder who was denied a lawyer.
In that case, the judge looked to the tribe’s criminal code which was based off the Arizona state code. The state code was drafted by men and women of the state legislature. The judge stated his hands were tied; tied by a man-made law from another nation. The judge completely overlooked the common law, the primordial law, of the Native Nation that he served, which mandates that respect be given to elders of the nation. Sure, the law as written stated the requirements for indigency, but a judge can rule that an exception exists under the common law of the nation. If there is a concern that the common law is going to be used to circumvent written law, it should be noted that in a Native Nation, it is highly unlikely that a member is going to dispute an exception to the indigency statute under the nation’s common law where elders are given lawyers. Why? Because it is their culture, custom, tradition, and way of life. It is their common law.
 Kevin Ryan, Lex Ex Ratio, 31-SPG Vt. B. J. 9, 10 (2005).