The Oklahoma Bar Journal April 2024

I ndian L aw

The Last True People’s Court: Oklahoma’s Tribal Courts as an Access to Justice By Robert Don Gifford

“Today, in the United States, we have three types of sovereign entities – the Federal gov ernment, the States, and the Indian tribes. Each of the three sovereigns has its own judicial system, and each plays an important role in the administration of justice in this country.” – Justice Sandra Day O’Connor 1

Of the 39 Oklahoma tribes, 28 of them fully exercise their sovereignty by operating their own independent tribal court systems. 6 The remaining Oklahoma tribes 7 rely on the Bureau of Indian Affairs’ judicial system of the Courts of Indian Offenses (CFR Courts). 8 These “third sovereign” courts are more than just legal institutions. They each are a unique and inde pendent cross-section of a tribe’s unique culture that still operate within the “rule of law.” Because of the large number of tribal courts, many lawyers are surprised to dis cover the large number of both civil and criminal cases resolved outside of the state district courts. 9 THE ORIGINS AND EVOLUTION OF TRIBAL COURTS “Tribal courts systems have become increasingly sophisticated and resemble in many respects their

Native American tribes 2 are one of three sovereigns expressly described in the United States Constitution: the states, federal government and tribes. 3 Since the Indigenous nations do not fall within the definition of a state, they are viewed, in the words of Justice John Marshall, as “domestic dependent nations.” 4 In turn, these sovereign nations and their “tribal courts” hold a unique place in Oklahoma’s judicial landscape. With 574 federally recognized Native American tribal governments in the United States, there are 39 of these “third sovereigns” in Oklahoma, which also happens to have one of the largest Native American populations (16%) in the U.S. 5

state counterparts.” – Oliphant v. Suquamish Indian Tribe 10

After the removal of many tribes from their homelands during the 1830s through the 1840s, then again during post-Civil War Reconstruction and President Andrew Jackson’s forced removal policy, many tribes were forced into the “Indian territory” of what was to become Oklahoma. 11 The “Five Tribes,” formerly known as the “Five Civilized Tribes,” 12 estab lished their own legal systems in the 1880s. 13 In the western part of the territory that was to become Oklahoma, the federal government established the Court of Indian Offenses in 1886. As a part of federal policy, many tribal courts ceased to operate early into the 20th century. 14 Oklahoma’s tribal courts, as well as those throughout the United States, have one foot in

Opposite page: The Iowa Tribe of Oklahoma sign in Perkins. Photo courtesy of the author.

Statements or opinions expressed in the Oklahoma Bar Journal are those of the authors and do not necessarily reflect those of the Oklahoma Bar Association, its officers, Board of Governors, Board of Editors or staff.

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