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22 AM. IND. L. REV. 285 (1998)


For a presentation, I read the eighty-five cases published in the Indian Law Reporter during 1996. I was struck by the diversity of the issues, the difficulty, complexity and subtlety of the choice of law, and other procedural and substantive issues addressed. I was most impressed by the richness of the dialogue in tribal court opinions—a dialogue between the court and the tribal councils, tribal people, and members of the bar. One may also read the opinions as initiating a conversation with the general public. A conversation requires listening, however.

In this article, I will bring to light the work of tribal courts as reflected in the eighty-five opinions. I will begin in part II by sketching an overview of the structure of tribal courts and the role that tribal courts play, both in the ongoing construction of tribal identity and in establishing legitimacy within the tribe and the dominant society's legal system. I will then discuss the problem of availability of tribal court opinions, offering some suggestions for greater access to the work of tribal courts. In part I, I will analyze the 1996 cases, beginning with a snapshot of the cases and then addressing the law applied in tribal court opinions. This survey demonstrates that there is a great range of legal norms available to tribal judges in the average case, including tribal, state, and federal norms. In part IV, I will address political and civil rights cases and consider the area giving people the most trouble: cases involving non-Indian parties. Political cases are the most delicate, dangerous, and important cases tribal courts must adjudicate; in so doing tribal courts are engaged in a dialogue with the tribal council, the tribal chair, and tribal citizens. Cases involving non-Indians impel judges to initiate a different kind of dialogue with the non-Indian public: a conversation about justice and legitimacy.



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