Under the principle of tribal sovereignty, Native American tribes can create justice systems that hold jurisdiction over people on tribal lands. When a tribe does not establish an independent tribal justice system, Courts of Indian Offenses (also known as Code of Federal Regulations Courts, or CFR courts) perform a similar function. The Bureau of Indian Affairs provides funding and other forms of support to independent tribal courts and CFR courts, although it does not directly oversee the operations of independent courts.
CFR courts usually are created when the BIA reaches an agreement with a tribe to establish a court. In other cases, the Assistant Secretary for Indian Affairs may create a CFR court if they find a need to address health and safety issues. A tribe can leave the CFR court system when they agree with the BIA Regional Office that they will form their own justice system.
Diversion and Re-Entry Programs
High rates of drug and alcohol abuse on Native American reservations have been linked to correspondingly high rates of violent crimes. Many of these offenders are repeat offenders, burdening tribal justice systems. The BIA thus has established a Diversion and Re-Entry Division to address substance abuse on reservations, providing stronger prevention, intervention, treatment, and recovery programs.
Independent Tribal Courts
The jurisdiction of independent tribal courts extends to civil matters involving people who live on reservations or do business there. Critically, this civil jurisdiction covers both Native Americans and non-Native Americans. In addition, independent tribal courts have criminal jurisdiction in cases involving alleged violations of tribal laws by tribal members who live on reservations or do business there. Unlike their civil jurisdiction, their criminal jurisdiction does not extend to non-tribal members.
In addition to ordinary civil and criminal matters, tribal courts have received authority under the Code of Federal Regulations to handle many domestic matters. These include marriages, divorces, paternity determinations, adoption approvals, and child support awards based on funds in Individual Indian Money accounts. Tribal courts also can appoint guardians, determine legal competency, and resolve disputes over property in a trust.
While the Code of Federal Regulations generally controls the operations of CFR courts, laws enacted by a tribal government and approved by the Assistant Secretary for Indian Affairs sometimes may supersede federal regulations. A CFR court must adhere to tribal customs unless this conflicts with a non-superseded federal regulation.
Civil jurisdiction in CFR courts extends to matters that arise on tribal lands in which tribal members are defendants. (These matters may involve non-Native Americans as well.) CFR courts also may hear other civil cases if the defendant consents to their jurisdiction. Common types of cases decided by CFR courts include family matters, business disputes, personal injury cases, and probate disputes. A person can start a civil lawsuit in a CFR court by filing a petition and paying the filing fee.
Criminal jurisdiction in CFR courts extends to misdemeanors involving Native Americans on tribal lands. State courts usually hear criminal cases involving non-Native Americans on tribal lands, while federal courts hear felony cases involving Native Americans on tribal lands if they are federal crimes. A CFR court may sentence a defendant to fines, imprisonment, or labor.
Procedural Protections in CFR Courts
Free lawyers are available in CFR courts for criminal defendants and parents in child custody proceedings who cannot afford an attorney. The right to a jury trial applies, as do due process protections provided by tribal constitutions and the Indian Civil Rights Act.