Thursday, December 12, 2019

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"Are Tribal Courts Different than State and Federal Courts?"

Answer: Yes. Although Idaho tribal courts are modeled after Anglo- American courts, Indian courts are significantly different. Tribal judges, who are often tribal members, are not necessarily lawyers.

Tribal courts operate under the tribes' written and unwritten code of laws. Most tribal codes contain civil rules of procedure specific to tribal court, as well as tribal statutes and regulations. Such laws outline the powers of the tribal court and may set forth limitations on tribal court jurisdiction.

A tribe's code also includes customary and traditional practices, which are based on oral history and may not be codified in tribal statutes and regulations. Tribal judges consider testimony regarding tribal custom and tradition from tribal elders and historians, who need not base their opinions on documentary evidence as may be required by state and federal evidentiary rules.

Tribal courts generally follow their own precedent and give significant deference to the decisions of other Indian courts. However, because there is no official tribal court reporter and because not all tribal courts keep previous decisions on file, finding such caselaw can be difficult. The opinions of federal and state courts are persuasive authority, but tribal judges are not bound by such precedents. Nevertheless, Idaho's state courts may extend full faith and credit to valid tribal court orders, and both state and federal courts in Idaho grant comity to tribal court rulings.

Before handling a matter in tribal court, an advocate must appreciate the character of tribal courts, pay careful attention to tribal laws and statutes, and understand the fundamental differences between tribal courts and state and federal courts.

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