Toward a Theory of Intertribal and Intratribal Common Law

Courts and scholars refer to the substantive common law applied by tribal courts in the United States using the monolithic term tribal common law, but in fact tribal common law can and should be subdivided into two major categories of law - intertribal common law and intratribal common law. Intertribal common law is the common law applied by tribal courts to cases arising out of Anglo-American legal constructs, such as employment contracts or housing leases. Intratribal common law is the common law applied by tribal courts to cases arising out of indigenous legal constructs, such as family and inheritance rules or land use rights. Intertribal common law tends to mirror state and federal common law, while intratribal common law derives from the unique and often unwritten tribal customs and traditions. Almost by definition, intratribal common law does not and cannot apply to disputes involving nonmembers. Several Supreme Court Justices have commented that tribal courts should not have civil jurisdiction over nonmembers for disputes arising in Indian Country because the application of tribal substantive law may be, in Justice Souter\u27s words, unusually difficult for an outsider to sort out. This concern is misplaced. Tribal courts resolve disputes involving nonmembers by applying an intertribal common law that is consistent with the manner in which state and federal courts resolve disputes. Because the costs to tribal cultures and people in restricting tribal court jurisdiction is much higher than recognizing tribal court jurisdiction, the Court should recognize the difference between these categories of tribal common law