by Kristen R. Edwards (NM)
This is a summary of the interdisciplinary panel of judges and legal experts from various jurisdictions, including the Navajo Nation and Santa Ana Pueblo, who discussed collaboration between federal, state, and tribal courts.
The panelists were: Megan Scanlon (VA Moderator); Hon. Timothy Tymkovich (10th Cir. COA); Hon. C.J. David K. Thomson (CJ NM Supreme Court); Hon. JoAnn Jayne, Emeritus (Navajo Nation Supreme Court); Hon. Tammi Lambert (Tribal Judge); and Paul Spruhan (former assistant AG to Navajo Nation, current visiting Professor at UNM SOL).
The panel discussion centered mainly around the following:
Jurisdictional Challenges and Collaboration: The panel discussed the complexities arising from cases like McGirt v. Oklahoma, 591 U.S. 894 (2020), which affirmed that the Muscogee Nation Reservation had never been disestablished and so was Indian Country under the Major Crimes Act. Judge Tymkovich was on the panel at the 10th Circuit Court of Appeals when it decided the related case of Murphy v. Royal, 875 F.3d 896 (10th Cir. 2017), and his first-hand account of the jurisdictional issues in this case was very insightful. Judge Tymkovich also opined on the significance of Justice Gorsuch’s background in tribal law on the opinion in McGirt.
The Supreme Court’s holding in McGirt was significant because it meant that Oklahoma did not have jurisdiction to prosecute Native Americans for crimes committed on that land. This confirmed the reservation status of the tribe and expanded federal jurisdiction, resulting in increased caseloads and the need for enhanced cooperation among courts. Efforts include advisory committees and joint meetings to share ideas and training, and to address legal topics like gaming, taxation, and natural resources.
Tribal Court Development and Restorative Justice: Hon. JoAnn Jayne and Hon. Tammi Lambert led an insightful discussion around tribal courts. Tribal courts are refining their systems to prioritize self-determination and restorative justice, focusing on healing, trauma-informed practices, and reintegration of community members. The Navajo Nation’s peacemaking program and the value placed on community relationships were highlighted as models. There was also discussion of the need for resources for tribes to provide public defenders and to prosecute offenders for higher lever offenses.
Unique Tribal Legal Systems: Professor Spruhan emphasized the sovereignty of tribal courts, the use of fundamental law, and the differences in applying state or federal precedent. The panel discussed challenges in areas like Indian Child Welfare Act (ICWA), probate, and domestic relations, and the importance of respecting tribal legal processes.
Inter-court Programs and Resource Sharing: Joint healing to wellness courts and technology initiatives, such as remote monitoring tools, illustrate how state and tribal systems are learning from each other. The panel also discussed various programs to educate judges and public about rule of law and tribal legal principles. The New Mexico Supreme Court has a Rule of Law Program wherein the Court brings a case out into the community for the public and students to watch live oral argument and engage with the Court and counsel afterwards in a Q&A session.
Ongoing Issues: Persistent challenges include water rights, legal preemption, appellate processes, and the practicalities of filing, accessing court records, and ensuring internet access for remote tribes. The importance of clerk leadership and consortiums for inter-judicial collaboration was also stressed. Chief Justice Thomson shared that the New Mexico Supreme Court has a Tribal-State Judicial Consortium focused on the collaboration between state and tribal courts.
Overall, the panel advocated for ongoing dialogue, mutual learning, and administrative innovation to address complex legal and jurisdictional issues affecting tribal, state, and federal courts. This was a very impactful and engaging panel.