Before a tribal court takes a case, it must first determine whether it has jurisdiction over the matter. If there is no jurisdiction, the court cannot take the case and the case must be heard in state or federal court.
Jurisdiction = tribal authority over the type of case and the people involved.
Type of Case
Tribes have inherent tribal sovereignty to hear cases affecting their citizens and ability to self-govern. See: John v. Baker.
All Alaska Tribes have constitutions and/or codes that describe the scope of their judicial authority. Some are broad, and cover any type of case affecting the Tribe or tribal citizens. Some only cover certain kinds of cases.
The State of Alaska and Alaska Tribes have overlapping authority to hear cases involving tribal children, other family law issues, domestic violence, other civil issues, and certain offenses.
Typically, the court that starts a case will retain jurisdiction over the case unless it is transferred to another court. For example, if a Tribe initiates a Child Welfare case, the state can then only initiate one if the Tribe agrees to allow the state to take over the case. Similarly, if the state has jurisdiction over children in a Child in Need of Aid case, the Tribe cannot initiate such a case (or take other actions such as completing an adoption or so forth) without asking for the case to be transferred to Tribal Court.
Many Alaska Tribes have governing documents describing the types of people who fall under their judicial authority. The state and federal government normally recognize tribal jurisdiction over a Tribe’s own citizens, tribal children, and people who have a “consensual relationship” with the Tribe.
Type of Case + People Involved = Tribal Jurisdiction
If the Tribe determines that it has jurisdiction over the type of case AND the people involved in the case, then the Tribe has jurisdiction. The court can continue on and hear the case.
It is the Tribe that decides what kind of cases it will hear based on its own tribal law. However, there may be some limits on what types of tribal orders the state and federal government will recognize.
If your Tribe is seeking legal advice on whether it has jurisdiction in a case, you can contact a law firm that specializes in tribal governance, or if the Tribe lacks funds for private counsel, your local office of Alaska Legal Services.
Please review ALSC’s booklet Tribal Jurisdiction in Alaska, which provides a brief history and overview of the types of jurisdiction and the recognition of Tribal Court Orders in Alaska.