June 5, 2024 – Wisconsin is home to 12 tribal nations, each with its own unique history, culture, and government.
As sovereign entities, these nations have the inherent right to create, enforce, and adjudicate laws to protect and enhance the well-being of tribal members within tribal territory. This authority is an intrinsic right that has been present since time immemorial.
When researching the law relating to tribal nations, it is important to distinguish between federal Indian law and tribal law. Federal Indian law focuses on the relationships between tribal nations and the federal and state governments. Tribal law, on the other hand, encompasses the specific laws, regulations, and procedures enacted by each nation, which apply to their members and territories. This article provides guidance on researching tribal law.
The
June 2024 issue of
Wisconsin Lawyer magazine from the State Bar of Wisconsin provides a
good primer on Indian law, as well as discussions on the Menominee Indian Tribe's termination and restoration, gaming compacts and sovereign immunity, Indian tribes' responses to climate change, and more.
Tribal Governance
Tribal nations organize in various ways and many tribes have adopted constitutions that outline the framework for their governance. Although some have adopted governmental structures that emphasize traditional tribal values and customs, many tribes have established executive, legislative, and judicial branches similar to federal and state governments.
Bonnie Shucha, U.W. 2014, is associate dean and library director at the U.W. Law School, Madison.
In Wisconsin, every tribe has an elected legislative body, often referred to as a tribal council, governing board, or business committee. These bodies create laws, manage resources, and oversee the administration of the tribe. Additionally, each Wisconsin tribe has an elected executive, typically called a chair or president, who leads the tribe and represents its interests.
Tribal courts also play a vital role in the governance structure. The scope of a tribal court's jurisdiction can differ from one tribe to another, depending on their specific laws and customs. These courts may take various forms, including adversarial tribal or intertribal courts, specialized courts focusing on specific issues, and traditional tribal courts that incorporate cultural practices and values into the legal process.
Sources of Tribal Law
Tribal nations’ websites – If you’re looking for the law of a specific tribe, one of the most successful strategies is to check their website. If the tribe has made their constitution, code, resolutions, or other law documents publicly available, they will often post them on their website. Judicial opinions are also sometimes available, although more rarely.
Tribal Law Gateway – The most comprehensive collection of tribal laws is the Tribal Law Gateway from the National Indian Law Library (NILL). Select a tribe from the list for links to available materials on websites and subscription databases. Or search across the full text and tables of contents of all codes and constitutions that NILL has available online.
Great Lakes Tribal Law Collection – This compilation of tribal law documents from select tribal nations within Wisconsin is shared with their permission. Part of the U.W. Law School Digital Repository, it encompasses a range of materials, including constitutions, bylaws, codes, resolutions, charters, and other legal documents. The collection will continue to grow as additional tribes participate and update their documents.
The collection was developed as part of the
Digital Publication of Tribal Laws Pilot Project funded by the Institute of Museum and Library Services. The project addresses the gap in the availability of published and accessible tribal laws by developing tools for tribes and libraries to provide this content freely online. Project partners include the U.W. Law Library, the U.W. Great Lakes Indigenous Law Center, the Stockbridge-Munsee Community Band of Mohican Indians, the National Indian Law Library, and the Open Law Library.
U.W. Law Library Native American Law & Legal Sources Guide – This guide provides links to additional sources and information about tribal law, as well as federal Indian law, including treaties and secondary sources.
Informational Books
Several books from State Bar of Wisconsin PINNACLE® have information on tribal law. This includes
Wisconsin Civil Procedure Before Trial – Chapter 3 includes a section on tribal jurisdiction.
These books discuss the Indian Child Welfare Act:
Additional Sources of Information & Assistance
National Indian Law Library, Research & Information Request – The librarians at NILL offer expert research assistance on matters pertaining to tribal law and federal Indian law.
National Indian Law Library, Finding Legal Help – NILL has also compiled a guide to lawyers and law firms, legal aid services, and law school clinics specializing in federal Indian and tribal law.
Great Lakes Indigenous Law Center, U.W. Law School – GLILC’s mission is to provide an academic and educational atmosphere and opportunity for law students to study federal, state, and tribal laws affecting Native Nations and their citizens, provide legal assistance on uniquely Native Nation legal matters, and encourage and assist Indian students in obtaining a legal education.
Judicare Legal Aid - Formerly Wisconsin Judicare, this nonprofit law firm provides free civil legal services to Wisconsin’s northern counties and to Native Americans statewide.
Indian Law Section, State Bar of Wisconsin - This section provides a forum for attorneys with interests in the field of Indian Law and fosters the relationship between attorneys and others involved with legal issues of concern to American Indians and tribal governments.
Boost Your Research with Help from a Law Librarian
Ask a librarian for help with your research! We are trained to assist with finding and using the best resources for your unique legal research needs. Law librarians are available at these Wisconsin libraries:
Learn More About Indian/Tribal Law
The June
Wisconsin Lawyer magazine (forthcoming) is a special focus issue on Indian/Tribal law, with various features and columns. Here’s a sneak peek at the headlines:
- Indian Law in Wisconsin: A Primer
- Menominee Termination and Restoration
- The Space Between Birthright and Blood Quantum
- Wisconsin’s Tribal Gaming Compacts and Their Effects on Sovereign Immunity
- How Tribes Respond to Changing Environments
- Ada Deer: Champion of Social Justice
- Kathryn Tierney Argued Landmark Tribal Cases
- Judge Jo Deen Lowe – A Long Line of Strong Women
Most of the authors are members of the State Bar of Wisconsin’s Indian Law Section. The State Bar’s Communications Committee Selected Indian/Tribal Law to feature in 2024.
