A. Tribal Courts in the jurisdiction

The Indian Civil Rights Act of 1968 guarantees rights similar to the First Amendment, providing that “[n]o Indian tribe in exercising powers of self-government shall . . . make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances.” 25 U.S.C. § 1302. However, tribal courts interpret the ICRA in a variety of ways, and tribes retain the right to exclude nonmember journalists from tribal property. See, generally, Reporters Committee for Freedom of the Press, A Reporter’s Guide to American Indian Law, https://www.rcfp.org/wp-content/uploads/imported/AMERINDIAN.pdf.

The Eleventh Circuit has not issued a ruling regarding whether the First Amendment or common law right of access extends to tribal courts. While the Indian Civil Rights Act of 1968 guarantees rights similar to the First Amendment, providing that "[n]o Indian tribe exercising power of self-government shall…make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances," there is no Eleventh Circuit case which addresses this topic.

The Eleventh Circuit has recognized that a tribe is subject to suit only where Congress has authorized the suit, such as under the Indian Civil Rights Act of 1968, or where the tribe has waived its sovereign immunity. See Contour Spa at the Hard Rock, Inc. v. Seminole Tribe of Fla., 692 F.3d 1200 (11th Cir. 2012).

No reported First Circuit cases identified.

The Second Circuit has not issued a definitive ruling regarding tribal courts’ exclusion of the press. This will vary by jurisdiction.

Nothing found specific to the Fifth Circuit.

No information.

There appears to be no Eighth Circuit case law discussing tribal courts in the jurisdiction.

The official website of the Poarch Band of Creek Indians, located in Atmore, Alabama, states that all civil and criminal trials, with the exception of juvenile proceedings, are open to the public. See http://pci-nsn.gov/westminster/tribal_court.html.   Section 3-1-9 of the Tribal Code states: “All files and records of the courts of the Tribal Judicial System shall be open for public inspection, except that the files and records of juvenile, Drug Court, and ethics matters shall not be open to public inspection and may be inspected only with prior specific judicial authorization. In ethics matters, the parties may waive the confidentiality of any designated files or records.”

There do not appear to be published opinions dealing with access to tribal court proceedings or records. In Scudero v. Moran, 230 F.Supp.3d 980 (D. Alaska 2017), a defeated mayoral candidate for mayor of the Metlakatla Indian Community petitioned in federal court pursuant to the Indian Civil Rights Act (ICRA) seeking relief from a motion filed in tribal court by the tribal community council that sought to impose on candidate the costs incurred by the council arising from the candidate’s unsuccessful challenge to the election results. Council moved to dismiss for lack of subject matter jurisdiction.  The federal judge granted the tribal council’s motion.  It noted that “Federal courts have long recognized that Indian tribes are distinct political entities retaining inherent powers to manage internal tribal matters.” While Congress has abrogated some tribal immunity through the ICRA (so that, e.g., Section 1302 of the ICRA extends some civil rights protections to tribe members, including equal protection and due process rights) the substantive rights set forth in § 1302 are not accompanied by a federal cause of action to remedy violations. Rather, any private right of action under the act lies in tribal court,” with very limited exceptions.  Id. at 983.  And §1302 creates no implied right of action against a tribe or its officers.  Oertwich v. Traditional Village of Togiak, 2019 WL 43459075, at *5 (D. Alaska Sept. 12, 2019). The Constitution of the United States restrains state and federal officials, but not tribal officials acting on behalf of a tribe in Indian country; neither declaratory nor injunctive relief can be sought in federal court to enforce the ICRA.  Native Village of Venetie I.R.A. Council v. State of Alaska, 687 F. Supp. 1280 (D. Alaska 1988), aff’d. in part, rev’d in part on other grounds, 944. F.2d 548 (9th Cir. 1991). The Alaska Supreme Court has held that “[a]lthough Alaska no longer contains Indian country, its Native villages ‘retain those fundamental attributes of sovereignty . . . which have not been divested by Congress or by necessary implication of the tribe's dependent status.’” Healy Lake Village v. Mt. McKinley Bank, 322 P.3d 868, n. 31 (Alaska 2014) (quoting Runyon ex rel. B.R. v. Ass’n of Vill. Council Presidents, 84 P.3d 437, 439 (Alaska 2004)).

No reported decisions.  Tribal courts often have their own rules of procedure, which would be the best reference for this information.  There are some 21 federally-recognized Tribes in Arizona.

No reported cases.

The California courts’ website, www.courts.ca.gov, provides information regarding Tribal/State Programs, at http://www.courts.ca.gov/programs-tribal.htm. The available information includes a California Tribal Courts Directory, by Tribe and by County, available at http://www.courts.ca.gov/14400.htm. Each Tribal Court maintains its own rules of procedure; most of them expressly address the question of access. E.g., Rules 1.5(A), 1.13(D), Shingle Springs Band Of Miwok Indians, Tribal Court Rules Of Court, Approved 10/9/2015, available at http://shinglespringsrancheria.com/ssr/wp-content/uploads/documents/tribal-court/Tribal%20Court%20Rules.pdf (establishing general presumption of access to Tribal Court records and proceedings); Rules 5(C) & (D), 12(D), Karuk Tribe Rules of Court and Civil Procedure, Adopted 9/1/2016, available at http://www.karuk.us/images/docs/court/Rules%20of%20Court%20and%20Civil%20Procedure%202016.pdf (strictly limiting access to Tribal Court records but establishing presumption of access to trials).

Colorado appellate courts have not addressed the public right of access to tribal courts.

Connecticut’s two tribal court systems maintain their own rules of procedure. See Mashantucket Pequot Rules of Court, available at http://www.mptnlaw.com/TribalLaws.htm; Mohegan Tribal Court, Mohegan Rules of Civil Procedure, adopted June 1, 2019, available at https://www.mohegan.nsn.us/explore/government/tribal-court-system. Both have presumptions of open access to court proceedings with certain exceptions.

Florida has assumed jurisdiction over criminal offenses within Indian reservations as well as civil cases arising within Indian reservations. Fla. Stat. 285.16(1). Although there are no access cases in this context, the Florida Supreme Court’s decisions in Miami Herald Publ’g Co. v. Lewis, 426 So. 2d 1 (Fla. 1982), and Barron v. Florida Freedom Newspapers, 531 So. 2d 113 (Fla. 1988), would most likely apply.

No known cases.

There are five independent tribal courts within Idaho: (1) Coeur d’Alene; (2) Nez Perce; (3) Shoshone-Bannock; (4) Kootenai; and (5) Shoshone-Paiute.  See https://www.isc.idaho.gov/tribal-state/tribalcourt.  These courts have federally prescribed jurisdiction over custody and adoption cases involving tribal children, criminal jurisdiction over offenses committed on tribal lands by members of the tribe, and broader civil jurisdiction over claims between tribe members and nonmembers.  Each trial court has adopted its own Tribal Law and Order code.  Generally, most proceedings are open unless a tribal judge orders them closed.

There appears to be no reported Illinois case law on this issue.

There are no tribal courts in Indiana.

The procedural rules of the Tribal Court of the Sac and Fox Tribe of the Mississippi in Iowa (the Meskawki Nation), which is the most prominent tribal jurisdiction in Iowa, do not appear to mention rights of access to proceedings or papers of the tribal courts. However, the opinions of the tribal court can be found at the Meskwaki Tribal Court clerk’s office. See Meskwaki National Tribal Court, http://www.meskwakicourt.org/court-records.html.

In Kansas, tribal courts are maintained by the Iowa Tribe of Kansas and Nebraska, the Kickapoo Tribe in Kansas, the Prairie Band Potawatomi Nation, and the Sac and Fox Nation of Missouri in Kansas and Nebraska.  The Prairie Band Potawatomie Nation has made its Law and Order Code available online, and it includes the following provisions:

"Section 2-2-13. Records

(D) All Court records shall be public records except as otherwise provided by law.

Section 2-2-14. Files.

(A) Except as otherwise provided by law, Court files are generally open to the public. Any person may inspect the records of a case and obtain copies of documents contained therein during normal business hours."

Prairie Band Potawatomie Nation, Law and Order Code, https://www.codepublishing.com/KS/Potawatomi/#!/Potawatomi02/Potawatomi0202.html#2-2.

According to the administrative office of the Prairie Band Potawatomie Nation’s Judicial Council, the tribal court proceedings generally are open.  Records and proceedings that may be closed include such matters as juvenile cases, children in need of care, adoption, and tribal enrollment or disenrollment, as well as domestic disputes at the request of a party.  Also, records of employment dispute may be closed.

According to judicial administrators for the other Kansas tribes, their courts also generally are open with exceptions like those of the Prairie Band Potawatomie Nation.

Judicial administrators may be contacted through main tribal offices as follows:

Iowa Tribe of Kansas and Nebraska
3345 B Thrasher
White Cloud, KS 66094
Phone: (785) 595-3258
Fax: (785) 595-6610
Web: http://iowatribeofkansasandnebraska.com

Kickapoo Tribe in Kansas
824 111^th
Horton, KS 66439
Toll Free: 1-877-864-2746
Phone: (785) 486-2131
Fax: (785) 486-2801
Web:  http://www.ktik-nsn.gov

Prairie Band Potawatomie
Government Center
16281 Q Road
Mayetta KS 66509-8970
Toll Free: (877) 715-6789
Phone - Tribal Court: (785) 966-2242  / Toll free: (866) 966-2242
Web: http://www.pbpindiantribe.com

Sac and Fox
305 N Main
Reserve, KS 66434
Phone: (785) 742-7471
Fax: (785) 742-3785
Web: http://www.sacandfoxks.com

There are no reported cases in Louisiana addressing the relation between the issues discussed in this guide and Indian Tribal Courts.

No Maine cases speak to this issue.

The Maryland courts have not had occasion to consider access to tribal courts. There are no federally recognized tribes in Maryland. The two Piscataway tribes, which gained state recognition in 2012, and the Accohannock tribe, which gained state recognition in 2017, do not have tribal courts.

Research did not reveal any opinion where a tribal court or Minnesota state court addressed this issue.

The Indian Civil Rights Act of 1968 guarantees rights similar to the First Amendment, providing that “[n]o Indian tribe in exercising powers of self-government shall . . . make or enforce any law prohibiting the free exercise of religion, or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble and to petition for a redress of grievances.” 25 U.S.C. § 1302. However, tribal courts interpret the ICRA in a variety of ways, and tribes retain the right to exclude nonmember journalists from tribal property. See generally, Reporters Committee for Freedom of the Press, A Reporters Guide to American Indian Law, https://www.rcfp.org/wp-content/uploads/imported/AMERINDIAN.pdf.

The Mississippi courts do not address this issue.

Open or closed wholly at the discretion of the tribal judge.

Applicable rules vary by tribe. See, e.g., Washoe Tribe of Nevada and California, Law & Order Code § 1-50-020 (“The Clerk must maintain the confidentiality of all juvenile and domestic relations court files. Only officers of the court, parties, and persons authorized by parties shall be allowed access to court files in domestic relations and juvenile cases. All other court files are open to the members of the Tribe, court personnel, and parties to a lawsuit.”); id. at § 1-60 (“Court files on a particular case are generally open to tribal members. Only the parties and persons authorized by the parties, the tribal judges, or the tribal clerk may inspect the records of a juvenile or domestic relations case and obtain copies of documents included therein. b. Authorized persons may inspect files only during the ordinary working hours of the clerk or the judge, to insure the integrity of court records.”).

Not applicable.

In addition to the municipal and state courts, New Mexico has tribal courts that are under the jurisdiction of the reservations. The state and municipal courts generally do not have jurisdiction over these courts, as the Indian tribes and pueblos retain aspects of the inherent sovereignty they possessed prior to becoming subject to the authority of the federal government. See generally Felix S. Cohen, Cohen's Handbook of Federal Indian Law § 6.03 (Nell Jessup Newton ed. 2005). There are currently no reported state law decisions concerning public access in tribal courts.

Not applicable.

There are no tribal courts in Pennsylvania.

Rhode Island Courts have not addressed the extent to which proceedings in tribal courts are subject to public access.

There are no federal or state-recognized tribal courts in South Carolina.

Public access rules will vary on a tribe-by-tribe basis.  See, e.g., Kickapoo Traditional Tribe of Texas Tribal Codes (enacted Nov. 1, 2005), https://kickapootexas.org/wp-content/uploads/2017/05/KTTT-Ch-1-17-Tribal-Codes.pdf.

No Utah authority specifically addresses access to tribal courts in the jurisdiction.

Although Vermont recognizes Native American Indian tribes, “Vermont Native American Indian bands and tribes and individual members of those bands and tribes remain subject to all the laws of the State.”  1 V.S.A. § 853(g).  Accordingly, there are no recognized tribal courts in Vermont.

West Virginia does not have tribal courts.

Tribal courts are not subject to Wisconsin’s constitutional and statutory rules on open courts.  Each tribal Nation court sets its own rules.