[Congressional Record Volume 142, Number 135 (Thursday, September 26, 1996)]
[Extensions of Remarks]
[Page E1704]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]




                  DUE PROCESS IN INDIAN TRIBAL COURTS

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                           HON. HENRY J. HYDE

                              of illinois

                    in the house of representatives

                     Wednesday, September 25, 1996

  Mr. HYDE. Mr. Speaker, recently, I have received complaints from 
parties who have been involved in proceedings in Indian tribal courts. 
These complaints suggest that non-Indian civil litigants in these 
courts may face unfair treatment, but, yet, are unable to seek 
protection from violations of their Federal rights in any other 
judicial forum.
  For example, earlier this year, a Crow Nation tribal court entered a 
judgment for $250 million in compensatory damages against the 
Burlington Northern Railroad. This case deals with a railroad grade-
crossing accident which occurred on the Crow Reservation in Montana in 
1993. The accident involved the death of three members of the Crow 
Tribe. However, the crossing was well-marked, and no accident had ever 
occurred there in the entire 50-year history of the crossing. A blood 
alcohol test revealed that the driver and one of the passengers were 
intoxicated at the time of the accident.
  Burlington Northern alleges that various violations of basic due 
process occurred during the trial, including, the use of jurors who 
should have been struck for cause, improper prejudicial comments to the 
jury venire by a member of the appellate court, use of evidenced that 
was barred by Federal law, and the barring of evidence relating to the 
proper amount of compensatory questions.
  I have not had the opportunity to review the complete record of this 
case, and I do not know all of the details. Further, I do not seek to 
affect the outcome of this particular case and I believe it should 
continue in due course under existing law. However, these allegations 
do raise serious questions about the overall fairness of the Indian 
tribal court system, which calls for further review by the Congress.
  I understand that there are now more than 200 of these types of 
courts across the Nation and that they process thousands of cases per 
year. Many of these cases involve persons who have no particular 
connection to the tribe other than that they have traveled across 
Indian country on an interstate highway or railroad. Although the 
Indian Civil Rights Act, 25 U.S.C. Sec. 1302, requires these courts to 
provide basic constitutional rights, it does not provide any means by 
which litigants may seek to vindicate these rights in a Federal court. 
In fact, litigants have no way to vindicate these rights except through 
the tribal court system.
  This situation sharply contrasts with the situation in State courts. 
State court decisions regarding the protection of Federal rights may be 
reviewed on appeal to the U.S. Supreme Court and by actions under 42 
U.S.C. Sec. 1983. Current law provides that Federal courts may review 
the decisions of tribal courts only to determine whether the case was 
within the jurisdiction of the court, and they may only conduct that 
review after all avenues of relief have been exhausted in the tribal 
court system.
  I do want to stress that I believe in the Indian tribal court system. 
It is only right that Indians should be able to have their own courts 
to judge their own affairs. By the same token, I want to say 
emphatically that it is only right that those courts should provide all 
of the constitutional protections required by law, including basic due 
process. The consistent enforcement of constitutional norms is 
particularly important if the tribal courts are to have jurisdiction 
over nonmembers who have only tangential relationships with the tribes.
  This is a subject that both the Judiciary Committee and the Resources 
Committee should review in the next Congress.

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