Matthew L.M. Fletcher (Michigan State University College of Law) has posted Rethinking the Role of Custom in Tribal Court Jurisprudence on SSRN. Here is the abstract:
The literature discussing “customary law,” “traditional law,” “tribal custom and tradition,” and “tribal common law” in modern American tribal courts lacks a compelling theory of the role of custom in tribal court jurisprudence. There are some empirical studies of the use of custom in tribal law and more numerous papers describing custom in tribal law. Most of these studies are limited to a limited number of tribes, often just one such as the Navajo Nation. Nearly all studies of support the use of custom in tribal law, with some arguing that custom preserves the cultures of Indian people and others arguing that custom provides a better methodology of delivering justice to participants in tribal court adjudication. But little or no scholarship provides an adequate theory as to why tribal courts should rely on custom, nor does this scholarship assist tribal courts in deciding which law to apply. This paper attempts to provide a theory for the role of custom in tribal court jurisprudence and to lay out the beginnings of a framework on how to find and apply customary law.