To understand the legal research process, one must first understand how the legal system works. The United States has three systems of government, federal, state, and tribal, each of which has its own set of laws. The United States Constitution recognizes these three types of sovereigns: federal, state, and tribal. It is a union not just of fifty states, five territories, and a federal district, but also of 574 unique, federally recognized tribes. Elizabeth Reese. The Other American Law. 73 Stan.L.Rev. 555 (2021). Each of these sovereign entities possesses the powers of self-government and has the authority to address the social, economic, safety, and cultural needs of their citizens, whether it is the federal, state, or tribal government.
The four sources of federal and state law are (1) constitutions, (2) statutes and ordinances, (3) rules and regulations, and (4) case law. While tribal laws similarly come from these same four (4) sources, they also arise from a fifth (5) source - customs and traditions.
Tribal powers are inherent rather than derived from the federal government and Tribal nations possess all powers of a sovereign government except as limited by lawful federal authority. The federal government has limited this inherent tribal authority by treaty, by statute, and in some instances, by judge-made federal common law. Cohen's Handbook of Federal Indian Law. § 4.02. (Neil Jessup, ed, 2019).
Constitutions are foundational to our legal systems. Federal and state governmental authority flows from the United States Constitution and the state constitutions. The United States Constitution is the supreme law of the land, and no laws, state or federal, may violate it. Each state has its own constitution. The laws of a particular state may not conflict with the constitution of that state or with the U.S. Constitution. On the other hand, while “the Constitution contemplates Indian tribes and tribal rights and establishes a structure for federal-tribal relations, …the Bill of Rights does not apply directly to the tribes via the Constitution (though Congress has addressed this gap through statute).” Angela R. Riley, Native Nations and the Constitution: An Inquiry into "Extra-Constitutionality", 130 Harv. L. Rev. F. 173, 177 (2017).
Many, but not all federally recognized Tribes have adopted written constitutions over the past three centuries. Some follow a format introduced by the Indian Reorganization Act of 1934 (IRA), Pub. L. 73-383, 48 Stat. 984, June 18, 1934, to mirror the U.S. Constitution and its principles. Others conform to the tribe’s individual cultural, traditional and political needs, and don’t look like the U.S. or states' constitutions. Either way, any constitution’s purpose is to create and define a government and it is the fundamental law of that nation. Melissa L. Tatum, et. al., Structuring Sovereignty: Constitutions of Native Nations. American Indian Studies Center, Los Angeles, 2014.
The Separation of Powers doctrine divides governmental authority and functions among three separate branches: Legislative, Executive, and Judicial. The framers of the U.S. Constitution divided governmental power among three branches due to their experience with the British monarch. Some tribes have adopted this separation of powers governmental system via an IRA constitution, but not all.
These three branches in federal and state governments are responsible for creating the remaining sources of law. Legislative branches enact laws called statutes and ordinances. Executive branches enforce and implement these laws through rules and regulations. Judicial branches interpret these laws, rules, and regulations by deciding cases and issuing written opinions. While a tribal government might not have three separate branches of government, all three governmental functions still occur.
Remember, each tribal government is unique and will have its own government structure. Some may look more like the Federal or state government structures, others may look different than any of these.
Federal, state, and local legislative branches are each responsible for enacting their own laws.
The United States Congress enacts federal laws—also called federal statutes—that are compiled by subject in the United States Code. For example, in 1993, Congress enacted a statute called the Family and Medical Leave Act, which entitles an employee to twelve weeks of unpaid leave if she has a serious health condition.
The South Carolina General Assembly enacts state statutes that are arranged by subject in the South Carolina Code of Laws. For example, the South Carolina General Assembly passed a law giving family courts the authority to order absent parents to pay child support. That statute is part of the South Carolina's Children's Code.
Federal and state executive branches are responsible for enforcing and implementing federal or state laws.
This is accomplished when Congress or state legislative bodies give federal or state administrative agencies the power to write rules and regulations to implement and enforce the laws they pass.
For example, when the U.S. Congress passed the Family and Medical Leave Act, it gave the U.S. Department of Labor the responsibility and power to write regulations to enforce its provisions.
And, when the South Carolina General Assembly passed the South Carolina Children's Code, it gave the South Carolina Department of Social Services the task of writing regulations to serve as guidelines for family courts to use in calculating the amount of child support an absent parent is required to pay.
Federal and state court systems interpret federal and state statutes and regulations and determine their constitutionality and the applicability of the law to the facts.
For example, the federal court in Miller v. AT&T Corporation, 250 F.3d 820 (4th Cir. 2001), interpreted (1) a federal statute enacted by Congress, known as the Family and Medical Leave Act, and (2) related federal regulations created by the Department of Labor.
The South Carolina Supreme Court in Arnal v. Arnal, 371 S.C. 10, 636 S.E.2d 864 (2006), interpreted (1) a collection of state statutes known as the South Carolina Children's Code, and (2) related state regulations issued by the South Carolina Department of Social Services.
Tribal courts act in much the same manner, interpreting and applying the Tribe’s laws and rules.
The Supreme Court of the Muscogee (Creek) Nation in Slay v. Muscogee (Creek) Nation Travel Plaza and Hudson Insurance Company, SC 14-01 (Oct. 23, 2014), interpreted the Muscogee (Creek) Nation’s statues concerning workers compensation benefits, and how such claims are processed through the adjudicatory process.
Sometimes tribal courts will interpret and apply federal or state laws where there may not be a specific or applicable tribal law. For example, the Navajo Nation Supreme Court in Pela v. Peabody Coal Co., 6 Nav R. 238 (1990), heard 1) whether the Navajo Nation courts have jurisdiction to hear federal ERISA claims; 2) whether the federal removal statute applies to Navajo Nation courts; and 3) whether comity is an appropriate reason for the Navajo Nation court to decline jurisdiction in this case. The Navajo Supreme Court found that the tribal court could hear a federal ERISA claim, that the federal removal statute, 28 U.S.C. § 1441(a), did not authorize removal from Navajo Nation courts to federal district courts, and that the doctrine of comity did not apply.
NOTE: the link for the Pela case above is to FastCase (which may require a USC login) but it does not provide a complete proper citation for this case. This case is also available on Lexis which also does not provide a complete proper citation. Each tribal court will have its own rules about citation.
Case Law
Federal, state, and tribal courts create case law in their respective jurisdictions in three ways. First, court decisions can create law by interpreting ambiguous language in constitutions, statutes, and regulations.
Second, court decisions can announce new principles of law where no statute or regulation applies, creating a body of judge-made law called common law, a subset of case law. For example, the elements required to recover for claims such as negligence or fraud in South Carolina are determined by case law, not statutes. This means negligence and fraud are common-law claims.
Third, court decisions create case law by applying the law (whether common law, constitutional law, statutory law, or regulatory law) to new situations. Even when a court is not clarifying legal language or adding a new principle of common law, each new judicial opinion adds to the body of case law by providing an example of how the law applies to an individual case.
The principle of stare decisis, which is Latin for “let the decision stand,” means that judges follow prior court decisions when deciding cases that come before them with the same legal issue, meaning (1) governed by the same law and (2) having similar facts. A binding prior court decision is known as precedent.
Stare decisis allows lawyers to advise their clients by predicting the likely outcome of a legal dispute or a proposed action. If the lawyer has researched prior court decisions on the same legal issue, meaning (1) governed by the same law and (2) having similar facts, the lawyer can predict that the outcome may be the same if a court addresses the client's legal dispute or proposed action.