There’s new and interesting scholarship on something called “Localist Statutory Interpretation” on SSRN. Here is the abstract:

This paper argues for more attention to citizens’ point of contact with our legal system within local courts – and makes an effort to conceptualize local judges as parts of local governments. Once the paper highlights the role of local courts within the constellation of local government, it offers an argument for why certain forms of “localist judging” are appropriate postures for local judges to take when confronted with hard cases of statutory interpretation. The paper explores the virtues of a type of “intrastate judicial federalism.”

I’m interested in the application of these ideas to tribal courts. I don’t think the paper’s author intends to comprehensively theorize how local judges can engage in “localist judging,” and therefore the paper has limited or no utility for tribal judges, but it does raise several important points.

First, the Tribal Law and Order Act amended the Indian Civil Rights Act to include this requirement for tribes who want to exercise enhanced sentencing authority:

In a criminal proceeding in which an Indian tribe, in exercising powers of self-government, imposes a total term of imprisonment of more than 1 year on a defendant, the Indian tribe shall … require that the judge presiding over the criminal proceeding–(A) has sufficient legal training to preside over criminal proceedings; and (B) is licensed to practice law by any jurisdiction in the United States….

The bold language is what’s confusing to the tribes thinking about using the enhanced sentencing provisions (that apparently there is a verb tense agreement problem will only bother Bryan Garner). I have been asked about this provision a couple times in the last week. I am glad to report someone smarter than I shares my view on this question (quoting from footnote 19 in the paper linked above):

I am here avoiding the debate about whether it is sound (or constitutional) to have lay people adjudicating cases in the legal system. See Gordon v. Justice Court, 525 P.2d 72 (Cal. 1974) (holding that it is a violation of the federal Constitution to allow non-attorney judges to sit in judgment over criminal defendants for offenses punishable by incarceration); North v. Russell, 427 U.S. 328 (1976) (suggesting that it is not unconstitutional, so long as de novo review is available in a court with a legally-trained judge); City of White House v. Whitley, 979 S.W.2d 262 (Tenn. 1998) (rejecting the logic of North and finding non-lawyer adjudications imposing jail time to violate Tennessee’s Constitution). New York has many village and town courts without lawyer adjudicators – and given the New York Times reporting several years ago, supra note 2, it is hard to think it is anything but a scandal.

There’s my answer in there, again in bold, to the question whether tribes can utilize enhanced sentencing provisions through judges who are not lawyers licensed by a state bar.

Second, I am concerned about the sometimes extreme disadvantage Indian tribes and individual Indians have in “local” (read: non-Indian) courts. Perhaps the days of local judges disregarding treaty rights are largely over, but local judges routinely, openly, and notoriously disregard and denigrate the Indian Child Welfare Act. Recently, the South Dakota Supreme Court refused to intervene in what appears to be exactly the kind of open hostility of ICWA. Plus, there was that weird Iowa magistrate judge who just pointedly refused to acknowledge blackletter federal Indian law as some sort of manifesto against the Iowa Supreme Court’s recognition of the right to same-sex marriage.

Third, I’m not at all down on this paper. Tribal courts are the epitome of localist judging. The material within the paper on the role of local judges changing depending on whether or how they are elected or nominated would be interesting reading for tribal judges who are serious about understanding their role in tribal communities. It’s a pretty short paper, and I urge tribal judges and tribal court practitioners to take a look.