A Brief History of Indians, Torts and English Common Law
American Indians understand living in a web of relationships that carry privileges and impose duties. Therefore, I wonder, why is tort law virtually absent in the routine of tribal governance?
Tort law in the dominant culture normally does not come from statutes but from the English Common Law as it has branched off from England to 49 states, all but Louisiana.
In most states, we carry around a free-floating duty not to be "negligent." This is nothing complicated. It means that we should act as a reasonable person would act in the same or similar circumstances. If we fail this duty, we owe anybody we harm.
What we owe could be complicated. Most people agree on medical bills and lost wages, called "special damages."
We begin to disagree on "general damages," packed into phrases like pain and suffering and mental anguish. It's easy to pooh-pooh the idea of general damages if you don't think about some obvious questions.
What is a tiny child's life worth?
What sum of money would you take to suffer what you have suffered since your injury?
After the medical bills are paid, what is it worth to you to lose an eye or an ear or a testicle? What are you whining about? You have two of them, right?
General damages account for not having the money needed to hire a lawyer to make your claim. We solve this with "contingent fees," meaning that the lawyer does not get paid unless she wins; what she gets paid is a percentage of the damages. Therefore, if the damages are limited to medical bills and lost wages, the injured person could never break even.
Complications in the Common Law grow for honest reasons. At first, the rule is that if the injured party is also negligent, he recovers nothing. There was a famous case involving the duty of an employer to provide a safe working environment. The employee was negligent because he had been drinking. He was injured because the roof fell on him, but he recovered nothing because he had been drinking.
Why, you may well ask, don't we just ask a court to apply common sense to each case? Because judges are easily captured by repeat players in the system.
Why not leave the hard questions to juries? We do that. Sometimes it works. Sometimes we get results like an individual in Texas who was severely injured in an accident she did not cause, but the insurance company's lawyer managed to get in front of the jury that she had been a political candidate of the Socialist Workers Party. For that reason, she got nothing.
English common law is nothing but a set of tribal customs that started getting written down by an especially powerful tribe in the year 1066, as white people reckon time. There is no reason why those tribal customs are inherently superior to any other tribe's customs, but they may be superior in particular ways. This is because the situations to which the customs respond are universal. People interact and people get hurt, always, and most people agree that it's not fair to make innocent people bear the burden of their injuries alone.
Social duty is on the clearest level in homicide, the taking of a human life. The English looked down on some Indian justice systems, my own included, because to us all such losses were the same and a life demanded a life in return unless the relatives agreed to settle for something less.
To the English, and to most justice systems today, a homicide had different ramifications depending on whether the death was intentional, reckless, or merely the result of negligence—in other words, an accident.
Even when homicide is a crime, it is still a tort, as are robbery, rape, assault—most intentional crimes contain a tort. Criminals usually don’t get sued because they have no money. In some states, crime victims get compensated by the government, on the theory that the government has failed to protect them.
It comes to my mind that when the Supreme Court took away the jurisdiction of tribal courts to punish non-Indians for crimes on Indian land, it said nothing about torts. Even when a tort judgment cannot be collected in full, there are ways to make the life of a judgment debtor miserable.
Handled smartly, a tribal tort system could encourage non-Indians who harm Indians on Indian land to, in the immortal term coined by Mitt Romney, “self-deportation.”
This is the challenge of Indian tribal governments: to govern, and to resolve these universal problems in ways both objectively fair and predictable. When tribal law conquers that challenge, the opinions of dead Englishmen do not matter. When tribal law fails, the opinions of live Indians do.
Sometimes, a failure to act is negligence.
Steve Russell, Cherokee Nation of Oklahoma, is a Texas trial court judge by assignment and associate professor emeritus of criminal justice at Indiana University-Bloomington. He lives in Georgetown, Texas.