Tort law is a broad set of rules designed to compensate people who have suffered injuries and harm by imposing penalties on those who caused the resulting injuries and harm. Indian tort law is the limited set of rules that the United States imposed upon tribal nations over a century ago. Today, tribal courts have the important opportunity and responsibility to articulate tribal tort law. Tribal legislatures, in turn, can codify tribal tort rules to guide future judicial decisionmaking. Through this process, tribal tort law will gradually supplant Indian tort law. Articulating tribal tort law necessarily involves conducting experiments in legal hybridity because tribal courts often interpret and apply tribal law, federal law, state law, and the common law to resolve tort cases. Legal hybridity represents a viable third space of sovereignty for tribes, beyond the false choice between completely adopting or completely rejecting American tort rules. This Article provides a roadmap for the journey from Indian tort law to tribal tort law. First, I address tribal civil jurisdiction and its limits, arguing that tribal courts should exercise broad discretion in deciding tort cases. Next, I analyze Indian tort law, specifically the carelessness and accident standards for tort liability and the availability of additional penalties for deliberate torts. I use the Mescalero Apache Tribal Code as an example of enacted tribal law that both adopts and slightly modifies Indian tort law rules. Finally, I describe five tort decisions from the Navajo Nation, the Eastern Band of Cherokee Indians, the St. Regis Mohawk Tribe, the Mohegan Tribe, and the Mashantucket Pequot Tribal Nation to show how tribal tort law can supplant Indian tort law through experiments in legal hybridity. The selected decisions illustrate different tribal approaches to various tort concepts, including negligence, assault, wrongful death, qualified immunity, foreseeability, constructive notice, premises liability, and res ipsa loquitor. Conducting experiments in legal hybridity allows tribal nations to develop various bodies of tort law that serve tribes’ individual and evolving needs while simultaneously asserting and defending tribal sovereignty and self-determination.
Allaire, Noah T.. "Experiments in Legal Hybridity: From Indian Tort Law to Tribal Tort Law." Tribal Law Journal 22, (2023). https://digitalrepository.unm.edu/tlj/vol22/iss/5