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Many American Indian Reservations have had modern tribal courts for at least 60 years. Have the distinctive social norms of Indians worked their way into judgemade law, or are tribal courts much like state courts? Is there Indian common law? To answer these questions, we interviewed tribal judges on reservations throughout the West. We found distinctively Indian social norms, both substantial and procedural, pervading tribal courts., Many of these norms are specific to particular tribes and some are shared by many tribes. Indian common laws (in the plural) are tribe-specific, so there is a comparative law of Indian common law. Applying the rules of conflict of laws requires knowledge of Indian common laws. Acknowledgm ents 288 Introduction 290 I. Sovereignty: The Right of Tribes To Their Own Law .. 295 A. Three Phases 297 B. Three Courts 299 C. Cycles of Ideology 302 D. Tribal Jurisdiction 305 II. Fieldwork Account: Research Methods 310 III. H ypotheses 313 ROBERT D. COOTER is Professor of Law, University of California at Berkeley. WOLFGANG FIKENTSCHER is Professor of Law, University of Munich. 1. For their ethnographic fieldwork in tribal laws, the authors received the MaxPlanck Research Prize in Bonn in 1994. This award was the second time a lawyer received the prize and the first time it was awarded for anthropology of law. 2. Emic (insiders') use clearly prefers "Indian". The term "Native American" is etic, that is, outsiders' usage. Thus, the people whom we interviewed referred to themselves as "Indians" in almost every case, and only occasionally used the phrase "Native Americans." Our paper respects their practice. For the distinction between emic and etic, see Headland et al. (1990). HeinOnline -46 Am. J. Comp. L. 287 1998 THE AMERICAN JOURNAL OF COMPARATIVE LAW IV. Procedure in Tribal Law 316 A. Independent versus Amalgamated Judiciary  317 B. Qualifications of Judges 322 C. Procedural Provisions for Custom in Law 323 D. Procedure in Trials 324 E. Common Law Process?  . . . . . . . . . . . . . . . . . . . . . . . . 326

Indian Common Law: The Role of Custom in American Indian Tribal Courts (Part I of II)