Answer to Question #199348 in Management for tetelo

Question

Judicial control of a traditional leader’s actions in terms of common law entitles an aggrieved party to inter alia apply for

(1) review of the decision in the tribal court.

(2) mandamus in the High court.

(3) mediation by the traditional council.

(4) issue of summons in a tribal court.

Answer 1

 

( 1)Review of The Decision in The Tribal Court

 Tribal Nations in the United States and tribal courts serving as the judicial branch of those nations. Yet, there is little mention of the existence of tribal courts in most mainstream civil procedure courses taught in the over two hundred law schools in the United States. To gain any knowledge as to the existence of these courts, law students must take a course on federal Indian law, which is not available in the majority of law schools. In fact, less than twenty law schools offer a series of courses forming an Indian law program. Thus, the invisibility of tribal courts is perpetuated through curriculum omission in mainstream civil procedure courses and rarely remedied through offering a stand-alone course on federal Indian Law Tribal Nations have existed from time immemorial with their own laws, dispute resolution systems, and governing structures. This lack of attention and suppression of information serves only to reinforce colonizing ideas of subsuming tribal governance into the forums set up by the United States.

Through U.S. Supreme Court decisions and federal laws, the criminal and civil jurisdiction of tribal courts has been limited. The U.S. Supreme Court has also opined that the U.S. Congress holds plenary authority over American Indian Tribes. Utilizing this authority, the U.S. Congress has legislated federal criminal jurisdiction as concurrent on all tribal lands with tribal court jurisdiction and has provided a mechanism to delegate federal criminal jurisdiction to state legal systems. In the civil jurisdiction sphere, the U.S. Supreme Court has established processes for federal courts to review tribal civil jurisdiction determinations and for the refiling of cases from tribal courts to federal courts based on the status of civil defendants as non-Indians or non-members.

 

 

 

(1)   Mandamus in The High Court.

Mandamus is a prerogative order issued in certain cases to compel the performance of a duty. ... Thus it is used to compel public officers to perform duties imposed upon them by common law or by statute and is also applicable in certain cases when a duty is imposed by Act of Parliament for the benefit of an individual.

The order of mandamus is of a most extensive remedial nature, and is in form, a command issuing from the High Court of Justice, directed to any person, corporation or inferior tribunal, requiring him or them to do some particular thing therein specified which appertains to his or their office and is in nature of a public duty. Mandamus is not a writ of right, it is not consequently granted of course, but only at the discretion of the court to whom the application for it is made; and this discretion is not exercised in favor of the applicant, unless some just and useful purpose may be answered by the writ. A writ of mandamus or remedy is pre -eminently a public law remedy and is not generally available against private wrongs. It is used for enforcement of various rights of the public or to compel the public statutory authorities to discharge their duties and to act within the bounds. It may be used to do justice when there is wrongful exercise of power or a refusal to perform duties.

 

(3) Mediation by The Traditional Council.

 

 The accessibility of traditional forums is fundamental to the first step in dispute resolution, that is, the reporting of a dispute, and so crucially informs disputants' exercise of choice. The administration of justice in rural parts of South Africa, for instance, has been predominantly carried out in traditional courts because they are more accessible to rural people. Thirdly, processes before traditional courts are perceived by litigants as quicker, cheaper, and more compatible with their indigenous cultural ideologies. Therefore, in rural areas, where about forty per cent of South Africans live, informal tribunals are found to offer more effective means of conflict resolution. In spite of the wide appeal of traditional tribunals and the significant role they play in enforcing social order and exercising authority over a considerable segment of the population in accordance with customary law tenets, they are criticized for not adhering to international fair trial standards. Three grounds of objection in particular are that they do not apply due process in civil matters; they do not uphold procedural guarantees required in criminal cases, and they discriminate against women in their proceedings.

 

 

(4) Issue of Summons in A Tribal Court.

The tribal court issues a summon in the following way, therefore You are hereby summoned in the above named action and directed to file a written Answer to the attached Petition with the Court Clerk of this Court, within thirty days after service of this Summons, which is herewith served upon you. Henceforth a copy of your Answer must also be delivered to the Petitioner or his/her attorney/advocate and proof of such service with your Answer must be filed in this Court. therefore, if you fail to Answer this Petition within the time stated, judgment by default can be rendered against you for the relief demanded by the Petitioner.