Customary law is generally derived from custom,
meaning long-established practices that have acquired the
force of law by common adoption or acquiescence. It does not
Tribal common law is based on the values, mores and
norms of a tribe and expressed in its customs, traditions
and practices. In some tribes, the tribal common law has
been set out in different court decisions and written
opinions over time and has become case law.
Pueblo communities, the matrilineal system holds that
property belongs to the female. In a divorce or separation,
property is divided according to the matrilineal definitions
of property ownership and is written into the decisions of
the traditional or tribal court. Similarly, Navajo courts
incorporate Navajo common law in decisions in probate,
criminal, and child custody cases, and marital conflicts.
For many tribes along the Northwest coast, such as the Yurok, customary laws dictate the areas where families can
conduct their fishing, hunting, and gathering. These areas
are passed down from one generation to the next. When
someone fishes in another family's area, it is considered an
affront to the entire family. By custom, the wronged family
convenes a family forum as the proper way to handle the
matter and to request compensation. Compensation may be with
fish, fishing gear, feathers, hides, beadwork, traditional
clothing, or other forms of payment.
Among several Pueblo communities, it is customary for
discipline to be administered by the fiscale, who is
responsible for maintaining the peace and overseeing the
welfare of children and youth. It is a general practice for
parents to summon the fiscale when their children are unruly
or misbehaving. The fiscale advises the children about the
consequences of their misconduct and may reprimand them or
refer them and their parents to services such as counseling.
In many tribes, information, beliefs, and customs are
handed down orally or by example from one generation to
another. For example, in the Minto Tribal Court of Alaska
the resolution process involves a segment dedicated to
''traditional counseling'' by the facilitator or presiding
judge. There is a general practice of ''advising giving'' in
the traditional courts of the Pueblos and the ''talking to''
in the Navajo peace making system. This segment is
traditionally set aside for the spokespersons or tribal
officials to speak of community values, mores, and the
consequences of misbehavior or misconduct. Often, these are
conveyed in parables or creation narratives and beliefs.
Advice is given about harboring vengeful feelings, and
everyone is encouraged to renew relationships.