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matter holding instead that ‘we must defer to the experience, wisdom, and compassionof the tribal courts to fashion an appropriate remedy’. The case was sent to the tribalcourt for determination.The Supreme Court commented,Tribal jurisdiction under s1911(a) was not meant to be defeated by the actions of individualmembers of the tribe, for Congress was concerned not solely about the interests of the Indianchildren and families, but also about the impact on the tribes themselves of the large numbersof Indian children adopted by non-Indians ... In addition, it is clear that Congress’ concernover the placement of Indian children in non-Indian homes was based in part on evidence ofthe detrimental impact on the children themselves of such placements outside of their culture(page 105 reproduced in The Indian Child Welfare Handbook undated).The Supreme Court of Utah had encapsulated much of the debate in an earlierdecision cited with approval by the US Supreme Court in Holyfield.This relationship between Indian tribes and Indian children domiciled on the reservation findsno parallel in other ethnic cultures found in the United States. It is a relationship that manynon-Indians find difficult to understand and that non-Indian courts are slow to recognise. It isprecisely in recognition of this relationship however, that the ICWA designates the tribalcourt as the exclusive forum for the determination of custody and adoption matters forreservation-domiciled Indian children, and the preferred forum for non domiciliary Indianchildren (In re Adoption of Halloway 1986 pages 969-970).Tribal courts were first established in 1883 as an adjunct to the process ofassimilation to outlaw customary law and ‘civilise’ Indians. The tribal courts whichoperate today derive from the Indian Reorganisation Act 1934. Indian tribes wereauthorised to establish tribal constitutions and governments and to enact lawscovering internal matters including law and order. The tribal courts could beestablished as part of a tribal constitution or as a part of a law and order code. 1Some 108 Indian tribes operate tribal courts, ranging from small tribes of 65members and courts that deal with three cases annually to the Navajo nation of nearly200,000 members and a judicial system that handles 40,000 cases annually. Notsurprisingly the court systems vary dramatically ‘depending upon the population ofthe reservation they service, the demand for services, the funding available, the extentof jurisdiction possessed by the courts, and the philosophical orientation of the tribalgovernments’ (Canadian Royal Commission on Aboriginal Peoples 1996a page 191).Tribal courts have broad jurisdiction, including criminal law. However, tribalcriminal codes cover essentially offences falling within a summary jurisdiction. Majoroffences, including homicide, rape and drug offences, must be dealt with in a federalcourt. The Indian Civil Rights Act 1968 restricts the operation of tribal courts bylimiting the penalties they can impose to a maximum fine of $US5,000 or one year inprison or both. That Act also imports into tribal law the protections of the US Bill ofRights including criminal law protections with due process guarantees.The US tribal court system was extensively reviewed by the ManitobaAboriginal Justice Inquiry (1991) and the Canadian Royal Commission on AboriginalPeoples (1996a). Clear advantages and disadvantages were catalogued. On the