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

Abstract

We now turn from process to substance in our examination of social norms in tribal law. The constitution of every tribe that we visited, except some Pueblos, follow American models, not Indian tradition. Many tribes have organized their statutes into codes covering such areas as family law, fish and game, traffic, and crimes. In perusing these codes, we found little that is traditional or customary.

“What Are You Going to Do with the Village's Knowledge?” Talking Tradition, Talking Law in Hopi Tribal Court

“…In this respect, Hopi law echoes the call from tribal jurists across American Indian tribal courts to develop both substantive and procedural bodies of law that rest fundamentally on the traditions and customs of the people they represent (Coffey & Tsosie 2001;Porter 1997b;Cooter & Fikenstcher 1998;Vincenti 1995;Pommersheim 1995aPommersheim , 1995b. Thus Vincenti writes, ''The real battle for the preservation of traditional ways of life will be fought for the bold promontory of guiding human values.…”

“…This endeavor remains fundamentally un-pursued in the context of tribal court jurisprudence. Indeed, scholars repeatedly note that there persists a general lack of studies that detail the actual operation of tribal courts and their discourses ( Joh 2000;Barsh 1999;Cooter & Fikenstcher 1998). Despite the explicit recognition by tribal jurists that the force of tribal custom and tradition in today's tribal law necessitates careful consideration of their integration into contemporary Anglo American-style legal operations (Barsh 1999;Porter 1997a;Pommersheim 1995aPommersheim , 1995b, virtually no work has been undertaken to examine the details by which this process is accomplished in the discourses that constitute tribal legal practices.…”

Ordering Legal Plurality: Allocating Jurisdiction in State and Tribal Courts in Wisconsin

“…Although a number of legal scholars have given some attention to ways in which cultural differences are manifest in American Indian tribal court jurisprudence (Barsh ; Cooter and Fikentscher ; Fletcher ; Pommersheim ; Valencia‐Weber ), only a few cultural anthropologists (MacLachlan ; Miller ; Nesper ; Richland ) have undertaken ethnographic work in the tribal courts themselves. Herein I extend this latter ethnographic work into the domain of the relationship between the state of Wisconsin and the American Indian tribes within the state by examining the ways in which different representations of cultural practice shaped the process of legal codification in the development of Wisconsin Statute P.L.…”