Rhetoric and American Indians

Awareness of the means by which some people are permitted to participate in the creation and application of elements of culture while others are excluded from such activities is not only a question of acknowledging equal representation, but also of familiarity with the structural mechanisms and power relations that make up the foundations of various rhetorical forms. One result of the current lack of awareness is that affirmative action programs, better school curricula, expansion of the literary canon, and more equal representation before the law oftentimes are less meaningful than they should be to those with whom they are supposedly most involved.

Law is often the final arbiter of these various interactions, and anexample wherein better understanding might be very helpful on a number of levels is the relationship between American Indians and federal Indian law. If this relationship can be seen as an allegorical representation of the postmodern condition of all peoples, it may prove to be a useful model by which different cultures can coexist. Support for such a claim can be found in the recently established tribal justice systems wherein Indian peoples are making social and ecological decisions that blend traditional tribal policy and dispute resolution with those of the mainstream American legal system. In this expanded role the courts function to accommodate and foster diversity rather than simply to enforce the status quo.

Investigation of legal and other rhetorical forms can be facilitated by adding deconstruction and reflexive sociology, using the exclusionary structures by which some voices are heard and others are not as their point of inquiry. Investigation of such structures reveals a phenomenon whereby literature becomes a tool with which to analyze ideologies of law; for example, "Literature's distance from the direct mode of governance accounts for its capacity to contest a period's dominant legal ideology." ¹ In part due to the success of the Native American literary renaissance, the nexus between law and literature has much potential to help affirm sovereign relations between American Indians and those with whom they continue to have troubled associations by fostering diversity rather than reinforcing stereotypes.

A threshold problem is the insular nature of law and literature, both of which often seek to privilege cultural superiority rather than accommodate diversity. At the same time, the law seeks to represent citizens, with liberty and justice for all, through a system of formal equality. In the case of literature, the most powerful rhetorical strategies depend upon impartiality for their strength, while simultaneously being governed by highly subjective doctrines such as copyright and censorship.

Exclusionary structures and their potential to influence various relationships between representation and justice focus not only on the categories and institutions of law and literature, but also on performative structures and power relations. This double emphasis produces readings of social, literary, and political issues that extend beyond the usual discussions of formal equality and critiques of ideology.

Derrida isolates the violent aspect of power relations that often accompanies successful revolution. Such violence, while not legal, is facilitated by a suspension of existing law. ² This suspension of law in the process of revolution is reflected in Kafka's short story "Before the Law," which considers the question of whether such suspension is unusual or somehow integral to the law. ³ In fact, it appears that suspension of law is a disturbingly common practice, given that aboriginal rights have been frequently deferred in the United States, Canada, Australia, China, India, and Latin America.

In the United States, suspension of law is found in the relationship between American Indians and the U.S. government: "The recurring theme during the modern era—presented in numerous variations—is whether and to what extent old promises should be honored today.... Numerous later federal laws suggest, although they do not so state, that the old promises have been eliminated or modified." ⁴ The rationale for this has always been that the passage of time somehow justifies breaching legal agreements entered into with American Indians. Understanding how such...