Justice, Law, and the Lens of Culture

It's a peculiar fact that contemporary tribal courts and justice initiatives undertaken by indigenous communities of the United States and Canada are infrequently examined through an ethnographic and historical lens. Studies by criminologists and legal scholars, important as they are in documenting the overrepresentation of indigenous people in prisons and legal systems or in teasing out complex issues of treaty law and jurisdiction, inadvertently deflect attention either from considering the difficulties facing indigenous people attempting to conceptualize their own prior localized legal practices or, more significantly, from how they wish to regulate their reserves/reservations. Frequently the latter is regarded as a nonissue because indigenous people's legal cultures are treated merely as the opposite of whatever people of European descent are said to be doing or, equally unproblematically, as a question of culture, reproduced through generations.

More ethnographic work is being done now to study both prior justice practices and to determine what contemporary community members view as significant about justice, an important development for several reasons. Indigenous communities in the United States do have tribal courts, and indigenous communities in Canada do engage in a variety of diversionary programs. It is a moment of potentially creative engagement, and in the Canadian dialogue at least, mainstream court officials claim they are looking to indigenous people for ideas for legal reform of the mainstream system. It is also a dangerous moment, although some are far along this path, in that indigenous communities are placed in the awkward position of developing programs for the self-administration of justice following a long period of disruption imposed by the state and of heightened differences between members of the communities based on wealth, education, religion, and so on. There is further danger in the difficulties struggling communities face in addressing internal diversity and in overcoming an inclination to use emergent legal/justice systems to address their relationship with the outside world (and to insulate themselves) rather than to address internal disputes or malfeasance. By this I mean that communities may choose to emphasize regaining control over legal processes, making a political statement about cultural differences, or foregrounding large-scale social dilemmas that are the outcomes of contact and colonization. None of these are the same as actually dealing with the nitty-gritty of regulating the community. Communities today face the dilemma of creating systems that can be regarded as legitimate by both community members and the mainstream justice system that provides funding. Other problems arise from the need to present complex prior local practices, inasmuch as they can be understood even by community members themselves, to the outside, while avoiding the problem of a simplification that boils out the flexibility once present inindigenous justice practices. In addition, some communities, particularly in Canada, are under pressure to import canned legal systems from elsewhere—including a Maori family conferencing model—that serve the interests of the state in being transportable, cheap, and controllable from the outside.

Continentwide efforts at the (re)establishment of indigenous justice practices are premised, in various ways, on the idea of cultural distinction, the notion that indigenous peoples have their own distinct ways of managing social relations and of conceiving of and maintaining humankind's place in the world. One implication of this perspective is that only indigenous peoples can administer justice to indigenous peoples because members of one cultural group cannot understand or empathize with those of another; an associated argument is that indigenous practices of justice are the opposite of whatever mainstream practices might be because they derived from distinct cultures. There may be some truth to these claims, but both widely held views are misleading, and in two senses. They do not logically follow from the premise, and, in addition, they lead in a dangerous direction, away from a careful consideration of prior indigenous justice practices and how these might be reworked for use today. The real world, the current world, of relations between indigenous groups and the...