Custom, Tribal Court Practice, and Popular Justice

American Indian Law Review Volume 25 | Number 1 1-1-2000 Custom, Tribal Court Practice, and Popular Justice Elizabeth E. Joh UC Davis School of Law Follow this and additional works at: https://digitalcommons.law.ou.edu/ailr Part of the Indian and Aboriginal Law Commons Recommended Citation Elizabeth E. Joh, Custom, Tribal Court Practice, and Popular Justice, 25 Am. Indian L. Rev. 117 (2000), https://digitalcommons.law.ou.edu/ailr/vol25/iss1/5 This Article is brought to you for free and open access by University of Oklahoma College of Law Digital Commons. It has been accepted for inclusion in American Indian Law Review by an authorized editor of University of Oklahoma College of Law Digital Commons. For more information, please contact . CUSTOM, TRIBAL COURT PRACTICE, AND POPULAR JUSTICE Elizabeth E. Joh* Using custom is essentialfor the cultural survival of American Indians as a distinct people and as a governing entity. Gloria Valencia-Weber' Indianpolicy literatureispreoccupiedwith the quantity of Indian control, ratherthan the quality of its exercise. Russel Lawrence Barsh2 Tribal courts in the United States have undergone dramatic changes in the past forty years.' Encouraged both by recent federal Indian policy and by a burgeoning sovereignty movement, tribal courts in Indian country' are no longer the conscious instruments of assimilation and external control that they were in the nineteenth century.' While there is wide agreement that they have changed, what modem tribal courts do represent, however, is open to debate. Supporters of tribal court development assert that these emerging justice systems vindicate Indian sovereignty and self-determination, particularly through the use of customary laws and practices.6 Traditional practices, so the *J.D., 2000, New York University School of Law; Ph.D. student, Institute for Law and Society., New York University. The author gratefully acknowledges the comments of Professor Benedict Kingsbury and the support of the Center on Crime, Communities, and Culture. 1. Gloria Valencia-Weber, Tribal Courts: Custom and InnovativeLaw, 24 N.M. L REv. 225, 230 (1994). 2. Russel Lawrence Barsh, The Challenge ofIndigenousSey-Determination,26 UNIV. MICH. J.L. REroRhi 277, 303 (1993), reprinted in NAnTvE AMnuCAm SoVEREGNTY 161 (John W. Wunder ed., 1996). 3. See, e.g., Frank Pomnmersheim, Tribal Courts: Providers of Justice and Protectorsof Sovereignty, 79 JUDIcATURE 110, 112 (1995) (noting "trajectory of the rapid development of tribal courts" over past thirty to forty years); Carey N. Vincnti, The Reemergence of Tribal Society and TraditionalJustice Systems, 79 JuDICATURE 134, 141 (1995). 4. See Robert D. Cooter & Wolfgang Fikenstcher, Indian Common Law: The Role of Custom in American Indian Tribal Courts, 46 AM. J. COMp. L 287, 303 (1998) ("Since 1790, Congress has used the phrase 'Indian country' to refer to land subject to tribal and federal law, as opposed to state law."). 5. See, e.g., Joseph A. Myers & Elbridge Coochise, Development of Tribal Courts: Past, Present,and Future,79 JUmcATuRE 147 (1995) ("Several important Indian customs and religious practices, such as the sun dance, medicine men, and distribution of property owned by an Indian on his death, were outlawed, and violations were punished by [these early courts]."). 6. See, e.g., Daniel L. Lowery, Developing a Tribal Common Law Jurisprudence: The Navajo Experience, 1969-1992, 18 AM. INDIAN L. REv. 379, 381 (1993) ("['B]y bringing their unwritten customary law, or common law, into the imposed Anglo-American style tribal court Published by University of Oklahoma College of Law Digital Commons, 2000 AMERICAN INDIAN LAW REVIEW [Vol. 25 theory goes, have transformed the alien "white man's courts" into places where "Indian justice" can be realized.' But normative assertions about tribal court practice do not illuminate how they actually work. The isolation of American Indian law as an area of study sui generis further obfuscates analytical comparisons with other categories of law.' Those who study the even more marginalized subject of tribal courts9 have rushed to enumerate the uses of customary law and traditional practices, with little critical evaluation of whether these developments are practicable or desirable for the fundamental issue of indigenous self-government.'" This approach sidesteps of a number of fundamental questions. Is it accurate to contend that tribal court practices are unique in this way? Is the use of customary legal practices necessary for American Indians to flourish as a distinct culture? This article argues that tribal courts cannot be justified primarily through the use of custom and tradition. "Customary" law presents too problematic a concept in most instances to constitute a practicable and coherent foundation for modem tribal courts. Rather, it will be argued that Indian tribal courts ought to be understood as a subset of a much wider phenomenon: popular justice. Popular justice, or informal justice, refers to those law reform movements in the United States, as well as in other countries, that cast themselves in opposition to formal, Western, and conventional law models. The justifications for customary practices in Indian tribal courts bear striking parallels to the motivations for popular justice movements, particularly those which seek to recapture "community" norms. The popular justice literature also provides a useful analytic for the tensions which appear in the use of systems, tribes are resurrecting, institutionalizing, and applying to the cases that come before them the norms and values that underlie the tribal traditions and customs."). 7. Despite the frequent use of "Native American" by non-Indians, a survey of the literature written by and for those interested in tribal courts and culture reveals a preference for the term "Indian." See Cooter & Fikenstcher, supra note 4, at 287 n.2 ("[Tihe people whom we interviewed referred to themselves as 'Indians' in almost every case, and only occasionally used the phrase 'Native Americans.'"). 8. Federal Indian law - concerning jurisdictional disputes, the treatment of Indian tribes in federal courts, etc. - is treated by its own scholars as an esoteric, complicated, and unique area of study. See infra note 18. 9. Indeed, while there is an enormous body of literature on federal Indian law, there exist very few studies on the operation of tribal courts. One recent study suggests that not only is there less scholarship on tribal courts than on federal Indian law, but that it has even diminished over the years. Cooter & Fikentscher, supra note 4, at 292 ("For whatever reason, scholars have neglected the study of tribal courts."). Moreover, any systematic study of the jurisprudence of tribal courts is complicated by the fact that the majority of decisions are unavailable. There are only a few Indian law reporters, and the decisions they publish constitution a fraction of those cases ac (...truncated)