Book Review on State and Tribal Courts: Strategies for Bridging the Divide

Book Review

The authenticity of traditions and awarding of value to political culture has become a challenge to legal actors and analysts, as they endeavor to find the common ground between law and tradition. Prior to European settlement, different tribes in North America exercised various traditional methods to dispute resolution (Arnold et al. 2011: 3). Hopi tribal leaders are pushing for their own way of resolving property disputes, which conform to their own tradition and sovereignty. A further study is necessary to provide the best option to resolve conflicts that involve tradition and culture. This review will focus on the authenticity of tradition, as well as the value of political culture, which must remain as indigenous people’s perceptions, rather than analytical views of anthropologists.

In the book Arguing with Tradition: The Language of Law in Hopi tribal Court, Richland (2008) plaintively noted that there existed a deficiency of ethnographies during the court hearings in the tribal courts. In the first chapter of the book, the author narrated how a Hopi Indian Tribal Court situated in Arizona was challenged to offer a jurisdiction on a case that involved a property, but incorporated Hopi tradition and custom. Since the mid-1970s, the federal government of the U.S. embraced the policy of “self determination” to allow Indian nations to determine their own future (Cornell and Kalt 1998: 188). It turned out that one-size-fit-all courts could not serve all tribes in the U.S., thus, the jurisprudence conclude that it was necessary to recognize tribal autonomy through establishing tribal courts.

In the making of a Hopi nation, the author expresses how he learned the origin of Hopi tribe. This story depicted the current life of the Hopis and their refusal to merge with other tribes. Due to their organization, the Hopi tribe was able to form its government and could employ its customs to establish its court. The issue of tribal courts continued to evolve to conform to the jurisdiction that accepted tribal courts. Even today, Indian nations are largely unrestrained by the U.S. Constitution, but are bound to adhere to provisions expressed in the Bill of Rights under the U.S. statute (Riley 2007: 1050).

Although judges are more educated than the tribal men, they are not supposed to assume the traditional beliefs that residents possess. They are supposed to employ general principles in an endeavor to sway the witnesses from their preference for a particular judgment. The Hopi tribe may be independent, but tribal laws are not. Richland (2011: 203) asserted that cases that involved property disputes were within the jurisdiction of tribal courts, but the Anglo-American adversarial system was required to offer the appropriate jurisdiction. In some cases, a defendant may sue the tribe for waiving its sovereign immunity concerning a violation of customs (Struve 2010: 931).

Some cases that Hopi tribe brought to court were beyond the court’s power. This is because the court had not fully adopted the Hopi tradition. The challenge for the federal judges is to accommodate all the norms of the tribe into the court’s jurisdictions. Another problem is the language that the witnesses and defendants can use in the court proceedings. The effort to reach an agreement between Hopi tradition and the Anglo-style form of government is the general concept of Hopi tribal government (Lambek 2010: 256).  The judges agreed that English was the preferred language to deliver evidence and verdict. The defendant expressed resentment because the discourse of the tribal court does not favor him.

The first four chapters of the book offered an illustration of how the Hopi Tribal Court had incorporated the Hopi tradition through language, culture, and narrative interaction. In the following chapter, Richland (2008) is exploring the legal narrative, both in and outside the courtroom, in reference to the politics of the Hopi community, and tries to perceive it through the anthropological views. Understanding of the legal narrative could depict the Hopi law as a permanent structure of the tribe’s social action. Tension has grown in the tribal courts as judges attempt to incorporate the Hopi traditions while concurrently considering the need to adopt the general principles of the Anglo-American law.

In the conclusion part, the author offered to depict the characteristic of the Hopi Tribal Court with regard to the indigenous jurisprudence and the argument on Hopi tradition and politics.  The key argument in the book has been to explore ways under which both Hopi tradition and Anglo-American law appeared to offer ways of interactions, and how the two models attack each other during the court sessions (Richland 2008: 147). The author does not offer clear separation between tradition and culture, as failure to do so may create a contradiction between cultural values and the Anglo-American jurisprudence.

The main theme of Richland throughout the book is the emerging culture of incorporating tribal law to offer jurisdiction in the Hopi court, and the sovereignty allocated to tribes in the jurisprudence. Hopi traditional discourse managed to press for change in the Anglo-American law discourse to transform Hopi law into a culture. To enhance relationship between state courts and tribal courts, judges should endeavor to comprehend the complex factors that lead to mistrust and misunderstanding (Arnold et al. 2011: 2).  It is the culturally diverse view, not process, which differentiates the common law and tribal law.

References Cited

Arnold, Aaron F., Sarah Cumbie Reckess, and Robert V. Wolf

2011 State and Tribal Courts: Strategies for Bridging the Divide. Gonz. L. Rev. 47: 801.

Cornell, Stephen, and Joseph P. Kalt

1998 Sovereignty and nation building: The development challenge in Indian country today. American Indian Culture and Research Journal 22 (3): 187-214.

Lambek, Michael

2010 Ordinary Ethics: Anthropology, Language, and Action. New York: Fordham University Press.

Richland, Justin B

2008. Arguing with Tradition: The Language of Law in Hopi Tribal Court. Chicago: University of Chicago Press.

Richland, Justin B

2011 Hopi Tradition as Jurisdiction: On the Potentializing Limits of HopiSovereignty. Law & Social Inquiry 36, no. 1: 201-234. doi:10.1111/j.1747-4469.2010.01229.x

Riley, Angela R

2007 Good (Native) Governance. Columbia Law Review, 107(5), 1049-1125.

Struve, Catherine T

2010 Sovereign Litigants: Native American Nations in Court. Vill. L. Rev. 55: 929.