Law of the Land - Recognition and Resurgence in Indigenous Law and Justice Systems in Indigenous Peoples and the Law

This paper begins with a discussion of the Indigenous legal tradition and explores its connection to the land. Borrowing from the work of Indigenous scholars, it describes the Indigenous legal tradition as a part of Indigenous knowledge, which stems from an ecological order rooted in specific place.\u27 The recognition of the Indigenous legal tradition by nation states does not always lead to its acceptance. Indigenous legal tradition requires a special approach because of its unique texts. Drawing on previous work, this paper elaborates on the Indigenous legal tradition. The Indigenous legal tradition struggles in relation to the existing justice systems of U.S. tribes because these justice systems are products of the common law tradition which were introduced to tribes. While development of these justice systems is within the hands of indigenous peoples, the tension between the two traditions is apparent. The paper addresses first its recognition by the judiciaries of the United States, Australia and Canada exploring the characterization of the Indigenous legal tradition by these courts. The recognition by external courts is challenged by the ingrained frame used to understand thier law. The Indigenous legal tradition is often viewed as contrary to the law of nation states and misunderstood, as can be seen in various court opinions of the highest court of the United States. Canada and Australia\u27s high courts seem to captivate and restrict its usage. The paper then considers the use of the Indigenous legal tradition by tribes themselves in the development of law and justice systems. The tension between tribal court systems, modeled on the common law tradition of American law, and the Indigenous legal tradition is sharp. Indigenous language is an important key in comprehending Indigenous law and in understanding its principles. The Indigenous legal tradition is a part of Indigenous knowledge and therefore must be considered in that vein. The paper concludes with a consideration of three critical elements of conscious Indigenous planning: language, process and knowledge. These three elements are considered in the context of the Pueblo of Isleta\u27s movement to establish its justice system. The reaction to the challenges of modern\u27tribal\u27 justice systems with their foundations in the common law, can be to accommodate the Indigenous legal tradition.https://digitalrepository.unm.edu/law_facbookdisplay/1030/thumbnail.jp

Strengthening What Remains

This paper is intended to encourage discussion and stimulate action and thought as well as to support the ongoing work in tribal courts in this area. We are involved in an ongoing process of developing an indigenous body of law and system of justice. We must pay particular attention to how we are going about the development of our court systems and look closely at what is developing. Incorporating customary law, whether wholly or partially, into our developing legal systems makes them truly unique to our individual tribes and reflective of the concepts we, as Indian people, have of law and justice

The Indigenous Decade in Review

This Article considers the decade, 2010 to 2019, in respect to indigenous peoples in the United States. The degree of invisibility of indigenous peoples, in spite of the existence of 574 federally recognized tribes with political status, is a central issue in major cases and events of the decade. Land and environment, social concerns, and collective identity are the three areas through which this Article considers the decade. The Declaration on the Rights of Indigenous Peoples, endorsed in 2010, sets a measure for the nation-state’s engagement with indigenous peoples possessed of self-determination. The criticality of a new place in the American consciousness for the political status of indigenous peoples in the United States going forward is a feature of the decade

The Indigenous Legal Tradition as Foundational Law

This chapter is drawn from a transcribed joint presentation made by Christine Zuni Cruz (Isleta/Ohkay Owingeh) and Casey Douma (Laguna/Hopi-Tewa) at the Pueblo Convocation in April 2012 at Tamaya. Sections I, II and V are based on the presentation made by Christine Zuni Cruz; Sections III and IV summarize the presentation made by Casey Douma. Section VI combines the concluding thoughts of Zuni Cruz and Douma. Special thanks to Aaron Sims (Acoma Pueblo) for producing the computer images for Figures 1 and 4. Figures 1 and 4 are adapted illustrations created by Christine Zuni Cruz in an earlier article (Zuni Cruz 2000). The illustrations in Figures 2 and 3 were created by Casey Douma. This paper documents the presentation provided on the Indigenous legal tradition of Pueblo peoples at the Pueblo Convocation of 2012 by Christine Zuni Cruz and Casey Douma. Section II, III and V draws from the presentation made by Zuni Cruz and identifies the Indigenous legal tradition and its operation amongst Pueblo peoples. Sections III and IV summarize Casey Doumas presentation which identified the core Pueblo institutions responsible for proper social behavior, ranging from the family, to a widening circle of Pueblo authorities. It chronicles the movement from family-centered and group resolution of disputes to the reliance on the individualized approach to resolution of disputes introduced by tribal courts

Self-Determination and Indigenous Nations in the United States: International Human Right, Federal Policy and Indigenous Nationhood

This paper, presented at the 2003 Native Title Conference in Alice Springs, Northern Territory, Australia in Lhere Artepe Country, considers self-determination from an internal indigenous perspective. This perspective looks to Indigenous legal tradition to set forth an idea of self-determination that has its foundation in Indigenous notions of origin and existence. The paper explores autochthonic legal tradition, or Indigenous legal tradition, and situates the principle of self-determination within the Indigenous legal tradition. While self-determination for Indigenous Peoples is recognized by the United Nations and the United States, Indigenous Peoples origin stories, a part of their Indigenous legal tradition, provides the sacred texts for their human rights, including self-determination. The significance and interpretation of the Indigenous legal tradition continues in modern times. The chthontic legal tradition, often invisible to nation-states is the source of the principle of self-determination to Indigenous Peoples. In Australia, this legal tradition was linked to the recognition of land rights of Australian Aboriginal Peoples in the Mabo case. Difficulties can arise, however, without a proper understanding of the chthonic legal tradition. The paper concludes with a consideration of how this played out in the United States. In the United States, countervailing forces, particularly those set in motion through a national policy of assimilation affected the Indigenous legal tradition through constitutionalism and education, which promoted the values, approaches, and ideas of the common law legal tradition to the exclusion of the Indigneous legal tradition. An important aspect of self-determination involves being in control of one\u27s own destiny, and this includes economic, socio-political, and cultural self-sufficiency. As Indigenous Peoples struggle for political and cultural survival, many obstacles remain. For Indigenous Peoples in the United States, existing within the larger nation-state presents unique challenges to the realization of self-determination. The paper ends with a discussion of how the many forms of racial, intolerance have played a historical role both collectively and individually, and continues to do so.\u27 A compilation of selected lectures delivered at the Native Title Conference marking the 10th Anniversary of the Native Title Conference by the Australian Institute for Aboriginal and Torres Strait Islanders Studies (AIATSIS).https://digitalrepository.unm.edu/law_facbookdisplay/1031/thumbnail.jp

La Verdad, El Poder, y La Liberacion

A Reflection on Margaret Montoya, Mascaras, Trenzas, y Grenas: Un/Masking the Self While Un/Braiding Latina Stories and Legal Discourse, 17 HARV. WOMENS L. J. 185 (1994), 15 CHICANO-LATINO L. REV. 1 (1994)\u27 Professor Margaret Montoyas Mascaras, Trenzas y Grenas: Un/Masking The Self While Unbraiding Latina Stories and Legal Discourse1 was published during the first year of my entry into the legal academy as a visiting professor. This reflection on her influential article addresses three of the major themes that resonate most strongly for me. The first is the assimilative pull of the legal academic institution, the second is the power of narrative, and the third is transculturation

Shadow War Scholarship, Indigenous Legal Tradition, and Modern Law in Indian Country

This article documents the purposes and reasons for the development of the Tribal Law Journal, the University of New Mexico School of Laws electronic journal created to promote scholarship on tribal law and the Indigenous legal tradition. It discusses the use of the internet for the work of the journal and of the need to increase an understanding and awareness of the law of Indigenous peoples. The diversity of indigenous peoples, in and of itself, requires unique approaches to the discussion of tribal law. The article considers how the Zapatista Movement in Chiapas utilized the internet. The Zapatista\u27s engagement of the Mexican government has been described as a \u27shadow war\u27 for its engagement in conflict in \u27symbolic rather than real terms.\u27 This early exploitation of the internet allowed the Zapatista to get their position across without having to rely on gatekeepers. The article describes how the Journal follows the same strategy in respect to tribal law. The important developments occurring in law at the tribal level require Indigenous Peoples\u27 awareness of trends among Indigenous peoples in the United States and across the world. Electronic communication has significantly facilitated this. The article concludes with a discussion of the limitations that challenge electronic communication among Indigenous Peoples

Toward a Pedagogy and Ethic of Law/Lawyering for Indigenous Peoples

This article is prefaced with a reflection on Indigenous Peoples in the legal profession which leads into a discussion on the pedagogy and preparation of Indigneous students in law. It addresses the current pedagogy employed in training indigenous students in law and proposes a reframing of this preparation by including and employing an indigenous perspective and intellectual tradition of leadership. It considers the relationship of the Indian law academician with indigenous justice systems. The article addresses the influence on pedagogy that emerges from the Indigenous legal tradition, and the importance of incorporating these influences into the education and preparation of law students to serve Indigenous peoples, particularly in clinical education. These influences are briefly discussed as law/yering approaches. Scholarship connected to this pedagogy can provide much needed analysis of the tribal legal landscape. Likewise, theory and praxis merge in the law practice clinic and in work by the academician outside the academy and provides the advantage of testing and exploding theory