Melissa L. Tatum

Building New Traditions: Drawing Insights from Interactive Legal Culture

Within the legal academy in the United States, there is general agreement that the US legal order does not deliver justice for Indigenous peoples. Criticisms in this regard are plentiful and varied, ranging from charges of colonialism, racism, patriarchy, and entrenched hegemony to an over-reliance on adversarial structures and processes (Getches 2001–02). It is notable, however, that while these discussions may reference tribal custom and tradition, they tend not to do so in the context of the existing body of literature regarding legal pluralism. Indeed, these discussions usually omit any recognition that the legal orders of the United States and its Native nations exist in circumstances of legal plurality, by which we mean the situation whereby competences and responsibilities are divided across federal, state, and tribal courts, with the ultimate goal of giving effect to local and culturally specific normative practices within what is still a fundamentally centralised legal system. Indeed, this situation is paradigmatic of John Griffiths’ definition of legal pluralism as ‘the messy compromise [that] the ideology of legal centralism feels itself obliged to make with recalcitrant social reality’ (Griffiths 1986, p. 7). It is further worth noticing that, while this ‘compromise’ situation is prima facie successful in its operation, not only are tribal jurisdiction and authority both tightly bounded (National Farmers Union Ins. Cos. v Crow Tribe 1985) but that by declaring that the existence and extent of tribal jurisdiction is a federal question, the US Supreme Court has anointed itself as the ultimate arbiter on any dispute arising from Indian Country (18 U.S.C. 1151).