Indigenous North American Jurisprudence

Beginning of article

Sociologists usually study law by examining its relationship to basic sociological variables such as class, gender, age, and race, or to social institutions such as the economy, family, education, religion, and polity. A focus upon an indigenous perspective is noteworthy primarily because of its absence, especially in regard to research on jurisprudence (Oliverio and Lauderdale, 1990). Modern jurisprudence in the United States focuses upon nonindigenous perspectives on law, nature, and punishment with a preponderance of criminal sanctions.

This paper proposes an alternative research agenda based on indigenous North American jurisprudence with its emphasis on civil sanctions and the diffusion rather than the consolidation of political power. First, the current law and order paradigm emerging from the separation of people and nature continues to focus upon repressive punishment in a manner that exacerbates inequality and injustice. Second, the rediscovery of civil sanctions and civil law with their emphasis on restitution as a means for addressing some of the underlying sources of inequality and injustice is examined. Third, it is suggested that civil law, if it is based on indigenous jurisprudence with its respect for diversity, will be useful in understanding the changing roles of kinship, individual responsibility, group rights, time, and nature. Civil refers to processes that attempt to restore relationships rather than permanently separate or stigmatize.(2) The sociological approach employed here examines law, nature, and punishment from different levels of analysis and degrees of abstraction.(3)

Law and Order versus Law-ways

Despite the cultural diversity among North American Indian Nations, there was a commonality in the use of civil rather than criminal sanctions. The common ground of indigenous jurisprudence stems from the respect for all life forms rather than the modern separation of humans from nature.

From a sociological perspective, moder jurisprudence, the study of law and legal philosophy and the use of its ideas in law to regulate conduct, differs significantly from law-ways, the "law" of indigenous North Americans (compare Whitt, 1995; Medicine, 1993; Black, 1976, 1993; Deloria, 1992; Garland, 1990; Friedman, 1985; Luhmann, 1985; Inverarity, Lauderdale, and Feld, 1983; Unger, 1976).(4) Even recent laws that intend to protect the environment are usually shortsighted and fragmented.(5) One of the reasons that law in modern societies is fundamentally different than the law of many North American indigenous people is because the jurisprudence created by the modern nation-state assumes that law and nature should be separated. A common feature of diverse indigenous cultures, however, was that law and nature were bound together; indigenous nations were comprised of peoples who shared a common culture, heritage, language, geography, political system, desire for common interaction, and indigenous jurisprudence. Law was not considered to be contained within the realm of nation-state structures, autonomous from other social institutions, interpreted only by legal specialists.

For most North American Indians law was accessible to everyone since the oral tradition allowed it to be carried around as part of them rather than confined to legal institutions and inaccessible experts who largely control the language as well as the cost of using the law (Deloria and Lytle, 1983; Monture-Okanee, 1993; see also Reid, 1970, p. 70).(6) North American Indian law-ways based on oral traditions have continued to preserve much of the diversity embedded in the cultures of many North American Indians (Deloria, 1973; Monture-Okanee, 1993).

The recent call for cultural diversity being implemented in part through recent laws is a conundrum (Goldberg, 1993, p. 220). Corporate culture of the modern state, for example, now acts as if it has discovered diversity, yet it is only a rediscovery and is typically practiced in a bureaucratic manner, rather than in indigenous forms where diversity, especially respect for the diversity of nature, was inherent (Fitzpatrick, 1992; also for a broader comparative analysis of diversity, see Lauderdale and Cruit, 1993). The modern state attempts to control and dominate nature and then defines this process as progress. Rather than learning the diverse lessons of nature, the modern linear, univariate plan is one of controlling and dominating nature - whether it be rain forests, animals/humans or natural technologies (compare Deloria, 1992, especially pp. 2-3, 93-95 on nature;(7) Hosmer, 1991).

The European tradition, especially the philosophical justifications of Hobbes, emphasized "the state of nature" from which humans separated themselves from nature in order to dominate it (compare Werlhof, 1991). Although the liberal philosophical tradition following Kant and Locke was more concerned with the relationship between, for example, freedom and nature, much of their concern revolved around human nature and led to questions about race or utopian naturalism (Goldberg, 1993, pp. 17-32). And, the melting pot ideology of the later Euroamericans instructed U.S. citizens to ignore diversity or to homogenize it whenever possible. In contrast, from an indigenous perspective, Deloria notes that "if all things are related the unity of creation demands that each life form contribute its intended contribution. Any violation of another entity's right to existence in and of itself is a violation of the nature of creation and a degradation of religious reality itself" (Deloria, 1973, p. 299). The care for and examination of nature provided the lessons which demonstrated the relevance and importance of diversity.

Indigenous law-ways embodied ideas and methods of practicing social diversity and responsibility. Social responsibility, rather than the modern imposed notion of individual rights by the state, served as the cornerstone of law (compare Thomas and Lauderdale, 1987; Monture-Okanee, 1993). Law that emerged from this jurisprudence contrasts with contemporary North American law which focuses on achieving order through hierarchical structures, privilege and conformity. In modernity, social and political stability is viewed as a result of law and order.

Eurocentric Justice: The State and Punishment

The expansion of criminal law and punitive sanctions for the past 900 years occurred primarily as a consequence of the growth of centralized state control (Schaefer, 1968; Samaha, 1987; Inverarity, Lauderdale, and Feld, 1998). The state in the United States legitimated its control and expanded its jurisdiction by aleconstructing indigenous solidarity, experiential education and family and community welfare, as it constructed national citizenship, formal education, and limited forms of government welfare for individuals. The concepts of nation-state and citizen were presented as major sources of solidarity and identity, emphasizing an abstract concept of nationalism. Formal education, especially higher education, with rigid hierarchical organization, unbridled competition, and dichotomous conceptions of students such as bad versus good, was touted typically as superior to experiential learning. The state centralized welfare amidst claims of its progressive care, yet modern forms of state welfare often have created varying levels of stigma for recipients and the state has created new and disproportionate forms of repressive punishment.

Victim compensation programs also have been transformed into rituals of retribution under the banner of restitution. The meaning of restitution has changed into stigmatization as offenders often are treated as demonic with only commodity value and victims become less concerned about restoring relationships or community (compare Ross, 1993; Moore and Mills, 1990). In the modern penal system, the state has become the principal claimant regarding criminal action. Redressing major …