Law and the Great Plains: Essays on the Legal History of the Heartland

By John R. Wunder | Go to book overview

objectives and the resource constraints that affect many tribes. The federal courts need to be informed of tribal objectives and "story" in order that their decision making may be informed and dialogic rather than the product of "imperial" largesse.

The big swipe of Congress' plenary authority seems best left on the sidelines in order to allow this process of localized and narrow judicial review to develop further. Such an approach would encourage, rather than impede, the mutual craft of articulating a sovereignty that proceeds slowly but surely through the process of limited federal review.

This question of federal policy highlights the darker specter of federal courts' acting in a "jurispathic" capacity. This term, originally coined by Robert Cover, means the authority of courts to kill law created by communities. 88 Efforts of tribal courts may be struck down by federal courts as simply too divergent from the majoritarian canon to be tolerated within the federal system. 89 Tribal courts and culture are obviously different from state courts and culture. Therefore, there are real questions of how to understand and to judicially think about this potentially authentic divergence. 90 In many ways, this is the heart of the problem and it goes all the way back to the beginnings of the federal republic. The focal point is the inability to envision and determine how tribal sovereignty and culture are to be integrated within a dynamic federal system. No one knows the answer, but certainly there is a cautionary note that unilateral actions and pronouncements, whether judicial or congressional, do not offer much hope beyond that of assimilation and coercion. Empathy, dialogue, and respect for emerging tribal jurisprudence hold out the most meaningful promise for achieving a future that honors and respects differences rooted in the past, but transfigured in the present, in order to achieve a secure and flourishing future for all.


CONCLUSION

The opportunities and challenges that face tribal courts are manifold and include such things as how and what law will apply. Perhaps more significant are questions related to tribal court appellate and constitutional decision making. These questions include how decisions will be influenced by tribal constitutional texts and theory, as well as tribal aspiration. The processes of law and legal decision making are not "merely a system of rules to be observed, but a world in which we live." 91 The truth of this assertion carries special meaning for Indian tribes and their tribal courts. Indian tribes have struggled from the very beginning of contact with European intruders to preserve their cultures and vindicate their claim of

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