Can Indigenous Justice Survive? Legal Pluralism and the Rule of Law
Pimentel, David, Harvard International Review
While working for the federal courts of the United States in 1993, I was asked to staff a Task Force on Tribal Courts charged with addressing jurisdictional gaps and tensions between the federal courts and the tribal courts in Indian Country in the western United States. My introduction to the topic came at a conference in Santa Fe with the tribal justice community.
There, a representative of the new Clinton administration with a New York accent and a bow tie briefly addressed what the Justice and Interior Departments would and would not do on issues regarding tribal sovereignty. Immediately after he completed his remarks, an elderly Pueblo prosecutor, in braids and beads, stood up, looked around the room, and said, "I hope you have not all lost your sold like this man!"
It was a sobering moment for me. I slipped out at the break, and swapped my own neckwear for black and silver bolo (string) tie being sold by an artisan on the streets of Santa Fe, and promised myself that rather than speak at this conference, I would listen and learn. Later that day, a young Native American law student shared her award-winning paper with the conference participants, in which she discussed the story and significance of the Supreme Court case Ex Parte Crow Dog. At this point, the moment ceased to be merely sobering, and became transformative.
She described the ethic of tribal justice at play in the Brule Sioux tribe of the 1880s. Crow Dog murdered Spotted Tail and conceded guilt. Because the crime took place in Indian Country in the Dakota territory, the tribal authorities had exclusive jurisdiction over the case, which was resolved under the auspices of tribal leaders. Both the perpetrator's and victim's family sat in a circle, together with tribal authorities. Crow Dog's family provided Spotted Tail's family with cash, some horses, and a blanket to resolve the issue. The purpose of the proceeding, the student author explained, was to heal the wounded Brule Sioux community. The wrongdoer needed be integrated back into society, and the crime had to be acknowledged so that healing could begin.
White settlers in the surrounding area were aghast with this outcome. From their perspective, these "savages" had just countenanced a gross injustice: the murderer himself remained a free man. Federal authorities quickly intervened, arresting Crow Dog, jailing him, and then trying him for murder. The process was swift and sure, bringing a sentence of death. Before Crow Dog could be hanged, however, the appeals process had to be completed, and in time, the case ended up before the United States Supreme Court. In a unanimous decision, the Court ruled that the federal courts had no jurisdiction over this crime, and that the tribal authorities had exclusive jurisdiction. Crow Dog was set free.
"What would have happened to the Sioux community, had Crow Dog been executed?" the young commentator asked. "It would have wounded them a second time, as Crow Dog's death would be another blow to the Sioux community, another act of violence that would deprive the community of yet another of its members, harming the community all over again," she wrote.
The case presents a classic clash of cultural values in the fundamental concepts of criminal law. Justice for the Brule Sioux was all about healing and peacemaking. Justice for the Anglo community surrounding Indian Country was all about punishment and retribution. The respective justice systems were dedicated to entirely different objectives. There is no question that the Brule Sioux failed to carry out effective retribution, but the US federal courts similarly failed to promote reconciliation and healing.
"Legal pluralism" describes the situation in which different legal systems co-exist in the same geographic area, not unique to the Dakota Territory of the 1880s. We continue to see clashes between state power and indigenous justice throughout the world, much of it exacerbated by the spread of Western law. …