Law of the Land—Recognition and Resurgence in Indigenous Law and Justice Systems

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.” 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’s 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’s movement to establish its justice system. The reaction to the challenges of modern”tribal” justice systems with their foundations in the common law, can be to accommodate the Indigenous legal tradition.

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