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Nature's Law
Spiritual Life, Governance, Culture, Traditions, Resources, Context and Background
The Heritage Community Foundation, Alberta Law Foundation and Albertasource.ca
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The United States Experience
Making Room

The Goal of "Justice"

The United States
 Experience

Ensuring Space Is
Left Open In Canada

An Apache
 Paradigm

The Informal
System of Justice

Customary Law

Canada, Too, Has
 Deep Differences

The Indigenous
 Justice Process

The Navajo
 Approach to
 Reconciliation

Visual representation of nature's laws


In the United States, the political aftermath of the 1881 case of Ex parte Crow Dog in which the U.S. Supreme Court overturned, for lack of jurisdiction, the federal conviction of an Indian charged with the murder of another Indian, triggered the destruction of Indian legal self-government by inducing Congress to extend the coercive power of the entire body of federal criminal law to the reservations.

In the face of calls to destroy barbarous tribal law, Congress passed the Major Crimes Act of 1885 under the authority of the trust doctrine to expressly establish concurrent federal jurisdiction over major felonies committed by Indians on reservations regardless of the status of their victims. Legal challenges to the Major Crimes Act failed to re-establish tribal legal self-determination while providing the judiciary occasion to further undergird the trust doctrine and plenary power.

The paternalistic assault upon Indian legal sovereignty, joined on the religious front with the adoption of "tribal courts," intensified during the Great Depression with the passage of the Indian Reorganization Act of 1934. Although the IRA expressly recognized that tribes might create their own courts and enact their own laws, the new legislation imposed BIA-drafted boilerplate constitutions that forced tribal governments to adapt the social, political and spiritual elements associated with indigenous governance in order to conform with newly-imposed substantive and procedural obligations.

Moreover, after the passage of Public Law 280 in 1954 providing that a specified State could unilaterally elect to accept jurisdiction over the Indian territory located within its borders and establish a system of concurrent jurisdiction, the entire body of State civil and criminal law was extended to classes of cases involving Indians. Out of fear that failure to create acceptable tribal courts would result in States assuming jurisdiction over all cases occurring on reservations, and out of the understanding that review of Congressional plenary power in the exercise of regulatory jurisdiction over Indian affairs was an exercise in futility, the tribes, one after another, begrudgingly implemented constitutions, tribal courts, and adversarial-based justice systems.

The penultimate blow to Indian legal autonomy fell in 1968 in the form of the Indian Civil Rights Act, which imposed many of the individualist strictures of the U.S. Constitution, in particular, the Bill of Rights and the Fourteenth Amendment, on tribal governments and further circumscribed the jurisdiction and autonomy of tribal courts, smoothing the way for what Indian activists branded "white-man justice." Because the tribal courts established in the 1930s were not subject to the U.S. Constitution, in terms of protecting rights set out therein, the pro-civil rights mood of the late 1960s sought to remedy this "defect." Ironically, the Civil Rights Act was imposed over the opposition of the very people it was supposed to benefit. This insertion of American culture into the tribal environment was resisted because it gave paramountcy to individual rights over collective rights.

Although the Indian Civil Rights Act amended Public Law 280 to require tribal consent for the exercise of State civil and criminal jurisdiction, by the early 1970s, the centuries-long U.S. assault on tribal legal systems and the Indian culture in which they were so deeply rooted, had disrupted and almost entirely displaced traditional methods of social control in favor of the tribal courts. Reliance upon the selfish, individualist Anglo-American adversarial legal system, as the more "civilized approach" to dispute resolution, almost entirely displaced traditional legal and cultural norms of non-confrontationalism and harmony restoration, and acquired tenure in U.S. Indian country.

BIA-drafted tribal codes permitted tribal court judges to apply tribal statutes, yet federal and State laws were supreme, even where they were clearly unsuitable for the tribal context, or where they did not resonate with tribal values, and federal judicial review steered tribal court jurisprudence into lock-step conformity with the U.S. legal system. Unsurprisingly, individual reliance on foreign legal concepts and foreign legal advocacy removed Indian disputes from their natural contexts and soon produced acrimony in reservation communities now shorn of more flexible systems of community dispute resolution.

With tribal courts and tribal governments increasingly revealed as appendages of the American system, enforcement of judgments became far more difficult, further damaging tribal harmony. When a landmark 1978 case, Oliphant v. Suquamish Tribe, extended U.S. legal colonization of Indian tribes still further by denying them jurisdiction over the acts of non-Indians occurring on reservations, a new generation of critical legal jurisprudence, influenced by the Civil Rights Movement, began to question the foundations and institutions of federal Indian law, thereby initiating the daunting task of reclaiming Indian legal autonomy.

But, in 1978, a new crack was reopening. In Santa Clara v. Martinez, the U.S. Supreme Court ruled that, although Congress had the prerogative through its plenary powers to impose a system of civil rights on Indian tribes, it was the prerogative of the tribes themselves to interpret how these concepts should be applied. This meant the federal court was without jurisdiction to hear an allegation of violation of civil rights, excepting through a writ of habeas corpus to move an alleged offender into federal court.

It was at this time that many U.S. tribes reinstated traditional practices of problem-solving. This move toward traditional adjudication also was prompted by the same dissatisfaction with the European system as applied to First Nations people that emerged in Canada, which was paralleled with certain dissatisfactions regarding the system itself. Experimentation with alternative dispute resolution in Canadian courts seemed to validate the restoration of traditional First Nation practices.

The rediscovery of tribal dispute resolution methods after a century of legal imperialism, and their reintroduction in Indian country as an assertion of Indian legal autonomy, has become a primary and pressing concern of Indian scholars and activists, yet the reacquisition of Indian law is not enough by itself to offset the crushing force of federal Indian law, the same law that had facilitated the displacement of indigenous peoples for European settlement, dissolved tribal institutions, dominated indigenous legal systems, and disabled Indian land title, religious expression and cultural practice.

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