Justice for Native Nations: Insights from Legal Pluralism

24 Pages Posted: 20 Mar 2018

See all articles by Jennifer Hendry

Jennifer Hendry

School of Law, University of Leeds

Melissa L. Tatum

University of Arizona - James E. Rogers College of Law

Date Written: March 19, 2018

Abstract

This Article makes the case that, despite being underused by U.S. scholars in the field of Indian and Indigenous peoples law, a legally pluralist approach can and does provide vital conceptual insights. Not only does legal pluralism supply an important framework through which to conceptualize and address existing power imbalances between Indian tribes and the federal government, but it also makes instances of interaction between these different and yet connected normative orders — or legal cultures — readily more apparent. Scholarly arguments within this research field in the United States tend to take the form of either wholehearted reliance on constitutional and human rights advocacy to address injustices or the wholesale rejection of the Anglo-American legal system as simply incompatible with indigenous norms and traditions. By contrast, and in proposing an alternative to this academic deadlock, this Article submits that these distinct legal cultures must necessarily interact, and that these interactions are always fertile ones. Drawing on Robert Cover’s concept of “jurisgenerativity” to inform an interactive conception of legal culture, it is argued that this has the capacity to lay a foundation for discursive approaches capable of giving rise to new, mutual traditions.

Keywords: jurisgenerativity, legal culture, Robert Cover, indigenous peoples law, indigenous norms, Native American, Indian, tribal common law, interactive legal culture

Suggested Citation

Hendry, Jennifer and Tatum, Melissa, Justice for Native Nations: Insights from Legal Pluralism (March 19, 2018). 60 Arizona Law Review 91 (2018); Arizona Legal Studies Discussion Paper No. 18-14. Available at SSRN: https://ssrn.com/abstract=3144014

Jennifer Hendry

School of Law, University of Leeds ( email )

Leeds LS2 9JT
United Kingdom

HOME PAGE: http://www.law.leeds.ac.uk/about/staff/hendry.php

Melissa Tatum (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

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