Justice for Native Nations: Insights from Legal Pluralism
24 Pages Posted: 20 Mar 2018
Date Written: March 19, 2018
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
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