Tribal Jurisprudence and Cultural Meanings of the Family

• Publication year: 2021
• Citation: Vol. 79

79 Nebraska L. Rev. 557. Tribal Jurisprudence and Cultural Meanings of the Family

577

Barbara Ann Atwood*

Tribal Jurisprudence and Cultural Meanings of the Family

TABLE OF CONTENTS

I. Introduction .......................................... 577
II. Tribal Courts ......................................... 585
III. Judicial Reliance on Tribal Custom and Tradition ...... 598
IV. Tribal Culture and the Resolution of Family Disputes .. 607
A. Cultural Representations of the Parent-Child
Relationship ....................................... 608
B. Motherhood and Fatherhood .......................... 624
C. The Role of Extended Family Members ................ 634
D. Cultural Identity and the Protection of a Child's
Interests .......................................... 647
E. Matters of Process ................................. 650
V. Conclusion ............................................ 655

I. INTRODUCTION

Clifford Geertz has observed that law is "a distinctive manner of imagining the real."1 Geertz's use of the verb "imagining" conveys the idea that law is an agent of culture, an ongoing manifestation of a society's attempts to meet its changing needs, rather than a static

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structure existing independent of culture.2 "Culture," of course, can no longer be viewed as a monolithic personality characterizing a particular society. In our post-modern world, scholars have tried to avoid cultural descriptions that essentialize diverse groups of people or that overlook the tensions and contradictions within a particular "cul-ture."3 But the inseparability of law and culture today is beyond debate. Indeed, Robert Cover aptly described the connection: "No set of legal institutions or prescriptions exists apart from the narratives that locate it and give it meaning . . . . Once understood in the contextof the narratives that give it meaning, law becomes not merely a system of rules to be observed, but a world in which we live."4 The narratives of law are not just reflective but also constitutive of the culture in which they are found.5

Through law, as a tool of culture, peoples can differentiate themselves from others and, in so doing, strengthen group identity. Rosemary Coombe has noted that "[c]ulture is the concept that consolidates and naturalizes distinctions between self and other, but it also makes others other. It constructs, produces, and maintains the differences it purports merely to explain."6 When a separate culture exists within a dominant, larger culture, differences serve to reinforce the former's identity, and the differences may be celebrated and promoted for that reason. Indeed, if the survival of the minority culture is threatened - either internally or externally - its leaders may emphasize existing differences and find new ways of defining the minority culture as distinct.7

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Today, a call for cultural renewal and resurgence can be heard clearly within the court systems of American Indian tribes. Weaving strands from native culture, tribal law, Western culture, and Anglo-American law, tribal judges are producing distinct tapestries of juris-prudence.8 Tribal court opinions reveal efforts by their authors to imbue the evolving law with cultural meaning.9 As the Chief Justice of the Ho-Chunk Nation Supreme Court put it, the use of tribal traditions and customs "is an aspect of tribal judiciaries which we must nurture and strengthen. It is a method of memorializing our traditions and customs while dispensing justice. And the use of traditions and customs legitimates them for the world outside of our tribal judi-ciaries."10 In a similar vein, the Colville Court of Appeals recently remarked on the responsibility that rests on tribal judges: "[I]n our

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court system the cultural approach has been eroded and largely replaced by the non-Indian court system. Because of this, it is the trial judge's heightened responsibility to maintain the cultural milieu of the proceedings before it."11 Likewise, Indian law scholars are urging tribal courts to intensify their discovery and use of cultural traditions. In the powerful words of Gloria Valencia-Weber, tribal courts are a place where "legal warriors" can ensure the survival of a tribe's cultural heritage.12 Frank Pommersheim has characterized tribal court jurisprudence as "an act of culture," and has urged tribal judges to educate their audience about basic tribal law and traditional tribal values.13 More pointedly, Russel Barsh has warned tribal judges that they should redirect their attention from seeking external legitimacy to strengthening their internal authority "as representatives of distinctly indigenous, tribal conceptions of justice."14

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This Article explores the ways in which Indian tribal judges are constituting their tribe's unique culture through jurisprudential "weavings" in the realm of family dispute resolution.15 Part II describes the history of tribal courts in this country and the contemporary characteristics of many such judiciaries. In addition, Part II highlights the vast differences among modern tribal courts, but also suggests that many tribes share common values regarding the cultural role of dispute resolution. Part III briefly explores the incorporation of custom and tradition into judicial decision making by tribal courts, including the methods by which traditions are proven and the difficulties inherent in a court's reliance on unwritten customary law. Finally, Part IV analyzes a range of published family law opinions from the judiciaries of diverse tribes, with an emphasis on issues as to which tribal law offers an approach or resolution that is distinct from that found in Anglo-American law. In particular, the prominent childrearing role of the extended family in the tradition of many Indian tribes offers a vivid contrast with the dominant society's emphasis on parental autonomy - recently reaffirmed by the United States Supreme Court in Troxel v. Granville.16 The Supreme Court's constitu

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tional approach in Troxel and contrasting decisions from several tribal courts are explored in detail in Part IV.

I have written elsewhere about the complexities of tribal court jurisdiction and have argued for the recognition of a paramount tribal role in resolving custody disputes involving Indian children.17 In those analyses, I have assumed that respect for the jurisdiction of tribal courts is important, in part, because of the unique cultural orientation that tribal courts bring to dispute resolution. This Article puts jurisdictional ambiguity aside and focuses instead on the substantive decision making of tribal courts. In other words, this Article goes beyond the assumptions in my previous work and asks whether tribal court adjudication is in fact different from dominant society adjudication in disputes involving children. This Article discusses selected opinions that reveal the judges' efforts to formulate a rule of decision that is consistent with their particular tribe's cultural constellation.

The law of family relations provides a rich area for study because it so visibly implicates cultural values and is the area most frequently associated in the case law with the perpetuation of tribal custom and tradition.18 Indeed, tribes tend to view the regulation of family relations as lying at the core of tribal sovereignty.19 Moreover, the con

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temporary Anglo-American law of parent-child relations is a dynamic template of social and cultural change and provides an illuminating basis of comparison. In tribal decisions, one can find a similarly dynamic jurisprudence situated within diverse cultural milieus. In the selected cases, both the substantive principles and the methodologies employed by the judges are often distinct from one another and from those within the dominant judicial system. The words employed in the tribal decisions suggest that the authors are acutely aware of their role in constructing and perpetuating culture.20 Indeed, while the influence of dominant society law is ubiquitous, tribal court opinions reflect the judges' efforts to create a unique tribal jurisprudence.

Identifying and analyzing the contributions of tribal courts to the law of parent-child relations is valuable for multiple reasons. First, although interest is growing, there are still relatively few scholarly analyses of tribal court jurisprudence.21 The Anglo-American world

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should not turn its back on the "extended hand"22 that offers insights and contrasting philosophies from the tribal bench.23 By its very difference, a tribe's view can illuminate unstated assumptions that inform dominant society adjudication. Moreover, a tribe's conception of the parent-child relation may differ markedly from the dominant soci-ety's vision, and tribal viewpoints about family dispute resolution may offer alternatives that could be adapted to the dominant society context.24

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So long as outsiders remain ignorant of what is happening in tribal courts, the view of tribal courts as an inferior system of justice will continue.25 As with most unknowns, greater knowledge of tribal court opinions should lead to greater respect for tribal jurisprudence.26 Concomitantly, to the extent that Anglo-American judges exhibit knowledge of, and respect for, tribal courts' decision making, tribal judges may be more willing to engage in a productive dialogue and to share their adjudication with the world beyond reservations' borders.

II. TRIBAL COURTS

Tribal courts, as we know them today, are a modern invention often bearing a greater superficial resemblance to Anglo-American courts operating outside Indian country than to the judicial systems that operated within tribes historically. Although justice systems existed within tribes in pre-colonial times, much of what has been written about such systems is anthropological speculation...