The law in America that applies to Native peoples ought to be as informal and personal as our communities are. But most of the law that applies to us is of foreign origin. It comes mostly from American law which, in turn, is deeply rooted in the traditions of European and, more precisely, English law. This is not to say that the traditional laws of our peoples were unimportant. The outcome of five centuries of invasion, subjugation and forced assimilation, however, is that we have largely abandoned those traditional ways. But it's more complicated than that.
The very concept of "law" was foreign to Native peoples. It's not that we didn't have ways to organize our societies. Using written word-formulas was just not our style. It goes further than that, though. We generally did not live under social orders that were coercive in nature. Search the continent and you will not find the ruins of any ancient jail. Commands were rarely given by our leaders. Much of our daily lives was ruled by consensus. We learned the requirements of behavior through stories and the advice of our elders. If we failed to perform our lives according to desired public norms, we were subtly steered back to the right course through shame, ridicule or shunning. On rare occasion, punishment did take place, but an individual was then usually embraced back into the group without a stigma being attached. Admittedly, these are generalizations, but, there is a distinct difference between Native and American Justice.
Most tribes now have migrated toward the forms of justice prescribed by our American captors. (Note that "justice" was not capitalized: there's a reason for that - in the American way, justice amounts to the hearing of a controversy with the full range of procedural guarantees. There's never a real moment of consideration for the question of whether true "Justice" is being done.) With our recently reshaped systems of justice we must also accept the pitfalls of American justice: overloaded dockets, impersonal treatment, technicalities, an elite group of legal interpreters (lawyers and advocates), the bitter cruelties of incarceration and an attitude of contempt for those who commit crimes, even if they are our own - the core of vengeance itself.
This apparent convergent evolution toward an American form of justice is precisely that: apparent. It's not evolution at all. To deprive a person of liberty and to dehumanize him is medieval at heart. To stigmatize a person for life as a "criminal" is to place him into lower strata, as a vassal. But, as is thematic with me, this is consistent with a social structure that euphemizes its behavior in convenient desensitized words and phrases. Call a person a "perp" and he is no longer a brother but something "lesser." So why have we bought into this structure and sacrificed the humane ways of our past?
There are many forces, conscious and unconscious, that sway us. For one, we watch a media that thrives on the depiction of various forms of retribution. Television loves lawyer and cop shows. News coverage glorifies the vengeful. But, at a deeper level - and a more troubling one - our leadership believes (upon the advice of our non-Indian attorneys) that the legitimacy of our governing systems relies upon systems of written word-formulas, paramilitary enforcers, docketing systems and cold-walled jails. Somehow they have come to believe that "sovereignty" is at stake when these components are missing. This belief of the necessity of conformity is, at heart, tutelage.
And then there are dozens of "experts" out there, many of them Native, who mindlessly assist the U.S. Department of Justice to market federal grant programs to Indian tribes. Because these programs provide money and occasional employment, the tribes are moved by this jedi-mind-trick to believe that they have been improved by the generosity of these "experts," when, in reality, the tribes have been furtively integrated into an American norm of operation. No one notices that most of these federal programs satisfy two American insecurities: first, it makes them feel like they're doing something for Indian country (even though it's a mere refined form of colonialism); and second, it grants to them the feeling that they live in a nation secure, from shore to shore - no islands within, where crooks and extremists and terrorists can hide.
But whether we can ever return to the benevolent ways of the past is uncertain. All of this assimilationist change has dictated structural changes within our societies. We have invested more authority than we ever have before in our elected leadership, who then, in turn, hide behind the imported notion of "sovereign immunity." Our elderly have been cast aside, to emotionally, psychologically and physically wither, while we favor, instead, the education of our children by schools with Anglo-dominated curricula. Our youth are favoring the privacy of nuclear families and are dismissing communal and familial responsibilities. They pay little respect to the power of traditional medicine. Many of the remainder of Native society have become content to consider our social duties fulfilled by our daily eight-hour workday. And there is an immense luxury in relying upon court systems to process our criminal relatives, freeing us to go home to watch TV and overeat like the rest of America.
None of this presents a problem to mainstream America. After all, they have always wanted Indian assimilation and it now has infected Native America's primary governmental institutions. Native Americans are now avid participants in the American consumer cash economy. They send more than their share of soldiers off to war. Even though they consistently lose in the Supreme Court, they, nonetheless, have access to the American legal system. Natives are, at last, abandoning their "backwards" and "primitive" traditional practices. In the end, Americans still claim legal ownership of all Indian lands and we are subject to the approval of the Secretary of the Interior in most things, suspended in a state of tutelage in perpetuity.
Traditional systems of justice are all-inclusive. Almost every adult member of a traditional tribal society played a role in solving social problems. Our social problems now, however, extend beyond our boundaries and involve federal and state relations. This does not mean that the burden of problem solving must be relegated to our political leadership. Rather, every Native adult should recognize that the cultivation of consciousness and caring has become more complex.
If we truly desire a restoration of traditional law-ways, we must actually put those ways into practice, either familially, through extensive discussion, or, officially, through investigation of our past and current practices. Pessimism is likely to abound during these discussions, but that is an imported dysfunction. We cannot unmake in a short time what has occurred over centuries. We must develop the same hearts as our ancestors. It will take that kind of power to overcome our sad and medieval state.
Judge Carey N. Vicenti, a member of the Jicarilla Apache Nation of northwest New Mexico, currently serves as an Assistant Professor of Sociology at Fort Lewis College in Durango, Colorado. He sits as a judicial official for several American Indian nations and is a columnist for Indian Country Today.