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What about the case of ? ?

Sometimes it is unsettling to be so immersed in the field of law. As a judge, I am expected to be familiar with every recent legal development. Daily, I am stopped by a friend, a student, a colleague or an acquaintance and asked about some recent development. What about the case that just appeared in the evening news, for instance. Or how about the lady who drowned all her children -- will an insanity defense save her? How about the long lost member of the Symbionese Liberation Army -- should she go to prison for so stale a crime? What about O.J.'s latest confrontation with the law? I feel obliged to field some of the questions. But, at heart, I am sometimes troubled when they are asked.

These questions are evidence of an American pathology. I specifically searched to find the word "pathology" to describe this -- an obsession with law, a path of thinking from which it is virtually impossible to depart.

Now, many of us Native peoples are infected with this same "pathology." We got it from mainstream America, injected through the daily news. The daily news makes drama out of law. Local news stations offer teasers about a new local case, touching upon our obsession, and stimulating our interest. We find it difficult to go on with our lives without some resolution to the questions raised about the law.

Many of us are troubled with the state of our American society and the rampant violation of our revered legal norms, norms of behavior and social order. But it is not an obsession that finds its roots often enough in compassion and empathy. It is more often about the loss of personal security we feel within the expanse of an unknown and anonymous world. We fear becoming victims of the random nature of American violence. But that's part of the pathology. We're not really in that much danger: the media feeds the story to you continually, just to keep the addiction going.

That's but one motive for our obsession with the law, and the media's tempting case teasers. The other is a less healthy fascination. We are seduced into becoming voyeurs, not much different than troubled people peeking into the bedrooms and lives of others. I ask myself whether this is an issue of self-esteem. Are our Native lives so entrenched and unchangeable that we can find a thrill only as a second-hand observer in the misfortune or deprivation of some other person? Is our interest in these cases an eventual admission that we are now part of the basic fabric of American society -- part of the pathology, and not part of an on-going saga of Native resistance?

These thoughts do not sway me from my own study of the law. But as a jurist I know all too well that the law is not the be-all and end-all of our human existence. To Native peoples the law has been an instrument of conquest. It is a machine devised through countless minor adjustments to control the lives of marginal people in accordance with some sort of majority ideal of conduct and behavior -- under the terms of "inclusion." It is an embodiment of the cultural desires of the American majority.

And so, when a person is charged with the violation of the law, it is an accusation of culturally inappropriate conduct. And when it's time to examine the conduct and to determine whether such conduct has indeed taken place, it is done in accordance with a majoritarian ritual that conforms to a monstrously vague phrase commonly referred to as "due process." And when all is done, the guilty party is made "accountable" for his or her wrongdoing.

But what is "accountability?" What place does "accountability" have within the society of true humans as we Native peoples used to be? Is this legal machinery ever accountable to anyone for its shortcomings or mechanical errors? To whom should it be accountable? All of this is not to suggest that we should disobey the law. But we should be suspicious of what we see depicted in the media about the law.

Must every person who seeks to enforce social order wear a western-styled paramilitary uniform? Are the norms of punishment and accountability consistent with our own American Indian norms of conciliation and harmony? Is this about our own sense of security? Is this the culture we want? Are we trying to fill our lives with a drama that is not part of our Native experience? American law is America's obsession, not necessarily our own. So how should we interrelate to the law? What kind of Native ethic should prevail here?

We are not left totally without some direction regarding our relationship to the law. It's OK to send our young college graduates off to law school. But the era of big Indian litigation is over and what we're now left with is the mere janitorial sweep-up from years of domination by non-Indian lawyers. An education in the law should not be seen as a "way out" of the "doldrums" of reservation life. The legal educational process is an indoctrination into the culture of law -- and we should always be mindful of where our cultural priorities lie.

We can, and should, continue to develop our own internal legal systems within tribal society but should be very cautious not to incorporate state or federal models of governance. We certainly should not adopt codes because non-tribal attorneys recommend such things.

Federal cases involving important questions about tribal authority and tribal existence march in rank toward the Supreme Court of the United States for final disposition. We should be ever aware and vigilant that when American Indians are affected by the law it is never the same as it is in mainstream American society.

So, what about those cases -- of the woman who drowned her children and the Symbionese Liberation Army soldier who suddenly reappeared? The media saturation reflects an old and tired response from an American nation bored with itself and collapsing in on its own loss of culture. These cases are about the decay of a society not entirely our own. To us, they are on our periphery. They are about the seepage of isolation into and out of American life.

In the past few weeks, Indian country experienced a similar tragedy. A woman on Navajo Nation killed her children, supposedly out of the despair of divorce. No one has yet asked me, "What about the Dine woman who killed her children?" The story made only a nominal appearance on the local news coming out of Albuquerque. To ignore her was also part of the American pathology. It was part of a lingering racism.

"But, was she infected by the American pathology?" you might ask.