"What Are You Going to Do with the Village's Knowledge?" Talking Tradition, Talking Law in Hopi Tribal Court

Law & Society Review, Jun 2005 by Richland, Justin B

Though the details of face-to-face talk and interaction have been studied in Anglo American and British courtrooms, few attempts have been made to extend similar analyses to the study of contemporary indigenous and (post)colonial legal institutions that continue to employ legal processes informed by both Anglo-style adversarial notions of law and "local" notions of law, culture, and tradition. Using methods of legal discourse analysis and language ideology studies, this article investigates how interlocutors in a hearing before the courts of the Hopi Indian Nation construct discourses of tradition and Anglo American jurisprudence in multiple and competing ways, and for significant sociopolitical effect. An argument is thus made for attending to the microdetails of sociolegal interactions as an important site for exploring the complex articulations between the contemporary lives of indigenous peoples and the laws with which they are imbricated.

Introduction

The emergence in the last three decades of language-oriented studies of adversarial law in the Anglo tradition (American, British, and Australian) has added a social scientific and critical theoretical perspective that diverges dramatically from what once was primarily the domain of historians and technicians of legal text, argumentation, and rhetoric (see, e.g., Melinkoff 1963; Bailey & Rothblatt 1978; Probert 1959). Concomitant with the "linguistic turn" of social science and what might be called the "sociocultural turn" of linguistic analyses (i.e., the rise of sociolinguistics, the ethnography of communication, and conversation analysis), researchers with backgrounds in law, sociology, anthropology, and linguistics have converged around a host of issues concerning the structure and use of language and discourse in the expression and operation of the law (Matoesian 2001; Conley & O'Barr 1998, 1990; Philips 1998; Mertz 1994; Atkinson & Drew 1979). Much of this work focuses on the various forms of face-to-face interaction that constitute courtroom proceedings, including the turn-by-turn development of discourses in direct and cross-examination interactions, plea bargaining processes, and judge and litigant interactions in small claims court.

Beyond the (rather uncontroversial) claim for some significance of language and its use in legal institutions, operations, and products, most of these studies also concur on a basic vision of language use as medium not only for reference to, but fundamentally for construction of, social realities and orders. As such, legal interaction is a critical tool for the exercise of sociolegal power (Conley & O'Barr 1998, Mertz 1994). Mertz explains,

There is an exciting convergence among a number of disciplines on the role of legal language as socially creative and constitutive in the struggle over power in and through law. Anthropological linguists have developed a framework that permits detailed consideration of the contextual structuring of language to be linked with analysis of wider social change and reproduction. Legal anthropologists and critical legal theorists have outlined the ways in which law serves as a site for struggle and imposition of hegemony. Legal theorists focusing sensitively on language from critical race theory, feminist, and deconstructionist perspectives add a dynamic, daring, and vivid understanding of the impact of legal language in those struggles . . .. (1994:447)

However, while these interactional models have proven their analytic worth in the study of Anglo American and other Anglo legal institutions within their "home" nations, the particular lessons learned from these approaches have not been regularly extended to the sociolegal contexts of contemporary indigenous and (post)colonial legal regimes. Important work has of course been undertaken on the historic and contemporary impact of the colonial imposition of Anglo-style juridicopolitical discourses and institutions around the world (e.g., Chakrabarty 2000; Merry 2000; Comaroff & Comaroff 1991; Comaroff & Comaroff 1997; see Comaroff 2001 and Merry 1990 for good reviews). Others have also considered the details of courtroom interactions involving indigenous peoples appearing in Australian and U.S. courts (Eades 1996, 2000; Merry 1994; Bunte 1992). Yet efforts to analyze the details of emergent, face-to-face interaction as constitutive of indigenous legal institutions-institutions that bear the heavy influence of Anglo-style jurisprudence but are understood by local actors as important sites for the negotiation, articulation, and instantiation of their unique (post)colonial nationhood-remain in the purview of relatively few scholars (see, e.g., Hirsch 1998, 2002; Philips 1994, 2002).

This is certainly the case in the sociolegal context that is considered in this article: that of the proceedings of property dispute hearings before the tribal court of the Hopi Indian Nation since the mid-1990s. Like many American Indian tribal courts in the United States today, the Hopi Tribal Court relies heavily on Anglo American adversarial rules and procedures inherited from the colonially imposed Court of Indian Offenses run by the Bureau of Indian Affairs on the Hopi reservation until 1972. At the same time, the Hopi Tribal Constitution, and recent Hopi tribal legislation and case law, recognize the juridical authority of Hopi village leadership and mandate reliance on principles of Hopi custom, tradition, and culture when addressing disputes among tribal members, particularly those regarding issues of probate, child custody, and other matters of property and family law.