"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

In this study, I rely on linguistic anthropological and discourse-analytic theories and methodologies to analyze the face-to-face interactions by which Hopi legal actors engage each other in property disputes through multiple and competing discourses of tradition and law in ways that both contribute to and are shaped by the operations of contemporary Hopi jurisprudence.

As such, this article reflects on hoary concepts of tradition and law that have always played a crucial role in (post)colonial relations and their academic investigation (Bauman & Briggs 2003; Chakrabarty 2000; Comaroff 2001). It also taps into a heated debate among post-colonial theorists, indigenous jurists, and anthropologists over the role that notions of traditions and culture should play in the operation of contemporary indigenous juridicopolitical systems and movements (Coffey & Tsosie 2001; Clifford 2001; Miller 2001; Job 2000; Dirlik 1999; Porter 1997a; Pommersheim 1995a, 1995b; Linnekin 1990). For some, the introduction of tradition and custom in contemporary legal activities is central to developing a governance that secures real sovereignty for indigenous nations and charts a sociopolitical future that, while undoubtedly informed by a history of colonization, nonetheless remains uniquely their own. For others, reliance on such notions ignores the degree to which normative principles and authorities grouped under the rubric of tradition may in fact misrepresent actual past cultural practices and/or be out of step with current practices, beliefs, and values of the citizens of indigenous nations (Barsh 1999; Miller 2001; Joh 2000). Despite the urgency of these debates, little work has explored the interactional details of contemporary indigenous governmental processes to examine precisely how tradition and law are talked about, by whom, and to what effects.

Starting from Conley and O'Barr's basic premise that "in many vital respects, language is legal power" (1998:14), I pay particular attention to a stretch of conflict talk that emerges in a 1997 Hopi Tribal Court hearing during the examination by a Hopi judge of elders called as expert witnesses to testify on their village customs and traditions. I show that the syntactic, grammatical, and discursive features of the judge's questions, and his repeated rejection of elders' proposed responses, constitute his efforts to work up discourses of tradition in ways that simultaneously accommodate and translate ideologies of objectivity central to Anglo American notions of legal legitimacy into Hopi juridical discourses.

However, the judge's discursive moves frustrate the Hopi witnesses' own expectations of their role in the resolution of the dispute. As a result, these witnesses resist these accommodations through explicit challenges to the judge's authority in terms informed by the ideologies of exclusivity that legitimize their competing notions of Hopi traditional knowledge and power. As such, the elders interpret the judge's efforts to constrain their testimony as illegitimate attempts to appropriate their traditional power, authority, and the distinctly Hopi political legitimacy that they claim traditional knowledge affords.