"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

By considering the communicative resources and contexts by and through which Hopi social actors invoke, accept, or challenge notions of tradition and Anglo American-style jurisprudence and their articulation in their contemporary legal processes, I subsume the question of what tradition and law "are" in this article under more fruitful inquiries into what tradition and law "do" and "mean" for the tribal actors who engage each other in courtroom interactions. I thus suggest that Hopi legal actors are actively engaged in the face-to-face negotiation of a balance between notions of law and tradition that not only reaches the finest details of Hopi Tribal Court praxis, but is also central to the ways in which Hopi people constitute their contemporary tribal jurisprudence, its sociopolitical force, and the indigenous lives with which it is imbricated. In so doing, this article is a call for increased attention to the microdetails of the sociolegal interactions that contribute to contemporary sociolegal processes in (post)colonial contexts, and a model for how such endeavors might be undertaken.

Legal Discourse Analysis, Power, and Metadiscursive Practices

Conley and O'Barr's 25 years of scholarship stand at the center of research into the details of Anglo American courtroom interaction (see, e.g., Conley et al. 1978; Conley & O'Barr 1990, 1998; O'Barr 1982). Across the span of their careers, the search for greater understanding of the constitution and operation of legal power, authority, and domination emerges as a common theme. As the authors write,

language is the essential mechanism through which the power of the law is realized, exercised, reproduced, and occasionally challenged and subverted. . .. if one wants to find particular, concrete manifestations of the law's power, it makes sense to sift through the microdiscourse that is the law's defining element. (1998:129)

Conley and O'Barr thus offer actual law talk as the ground upon which to explore the accomplishment of the domination of politically marginalized groups such as women and racial and ethnic minorities. They build this argument through an analysis of transcripts of victim cross-examinations in rape trials, mediation interactions in divorce proceedings, and what the authors call the "powerless speech" most often associated with female litigants and witnesses in Anglo American courts. These inquiries, they suggest, reveal how the discursive practices that constitute the everyday operation of the law perpetuate male domination of women, but in ways that legal researchers and reformers who only consider the rules and norms of law don't anticipate. Thus defense lawyers (re)victimize women witnesses during cross-examination when they employ non-responsiveness and manage the topic of the interaction through leading questions in ways that implicitly express doubt about witness credibility. And this is true even with rape shield reforms that prohibit examination of witnesses' prior sexual history. Thus Conley and O'Barr consider how the details of victim cross-examination in rape trials, as well as other aspects of law talk, contribute to the manner in which Anglo American legal practices perpetuate patriarchal domination of women.