"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

All trials are held in the Hopi courtrooms adjacent to Hopi Police Headquarters near Keams Canyon on the Hopi reservation.

Tradition in Hopi and Other Tribal Jurisprudence

At the same time that the Hopi Tribal Court employs these Anglo American-style adversarial rules and procedures, other tribal legislation and case law require the court to give a preferential place to Hopi customs, traditions, and culture. In Resolution H-12-76, the Hopi Tribal Council mandated that "in deciding matters of both substance and procedure," the tribal court give more "weight as precedent to the . . . customs, traditions and culture of the Hopi Tribe" than to U.S. state and federal law (see Resolution, Hopi Tribe, H-12-76). The Hopi Appellate Court has recently reiterated this rule, writing in Hopi Indian Credit Association v. Thomas, "The customs, traditions and culture of the Hopi Tribe deserve great respect in tribal courts, for even as the Hopi Tribal Council has merged laws and regulations into a form familiar to American legal scholars, the essence of our Hopi law as practiced, remains distinctly Hopi" (AP-001-84,4 [1996]).

In this respect, Hopi law echoes the call from tribal jurists across American Indian tribal courts to develop both substantive and procedural bodies of law that rest fundamentally on the traditions and customs of the people they represent (Coffey & Tsosie 2001; Porter 1997b; Cooler & Fikenstcher 1998; Vincenti 1995; Pommersheim 1995a, 1995b). Thus Vincenti writes, "The real battle for the preservation of traditional ways of life will be fought for the bold promontory of guiding human values. It is in that battle that tribal courts will become indispensable" (Vincenti 1995:137). As a consequence, "the courts have found it absolutely necessary to consult tribal custom and tradition and incorporate these values into American-style legal systems" (1995:137).

At the same time that the Hopi Appellate Court expresses a value for the use of Hopi custom and tradition in Hopi law, the court recognizes that introducing tradition into contemporary Hopi jurisprudence is neither a simple nor straightforward process. In the same opinion quoted above, the court writes, "Hopi custom, traditions, and culture are often unwritten and this fact can make them more difficult to define" (Hopi Indian Credit Association v. Thomas, AP.001-84, 4 [1996]). Other tribal legal professionals have raised similar concerns about the ability to articulate legal principles from tradition (Tso 1989; Zion 1987). Zion, who, in reflecting on his work in Cree, Pima, Navajo, and Blackfeet courts, explains that the difficulties in "finding Indian Common Law" are "sometimes due to language problems, sometimes to that fact that many Indians do not speak of their common law in articulated legal norms, and sometimes to constraints created by non-Indian thinking patterns" (Zion 1987:125; see also Hunter 1999).

Still others are less quick to presume that notions of custom and tradition are automatically valuable to contemporary tribal legal processes. These scholars see problems in the degree to which legal representations of customs and traditions-misrecognized as either bodies of timeless principles that must be adhered to despite social and political change (Miller 2001; Barsh 1999), or alternatively as not faithful enough to "actual tribal pasts"-are more about political power plays, constituting "modes of resistance to all that Western legal culture represents" (Joh 2000:125) rather than as any real articulation of local values and practices. As such, custom, tradition, and culture are notions considered "too problematic" to constitute a foundation for tribal jurisprudence insofar as they invoke troubling "questions of authenticity, legitimacy, and essentialism" more suitable to arenas of politics than law (Joh 2000:120).