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date: 16 July 2020

Abstract and Keywords

Indigenous law is the category applied to the norms and legally binding practices of thousands of distinct indigenous communities spanning six continents. This chapter focuses on the content and construction of indigenous law within the borders of the present-day United States, equally marked by diversity among Native communities. Nonetheless, it identifies several important ways in which indigenous law broadly construed diverges from Euro-American legal systems. The chapter notes that indigenous communities have not drawn sharp distinctions between law and other methods for maintaining the proper ordering of society. And, while cautioning against essential accounts of Native justice, it also observes the ways in which Native dispute resolution focuses more on community and restoration than Anglo-American adversarial models. The chapter also recounts constructions of indigenous law by North America’s would-be European colonizers. It describes the long-standing practice by many colonizers of describing indigenous peoples as lawless. This language, the chapter argues, did important work in justifying colonization and the imposition of Anglo-American law. But it also traces the ways in which Native peoples forced Anglo-Americans to incorporate indigenous laws into US law. This incorporation happened both informally—as Anglo-Americans negotiating with Native nations adopted their rules to govern negotiations—and formally, as the body of law known as federal Indian law created a regime of legal pluralism that granted limited recognition to Native nations’ assertions of jurisdiction. The chapter concludes by noting the dangers of adopting the colonizers’ frame and defining indigenous law principally as a foil for Anglo-American law.

Keywords: law and colonialism, legal history, law and anthropology, Native/indigenous peoples, jurisprudence

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