Republic of Indians: Empires of Indigenous Law in the Early American South by Bradley J. Dixon (review)

The Colour of Copyright

Over the past 600 years, African states have been subjected to powerful influences of globalisation such as the slave trade, colonialism, transcultural exchange, and the law and development movement. These influences, which reflect in transplanted European laws masquerading as state laws, are steadily eroding the identity of indigenous African laws. So, to what extent do customary courts in Nigeria reflect indigenous law identity? This unexplored question is significant for scholarly and policy perceptions of legal pluralism in post-colonial states. These perceptions tend to favour conflict of laws, rather than the dialogue occurring between indigenous laws and state laws in intersectional social fields. Informed by case analysis, interviews, and archival searches, this article presents Nigerian customary courts as Anglicised courts pretending to be indigenous courts. It argues that customary courts illustrate indigenous law’s adaptation to socioeconomic changes. In exposing state laws as a key component of these changes, the article highlights the ways customary court actors engender behavioural changes that reveal the adaptive nature of normative interaction in post-colonial societies. It suggests that the adaptive interface of state laws and indigenous laws offers a theoretical platform for legal integration in sub-Saharan Africa.

Creating Legal Space for Animal-Indigenous Relationships

As there is a collective renaissance in the recognition of Indigenous legal traditions and laws in Canada, this reflection focuses on a "constitutive" approach that non-Indigenous Yukoners can take to law making, in that it explores how the constitutive practices and institutions of Yukon First Nations can be utilized to inform both lawyerly approaches to First Nations law and the interactions of the non-Indigenous Yukon public with Indigenous laws. This reflection explores this in two ways: 1) the necessity to view the constitutive and legal practices of Indigenous communities from a broad, normative lens; and 2) how a normative approach provides different fruitful approaches to accessing, understanding, and drawing upon Indigenous laws.

In this paper, I explore several issues emerging in the discourse about the recording of indigenous law by drawing on several examples of my research and work with indigenous law in Canada. This is an important inquiry because there are limiting and disturbing fundamentalist premises underlying the debate regarding the recording of indigenous law. To take up these issues, I analyse and articulate the law and legal processes from two indigenous oral histories. The question under consideration is whether by this recording and analysis, I have somehow damaged Gitxsan law. In other words, did I break it?

Folk, Indigenous, and Customary Law

This study analyzes the contested authorities that deal with land and criminal conflict in the Ixil Region of Guatemala. We studied the local laws, customs and actors governing the use of violence, conflict resolution and justice. Actors included indigenous NGOs, individual leaders (community and municipal), youth gangs, armed security patrols, and organized criminal networks. Findings suggest that the Guatemalan State competes for authority with alternative forms of governance in the Ixil Region of Guatemala. Specifically, control over violence and rulemaking arecontested and negotiated across three institutional categories: methods of controlimposed by local security groups and organized criminal networks; indigenous and constitutional law; and municipal, auxiliary and indigenous mayors. Our findings suggest that while violence may be reduced to the extent that these social networks overlap, weak rule of law will continue to negatively impact human rights and security in this region. Key words: Conflict resolution, Guatemala, governance, law, alternative governance, organized crime, indigenous law, criminal networks, Derecho Maya, land conflict.

ABSTRACTThere are legal and moral imperatives to protect biological resources and the ‘traditional knowledge’ associated with them. These imperatives derive from complex legal geographies: international law (such as the Convention on Biological Diversity and the Nagoya Protocol), State and federal laws, Indigenous customary law, codes of ethics and research protocols. This paper reports on a ‘patent landscape’ analysis of patents that refer to Australian plant species for which there is Indigenous Australian knowledge. We have identified several patents of potential new biopiracy concern. The paper highlights the way in which actors can gain private property monopolies over biological resources and associated traditional knowledge, even though there are overlapping sovereign rights and Indigenous rights claims. Regulatory gaps need to be closed nationally to fully govern the diverse human–plant bio-geographies in Australia. Further, Indigenous laws and governance have largely been ignored by these actors. We suggest that the introduction of ‘disclosure of origin’ requirements in patent applications, sui generis Indigenous knowledge protections, the development of biocultural protocols, and a more nationally consistent system for ‘access and benefit-sharing’ are required to ensure more ‘fair and equitable’ use of plants and Indigenous knowledge in/from Australia, and to ensure the recognition of Indigenous rights to knowledge.

Law is often used as a means of social engineering, an analysis of which requires an understanding of the nature, possibilities and limits of law. It is closely related to the way of life of the people it is to serve, it is both dynamic and conservative in nature, and it follows, as well as at times directing, change. Africa is faced with a plurality of legal systems, posing the need for unification, integration, and modernisation. Indigenous or customary law is often regarded as an obstruction to development in Africa. Since customary law is closely related to the life of the people it serves, it cannot be disregarded in programmes of economic and social development.

This article examines the use of literary genre in Supreme Court of Canada (SCC) decisions on Indigenous land rights (Aboriginal title) and in Métis playwright Marie Clements’ 2003 play Burning Vision. I argue that legal decisions on Indigenous rights in Canada take on the features of specific literary genres, and that the genre of these decisions changes over time in response to broader sociopolitical shifts. In response to Section 35(1) of the 1982 Constitution Act, Aboriginal title decisions took on the structural features of comedy, a genre in which reconciliation is facilitated by the disclosure of previously hidden family relationships. This can be seen in Delgamuukw v. British Columbia (1997), a decision wherein the SCC reconciles the uneasy coexistence of two legal systems (Indigenous and common law) within the same national space by making these systems members of the same legal family. Clements’ play critiques this form of genealogical reconciliation by demonstrating how Indigenous law is forced to join the “family” of settler-colonial common law, and by exposing the violence that is elided through such processes of genealogical reconciliation. This article contributes to critical conversations about the relationship between law and genre and about the legal recognition of Indigenous rights.

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.

On 1976, Ghana celebrated the centenary of the establishment of its Supreme Court. But this was more than a centenary of a supreme court. It was in fact the celebration of a hundred years of a national legal system. During the past century, Ghana has operated a pluralistic legal system encompassing English and other Western juristic ideas and procedures on the one hand, and Ghana's own indigenous laws on the other. The burden of this paper is to undertake an appraisal of the efficacy of this legal heritage and to consider the challenge which this legacy poses. The emphasis is not so much on the historical or analytical description of the nation's legal heritage as on a functional review of the totality of Ghana's legal experience in the light of the prevailing social and economic conditions. More precisely, to what extent have the Ghanaian courts and legislative bodies succeeded in moulding both the received law and the indigenous customary law to respond to the pressing social and economic needs of the country? Is there in fact a peculiarly Ghanaian legal tradition?The first Supreme Court was established in 1853, but its jurisdiction was confined to the coastal settlements and it could not pretend to be a national institution. The modern Ghanaian legal system was inaugurated by the Supreme Court Ordinance, 1876, which not only established a national judicial system but also prescribed the law and procedure to be applied in this court system.

This article explores the ‘law and development’ movement’s controversial impact in Ethiopia through the involvement of American law professors such as A. Arthur Schiller in the struggle between modernization and traditionalism in the 1960s and 1970s. Elsewhere in Africa there were efforts to improve the administration of law by producing restatements of customary indigenous law, but Ethiopia had opted for wholesale modernization of its legal system. Because it was claimed that the Ethiopian law reform had led to the nullification of law, Schiller attempted to produce a restatement of customary indigenous land law in order to show the viability of traditional law.These two contradictory trends, modernization and traditionalism, are presented against the background of the intellectual currents of normative pluralism and colonialism. Schiller’s work was based on the premise that legal pluralism would be the future of African law. The Ethiopian codification recognized customary law only in the norms of land tenure, which Schiller used as a pretext for his project to demonstrate that law reform based on the utilization of traditional law was possible and would successfully correct the nullification of law in rural areas.In the end, all legal reforms were made redundant by the 1974–1975 socialist revolution in Ethiopia. The legacy of Schiller is in the development of legal pluralism. He attempted to chart a course between the subjection of indigenous law to the state legal system and its irrelevance by advocating autonomy and development within the traditional legal culture.

In the past decade there has been a distinct increase in literature on Indigenous laws. Calls to teach about Indigenous laws in postsecondary institutions in Canada have also intensified. This growth and these calls are significant, yet as with all fields of inquiry and teaching, there are also gaps. Gender continues to be under-addressed in work on Indigenous legal education. Drawing on interviews with twenty-three professors who teach about Indigenous law at postsecondary institutions in Canada, I examine the challenges in gendering Indigenous legal education. The professors all expressed that it is important to engage with gender when teaching, but the majority were experiencing significant challenges in actually doing so in practice. It is essential to understand how these challenges are entangled with gendered power dynamics and broader structural barriers, as they will continue to limit Indigenous legal education if not directly deconstructed and changed. Overall, the interviews signal the need for increased institutional support and change, more educational resources, eliminating discrimination, and ongoing discussion about gender and Indigenous law.

Across Latin America, debates and practice around indigenous law provide a window on shifting relations between indigenous movements, states, and international actors. In Guatemala, the practice of indigenous law is a reflection of cultural difference, a response to past and present violence, and a resource for a population denied access to justice. In the postwar period, indigenous law has become a central element of contemporary Mayan identity politics. Together with the policy shift toward state-endorsed multiculturalism, this has meant it has become a highly contested and politicized terrain. This article examines attempts by indigenous activists to “recuperate” and strengthen indigenous law – or what is now termed “Mayan law” (derecho Maya) – in Santa Cruz del Quiche, Guatemala. Analyzing the tensions between local demands, the Mayan movement, international NGOs and intergovernmental bodies, and the Guatemalan state, it reflects on what they reveal about the limits and contradictions of the multicultural model of justice promoted since the end of the armed conflict.