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The Phantom of Justice in Indian Country

Still from “Tribal Justice.”

The justice of the tribe can never stand in place of the justice of the State. At best it is parallel, hardly equal, yet able to make certain demands, to insinuate itself in the process and move subtly against the august pronouncements of the official courts. This is far more effective than the empty legal ‘equality’ promised to any claimant who stands before the law, with predictable results unless you can afford the price of innocence. Equality of law would mean merely the reproduction of the White Man’s judiciary with Native masks, terra nullius without and within, perhaps even the retention of Latinate terms and the same spirit of third-party vengeance which gives lie to the neutrality of solemn justice. The difference between the courts of the tribes and the Courts of the State is the difference between the rule of Law and the rule of rules. Between the two, we find the court of everyday life – the beat of Ann Makepeace’s excellent new film, Tribal Justice.

The film opens with mountains and scud, wire mesh, transport trains passing slowly, fisherman and the geometry of birds. A sign advertises a casino on a great road; tarmac, children playing, red bluff. Quechan land is arid, bleak, wiry trees on flat land. The Yurok reservation is green, lush, and full of water. We meet two Tribal Judges, Abby Abinanti and Claudette White, Quechan and Yurok, respectively. As Indian Reservations are considered sovereign nations under colonial U.S. law, the relations between tribal, state and federal laws are necessarily complex (all law is necessarily complex, although we are told that judgment resides in simplicity). The boundary line between the nations and the Nation, set by broken treaties and the seal of their dead, extend into the holy texts and byways of Criminal Law. Yet the White Man’s court is not without a sense of shame, and since our system of law is the very apex of European liberalism, shame resides in the form of extenuating circumstances and in the gracious extension of a certain legitimacy to Native courts.

The film follows the two judges, as well as three subjects of varying ages. Dru has temper tantrums, autism; Taos had meth and heroin, a big guy who can carry himself, which lands him in hot water; Isaac despises school and does stints in Juvie and the state pen. It is clear that the old program of kidnapping Native children and ‘educating’ them has continued to become an institutional death-spiral, each transformation in the young Indian’s life accompanied by a link in the carceral chain, each collection of ‘foster parents’ more implacable and mysterious than the last. However, Native justice is able to cross the map of detention halls and commissaries like an arrow: education by the Elders (as opposed to the democratic education of prisons), the use of chant and song as a powerful mnemonic device, and solidarity are all utilized to halt the machine, or at the very least, delay and contest its results.

The state doctors of the law are receptive to at least some tribal intervention, if only because of overwork. Indian drug and alcohol programs have a quite high rate of success and tribal counseling lowers the rate of recidivism, with its emphasis on returning to the home rather than monastic penance and isolation. Reconciliation is more important than financial recompense – these are all working class people after all, so the stakes are small but sometimes deadly. As the historical program of genocide is directed toward all Indians wicked or saintly, well-behaved or mad, crime on the Reservation is painted by the judges as an internal colonization, as using your own hands so the invader doesn’t sully his (fingerprints leave actionable traces). Judges Abinanti and White use the sheer weight and velocity of the powers of the settler state not to terrify their charges, but to remind them that the tribe is present in the physical body of every member. This is why one must take care of oneself.

In many cases Probation can be extended to tribal lands, which allows for a local intercessor between the accused and the State. As the tribal justices are far closer to the dock than the average PD, they are able to impress the accused in a way that is rarely possible for a regular court appointee. In some cases, everyone in court is related. This solves the paradox of an ‘impersonal’ legalism, which claims that it invests nothing in the case – and this is the celebrated blindness of modern liberal law – yet it acts as a demi-god over the proceedings. The Law must speak on behalf of the offended community while remaining above it; it must also be the offended community personified by rite; it must judge without malice, yet it is able to hand down the most extreme penalties as if were itself the offended party. And so it is – for what else is ‘contempt of court’ than an obscene provocation against the self-image of due process?  And every case that goes to trial is a further insult to the Law because it reminds the Law of its own twin failure to terrify and to protect. Tribal jurisprudence understands this set of legal ‘problems’ which are both the product of the Law and the sum of lawful processes.

Tribal laws – or rather its rules – constantly move, in distinction from the granite entity of State law which constricts and expands yet appears to be motionless. Tribal judges come from the hearth of the accused (Chief Justice Abinanti even sits in a circle with the witnesses and the defendants, rather than on a petty throne above the participants). There are no lawyers, except when state regulation requires them in cases of overlapping jurisdiction. People are made to talk with one another, and the judge interrupts only to clarify a course of action. Guilt is treated as a temporary disappointment to tradition which can be annulled through work and the strengthening of ties, rather than a product of Hell or crank psychology. In the end, everyone must leave together and drive down the same roads, live on the same Reservation, and take their kids to the same schools. The direction of tribal justice is circular rather than vertical. Strange analogy here to the circular world of life, crime, and incarceration, referred to in the film several times as a cycle of darkness on the Reservation, i.e., liquor, dope, money, jail.

Obviously the film cannot cover everything. It decides to follow the main protagonists and does so with admirable clarity. But it would be interesting to know the corresponding Quechan and Yurok words for ‘justice’, as well as how the justices think. Do they use prior rulings? And according to what corpus of knowledge – the words of the Elders? Is analogy permitted? Or is each case its own history? How is the communal will expressed in the figures of the judges? Are they elected, or appointed due to their ability and past experience (Judge Abinanti also practiced state law in California)? Tribal justice has avoided the groaning body of literature that the new laws of the White Man have accumulated over a comparatively short span of time, a great mass of theories and commentaries whose epic scope extends from the Supreme body to the minor inquisitor of traffic violations and which stuns all but the experts into abject silence. The key to this success might be found in Native Art.

Both of the judges in the film emphasize that they are almost inventing the process as they go along. Or to use another word, they improvise, like the extraordinary Lightning Song young Isaac sings with his people. To improvise is to invent using a series of established modes, keeping the original intention by an intricate pattern of adaptations which still remain close to the prime – primitive – center. The circle is the perfect symbol of improvisation, as both the unified field par excellence (in music, the abolition of melodic-harmonic opposition) and the radial sign whose lines diverge in all directions from a common center, moving out of the single closed-circuit of sheer recurrence and decay (in history, empirical time). The instrument whose very form embodies the circle is the drum, first accompaniment to the voice and the center of repetition. Tribal Justice shows the practice of improvisation in the face of that phantasmal Legal form which conceals the principal colonial commodity in the plain works of the jurists: So great moreover is the regard of the law for private property, that it will not authorize the least violation of it; no, not even for the general good of the whole community (Sir William Blackstone).

At any rate, this remains an Indian matter. After watching this fine film, you will no doubt be envious of Indian matters regarding rule and law. And you will continue to be scared to death of the legality we have made outside the Reservation, which has made and decided everyone of us, all evidence to the contrary.

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Martin Billheimer lives in Chicago.

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