Law and Religion: Law and Religion in Indigenous Cultures
LAW AND RELIGION: LAW AND RELIGION IN INDIGENOUS CULTURES
Taken individually, the four principal terms that make up the title of this entry—law, religion, indigenous, and culture—are extraordinarily broad and problematic. The conjunction of the terms does little to narrow the field of analysis, prompting questions often asked by scholars of law, religion, and indigenous cultures: Whose law? What is religion? Indigenous by what standards? Culture in what sense? Moreover, scholars must make sense of the discrepancies and overlap between academic categories and the real world while being alert to various ways indigenous peoples represent themselves in diverse contexts, which are occasionally achieved in ways that appear paradoxical. Some scholars have observed that in the course of legal struggles indigenous peoples embody postmodern notions of culture—at times with inventiveness and play—while claiming quite the opposite: they represent themselves as timeless, autochthonous, and cohesive. That they do so is an indication of the domain in which they must act: an international legal arena configured by conflicting impulses and histories that has not yet evinced principled and consistent ways of addressing native claims. Such is the predicament of native peoples who seek to maintain their identities and legal autonomy in the face and by way of the institutions of politically ascendant nation-states.
In order to do justice to the complex field defined by the engagement of indigenous cultures, religion, and law, several related points must be emphasized: the concerns of law and religion are quite ultimate; the stakes of both are amplified in their intersection; and, finally, in the post-colonial world this urgency pertains directly to self-determination and human rights—how these are imagined (as individual or collective), articulated, and, on occasion, resisted or denied. Before addressing these themes and the tensions they imply, several perspectives from within the field will be considered.
The vast possibilities for the study of law and religion in indigenous cultures are a source of both promise and potential confusion. To begin to address some of the issues raised above, scholars in the field have historically limited their frames of analysis in three general ways. One approach is to address jurisprudence within indigenous cultures, which is best represented by early work in the field of legal anthropology. A classic of this genre is The Cheyenne Way: Conflict and Case Law in Primitive Jurisprudence by K. N. Llewellyn and E. Adamson Hoebel. In the African context, the work of Max Gluckman did much to consolidate the field, particularly as he grappled with questions of social stability in the face of crisis. A wonderful account of the sorts of issues addressed by this approach to religion, culture, and law is found in Elenore Smith Bowen's anthropological novel Return to Laughter. By the mid-twentieth century legal anthropology was becoming increasingly comparative, a trend best represented by the classic text edited by Laura Nader, Law in Culture and Society. Religion, and particularly ritual, has long been a concern of legal anthropologists in this tradition, but it often is relegated to the status of a secondary concern.
A somewhat different approach to the study of law and religion in indigenous cultures has addressed native religious traditions more fully by way of focusing on the post-contact influences of European colonial practices and policies around the globe, particularly in North America. This area of study has been developed most extensively by legal experts like Robert A. Williams, Jr., whose The American Indian in Western Legal Thought: The Discourses of Conquest links pre-colonial religious and legal functions to colonial practices, and native authors such as Vine Deloria, Jr. (For This Land: Writings on Religion in America ), Gerald Vizenor, Walter Echo-Hawk, and Lilikala Kame'eleihiwa. Religious studies scholars have been influential here as well, with notable contributions being made by, among others, Robert Michaelsen, Christopher Vecsey, whose Handbook of American Indian Religious Freedom addresses issues ranging from land access to repatriation, and Huston Smith, who collaborated with Hochunk religious leader Reuben Snake to write One Nation Under God: The Triumph of the Native American Church.
A third trajectory of scholarship in the field builds upon the insights of the former two traditions in order to emphasize resilient and novel qualities of indigenous agency. The central insight of this scholarship shows the radically contingent quality of religious and legal claims, and its emphasis is on the decolonization of native identities. This approach explores the ways indigenous people are able to participate in rights discourse in ways that raise complex questions about the meanings of, for example, citizenship, tradition, and entitlement. This is an interdisciplinary movement that offers significant contributions from critical legal theory, political theory, history, and anthropology. Such work includes, for example, studies of cultural movements in Latin America (as analyzed in an engaging volume edited by Kay Warren and Jean Jackson, Indigenous Movements, Self-Representation, and the State in Latin America ), Australia (see, e.g., Elizabeth Povinelli, The Cunning of Recognition: Indigenous Alterities and the Making of Australian Multiculturalism ), and Africa (as explored by John and Jean Comaroff in their magisterial Of Revelation and Revolution: The Dialectics of Modernity of a South African Frontier ).
Creative scholarship in the study of law and religion in indigenous cultures from all of the perspectives described above follows a model described by Susan Staiger Gooding in her article, "At the Boundaries of Religious Identity: Native American Religions and American Legal Culture." She argues that the scholar's job is "to take account of legal discourse as an historical force, without taking it as our framework for understanding" (Gooding, p. 159). Substituting religion in place of law, Gooding's model is equally descriptive of the quest and tension at the heart of the study of religion. Achieving this dual goal—the critical assessment of religion and law—requires a willingness on the part of the scholar to de-privilege both discourses: to view them as human, historical, interested, and necessarily ideological. In this way, it is analytically productive to view religion and law as discourses of authenticity. However, following Warren and Jackson, scholars of religion and law should not take their focus to be the question of what constitutes authenticity; rather, attention should be centered on the construction of authenticity, which entails attending both to its production and consumption. The study of indigenous traditions and law is, then, fundamentally devoted to analyzing the strategies people(s) pursue in the process of identity articulation in the course of legal struggles.
Scholars have made considerable headway in understanding the relationships of law and religion by conceptualizing them as modes of speech and, more specifically, as modes of rhetoric (i.e., forms of speech as persuasion). Furthermore, critical scholars have discerned that religion and law are modes of rhetoric that, on occasion, share common venues and audiences, construct themselves in starkly similar ways (e.g., as authoritative, defining of the social body, normative, and eternal), and which sometimes run parallel or even function in complementary ways but run at cross purposes at other times (see Goodrich 1990; Fitzpatrick 1992). Religion and law do not exist as abstractions, but only as articulations of historical orators. As such, each mode of rhetoric is open to reformulation by persuasive speakers so that a range of tendencies and possibilities for the uses of each develops over time. To cite a basic example, Christianity can be viewed in a number of lights vis-à-vis native traditions in the Americas: it was a primary source of Western law; it was invoked to provide colonial legal rationale against native ceremonies; and it has become, at times, a source of native religious and legal resurgence. The first two of these historical observations accords with common sense, the last does not. The task of the scholar of religion and law in indigenous contexts is to make sense of the relationships of law and religion even, perhaps especially, when they appear to be counterintuitive.
Indigenous as Culture, Category, and Claim
Perhaps the most counterintuitive aspect of the field is the category indigenous. Indigenous legal action in the contemporary political moment is likewise counterintuitive and rife with apparent and real paradoxes, the analysis of which will keep scholars of law and religion busy for years to come. The salient features of indigeniety on the world stage include its relative youth and its global reach. Further complicating the picture, the category indigenous signals (1) a term of self-designation; (2) an analytic concept; and (3) a legal construction. Much of the power of the category is vested in the interplay of these meanings—in respects, indigenous is a self-referential metaphor that accrues meaning to itself precisely because of the gaps and overlaps between its assumed meanings. This is especially so in legal contexts. Consider Ronald Niezen's account of indigenous identity espoused in his wide-ranging and provocative book, The Origins of Indigenism: Human Rights and the Politics of Identity :
Indigenous identity, sometimes used to designate the distinctiveness of indigenous societies in the constitutional and moral orders of nation-states, carries significant authority and some degree of power, especially when legally articulated. It is largely an outcome of unintentional cultural and political collaboration. The concept "indigenous peoples," developed principally within Western traditions of scholarship and legal reform, has nurtured the revival of "traditional" identities. It has transcended its symbolic use by acquiring legal authority. It is the focus of widening struggles by increasing numbers of "peoples" for recognition, legitimacy, and validation. It has been taken control of by its living subjects—reverse-engineered, rearticulated, and put to use as a tool of liberation. (Niezen, 2003, p. 221)
It is crucial to any understanding of indigenous identities and discourse that scholars appreciate their oppositional component. As Niezen writes,
When we look for things that indigenous people have in common, for what brings them together and reinforces their common identity, we find patterns that emerge from the logic of conquest and colonialism. These patterns apply equally to peoples otherwise very different in terms of history, geography, method of subsistence, social structure, and political organization. They are similarities based largely on the relationships between indigenous peoples and states. (Niezen, 2003, p. 87)
The relationship of indigenous claims to the states against which they are articulated points to profound imbalances in resources for identity articulation. When material bases of identity are so compromised, symbolic sources of identity are amplified by way of compensation and response. Claims that emerge in such contexts tend toward religious formulations insofar as their referents are transcendent (even while being grounded in the natural world). For example: we emerged from the earth here; the spirits conveyed knowledge to us here; we are descendants of the timeless ones who must care for this land. This is not to say that such claims are invented, for the people who make them are often members of groups with long traditions of connection to and veneration of the land and nature itself—nature is, in many native traditions, always supernatural. The point to be made here concerns the way such sentiments are given oppositional articulation as a form of cultural criticism that calls upon state powers to relieve crises they are perceived to have caused. In making such claims in legal contexts, native representatives attempt to bridge a chasm between their acutely local concerns and the predilections of audiences trained in the Western tradition of law and saturated by exotic images of "the Other." The category indigenous provides a framework for this bridge. It appears manifestly historical and rooted while simultaneously enabling the articulation of transcendent claims by appealing to tendentious habits of imagination that view native peoples as timeless stewards of nature.
Numerous nation-states are increasingly attentive to native claims and the U.N. now has a regular forum for addressing native concerns, which suggests that an international indigenous discourse is functioning to link local grievances to global responsiveness. However, this bridge is not without potential pitfalls. One regular impasse faced by legal audiences of indigenous claims is akin to that provoked by religious claims in the context of the United States with reference to the First Amendment: auditors are caught in the position of wanting to protect religious claims and actions without thereby establishing any particular religion as receiving special treatment under the law. Or, in the terms most often used to describe this scenario with regard to indigenous claims, legal audiences are faced with tension that emerges in the disjuncture between supporting human rights (based on liberal individualism) without endorsing collective rights. This tension points to other paradoxes.
Perhaps the foundational paradox upon which others rest in this context is that between relativism and universalism. This is not a merely abstract or philosophical issue. The problem here takes on embodied dimensions: namely, those who announce indigenous claims do so from relative positions of political weakness versus the assumed universal security of those who judge. This embodied aspect of the paradox is also historical, as speakers are the discovered, listeners the discoverers, and so forth. As indicated above, this tension is most evident and taut when conceptions of identity are at stake. Indigenous advocates espouse collective claims; human rights universalism is anchored in the identity of the individual. Not only are these positions mutually exclusive at some levels, they are also mutually suspicious: indigenous claimants worry that treaty rights and other collective entitlements will be ignored; universalists worry that individual rights might be subordinated to and even extinguished by zealous pursuit of collective aspirations. However, it is not the space between these positions that renders this dichotomy worthy of sustained investigation; it is the bridge-building capacity of indigenous discourse that deserves analysis, for occasionally indigenous representatives are able to reach across this historical, geo-political, and conceptual gulf.
A Hawaiian Example
If the linkage of human rights and self-determination is the quintessential goal of indigenous movements, then contemporary Hawaiʻi offers much to ponder. Sovereignty disputes have long been visible in Hawaiʻi. Students of Hawaiian culture are aware that battles over rule of the islands predated European contact. However, contests over native autonomy—what some have called inherent jurisdiction—have flared over the last 200 years, with notable inflammations at the time of missionization, the overthrow of the Hawaiian nation, the military conquest by the United States, and at the time of the Hawaiian Renaissance (1970s) to the present. Sovereignty disputes have been especially acute in recent years, as the alignment of local, state, federal, and international legal bodies has been destabilized in ways suggestive to native advocates that the time is ripe for political action. Numerous sovereignty groups have emerged in this context, most of which articulate a familiar set of concerns: environmental degradation, educational disadvantages, generalized cultural decay, religious desecration, and land access. As generally univocal as the many sovereignty groups are in stating their concerns, their suggestions for redress are less monolithic. Their primary point of divergence is with regard to differing visions of ideal relations to the state and federal governments. All share an emphasis on self-determination, but just what this means in practice can be remarkably divergent. To illustrate this point, two groups that represent positions at either end of a spectrum will be considered.
The first is a group led by veteran activist Dr. Kekuni Blaisdell. The position of his group is that of maximal sovereignty: Dr. Blaisdell and his group agitate vocally for complete decolonization of Hawaiʻi. Their argument has several prongs. First, they situate themselves as the unambiguous heirs of the land. Preserving the land, they argue, is a religious and moral duty. Second, they argue against U.S. jurisdiction, claiming that Hawaiʻi was a self-governing nation that was subjected to illegal overthrow by the United States. Third, as a remedy to this situation, the group represents itself as the legitimate political arm of the Hawaiian Nation. As such, it seeks audiences with other nation-states through international forums such as the UN. To graphically announce and enact its position, the group held a tribunal in 1993, during which an international panel of legal experts and indigenous representatives assessed claims against the United States (Ball, 2000, pp. 93–96). The United States was found guilty of all charges, which ranged from illegal occupation of the land to environmental abuse.
The second group is Hui Mālama I Nā Kūpuna O Hawaiʻi Nei (Hui Mālama). Focused primarily on repatriation and reburials issues (Johnson, 2003), Hui Mālama is no less vocal than Dr. Blaisdell's group. However, Hui Mālama's self-understanding vis-à-vis the state and federal governments is based implicitly on the model of federally recognized Indian tribes (as stipulated in the Native American Graves Protection and Repatriation Act). Hui Mālama operates within federal guidelines and often by way of federal grants to pursue the repatriation and protection of ancestral cultural objects and human remains. Doing so, they represent their cause as one fundamentally concerned with Hawaiian identity. This assertion took on greater relevance from 2000 forward, as a piece of federal legislation (The Native Hawaiian Recognition Act) was under consideration by the Senate in 2005. The pending legislation is designed to grant native Hawaiians "tribal" status within the state and federal governments. The intent of the legislation is to stabilize and define the status of native Hawaiians with regard to governmental policies and programs in a way that establishes "limited sovereignty" for native Hawaiians, particularly with reference to issues of education, land use, and cultural heritage. Politically and legally, the function of the bill is to recast the terms by which special entitlements for native Hawaiians may be constitutionally defended by shifting the basis of entitlements from the criterion of race to the criterion of tribal status. This is in response to the Supreme Court's 2000 decision in Rice v. Cayentano, which held that voting for trustees of the state Office of Hawaiian Affairs could not be limited by race. Hui Mālama is in support of this legislation and sees it as a "realistic" redressive mechanism. Dr. Blaisdell's group, by contrast, considers the bill anathema to sovereignty and a form of continued colonization.
The two indigenous Hawaiian movements briefly considered here both make religious claims for their positions, engage the media, attend and address national and international meetings, and have legal experts in their ranks. What these groups share above all else, beyond a contested Hawaiian identity, is a struggle with the web of modern statism. Dr. Kekuni Blaisdell's group has constructed itself as a nation that pushes on the border of statist aspirations, precisely as a means to gain an audience with influential states and as legitimated stance from which to engage in the politics of embarrassment and radical decolonization. Hui Mālama, from the other side, constructs itself as a self-determining entity within the boundaries of a nation-state. In ways that are sometimes countervailing and sometimes convergent, both groups use indigenous discourse to express and advance their positions in navigating a path toward substantial preservation of human rights based in—not held against—their collective identities. However differently pursued, their common quest is simultaneously ancient and futuristic. Moreover, their actions point to the fact that things scholars often take for granted—native identities and the borders of nation-states, for example—are constantly being (re)defined in the here and now.
Ball, Milner. Called by Stories: Biblical Sagas and Their Challenge for Law. Durham, N.C., and London, 2000.
Bowen, Elenore Smith. Return to Laughter: An Anthropological Novel. New York, 1954.
Comaroff, John, and Jean Comaroff. Of Revelation and Revolution: The Dialectics of Modernity on a South African Frontier. Chicago, 1997.
Deloria, Vine, Jr. For This Land: Writings on Religion in America. New York and London, 1999.
Fitzpatrick, Peter. The Mythology of Modern Law. London, 1992.
Gooding, Susan Staiger. "At the Boundaries of Religious Identity: Native American Religions and American Legal Culture." Numen 43 (1996): 157–183.
Goodrich, Peter. Languages of Law: From Logics of Memory to Nomadic Masks. London, 1990.
Johnson, Greg. "Ancestors Before Us: Manifestations of Tradition in a Hawaiian Dispute." Journal of the American Academy of Religion 71/2 (2003): 327–346.
Llewellyn, K. N., and E. Adamson Hoebel. The Cheyenne Way: Conflict and Case Law in a Primitive Jurisprudence. Norman, Okla., 1941.
Nader, Laura, ed. Law in Culture and Society. (1969.) Berkeley, Calif., 1997.
Niezen, Ronald. The Origins of Indigenism: Human Rights and the Politics of Identity. Berkeley, Calif., 2003.
Povinelli, Elizabeth. The Cunning of Recognition: Indigenous Alterities and the Making of Australian Multiculturalism. Durham, N.C., 2002.
Vecsey, Christopher, ed. Handbook of American Indian Religious Freedom. New York, 1991.
Warren, Kay, and Jean Jackson, eds. Indigenous Movements, Self-Representation, and the State in Latin America. Austin, Tex., 2002.
Williams, Robert A. The American Indian in Western Legal Thought: The Discourses of Conquest. New York, 1990.
Greg Johnson (2005)