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N. Bruce Duthu
Excerpted from: N. Bruce Duthu, Incorporative Discourse in Federal Indian Law: Negotiating
Tribal Sovereignty Through the Lens of Native American Literature, 13 Harvard Human Rights
Journal 141 (Spring, 2000)
"Just one time when I'm telling a story somewhere, why don't you stop and listen?" Thomas
asked.
"Just once?"
"Just once."
Victor waved his arms to let Thomas know that the deal was good. It was a fair trade, and that
was all Victor had ever wanted from his whole life. So Victor drove his father's pickup toward
home while Thomas went into his house, closed the door behind him, and heard a new story come
to him in the silence afterwards.
--Sherman Alexie, (Spokane/Coeur d'Alene)
The inspiration for this piece comes from my practice of requiring students enrolled in my
course, Native Americans and the Law, to read several literary works by contemporary and
historical Native American writers. This is in addition to cases and other materials traditionally
taught in this course. The inspiration behind the inspiration, so to speak, traces back to an
emerging awareness of the central role stories play in my life.
Though stories were a regular part of life for me growing up as a Houma Indian in Dulac,
Louisiana, I was only slightly conscious of their impact on my sense of self, community, and place
in the world. Our oral tradition encompasses diverse stories, but within them are recurrent
themes, chief among them the idea of relationships. Stories carry us through time and reveal our
relationships to our historical selves, to others around us, and to the natural and supernatural
world. The meanings attached to these stories, like the relationships they explore, are dynamic,
increasingly complex, and often surprising. The following story illustrates these points.
In the 1940s, a certain Houma Indian woman enrolled her children in the local Baptist mission
school, one of the few schools available at the time to Indian children in this part of Louisiana.
Like most Houma, this woman and her family were Catholic. On one occasion, she went to the
Catholic church to confess her sins. The confessional was the type where the penitent and the
priest occupy adjoining chambers and speak through a matted screen or narrow opening in the
wall. The woman had just uttered the words, "Bless me, Father, for I have sinned ...," when the
priest suddenly interrupted her and said, "I know who you are. And I know that your children go
to the Baptist mission school. I want you to promise me that you'll put your children in the
Catholic mission school and then I'll hear your confession." The woman was stunned at first; then
she became enraged. She came out of the confessional, opened the door of the priest's chamber,
and asked him to repeat what he had just said. He did. She punched him square in the face and
vowed never to step foot inside a Catholic church again.
This event actually occurred. I was quite young when I first heard this story and I have heard it
retold many times by different storytellers. It is a story from the "contact zone," to borrow a
useful concept from literary scholar Mary Louise Pratt. For Pratt, the contact zone refers to "the
space of colonial encounters, the space in which peoples geographically and historically separated
come into contact with each other and establish ongoing relations, usually involving conditions of
coercion, radical inequality, and intractable conflict." This story reflects the multi-layered patterns
of negotiation that typically emerge from interpersonal and intercultural encounters within the
contact zone. Importantly, it depicts Indian people as active participants in the unfolding
narrative. The woman's accommodative or adaptive posture, reflected in her decision to have her
children educated in white, Christian systems, and in her decision to participate in Christian
ceremonial life, contrasts vividly with her posture of resistance, shown in her refusal to negotiate
the terms of her children's education and in her refusal to acquiesce to the priest's sacramental
blackmail scheme. The woman's act of personal violence against the priest follows, and is perhaps
justified by, the priest's act of "sacramental violence" in the perversion of sacred ritual and the
defilement of sacrosanct space.
The gendered aspects of the story are also compelling and go beyond the normatively assigned
"woman's" role as child-protector. Here, a woman dramatically confronts the hegemony of a
male-oriented and male- dominated religious institution and reverses the normative patterns of
religious exclusion with an emphatic and irrevocable rejection of the church itself.
It is critically important that legal discourse, and particularly the legal discourse that concerns
relations between Indigenous and non-Indigenous societies, incorporates the emerging and
evolving narrative traditions of Indigenous Peoples. The reason for this, and the central thesis of
this Article, is that such an incorporative discourse serves to awaken the mind to reconceptualize
the place of Native Americans within American society and to ignite the imaginative possibilities
of more inclusive, respectful, and peacefully co-existing communities. Pursuing an incorporative
discourse within the framework of federal Indian law nudges us in that direction in at least three
distinct ways. First, involving ourselves with such stories allows us better to inquire into patterns
of intersocietal encounters and to examine more fully the social and political norms by which
Indigenous and non-Indigenous people have organized their lives together. The resulting inquiry
offers the potential to examine anew the historical meanings ascribed to various legal texts and to
forge a more inclusive and complete "political narrative." Second, inclusion of Indigenous
narrative traditions in this legal discourse encourages, and indeed often requires, lawmakers and
law advocates to cross intercultural boundaries to examine the extent to which emergent legal
structures and rules respect cultural differences or reveal jurisprudential myopia. Such
methodology may stimulate what legal scholar John Borrows (Anishinabe) describes as an
"awakening of understanding" to one's limited or erroneous viewpoints about such legal
structures. Finally, Indigenous narrative traditions and texts inform and sharpen our understanding
of present-day Indigenous claims for self-governance. These texts serve as an antidote to the texts
of oppression, which dominate the traditional study of Indigenous Peoples' legal and political
experience. Native people live within these literary texts and are active participants in the
unfolding narratives. Their contestations of and negotiations with externally imposed regimes of
political, religious, and social hegemony proceed on terms that often reflect Native American
normative values or minimally, reflect back the hypocrisy of the imposed regimes. Native
American literary texts help clarify contemporary negotiations on tribal self-determination by
revealing that process to be less a function of enlightened, but still paternalistic, federal policy,
and more the product of persistent Indigenous-derived demands for political and social co-existence. In other words, Indigenous voices demanding spheres of self-determination were never
silenced; the rule-makers finally stopped and listened to them.
This Article argues for the greater pursuit of an incorporative discourse within federal Indian law
by means of reading selected Indigenous narratives alongside the "traditional" canon. This mode
of inquiry embraces and combines the content of Indigenous knowledge, the experience and
values of Indigenous Peoples, and the methodology of Indigenous narrative traditions (including
oral forms) to form, along with non-Indigenous voices, a more polyphonic expression of human
life. Incorporative discourse calls forth what Kiowa writer N. Scott Momaday describes as an
imaginative journey, "a whole journey, intricate with motion and meaning; and it is made with the
whole memory, that experience of the mind which is legendary as well as historical, personal as
well as cultural .... The imaginative experience and the historical express equally the traditions of
man's reality." Before embarking on such a journey, one must recall that Indigenous narrative
traditions are located in myriad texts. They are found within a society's oral traditions, within a
diverse range of writings by Native people (autobiographical, fictional, polemical, and judicial
opinions) and indeed, even within the land itself, which forms a "sacred text." The Indigenous
narratives discussed here reflect, to a limited extent only, the diversity of narrative traditions that
exist in Indigenous America. That diversity means that the selection of particular Indigenous texts
can raise challenging issues about representations of Native (and non-Native) people and the
tendency to assign (incorrectly or prematurely) a normative position to cultural values reflected in
the texts. The texts selected for inclusion here are those that, in my own judgment, embody the
aspirations of an incorporative discourse because of their capacity to awaken our understanding of
the legal structure and rules governing Indigenous and non-Indigenous relations and the place of
Native peoples in American society. These include contemporary texts like Louise Erdrich's
(Turtle Mountain Chippewa) Love Medicine, N. Scott Momaday's (Kiowa) The Way to Rainy
Mountain, and Sherman Alexie's (Spokane/Coeur d'Alene) The Lone Ranger and Tonto Fistfight
in Heaven, as well as historical texts like William Apess's (Pequot) "An Indian's Looking Glass for
the White Man," from his 1833 book The Experiences of Five Christian Indians of the Pequot
Tribe.
These Indigenous narratives and the accompanying jurisprudential texts that follow are arranged
topically to highlight the value of incorporative discourse across various thematic lines and to
draw attention to the non-chronological arrangement of legal precedents. In other words, the
arrangement of materials itself suggests a certain fluidity to patterns of intersocietal *146 and
intercultural relations that cut across time and space--relations that are constantly being revised,
renegotiated, and/or reaffirmed. Part I seeks briefly to locate and contextualize this interrogative
process within the broader contours of the "law and literature" movement and the realm of literary
criticism, particularly in its examination of so-called postcolonial literatures. Parts II through IV
then address the following thematic elements: Power and the Law, Promise-Keeping and the
Sacredness of Words, and Violence and the Word. The textual analysis in these latter Sections
owes much to the scholarship of Cheryl Walker and the instructive rhetorical paradigms she
advances to interrogate Native American texts. Her particular endeavor is to uncover Native
American reflections on nationalism based on nineteenth-century writings by Native authors.
These texts, like the ones considered here, advance the central thesis of this Article, i.e., to
awaken the mind to reconceptualize the place of Native Americans within American society. As
Walker notes, these Indigenous texts speak to an "imagined community," a "future-oriented (and
thus particularly American) dream of shared experience, [reflecting] the 'struggle to be together in
our differences, even the non-negotiable ones."' The aspiration here is to advance this imagined
community through the realization of an incorporative discourse in federal Indian law.
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