Tribal Law as Indigenous Social Reality and Separate Consciousness: [Re]Incorporating Customs and Traditions into Tribal Law

At some point in my legal career, I recall becoming increasingly uncomfortable with the inconsistencies between the values in the written law of various indigenous nations and the values I knew were embedded in indigenous societies themselves. The two are not entirely in harmony, and in fact, in some instances are absolutely in opposition. I realize that in some circumstances the problem stems from the original source of the written law itself, because many indigenous nations who organized themselves under the Indian Reorganization Act (IRA) adopted the law drafted by the Department of Interior for the Courts of Indian Offenses or Code of Federal Regulations (CFR) courts. Yet, even recently enacted law continues to look very much like the western law of states. Many reasons for this exist. How indigenous nations create laws, as well as, who creates the law and the type of “law” being created influence what enacted law looks like...