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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.