Tracking Indigeneity in the Courtroom

This introduction briefly outlines the terrain of “indigeneity in the courtroom” and locates how indigenous difference is produced in North American courts.1 The central question of this book is when and how does indigeneity in its various iterations—cultural, social, political, economic, even genetic—matter in a legal sense? When does it not? Indigeneity here references not the specific ontologies and epistemologies of peoples living throughout Native North America, but rather the political, economic and legal articulations of indigenous difference (and the discursive and material effects of these articulations) in postcolonial settler nations.2

Indigeneity in the Courtroom is not a comprehensive comparative work that considers the similarities and differences among entire bodies of law. Rather, it focuses on the legal deployment of indigenous difference within a particular spatial and temporal scope—the Native Northwest Coast in the late twentieth and early twenty-first centuries. Relying on ethnographic methods and modes of analysis, I trace the dimensions of indigeneity through close readings of four legal cases, each of which raises a different set of questions about law, culture, and the production of difference. I look at the realm of law, seeking to understand how indigeneity is legally produced and to apprehend its broader political and economic implications.

In each of the four cases, legal actors deploy the idiom of indigeneity in order to make claims to rights, to property, and to political standing. Not only are assertions of indigeneity in these legal cases extremely varied (this book examines cases involving violent and sexual crimes, land disputes, and the disposition of human remains), but the actors making these assertions are also not always indigenous subjects. I argue that despite the purportedly novel nature of these cases, indigeneity in the courtroom is the most recent expression of a powerful colonialist legal tradition whose legacy continues to shape contemporary claims. Through a critical examination of these cases, I seek to explore how legal discourse and practice allow us to think the contemporary political context of Native North America and its conditions of possibility. What can a critical engagement with some of the more abstract and symbolic aspects of law reveal about the concrete and material lives of indigenous peoples living in this historical moment?


Arguably, no other group has a more confounding relationship to Europeansettler legal institutions than North American indigenous peoples (Canby 1998; see also Carrillo 1998; Culhane 1998; Harring 1998; Wilkins 1997; Wilkins and Lomawaima 2001). Historically, Euro-settler systems of law developed in part as a response to settler encounters with indigenous populations. Particularly in the Western part of the United States and Canada, law was central to colonizing projects, both in terms of exercising control over indigenous populations and in the creation of national settler identities.3 Yet the colonial legacies of law are more than strictly “legal”—they exceed the boundaries of legal institutions and are key discursive elements in social and political life in settler states like the United States and Canada. Indigeneity and law are thus inextricably linked.

As Susan Staiger Gooding and Eve Darian-Smith assert, “Writing about law in Native North America requires reading dominant legal regimes themselves as always already constituted in the relation between diverse local, national, international legal and political discourses …” (2001:1). A central part of this project is to direct attention to how the historic contours of settler-indigenous encounters became enshrined and encoded in statutes, legal policies, and court decisions, and to further examine how these historic contours shape and intersect with contemporary struggles over identity, political and economic recognition, and self-determination.

Although indigenous peoples have been making claims in North American settler courts since the establishment of those courts, there has been a flurry of legal activity on the part of indigenous groups since the 1960s for various reasons. These include the legacy of the civil rights movement in the US, the formalization of indigenous and multicultural policies in Canada, and the increasing numbers of indigenous peoples participating in mainstream legal systems as practitioners. As a result, “the interpellation of political into legal questions” has become one of the primary ways in which indigenous peoples make political claims in a postcolonial era, especially in Anglo settler states (Dirlik 2001:182). It is this “interpellation” that I am interested in tracking in its contemporary forms, and each of the four case studies provides insight into these questions.