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The Courtroom as Legal Borderland

A photograph shows a large building with a columned entrance.

Courthouse, Juneau, ca. 1904. Photograph by Frank H. Nowell. Source: Wikimedia

Approaching the courtroom itself as a legal borderland—both as a place where colonial encounters between Indigenous and non-Indigenous people occurred and as a conceptual space where two separate legal cultures and traditions converged—gives us glimpses of encounters between Western and Indigenous law that we miss when we focus only on the coercive use of the courts’ power by colonial authorities.[1] If only at particular times and in particular places, such as the early decades of the twentieth century in Alaska, distinct world views and legal cultures met in the colonial courtroom, forcing participants in the process being acted out on that stage—Indigenous and non-Indigenous alike—to negotiate discrete ways of understanding law and justice. These negotiations, made possible in part by the very transience and instability of the broader borderlands region, sometimes produced unexpected outcomes that cannot be explained by reference to the tenets of either legal tradition alone.

A series of five linked cases decided in Alaska during the early 1900s illustrates this point. Part of a pattern of prosecution by federal government authorities in Alaska against Indigenous people who continued to engage in Indigenous cultural practices of which the government disapproved, these cases charged five Tlingit men with murder for allegedly causing the death of another member of their community. Based on the belief that the deceased had used witchcraft to make another man gravely ill, the defendants had tied up the deceased, taken him by canoe to a remote location, and denied him food or water for eight days, resulting in his death on the ninth day. Their purpose in confining him was to force him to release the sick man from his illness. The trials that followed provide one example of the encounter between Western and Indigenous legal tradition in the colonial courtroom.

As is often true of cases dating back to the late nineteenth and early twentieth centuries, a complete record of the proceedings does not exist. Even where no transcript of witness testimony or prosecution and defense arguments remains, however, careful analysis of existing documents, such as the jury instructions preserved in these cases, can help to fill the gaps. Comparing the jury instructions given by a judge with those instructions refused by the judge can provide insight into the arguments made by counsel and the judge’s own understanding of the law. In these cases, as well, the nature of the Indigenous defendants’ testimony at trial can be discerned by reading together the statements made by four of the five defendants to the grand jury that indicted them and references made by the judge to their testimony at trial in his jury instructions.

The meeting of Indigenous and Western legal tradition in these cases is evident in the way that the judge framed his instructions to the jury. Jury members were told that the Indigenous defendants could not be convicted of murder if the actions that caused the underlying death were undertaken based on the belief that they would heal a very ill man – in other words, if the defendants acted in accordance with Indigenous law and custom – or if jurors believed that the denial of food and water was not meant to cause the death of the accused but was intended as a sanction for another offense, something it was only in the context of Indigenous legal tradition. Following the judge’s instructions, the juries convicted the defendants not of murder but of manslaughter, a lesser included offense within the framework of U.S. criminal law. Not only did the judge’s instructions to the juries in these cases engage elements of both Western and Indigenous law, but the inclusion of Indigenous legal tenets tempered what would have been a far harsher result had the outcome in these cases been based solely on the application of Western legal principles. A finding that the defendants’ actions were justified based on Indigenous law and motivated by the belief, rooted in the cultural traditions of their community, that their actions would save the life of a very ill man, served to negate the element of intent or mens rea required under U.S. criminal law to convict a defendant of murder.

The result in these cases, in short, cannot be understood by reference to Western legal tenets alone; the defendants’ motivation and the jury’s reasoning become clear only when Indigenous law and custom is also taken into account. Because the outcome was a product of the meeting of two separate legal traditions, treating either one as operating in isolation and unaffected by the other leaves us with an incomplete understanding of the proceedings and the final result in each of these cases.

In drawing attention to this convergence, my purpose is not to deny the disruptive impact of colonialism or to ignore the many ways in which law served as a tool to impose the will of the colonizer on Indigenous peoples. There is no question, as Sidney Harring and others have observed, that U.S. criminal law was proactively used to suppress Indigenous rights and cultural practices in Alaska. Rightly concerned with fully acknowledging the role of the courts in this regard, legal scholars tend to assume that Western and Indigenous law were invariably opposed and that Indigenous legal traditions ceased to play any meaningful role once the U.S. district courts assumed jurisdiction in Alaska. My borderlands approach, in contrast, draws upon work by John Borrows and Val Napoleon, who remind us that most legal orders, Indigenous and non-Indigenous alike, focus on addressing problems that are universal in nature, and that the displacement of Indigenous law and custom did not mean that it just disappeared.[2] Indeed, the extent to which Indigenous law was effectively supplanted by U.S. (and Canadian) colonial law over time arguably makes it all the more important to notice instances where it factored into the decision-making process. As Pablo Mitchell and Katrina Jagodinsky have urged, the North American West is best understood as “a place of many overlapping legal borderlands rather than a lawless place.”[3]

Approaching the courtroom itself as a legal borderland encourages us to listen for Indigenous voices even in what was often a hostile and intensely alien environment. Mediated though their voices may have been by their attorneys and the interpreters who translated their testimony, the fact remains that Indigenous participants in cases like those discussed here clearly articulated their understanding of the underlying events, insisting that their actions were justified based on their own legal traditions. That they retained control of their own stories and, at times, even contributed to shaping the outcome is apparent even in that most coercive of legal proceedings: the criminal case.

It is critical that we acknowledge and continue to examine the various ways in which the courts were used as tools to oppress Indigenous peoples and cultures to develop a fuller understanding of how legal mechanisms were used to facilitate the imposition of colonial rule. But to focus only on the coercive use of law is to miss both points of convergence and moments of negotiation, as well as efforts by individuals on each side to reconcile and even accommodate systems of law with which they were unfamiliar. It is also to overlook more subtle intersections between Western and Indigenous law and custom. Far from complete though the glimpses that these cases give us are, they nevertheless tell a more complicated story about how members of both Indigenous and settler societies negotiated the divide between legal and cultural traditions than we might expect, and suggest important avenues for further inquiry

Andrea Geiger is an associate professor in the department of history at Simon Fraser University in British Columbia, and author of Subverting Exclusion: Transpacific Encounters with Race, Caste and Borders, 1885-1928 (Yale University Press, 2011). Before turning to history, she served as a reservation attorney for the Confederated Tribes of the Colville Reservation and clerked for both federal and state courts in Washington state. The longer essay from which these remarks are drawn will be published in Beyond the Borders of the Law: Critical Legal Histories of the North American West, an anthology of legal histories of the North American West edited by Katrina Jagodinsky and Pablo Mitchell due out from the University Press of Kansas later this year. Dr. Geiger and two other scholars with essays in this volume will present at the 2018 OAH Annual Meeting session on Indigenous Legal Borderlands.

[1] As used here, “colonial” refers to the process marked by the displacement and subjugation of Indigenous peoples that unfolded across the continent of North America over the course of the last several centuries.

[2] Although they do not use a borderlands framework, Canadian Indigenous law scholars John Borrows and Val Napoleon point to the parallels between Indigenous and Western law and note that Indigenous law persists. See, e.g., John Borrows, Recovering Canada: The Resurgence of Indigenous Law (Toronto: University of Toronto Press, 2002), 8, 11; Val Napoleon, “What is Indigenous Law?” (Victoria: University of Victoria Law School Indigenous Law Research Unit, n.d.), 3, 5.

[3] Pablo Mitchell and Katrina Jagodinsky, “Laying Down the Law: Critical Legal Histories of the North American West,” Call for Papers, May 2015.