A critical area of American Indian law is the resurgence, restoration, and development of tribal law in Indian Country. Some tribal law is borrowed or transplanted, while other tribal law is based on custom and tradition, but the ultimate purpose of developing a body of law that parallels Anglo-American law is the preservation of American Indian culture. Leech Lake Ojibwe David Treuer’s recent book of literary criticism, Native American Literature: A User’s Guide, offers a startling premise that reaches far beyond literature – American Indian literature that borrows from Anglo-American literary traditions is nothing more than a “copy” of Indian culture. As such, the celebrated works of authors such as Louise Erdrich, James Welch, and Sherman Alexie cannot and never will be Indian culture. However, modern tribal law also cannot and will not ever be anything more than a “copy” or replica of pre-contact tribal legal traditions. Treuer’s condemnation of modern American literature would appear to serve as a condemnation of modern tribal law as well. However, H.L.A. Hart’s theories about how fundamental community traditions become specific legal rules alongside historian Richard White’s work regarding how tribal culture adapted to Anglo-American contact in the 17th and 18th centuries serves as an effective rejoinder to Treuer’s theory of Indian culture. Indian culture, whether expressed as literature or tribal law, adapts in order to survive.
Matthew L.M. Fletcher, A Perfect Copy: Indian Culture and Tribal Law, 2 Yellow Med. Rev. 95 (2007).