The ingrained tendency of lawyers to follow precedents sets an obstacle for lawyers (or judges) who would change the law. Previous decisions stand as a guide and a limit to present decisions.
Karl Llewellyn, the famous 20th century “legal realist” law professor, taught his students how to tackle the dilemma of precedent. On one hand, he said, precedents help decide current cases by doing what others did before: Rather than inventing a new wheel to get from conflict to resolution, we use an existing wheel. In this sense, Llewellyn said, precedent operates like “habit”—doing things in a routine way, without rethinking what went in to the previous decisions.
But, Llewellyn said, circumstances change, and law must change, too. How can this be, he asked, if precedent binds the law? His famous answer to this question—stated in The Bramble Bush: On Our Law and Its Study (1951)—was that every precedent “is two-headed…Janus-faced.” A lawyer (and a court) can “reexamine” a precedent, through “conscious thought [and] analysis…going underneath” the precedent.
Download our free report, Intergenerational Trauma: Understanding Natives’ Inherited Pain, to understand this fascinating concept.
Llewellyn said this analytical tool applied to all precedents, in every field of law, but the technique requires “fine… minds, minds with sharp mental scalpels.” He said, “an ignorant, an unskillful judge will find it hard to use: the past will bind him.”
Whether a lawyer can persuade a judge to reexamine a precedent, Llewellyn said, requires the lawyer to pay attention to “all that you know of [the judge], or of the trends in [the] courts, or…of the trend in the line of business, or in the situation, or in the times at large—in anything which…may…become apparent and important to the court.”
Llewellyn taught law students how to read cases, how to understand the law as a system simultaneously engaged in stasis and in change. He provided analytical “tools for arguing as counsel on either side of a…case.” He said “people…who think that precedent produces…a certainty that [does] not involve matters of judgment and persuasion…simply do not know our system of precedent in which they live.”
Llewellyn’s teaching has great significance. It prepares lawyers capable of using precedents creatively, combining law, facts, and circumstances to provide judges with “a technical ladder” to reach conclusions that serve both continuity and change.
If Llewellyn’s teaching makes law both flexible and predictable in ordinary cases, how much more significant it becomes with extraordinary cases—for example, cases in federal Indian law. The Judicial Branch of California describes federal Indian law as “incredibly complex… involving issues of real property, international law, administrative law, constitutional law, water law, federal jurisdiction, procedure, contracts, criminal law, etc.,” portending “significance for everyone.”
Federal Indian law presents a maze of federal, state, and “tribal” jurisdictions, applying overlapping and contradictory doctrines, all rooted in “Christian Discovery”—by which the United States claims to “own” Indigenous Peoples’ lands and have “plenary power” over their lives.
Much recent commentary on Christian Discovery sheds light on its strange and infamous history as a legal doctrine of religious domination, first stated in 15th century papal documents authorizing slavery and colonialism against all non-Christian peoples.
The founding precedents incorporating Christian Discovery into federal Indian law are still cited today—usually cloaked in secular language and buried in footnotes. The last time the U.S. openly bragged about religious domination over Indigenous Peoples in federal Indian law was litigating the Tee-Hit-Ton case, decided in 1955. The Department of Justice brief to the Supreme Court quoted the 15th century papal decrees and the Bible to argue against the Tee-Hit-Ton! The court ruled in favour of the United States.
Today, courts and lawyers do not quote Christian Discovery language and pretend not to see it in the precedents. They are embarrassed by the doctrine of domination, but they do not engage in “conscious thought [and] analysis…going underneath” the precedents, to challenge them. Those lawyers—and the courts before which they argue—are therefore “bound by the past,” despite the “trends…in the situation [and] in the times at large” that show increasing awareness and courage among Indigenous Peoples worldwide, challenging the old precedents of religious domination by Christian states.
What would a truly indigenous reexamination of Christian Discovery look like? For some guidance on this question, we may learn from an architect whose designs express an indigenous way of thinking and building: Christopher T. Cornelius (Oneida), Associate Professor at the University of Wisconsin-Milwaukee and founding principal of Studio Indigenous, an architectural design and consulting practice serving American Indian clients.
In a stunning presentation at the University of Massachusetts/Amherst in March 2017—“Imagining Indigeneity”—Professor and Architect Cornelius offered a look at creating indigenous cultural meaning through architecture. He demonstrated, through words and images, the difference between buildings that merely mimic indigenous themes and structures that are in themselves indigenous to their locations.
Cornelius’ design research in what he calls “moon domiciles” provides a provocative example: The “domiciles” are based on the moon calendar of the Oneida Nation; each new moon signifies a “ceremony/ritual … guided by an observation within nature”—specifically, the associated month’s wind data, collected over a year’s observation. In other words, the designs grow from the natural environment and resolve in how the building “meets the Earth.”
Buildings arising from Cornelius’ approach differ markedly from buildings that are simply shaped like or decorated with Native symbols. His designs arise from a reexamination of architectural principles that goes underneath conventional building concepts. The designs demonstrate something new that embodies something old. Like Llewellyn’s approach to law, Cornelius shows the possibilities of continuity and change.
Another work by Llewelyn, in collaboration with anthropologist Adamson Hoebel, The Cheyenne Way (1941), provides further insight. They wrote as outsiders and did not explore how older Cheyenne law could form the basis for contemporary Cheyenne law, but their path-breaking study of historical records and interviews with elderly Cheyenne who recalled their life as a free people caused a sensation among legal theorists: It demonstrated the existence of indigenous law at a time when many outsiders said Native peoples “had no law.”
An indigenous approach to law can share with an indigenous approach to architecture a commitment to discard imposed ways of solving problems. They can share a rejection of ideas emphasizing domination and exploitation of Earth—which the “trends of the times at large” demonstrate are increasingly dangerous to life. They can share a return to indigenous perspectives and life-ways rooted in balanced relations of all beings on Earth.
Cornelius concluded his lecture with images from Wounded Knee, maps of Standing Rock, and plans for a structure at Alcatraz commemorating the 1969 occupation by Indians of All Tribes. He drew these historical events together in a way that illuminated architecture, Native peoples, and politics. Indian lawyers can take a similarly broad, creative approach, with the courage of “fine minds, minds with sharp mental scalpels.”
Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinébe’iiná Náhiiłna be Agha’diit’ahii Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on Indigenous issues.