Tribal Law as Indigenous Social Reality and Separate Consciousness [Re]Incorporating Customs and Traditions into Tribal Law

Abstract

This article begins, in Part I, with a discussion of traditional law generally and what it means, in an attempt to seek an understanding of the issues that must be addressed as each tribe develops a working definition for themselves. Though a general definition of traditional law can be generally articulated I suggest tribe-specific definitions are more important. Part II then examines the general process by which tribal law is created and more specifically the incorporation of traditional law into tribal codes, ordinances and resolutions. This requires consideration of the legislative process as it is generally embodied in the law of tribal governance, as well as, the practical considerations and difficulties of incorporating traditional law into written law. Part III looks at an approach used by the Saddle Lake First Nations peoples in Canada. The article concludes with a discussion of the continuing struggle to maintain cultural integrity represented by the promotion of traditional law and the relationship between traditional law and self-determination.