American Indian Culture and Research Journal

Over the last few decades more than 100 US Indian tribes have established their own tribal courts and, consequently, have produced (and continue to revise) their own law codes. This paper examines the place of the individual, and individual rights, within several of these communities and, ultimately, within their codes and constitutions. In creating their own legal systems, small scale Indian societies face a different set of problems than those faced by the vastly larger, and differently organized mainstream society. Foremost among these problems is the threat of domination of tribal life by large, powerful, extended families which can potentially erode the circumstances of individuals, other families, and ultimately, the tribe. Extended families, however, remain core cultural and social institutions. As a consequence the problems encountered in creating tribal code are not simply those of balancing two domains (the individual and the collective), but, rather, three: the individual, the kin group, and the tribe. The debate about rights can best focus on the legal relations between both individuals and the larger tribal community and extended families and the tribal community. In considering this topic the relevant issue is not whether western notions of individualism and Indian communalism are compatible when considering tribal code, but rather, how Indian conceptions of individualism and collectivism are related. The argument here is that they are compatible, and, ultimately, inseparable. Scholars have pointed to the significance of the individual within contemporary Indian societies in various ways, but I wish to relate the concept to current issues of community legal development by exploring epistemological issue. This paper points to the importance of accounting for the differences between Indian communities in cosmology, epistemology, and traditions of justice in understanding the individual and the collective.