2) Situation around the world: Tribal Criminal Justice in Three Common Law Regimes of the World

“Local is the New Global” has been the new shibboleth of globalization in the past few years. Obviously, this catchphrase applies to the mass-market and has nothing to do with national and international legal systems around the world. The legal literature of Canada and Australia have are rich with resources and discourses on the interplay of texts between the prevalent and state-mandated Eurocentric legal systems and the systems of law and justice as have been prevalent in those countries for centuries before the European colonizers came. An ontological understanding of these interplays actually point out many similarities prevalent in these intertexts when compared to the situation in India.

A) Canada

According to the Canadian Report of the Royal Commission on Aboriginal Peoples, the main problems that the tribal people face in the legal system of the country are:

  • Aboriginal accused are more likely to be denied bail;
  • more time is spent in pre-trial detention by Aboriginal people;
  • Aboriginal accused are more likely to be charged with multiple offences, and often for crimes against the system;
  • Aboriginal people are more likely not to have legal representation at court proceedings;
  • Aboriginal clients … spend less time with their lawyers;
  • as court schedules in remote areas are poorly planned, judges may have limited time to spend in the community;
  • Aboriginal offenders are more likely to be incarcerated than non-Aboriginal offenders;
  • Aboriginal people often plead guilty because they are intimidated by the court and simply want to get the proceedings over with

It is pertinent to note that experience tells us that the situation as regards to the interaction of the tribal people with the legal system in India, especially in areas for which we have empirical data on these counts, is exactly the same.

On the language barrier, the Report has made the following observation:

It appears that they have little understanding of their legal rights, of court procedures, or of resources such as legal aid and most Indian people enter guilty pleas because they do not really understand the concept of legal guilt and innocence, or because they are fearful of exercising their rights. In remote areas the Aboriginal people appear confused about the functions of the court…” Once again, the situation prevalent in the observed areas of India is very much similar.

B. Australia:

As regards to the situation in Australia, the Australian Institute of Criminology website concedes that “Indigenous Australians are very much over-represented in Australian prison populations, with imprisonment rates that are around 12 times those of the rest of the Australian population. Despite making up less than three per cent of the overall Australian population, Indigenous people make up 40 per cent of those imprisoned for assault offences. Rates of over-representation are even higher in juvenile detention, with a 10-17 year old Indigenous person being around 24 times more likely to be in detention than a non-Indigenous person of the same age”.

In a Paper presented at the 3rd National Outlook Symposium on Crime in Australia, Mapping the Boundaries of Australia’s Criminal Justice System convened by the Australian Institute of Criminology, held in Canberra, 22-23 March 1999, titled THE INAPPROPRIATENESS OF THE CRIMINAL JUSTICE SYSTEM – INDIGENOUS AUSTRALIAN CRIMINOLOGICAL PERSPECTIVE, alludes to several problems and inequities faced by the tribal population of Australia as regards to the criminal justice system. In that paper, Byron Davis, from Oorala Aboriginal Centre University of New England, NSW, quotes the findings of Cunneen and Libesman (1995) and states that “On an Australia wide basis an Aboriginal was 27 times more likely to be in police custody than a non-Aboriginal” He further quotes these findings to the following determination: “the highest over –representation of Aboriginal people in police custody is in the area of public order offences where police discretion is the greatest determinant of who will be detained or arrested and what they will be charged with”. This last determination is of vital importance in the Indian context because, even in India, as data shows, the highest representation of tribal people in proportion to the non-tribal people in jails are in conflict affected places where the police have considerable discretionary power in determining who shall be arrested, accused and charged and what shall they be charged with.

Mr. Davis further states that much sociological literature surrounding Aborigines and policing has much to say upon the social, economic and political oppression in which Aborigines have, and quotes O’Neill and Handleys’ research on these counts in 1994, where they have said that “the introduced criminal justice system [continues to be] used by many to oppress Aboriginals. [Further they add] the way the criminal justice system is administered is a major manifestation of the rest of society’s prejudice against Aboriginals”.

Once again, it is pertinent to note that the situation above resonates considerably with the situation as we have observed in India.

In this context, Mr. Davies in the abovementioned paper alludes to the nascent concept of Indigenous Criminology in the Australian Criminal Jurisprudence. The basic premise of this concept, being that of “conceptualisation of race as a variable for criminal justice intervention” is faulty in the sense that the perception of criminal justice as an institution or a system and that of race as a factor that is to be incorporated into the system is an approach that once again leads to essentialist compartmentalization and is thus alien to the holistic approach towards law and towards life as is a common feature among indigenous races around the world. Thus, such a concept, even if introduced into Indian jurisprudence, would not facilitate any discourse of practical import in the tribal context.


Nevertheless, Australian criminal jurisprudence has rich resources on issues of indigenous people and crime, and several studies and measures have been undertaken so as to tackle the issue of disproportionately high incarceration and custody-death rates of the indigenous tribes in that country. One of the measures was to seek to incorporate the principle of restorative justice in the legal framework of the state. Restorative justice, being the approach to justice that, instead of adhering to some strict and abstract legal principle or to merely sentencing the accused, aims at addressing the needs of the victim, the offender and that of the community as a whole, is thus a more holistic approach and has in fact been a part of the indigenous justice paradigm because systems of justice of the tribal people have traditionally put more emphasis on maintaining communal harmony than on merely punishing the offender. The Common Law heritage that is followed throughout South Asia, being the brown man’s burden, has historically chosen retributive justice, being a system of justice that places emphasis on punishing the offender, in lieu of restorative justice. This is perhaps the root of the problem when it comes to the plight of the tribal people in relation to the State-sanctioned systems of law and justice of these parts of the world.

One of the ways in which customary tribal traditions have been sought to be integrated into the process and system of law in Australia has been the introduction of circle sentencing of Aboriginal offenders. In this process, the offender, once his or her guilt has been established, has to face a council of village elders and the victim and the victim’s instead of facing a prosecution magistrate appointed by law, and the council decide the punishment and also the ways of rehabilitating the offender into the social structure once he or she has served her punishment.

This system, prevalent among several tribal groups all over the world, has been incorporated into the state-mandated systems of criminal justice of Australia and Canada. Given that similar systems of justice are also prevalent among several tribal groups of India, the same can perhaps also be incorporated in the criminal justice system of the country. Given that the systems of salishi or discussion with councils of village elders and processes of conciliation has been incorporated in the mainstream administrative framework of the state through systems like the Gram Sabha and Gram Panchayat in the rural set up of India, incorporating systems of criminal justice that befit the traditional mores of the indigenous people in the legal framework of the country is neither an impossibility and nor an absurdity.

It is true that several studies have been made and measures have been taken in the matter the interplay between the state-endorsed criminal justice system and its interplay with the traditional justice systems of the tribal communities in Canada and Australia. Reports on the rates of Indigenous crime have also focused on reducing risk by targeting the socio-economic factors that may contribute to such trends in Australia. Thus, there is much to learn from the discursive resources of these two nations in this matter.

C. The USA:

The scholarship in the USA regarding the interactions between the Eurocentric and the indigenous criminal justice systems has not been as abundant, though certain resources do exist. However, some studies have been made on the tribal justice systems in the country.

One such study focuses on the intertextuality between crime and culture in the American tribes through participation in traditional talking circles of these communities where the members of a community seat in a circle and participate in egalitarian, consensus building conversations where all the members are allowed to talk freely and uninterrupted.

Historically in the US, several Supreme Court decisions and legislations have affected the cause of justice of the tribal populace in their own terms, and time and again they have been forced to enter into dialogic space of the criminal justice process of the white colonizers in the terms of the later. Several old draconian laws and treaties framed in the early 20th century have also been used to hamper the cause of justice of the American Indian tribes. For instance, as late as 1993-94, the Supreme Court in Hagen v. Utah (No. 92-6281), 510 U.S. 399 (1994), a matter that involved a member of an Indian tribe, was charged in state court with distribution of a controlled substance in the town of Myton, which lies within the original boundaries of the Uintah Indian Reservation on land that was opened to non-Indian settlement in 1905, opined that Because the Uintah Reservation has been diminished by Congress, the town of Myton is not in Indian country and the Utah courts properly exercised criminal jurisdiction. Again in the same year, in South Dakota v. Bourland (No. 91-2051), 508 U.S, it supported the Congress, which, in the Flood Control and Cheyenne River Acts, abrogated the Cheyenne River Sioux Tribe’s rights under the Fort Laramie Treaty to regulate non-Indian hunting and fishing on lands taken by the United States for construction of the Oahe Dam and Reservoir.

Again in 1991 in Blatchford v. Native Village of Noatak (No. 89-1782), 501 U.S. 775 (1991), amount of money owed by several Alaska Native villages under a revenue-sharing system was denied on technical grounds. These are comparatively recent cases in the continuity of denial of equitable remedies to the tribal people, a continuity that encompasses several factors including that of stubborn refusal of the state to accommodate traditional systems of criminal justice into the state-mandated framework of law and justice and also to address long-standing socio-economic factors that go behind crime and criminality as far as the American tribes are concerned.

However, it is worth noting that the USA has accorded sovereignty status to the tribal communities. In Cherokee Nation v. Georgia, Justice John Marshall described the native groups inhabiting the lands as ‘domestic dependant nations’ which existed in a relationship with the federal government as a ‘ward to its guardian’

In Worcester v. Georgia, Justice Marshall elaborated, characterizing Indian tribes as “distinct, independent political communities,” whose inherent sovereignty was limited but not abolished as a result of coming under our ‘guardianship’. Thus, in the 19th century, though the sovereignty of the tribal groups were recognized, the colonizers still considered them as their ‘wards’ and thus, as is apparent from the language of these rulings, the ‘white man’s burden’ approach was distinctly evident. In terms of criminal jurisdiction, in Ex Parte Crow Dog, the Supreme Court had, far back in 1885, adjudged that only a tribal government could punish an Indian person for a crime committed against another Indian person in Indian Country. However, the effect of this order was nullified by the Major Crimes Act, 1887 which accorded the federal government to power to adjudicate major crimes committed by Indian tribespeople against fellow tribesfolk even within their own reserves. Thus, the imposition of colonizer’s hegemony over the colonized began manifesting itself. This usurpation of authority was blatantly upheld by the Supreme Court in several judgments.

In the 20th century, the Indian Reorganization Act of 1934 led to the beginning of modern tribal courts in American jurisprudence; then came the harsh Public Law 280 in 1953 gave some states (as opposed to the federal government) criminal authority in Indian Country regardless of tribal assent, reflecting the appalling situation in terms of civil liberties and basic freedoms as was prevalent in those years. Then the Indian Civil Rights Act of 1968 established a bill of rights requiring tribal courts established under the 1934 Act to provide due process and equal protection for defendants while limiting tribal imposition of criminal sanctions, thereby making severe inroads into tribal autonomy in governance of justice in the guise of protection of civil liberties.

Thus, throughout the history of development of tribal criminal jurisprudence, the same has been guided, governed and defined by the Eurocentric system of law of the colonizers which is alien to the traditions and perspectives of the tribal communities. The systemic repression is so much that an American Indian person can be prosecuted and sentenced at the tribal, state, or federal level for crimes that if committed by non-Native people would be prosecuted and sentenced in state court.

However, the role of Tribal Courts has been consolidated by the recent Tribal Law and Order Act of 2010 has several provisions which speak to supporting the role of tribal courts and addressing the problems created by past legislations and Supreme Court precedents. This Act draws up an elaborate framework of accountabilities both at the State & Federal levels in terms of tribal justice.  This Act has also created a framework for collection of data relating to crimes committed in Indian sovereignties. Of course, there is no guarantee given in the Act that such data shall not be used by the state in subjecting the tribal communities to relentless surveillance – something that has been a defining feature of the US Government throughout the past few decades, done under the garb of “security measures”. Thus, this legislation seems to be a promising development in the discourse of indigenous criminal justice, though only time and providence shall attest to its efficacy at the level of grassroot-implementation. Establishment of such Tribal Courts with similar sound legislative framework and entrenchment of accountabilities, along with similar data-collection machinery, might perhaps solve many of the burning problems of tribal criminal justice system in India as well.

Though introduction of a Lyotardian model of tribal justice (a model that proclaims that justice for multiplicity necessitates multiplicity of justice) is farfetched in terms of the grassroot realities of India, certain measures and discourses that have emerged and have in fact been incorporated in the mainstream legal framework of several Common Law countries, including the three discussed above, all of which have a plural tribal culture and all of which were under British sovereignty which has influenced the broad-base of their legal-democratic foundations, can also be implemented and incorporated within the Indian system when it comes to development of a more just and humane criminal justice framework for the indigenous people. Principles of Restitutive, reparative and restorative justice, development of a wholesome perspective towards maintenance of communal harmony, development and implementation of special tribal courts that shall look into tribal matters exclusively, entrenchment of accountabilities at the state and burocratic level  when it comes to tribal justice systems, processes and situations, incorporation of circle sentencing which is also a common process of criminal justice among most tribal communities of the country, inculcation of openness and empathy towards tribal perspectives towards law, identification of socio-cultural aspects informing tribal criminology and victimology, ironing out of contradictions between the Eurocentric model of law, i.e., the Common Law regime as is prevalent here and the traditional indigenous legal systems and developing a discourse that would lead to an understanding of the barriers of economy, language, society, polity and culture that make tribal people and communities lose out on their stake in the wholesome legal system of the country that is governed by due process are some of the aspects that can be incorporated and cultivated in the Indian legal framework.


Part 1) Lyotard, the Differend and Divergences between the Eurocentric and the Indigenous Systems of Justice


Lyotard, while introducing the post-modern condition, slays the demon of metanarrative. Thus, there is no single grand tale with everything woven on it but there are little tales that are just that, little tales. Thus, ends must not necessarily meet or be forced to meet. A typical situation where the ends do not meet is called a “differend”. A typical example of differend is a situation of conflict between an alien system of justice imposed by colonizers and carried forward by post-colonizers and that of the traditional systems of justice of the tribal community.  Thus, for example, if the Government of a country, governed by, say, the Common Law regime that believes in its own notion of justice, equity and good conscience, acquires land that had belonged to a tribal community for generations, evicts them from their homesteads and disburses compensation – all following the mandate of law as per endorsed by the Rule of Law regime of the Common Law system to the dot, the tribal people might feel that injustice has been meted out to them because of the fact that their own system of justice, which is not mandated by the stamp and seal of Common Law, has been disregarded. If they have to challenge the eviction or the amount of compensation, they have to challenge the ones who had thus taken their lands with their own games and they can enter into a discourse with the colonizers/post-colonizers only on their own terms. This is an instance of the differend because rights of the tribal people over their lands are established by tribal law, and evidence for such rights may not be presentable in the law of the government which is to strictly adhere to the norms of the Common Law. The court of appeal in which claims to land rights are heard functions entirely according to government mandated Common law, and tribal law is not considered a valid system of judgment.

Legal systems around the world have not progressed in tandem with philosophical discourses and thus it would be ludicrous to expect any legal system to accommodate the “differend”. Far from slaying the demon of metanarrative, they have not yet made much headway in doing away with essentialism – the rigid four walls of definition – something which, in the realm of philosophy, the predecessors of the post-modernists, being the existentialists, had so adroitly slain. Systems of law, including the one that is mandated by the Government of our country, still adheres to norms culled out by the European colonizers, and still seeks to ‘define’ law as Commands of the Sovereign, backed by threats of punishment on non-obedience. Thus, a citizen needs to learn the arts and crafts of obedience so as to avoid being penalized.

In India, on one hand we have the Common Law, which is by and large a homogenous legal system and structure and we have several indigenous legal systems, each adhering to their own respective customs, norms and mores. The Common Law as it stands today in India is founded on a perspective of the Europeans and is based on a retributive philosophy that is hierarchical, adversarial, punitive, and guided both by written laws and judicial pronouncements. It believes in reason and rationality, and has no space for unreason – the very source of empathy, as many scholars of the 20th century had come to establish. They main focus of the legal regime of the Common Law system is to establish guilt or innocence through witness trial and examination of evidence. It seeks tangibilities to back its mandates and pronouncements. It is a complex and process and procedure oriented system, with rigid compartmentalization and regimentation when it comes to powers, responsibilities and decision-making.

As far as the laws and systems of justice of the tribal people are concerned, though they differ from seat to seat and place to place throughout India and the world, one common factor is that those adopt a more holistic and a less Cartesian or compartmentalized approach. These systems are guided by the unwritten customary laws, traditions, and practices that are learned primarily by example and through the oral teachings of tribal elders. The holistic philosophy is a circle of justice that connects everyone involved with a problem or conflict on a continuum, the continuum represents the entire process, from disclosure of problems, to discussion and resolution, to making amends and restoring relationships. The methods used are based on concepts of restorative and reparative justice and the principles of healing and living in harmony with all beings and with nature. Thus, the aim of justice is not merely to compensate the victim or punish the wrongdoer, but the focus lies in healing and restoring the breaches to harmony of communal relations. The process of law for the tribal communities, unlike the European processes of law is not compartmentalized into pre-adjudication, pretrial, adjudication, and sentencing stages.

Thus, the Eurocentric models of law and justice have never resonated or synchronized with the different models that the tribal communities have come to embrace over time, and this is owing to the differing ways of life of the proponents of the first model and the adherents of the other ones.  Thus, following the political ethos of Lyotard, justice of multiplicities requires a multiplicity of justices – something that is conspicuous by its absence in India.