Introduction

The emergence in the last three decades of language-oriented studies of adversarial law in the Anglo tradition (American, British, and Australian) has added a social scientific and critical theoretical perspective that diverges dramatically from what once was primarily the domain of historians and technicians of legal text, argumentation, and rhetoric (see, e.g., Reference MelinkoffMelinkoff 1963; Reference Bailey and RothblattBailey & Rothblatt 1978; Reference ProbertProbert 1959). Concomitant with the “linguistic turn” of social science and what might be called the “sociocultural turn” of linguistic analyses (i.e., the rise of sociolinguistics, the ethnography of communication, and conversation analysis), researchers with backgrounds in law, sociology, anthropology, and linguistics have converged around a host of issues concerning the structure and use of language and discourse in the expression and operation of the law (Reference MatoesianMatoesian 2001; Reference Conley and O' BarrConley & O'Barr 1998, Reference Conley and O' Barr1990; Reference PhilipsPhilips 1998; Reference MertzMertz 1994; Reference Atkinson and DrewAtkinson & Drew 1979). Much of this work focuses on the various forms of face-to-face interaction that constitute courtroom proceedings, including the turn-by-turn development of discourses in direct and cross-examination interactions, plea bargaining processes, and judge and litigant interactions in small claims court.

Beyond the (rather uncontroversial) claim for some significance of language and its use in legal institutions, operations, and products, most of these studies also concur on a basic vision of language use as medium not only for reference to, but fundamentally for construction of, social realities and orders. As such, legal interaction is a critical tool for the exercise of sociolegal power (Reference Conley and O' BarrConley & O'Barr 1998, Reference MertzMertz 1994). Mertz explains,

However, while these interactional models have proven their analytic worth in the study of Anglo American and other Anglo legal institutions within their “home” nations, the particular lessons learned from these approaches have not been regularly extended to the sociolegal contexts of contemporary indigenous and (post)colonial legal regimes. Important work has of course been undertaken on the historic and contemporary impact of the colonial imposition of Anglo-style juridicopolitical discourses and institutions around the world (e.g., Reference ChakrabartyChakrabarty 2000; Reference MerryMerry 2000; Reference Comaroff and ComaroffComaroff & Comaroff 1991; Reference Comaroff and ComaroffComaroff & Comaroff 1997; see Reference ComaroffComaroff 2001 and Reference MerryMerry 1990 for good reviews). Others have also considered the details of courtroom interactions involving indigenous peoples appearing in Australian and U.S. courts (Reference EadesEades 1996, Reference Eades2000; Reference Merry, Lazarus-Black and HirschMerry 1994; Reference BunteBunte 1992). Yet efforts to analyze the details of emergent, face-to-face interaction as constitutive of indigenous legal institutions—institutions that bear the heavy influence of Anglo-style jurisprudence but are understood by local actors as important sites for the negotiation, articulation, and instantiation of their unique (post)colonial nationhood—remain in the purview of relatively few scholars (see, e.g., Hirsch 1998, 2002; Reference Philips, Lazarus-Black and HirschPhilips 1994, 2002).

This is certainly the case in the sociolegal context that is considered in this article: that of the proceedings of property dispute hearings before the tribal court of the Hopi Indian Nation since the mid-1990s. Like many American Indian tribal courts in the United States today, the Hopi Tribal Court relies heavily on Anglo American adversarial rules and procedures inherited from the colonially imposed Court of Indian Offenses run by the Bureau of Indian Affairs on the Hopi reservation until 1972. At the same time, the Hopi Tribal Constitution, and recent Hopi tribal legislation and case law, recognize the juridical authority of Hopi village leadership and mandate reliance on principles of Hopi custom, tradition, and culture when addressing disputes among tribal members, particularly those regarding issues of probate, child custody, and other matters of property and family law.

In this study, I rely on linguistic anthropological and discourse-analytic theories and methodologies to analyze the face-to-face interactions by which Hopi legal actors engage each other in property disputes through multiple and competing discourses of tradition and law in ways that both contribute to and are shaped by the operations of contemporary Hopi jurisprudence.

As such, this article reflects on hoary concepts of tradition and law that have always played a crucial role in (post)colonial relations and their academic investigation (Bauman & Briggs 2003; Reference ChakrabartyChakrabarty 2000; Reference ComaroffComaroff 2001). It also taps into a heated debate among postcolonial theorists, indigenous jurists, and anthropologists over the role that notions of traditions and culture should play in the operation of contemporary indigenous juridicopolitical systems and movements (Reference Coffey and TsosieCoffey & Tsosie 2001; Reference CliffordClifford 2001; Reference MillerMiller 2001; Reference JohJoh 2000; Reference Dirlik and JohnsonDirlik 1999; Reference PorterPorter 1997a; Reference PommersheimPommersheim 1995a, Reference Pommersheim1995b; Reference Linnekin, Linnekin and PoyerLinnekin 1990). For some, the introduction of tradition and custom in contemporary legal activities is central to developing a governance that secures real sovereignty for indigenous nations and charts a sociopolitical future that, while undoubtedly informed by a history of colonization, nonetheless remains uniquely their own. For others, reliance on such notions ignores the degree to which normative principles and authorities grouped under the rubric of tradition may in fact misrepresent actual past cultural practices and/or be out of step with current practices, beliefs, and values of the citizens of indigenous nations (Reference BarshBarsh 1999; Miller 2001; Reference JohJoh 2000). Despite the urgency of these debates, little work has explored the interactional details of contemporary indigenous governmental processes to examine precisely how tradition and law are talked about, by whom, and to what effects.

Starting from Conley and O'Barr's basic premise that “in many vital respects, language is legal power” (1998:14), I pay particular attention to a stretch of conflict talk that emerges in a 1997 Hopi Tribal Court hearing during the examination by a Hopi judge of elders called as expert witnesses to testify on their village customs and traditions. I show that the syntactic, grammatical, and discursive features of the judge's questions, and his repeated rejection of elders' proposed responses, constitute his efforts to work up discourses of tradition in ways that simultaneously accommodate and translate ideologies of objectivity central to Anglo American notions of legal legitimacy into Hopi juridical discourses.

However, the judge's discursive moves frustrate the Hopi witnesses' own expectations of their role in the resolution of the dispute. As a result, these witnesses resist these accommodations through explicit challenges to the judge's authority in terms informed by the ideologies of exclusivity that legitimize their competing notions of Hopi traditional knowledge and power. As such, the elders interpret the judge's efforts to constrain their testimony as illegitimate attempts to appropriate their traditional power, authority, and the distinctly Hopi political legitimacy that they claim traditional knowledge affords.

By considering the communicative resources and contexts by and through which Hopi social actors invoke, accept, or challenge notions of tradition and Anglo American–style jurisprudence and their articulation in their contemporary legal processes, I subsume the question of what tradition and law “are” in this article under more fruitful inquiries into what tradition and law “do” and “mean” for the tribal actors who engage each other in courtroom interactions. I thus suggest that Hopi legal actors are actively engaged in the face-to-face negotiation of a balance between notions of law and tradition that not only reaches the finest details of Hopi Tribal Court praxis, but is also central to the ways in which Hopi people constitute their contemporary tribal jurisprudence, its sociopolitical force, and the indigenous lives with which it is imbricated. In so doing, this article is a call for increased attention to the microdetails of the sociolegal interactions that contribute to contemporary sociolegal processes in (post)colonial contexts, and a model for how such endeavors might be undertaken.

Legal Discourse Analysis, Power, and Metadiscursive Practices

Conley and O'Barr's 25 years of scholarship stand at the center of research into the details of Anglo American courtroom interaction (see, e.g., Reference ConleyConley et al. 1978; Reference Conley and O' BarrConley & O'Barr 1990, Reference Conley and O' Barr1998; Reference O'BarrO'Barr 1982). Across the span of their careers, the search for greater understanding of the constitution and operation of legal power, authority, and domination emerges as a common theme. As the authors write,

Conley and O'Barr thus offer actual law talk as the ground upon which to explore the accomplishment of the domination of politically marginalized groups such as women and racial and ethnic minorities. They build this argument through an analysis of transcripts of victim cross-examinations in rape trials, mediation interactions in divorce proceedings, and what the authors call the “powerless speech” most often associated with female litigants and witnesses in Anglo American courts. These inquiries, they suggest, reveal how the discursive practices that constitute the everyday operation of the law perpetuate male domination of women, but in ways that legal researchers and reformers who only consider the rules and norms of law don't anticipate. Thus defense lawyers (re)victimize women witnesses during cross-examination when they employ non-responsiveness and manage the topic of the interaction through leading questions in ways that implicitly express doubt about witness credibility. And this is true even with rape shield reforms that prohibit examination of witnesses' prior sexual history. Thus Conley and O'Barr consider how the details of victim cross-examination in rape trials, as well as other aspects of law talk, contribute to the manner in which Anglo American legal practices perpetuate patriarchal domination of women.

Often Conley and O'Barr's analyses of the larger macrosociological forces operating within and upon these interactions are laid out in ways that could make more explicit a reckoning of the specific manner in which representations of norms of talk and social relations are invoked and constituted by interlocutors through their interactions. While their conclusions concerning the relationship between trial talk and legal power are not doubted here, it seems at least as important to attend to the schematics concerning language and its links to other sociocultural phenomena that participants themselves index and construct when they are engaged in their legal discourses. What are the implicit images of relations between men and women, and their language practices, that lawyers constitute in their cross-examination tactics such that they smack of gender discrimination and violence? How do witnesses participate in the constitution of these images of gendered relations and interactions? Are they complicit in them, or do they work to counter them; and how does such participation contribute to witnesses' (re)victimization through courtroom discourse? Moreover, is this (re)victimization itself the product of some particularized form of gendered violence constituted through images of male/female discourses and relations? Or is it more generally the “violence” that seems to attend the adversarial cant of cross-examination proceedings?

Such questions may not immediately present themselves in the U.S. courtroom contexts where Conley and O'Barr have conducted their work. But assumptions regarding the social force and meaning of particular speech activities cannot be so safely made in situations, such as many (post)colonial legal contexts, where cross-cultural influences and concerns of legal pluralism are more explicitly at work. Importing the theories and methodologies of legal discourse analysis into interactional contexts such as those of the Hopi Tribal Court thus requires an approach to the data that takes more measure of the sociocultural images and norms that participants index or claim through their talk and how such representations impact that talk and the social force that flows through it. The recent focus of scholarship into what are being called language ideologies and metadiscursive practices is concerned with just these kinds of discursive features.

Language Ideologies and Metadiscursive Practices

In the 1990s, linguistic anthropologists who had long investigated the details of actual language use and interaction began to pursue lines of inquiry that account for the ties that situated instances of language use have to local norms and beliefs about language and the macrosociological forces of social order that might flow through them (Reference KroskrityKroskrity 2000; Reference SchieffelinSchieffelin et al. 1998; Gal 1996; Reference Silverstein and UrbanSilverstein & Urban 1996; Reference Bauman and BriggsBauman & Briggs 1990). An interest emerged among these scholars in understanding the local schemas and practices of interpretation and evaluation with which participants and their audiences make sense of their own communicative events. Focused inquiries into aspects of verbal art and performance, metapragmatics, and even textuality all evinced a recognition of the dialectical relationship that perdures between the beliefs that people have about language and the actual use of specific language forms. Most recently, and under the rubric of language ideology analyses (Reference KroskrityKroskrity 2000; Reference WoolardWoolard 1998), this interest has taken on an even broader focus, expanding the study of this dialectical relationship farther into society and its forces by considering how beliefs and talk about talk are informed by political economic forces. As such, language ideologies and metadiscursive practices (communication that implicitly and/or explicitly refers to, indexes, or otherwise frames other discourses [Reference BriggsBriggs 1993]) are explored today as mediating, in complex and often conflicting ways, the manner in which details of language use and practice are invoked by social actors to authorize, naturalize, and/or resist and deconstruct local, colonial, nation-state, and even global social orders (Reference KroskrityKroskrity 2000; Reference SchieffelinSchieffelin et al. 1998).

Recently, sociolegal scholars have initiated inquiries into the language ideologies and metadiscursive practices of Anglo American legal actors (Reference PhilipsPhilips 1998; Reference Mertz, Silverstein and UrbanMertz 1996, Reference Mertz, Scheiffelin, Woolard and Kroskrity1998; Reference MatoesianMatoesian 1995, Reference Matoesian1998, Reference Matoesian2001). In analyses of litigation contexts, some of Conley and O'Barr's powerful insights have been elaborated on in ways alluded to above. Reference MatoesianMatoesian (2001) offers a detailed analysis of witness examination interactions in the William Kennedy Smith rape trial, revealing the complex ways in which metadiscursive devices are employed by both lawyers and witnesses in the competition over influencing jurors' interpretive frames of their courtroom talk. These devices are rhetorically effective because they are attentive to the institutional metadiscursive constraints that Anglo American procedural law places on courtroom interaction, while at the same time they are evocative of a web of ideologies of gender, sex, violence, and language use relevant to the rape trial (Reference MatoesianMatoesian 2001).

Matoesian reveals how the defense attorney and one of the prosecution witnesses engaged in explicit contest over the implications of a statement by the alleged rape victim's friend to the defendant, in which she reported having said she was “sorry” she and Smith “had met under the circumstances” of the evening of the alleged rape. Relying on different metadiscursive practices of direct and indirect quotation, the defense attorney framed the reported statement in a way suggesting that it constituted part of the discourse of “small talk” and friendly banter that are not typically the ways in which women talk to their friends' alleged rapists. The witness proposed a different frame of the statement, attempting to explain it as more confrontational and challenging of the defendant. Both sides of the metadiscursive contest, and the juror audience, Matoesian claims, were equally informed by what he calls a “layered logic of patriarchal domination” (2001:38), by which women who are victims of rape or connected to victims are expected to act and talk in certain ways, ways that do not include an affect of anything other than fear, anger, or confusion (Reference MatoesianMatoesian 2001). By this logic, the interlocutors and their audience all orient to an idealized cultural scheme of rape incidents against which the alleged activity of the evening is evaluated. And it is through such a comparison that jurors make an institutionally sanctioned decision about “what happened” on the night in question, and thus decide how the punitive power and authority of the state should respond (if at all).

Matoesian's conclusions echo Conley and O'Barr's claims. However, his attention to metadiscursive practices and language ideologies offer additional insight into the patriarchal character of cross-examination discourses by providing compelling data that such notions did in fact inform the interlocutors' own experiences of the interaction and shaped the flow of legal power through it.

It is thus a background in the theories and methodologies of legal discourse analysis, combined with more recent studies of language ideology and metadiscursive practices, that together make possible the extension of interaction-based analyses into contemporary indigenous and (post)colonial sociolegal institutions. Such a combination affords insight into the details of Anglo-style juridical practice employed in such contexts, and the constitution and flow of sociolegal authority and power in and through those practices, while at the same time compelling the analyst to recognize and attend to the fact that such practices are fundamentally refigured through the local ideologies by which indigenous and other participants of (post)colonial legal institutions conceptualize them. To show how this works, I shall apply this kind of analysis to the discourses of tradition and law that emerge in Hopi Tribal Court interaction.

The Hopi Tribe and Its Courts: A Brief Description

The Hopi reservation, established by executive order in 1882, currently occupies 1.5 million acres of aboriginal Hopi land in northeastern Arizona. The approximately 6,500 Hopi living on the reservation occupy 12 villages located on or around three mesas. Until the 1930s, nine of these villages operated under autonomous village leadership, and there existed no formal tribal organization or any tribal governance. In 1936, however, the Bureau of Indian Affairs federated Hopi villages under a Hopi constitution written and adopted pursuant to policies of the Indian Reorganization Act (25 U.S.C.A. §§ 461–462, 464–479 [1934]). A representative Hopi Tribal Council was also convened at that time as the sole body of tribal leadership. It was only in 1972, when the Hopi Tribal Council passed Hopi Ordinance 21, that a Hopi tribal judiciary was established to replace the Bureau of Indian Affairs' Courts of Indian Offenses and provide the tribe with both a trial and appellate court (Hopi Ordinance 21, §§ 1.1.1., 1.2.1, 1.3.1).

Ordinance 21 relies heavily on the procedures of Anglo American–style adjudication in its enumeration of the operations of the Hopi Tribal Court. Many of the basic processes and practices in the Hopi Tribal Court system are thus similar to the activities of many U.S. state and federal courts. Generally speaking, Hopi Tribal Court is adversarial—litigants submit written briefs and present oral arguments that set forth the facts of the dispute and interpret principles of law in a manner designed to advocate for a resolution favorable to each party's interests and to challenge the facts and law presented by their opponents. Litigants can present evidence, including witness testimony, and cross-examine the witnesses of their opponents. After the presentation of evidence, litigants provide closing arguments. Final decisions are made by either juries composed of members of the Hopi tribe (in criminal cases) or judges (in civil cases and cases on appeal), and these decisions can be appealed to the Hopi Appellate Court upon a claim of judicial error during the trial.

The participants in Hopi Tribal Court proceedings are also similar to the players in Anglo American courts. Both Hopi and non-Hopi may sit on the Hopi judiciary; however, non-Hopi must have a law degree while tribal members need not have such formal legal training (although some law-related experience is usually required). Litigants have the right to represent themselves or retain counsel. Counsel need not have a law degree nor be a member of the tribe. Due to prohibitions of cost and location, counsel is extremely difficult for parties to retain, and though Hopi Legal Services offers some resources, parties regularly represent themselves or retain many different representatives over the course of litigation. Court clerks and bailiffs are also present for most trial proceedings, as are audiences composed of relatives of the parties, litigants waiting for their trials, and other court officials.

All trials are held in the Hopi courtrooms adjacent to Hopi Police Headquarters near Keams Canyon on the Hopi reservation.

Tradition in Hopi and Other Tribal Jurisprudence

At the same time that the Hopi Tribal Court employs these Anglo American–style adversarial rules and procedures, other tribal legislation and case law require the court to give a preferential place to Hopi customs, traditions, and culture. In Resolution H-12-76, the Hopi Tribal Council mandated that “in deciding matters of both substance and procedure,” the tribal court give more “weight as precedent to the … customs, traditions and culture of the Hopi Tribe” than to U.S. state and federal law (see Resolution, Hopi Tribe, H-12-76). The Hopi Appellate Court has recently reiterated this rule, writing in Hopi Indian Credit Association v. Thomas, “The customs, traditions and culture of the Hopi Tribe deserve great respect in tribal courts, for even as the Hopi Tribal Council has merged laws and regulations into a form familiar to American legal scholars, the essence of our Hopi law as practiced, remains distinctly Hopi” (AP-001-84,4 [1996]).

In this respect, Hopi law echoes the call from tribal jurists across American Indian tribal courts to develop both substantive and procedural bodies of law that rest fundamentally on the traditions and customs of the people they represent (Reference Coffey and TsosieCoffey & Tsosie 2001; Reference PorterPorter 1997b; Reference Cooter and FikenstcherCooter & Fikenstcher 1998; Reference VincentiVincenti 1995; Reference PommersheimPommersheim 1995a, Reference Pommersheim1995b). Thus Vincenti writes, “The real battle for the preservation of traditional ways of life will be fought for the bold promontory of guiding human values. It is in that battle that tribal courts will become indispensable” (Reference VincentiVincenti 1995:137). As a consequence, “the courts have found it absolutely necessary to consult tribal custom and tradition and incorporate these values into American-style legal systems” (1995:137).

At the same time that the Hopi Appellate Court expresses a value for the use of Hopi custom and tradition in Hopi law, the court recognizes that introducing tradition into contemporary Hopi jurisprudence is neither a simple nor straightforward process. In the same opinion quoted above, the court writes, “Hopi custom, traditions, and culture are often unwritten and this fact can make them more difficult to define” (Hopi Indian Credit Association v. Thomas, AP.001-84, 4 [1996]). Other tribal legal professionals have raised similar concerns about the ability to articulate legal principles from tradition (Reference TsoTso 1989; Reference Zion, Morse and WoodmanZion 1987). Zion, who, in reflecting on his work in Cree, Pima, Navajo, and Blackfeet courts, explains that the difficulties in “finding Indian Common Law” are “sometimes due to language problems, sometimes to that fact that many Indians do not speak of their common law in articulated legal norms, and sometimes to constraints created by non-Indian thinking patterns” (Reference Zion, Morse and WoodmanZion 1987:125; see also Reference HunterHunter 1999).

Still others are less quick to presume that notions of custom and tradition are automatically valuable to contemporary tribal legal processes. These scholars see problems in the degree to which legal representations of customs and traditions—misrecognized as either bodies of timeless principles that must be adhered to despite social and political change (Reference MillerMiller 2001; Reference BarshBarsh 1999), or alternatively as not faithful enough to “actual tribal pasts”—are more about political power plays, constituting “modes of resistance to all that Western legal culture represents” (Reference JohJoh 2000:125) rather than as any real articulation of local values and practices. As such, custom, tradition, and culture are notions considered “too problematic” to constitute a foundation for tribal jurisprudence insofar as they invoke troubling “questions of authenticity, legitimacy, and essentialism” more suitable to arenas of politics than law (Reference JohJoh 2000:120).

These sentiments parallel recent and often bitter arguments between indigenous leaders and scholars critical of the use of tradition by indigenous political systems and movements as inauthentic and illegitimate representations of an “Edenic” tribal past designed primarily for contemporary political gain (e.g., Reference CliftonClifton 1989, Reference Clifton and M.1997; Reference HansonHanson 1989, Reference Hanson and Mauze1997; Reference Linnekin, Linnekin and PoyerLinnekin 1990, Reference Linnekin1991). These hostilities have most notably arisen in the contexts of indigenous Oceania, where scholars questioning the “invention” and essentialization of custom and tradition in political revitalization movements among native Hawaiians, Maori, and others have come under severe critique from their colleagues and the indigenous groups they purport to describe (Reference HansonHanson 1989, Reference Hanson and Mauze1997; Reference LinnekinLinnekin 1991; Reference TraskTrask 1991; for an overview see Reference FriedmanFriedman 1993).

But similar challenges have also been invoked by academics studying contemporary Native North American nation-building movements (Reference Clifton and M.Clifton 1997; Reference MauzeMauze 1997; see Reference Dirlik and JohnsonDirlik 1999). Indeed, it is in light of this perspective on the contemporary discourses of tradition that at least one scholar concludes that “being Indian in the United States today is, in New Age lingo, being ‘into denial’ in a big way” (Reference Clifton and M.Clifton 1997:156).

Reference Dirlik and JohnsonDirlik (1999) has noted the blind spot these critics seem to have for understanding the political efficacy of the indigenous discourses of culture and tradition in their sovereignty movements. He writes, “[t]he label of essentialism, extended across the board without regard to its sources and goals, obviates the need to distinguish different modes of cultural identity formation that is subversive not only of critical but also of any meaningful political judgment” (1999:75, emphasis in original). Dirlik calls for greater attention to the structures of power, political contexts, and historicity that inform the contemporary claims of custom, tradition, and unique cultural identity made by indigenous social actors in order to see how such claims might be radical and liberatory in the face of years of colonial oppression and hegemonic control (Reference Dirlik and JohnsonDirlik 1999). And as such, he lends his voice to the arguments of others who call for a rethinking of the evaluation of tradition and identity discourses in contemporary indigenous politics away from analyzing the “authenticity” of praxis and ideologies claimed as customary and traditional, and toward an exploration of the manner in which such notions of tradition and custom are worked up in complex and multiple ways in relation to discourses and practices that are understood as nonlocal and nontraditional, and that also inform indigenous life and politics today (Reference CliffordClifford 2001; Reference JollyJolly 1992, 1994).

This endeavor remains fundamentally un-pursued in the context of tribal court jurisprudence. Indeed, scholars repeatedly note that there persists a general lack of studies that detail the actual operation of tribal courts and their discourses (Reference JohJoh 2000; Reference BarshBarsh 1999; Reference Cooter and FikenstcherCooter & Fikenstcher 1998). Despite the explicit recognition by tribal jurists that the force of tribal custom and tradition in today's tribal law necessitates careful consideration of their integration into contemporary Anglo American–style legal operations (Reference BarshBarsh 1999; Reference PorterPorter 1997a; Reference PommersheimPommersheim 1995a, Reference Pommersheim1995b), virtually no work has been undertaken to examine the details by which this process is accomplished in the discourses that constitute tribal legal practices. It is thus toward an effort to begin to fill this void that I now turn to the talk and interactions of the Hopi Tribal Court.

Talking Tradition and Talking Law in Hopi Courtroom Interactions

The courtroom interactions analyzed in this article come from approximately 30 hours of audio recordings of property dispute hearings before the Hopi Tribal Court collected by the court as part of its official record, from 1995 to 2002. In addition, the author conducted interviews of Hopi tribal members (including legal professionals and lay members),Footnote ¹ Hopi Tribal Court archival research, and ethnographic observation of Hopi courtroom proceedings over 27 months of fieldwork on the Hopi Reservation beginning in 1996, a period that included a 13-month stay from November 2001 to December 2002.

A review of Hopi case file archives revealed that since 1995, 15 civil complaints concerning property were filed with the court. Property issues loom large in Hopi members' concerns about law and order in their village communities. This is reflected in the Hopi Constitution, which, when originally drafted by the Bureau of Indian Affairs was designed in recognition of the degree to which Hopi in 1934 identified matters of property as an intensely local concern. Indeed, despite other major governmental reforms written into that constitution, issues regarding probate and the assignment of village land were two of only four subject matter areas (along with family disputes and adoptions) reserved to the exclusive jurisdiction of what is generally referred to as the “traditional” leadership of the nine separate Hopi villages (Constitution and By Laws of the Hopi Tribe Article III, § 2 [1936]). This reservation is still recognized today, and property disputes that come before the Hopi Tribal Court are heard there only because the village leaders responsible for addressing the matter have waived that original jurisdiction.

Thus Hopi concerns regarding property remain deep. In fact, the research from which this study emerges is part of a larger project initiated after Hopi village leaders from across the Hopi reservation met with Hopi court officers and identified disputes over property as the single greatest threat to the health and welfare of Hopi communities today.Footnote ² And a primary problem identified by tribal members regarding the resolution of these property conflicts is the difficulties they perceive in balancing claims to property based on notions of Hopi culture and tradition with the Anglo American–style jurisprudence they see as characterizing contemporary Hopi tribal law.

Consequently, it is not surprising that discourses of culture and tradition are a frequent and recurrent feature of both the written texts and oral arguments proffered by ligitants, witnesses, lawyers, and judges in Hopi property disputes. A review of the 15 cases on file with the Hopi court reveals that 14 include recurrent comments by one or more legal actors regarding rights to the property at issue, or requests for how the dispute should be resolved, that invoke some aspect of Hopi custom and tradition. And of the 12 hearings from these cases for which audio recordings were available, in only one did parties not argue a matter of Hopi tradition or culture.Footnote ³ These figures mirror trends in other tribal courts across the United States. In a recent study of 359 published tribal court decisions from 1992 to 1998, of 56 different tribal jurisdictions, opinions concerning property disputes included references to tribal customs and traditions more often than opinions concerning any other subject matter area (Reference BarshBarsh 1999).Footnote ⁴

Qualitatively, the instances of tradition talk that emerge in these Hopi courtroom interactions reveal a wide diversity of form, content, and distribution of speaking rights (who can say what, and how, about Hopi tradition). Thus statements of tradition are expressed by Hopi and non-Hopi, and by laypersons, advocates, and judges, in both English and Hopi utterances. Furthermore, in some instances, tradition (navoti, “knowledge/teachings/tradition,” in Hopi) is sometimes invoked through direct reference, as revealed in the examples in Figure 1. In others, however, it is indexed more indirectly, through talk about family and clan relations, or ceremonial and other social obligations (see Figure 2).

Figure 1. Explicit References to Hopi Tradition in Property Hearings.

Figure 2. Indexing Hopi Tradition Through Reference to Ceremonial Obligations and Family RelationsFootnote ⁵

For the analysis in this study, perhaps the most significant characteristic of the ways tradition is talked about in Hopi property hearings is the manner in which it is constructed in relation to what are seen as the Anglo American–style juridical practices of the court. Sometimes tradition is constructed in opposition to adversarial practices and norms of contemporary Hopi tribal law, while at other times Hopi tradition is talked about in ways consistent (or at least not in inherent conflict) with that law and court procedures. Thus consider the examples in Figure 3.

Figure 3. Constructions of Hopi Tradition in Relation to “Anglo”-Style Norms and Practices of the Hopi Tribal Court.

In all the examples just provided, consideration is given largely to the content of tradition discourses in property dispute hearings before the Hopi court. However, the flows of power and authority in sociolegal interactions are constituted not just in what is said, but in how it is said, and in the metadiscursive practices and ideologies that inform and shape that talk. Consequently, to properly consider the social force of discourses about Anglo-style law and Hopi tradition in Hopi Tribal Court interactions, and the multiple and even competing ways in which those notions are constituted by Hopi legal actors, it is necessary to delve deeper into the microdetails through which these actors engage each other in those interactions as they emerge in face-to-face exchanges. To do this, I offer an analysis of an exemplary stretch of conflict talk that emerged in one particular property hearing that came before the Hopi Tribal Court in 1997.

A Dispute Over Property Inheritance Before the Hopi Tribal Court

The dispute of particular interest here emanated from a conflict between three sisters (petitioners) and their aunt (respondent) over their competing claims to an orchard worked by the petitioners' grandfather (also the respondent's father). The petitioners, who still live in the village where the land is located, claimed to have inherited the property from their mother upon her death, because she was the primary caregiver for their grandfather at the time of his death (Affidavit in support of Petition for Injunctive Relief, James v. Smith, CIV-018-94 [1994]). According to them, Hopi custom and tradition dictate that property left intestate by a decedent should go to the person in the family who showed the most commitment to its maintenance and to the support of its late owner (Affidavit in support of Petition for Injunctive Relief, James v. Smith, CIV-018-94 [1994]). They claim that this person was their mother, the respondent's younger sister, and that upon their mother's death (also following custom), this property—like all Hopi women's property—should go to them, her daughters (Affidavit in support of Petition for Injunctive Relief, James v. Smith, CIV-018-94 [1994]).

The respondent, however, claimed that in 1954 she and her husband, an Apache man (and not a Hopi tribal member), were taken by her father to the field in question and told that she was to inherit the property upon his death (Answer to Amended Petition and Counter Petition to Quiet Title and For Injunctive Relief, James v. Smith, CIV-018-94 [1994]). The respondent claimed that because this land is an orchard, traditionally worked by the husband, it does not constitute the kind of clan lands that are inherited through the mother. Consequently, she contended that tradition requires that her father's intent to pass the land to her should prevail (Answer to Amended Petition and Counter Petition to Quiet Title and For Injunctive Relief, James v. Smith, CIV-018-94 [1994]) The petitioners countered this, arguing that regardless of the father's prior statements, tradition holds that the respondent had lost her claim to this land when she failed to return to show any commitment to its maintenance and when she married a non-Hopi man and left the reservation to live with him (Response to Answer/Counter Petition, James v. Smith, CIV-018-94 [1995]).

The parties brought their claim before the trial court. The court accepted briefs from the parties and heard testimony regarding their competing claims to the orchard. However, the court refused to resolve the dispute based on this hearing alone, explaining in a minute entry,

The court later amended the entry, deciding not to call its own witnesses and instead asking the parties to produce a list of witnesses that the court would call on their behalf. In addition, the court asked each of the party's lawyers to submit a list of questions, written in English, concerning the issues of custom and tradition to be investigated at the hearing. The judge then explained that he would translate the questions into Hopi and orally present them to the witnesses (Hopi Tribal Court, Minute Entry, James v. Smith, CIV-018-94 [1994]). In recognition of the likelihood that many of the witnesses would be of a considerably advanced age, the judge ordered the hearing to be held in their village (Hopi Tribal Court, Minute Entry, James v. Smith, CIV-018-94 [1994]).

Each party submitted its list of witnesses, the petitioners calling six women and the respondent calling seven men. Both parties also submitted lists of questions. After rescheduling several times, the hearing was eventually held at the village in question where present were the judge, the witnesses, and the parties (Hearing in the Village of ______, James v. Smith, CIV-018-94 [1994]).Footnote ⁷

A Hearing on Custom and Tradition

The stretch of talk analyzed below was audio-recorded by the court clerk in winter 1997, but was not observed by this analyst. The tribal judge presiding was a Hopi man with 28 years of experience on the Hopi bench. A fluent Hopi speaker, and deeply involved in the traditional practices of his village, the judge did not, however, come from the village where the dispute arose.

In some significant ways, this hearing was highly unusual for a court based on a system of adversarial adjudication. Indeed, when this case was appealed to the Hopi Appellate Court, one of the appellate judges repeatedly remarked upon the form of this hearing as something that would be much more normal for a continental, inquisitorial-style court than it would for courts grounded in Anglo adversarial legal traditions.

Departing from the normal examination processes of the Hopi Tribal Court, the judge played a central role in the questioning of the elders. Though the parties were asked to prepare lists of questions to be asked of the witnesses, the judge took control of the actual questioning process, translating the parties' written English questions into Hopi and addressing them to the witnesses himself. This approach had two significant consequences. First, no opportunity was given for any sort of cross-examination. Indeed, early in the hearing, the judge informed the parties that they would not be able to speak in response to any issues raised by the testimonies. Thus, no direct challenge to the credibility of any of the witnesses or their testimony was ever made by any of the litigants, even though the parties themselves provided the witnesses. Though invoked to protect the sensibilities of the Hopi elders and their lack of experience with hostile interrogation, disallowing cross-examination under these circumstances would seem to stymie the very purpose of the hearing: to make a determination as to which party produced the more credible understanding of custom and traditional practices. As a consequence, the judge put himself in the position of being arbiter over the knowledge and experience of others, basing his arbitration on implicit perceptions of witness credibility that never got a public airing. A decision based on such hidden considerations risked accusations of arbitrariness and—given the small size of the Hopi population—undue influence (e.g., nepotism).

This situation played directly into a second consequence that I give considerable treatment. The judge had much greater control over the metadiscursive framing of witnesses' testimony in a hearing set up like this one. In an unusual mixing of roles, the fact finder and decision maker in this case had the capacity to characterize the evidence just as it was being presented before him. In effect, the judge had the power to shape his decision even before the trial was finished—by controlling how the testimony was framed as a response to a given set of questions, the judge attempted to control both what that evidence was and how it would support his final judgment. As we shall see, the conflict talk between the judge and the witnesses turned precisely around the issue of the framing of this testimony, as this issue remained a continuous source of interactive trouble between the participants over the course of the hearing.

The Judge–Witness Interaction and the Emergent Trouble

Judicial efforts to control the frame of the elders' testimony were initiated almost at the very outset of the proceedings. In his introduction, the judge commented explicitly about the issues to which the elders were to speak, specifically asking the witnesses to testify how often, according to tradition, a Hopi woman no longer living in the village was required to return to her land if she was to maintain possession of it. Consider first lines 002–011:

Of course it isn't unusual for a judge to make a statement concerning the issues to be considered by the witnesses as they provide their testimony. Indeed, what is ever admitted as evidence in an Anglo American trial are facts that are not simply reliable, but first and foremost relevant, and the back-and-forth contestation that often emerges among advocates during witness examination often turns on challenges by one attorney objecting to the relevance of witness testimony that another attorney is attempting to elicit. Judges in most Anglo American–style adversarial proceedings can thus be regularly seen as involved in making determinations about what is and is not information sufficiently relevant to warrant a witness providing it through testimony on the stand (see, e.g., Reference Philips, Hill and IrvinePhilips 1993).

But this is not all the Hopi judge was doing. In focusing on the grammatical and discursive structure of this stretch of talk, notice the use of the indefinite termsFootnote ⁹yephaqam (somewhere here) and hak (someone) at line 002. Here the judge was setting up the facts for elders to review as hypothetical events similar but not identical to the actual facts of the dispute. Then in lines 007–011, he posed his question, employing at lines 010 and 011 verbs inflected with the habitual aspectFootnote ¹⁰ marker -ngwu. The judge repeatedly used the Indefinite+HABITUAL construction exemplified here throughout his questioning of all the witnesses. As one native speaker explained to me, the form is often used in Hopi discourse by someone, usually an authority figure, to “admonish” another to change some problematic behavior. A speaker invoking this genre advises a recipient by explaining what one should do, because of what has always been done. Such utterances thus project an evidential character of gnomic, generalized truth-value about the facts they purport.

When the judge employed the Indefinite+HABITUAL construction in his questions, he was projecting a metadiscursive frame proposing that elders testify about gnomic, generalized principles of tradition. And if we turn now to line 014, we see that witness 3 produced just such a principle, employing a similar construction. She said,

Using the third-person pronoun Pam (third-person singular pronoun s/he) to anaphorically reference the “someone” in the judge's question, coupled with the indefinite temporal particle suushaqam (for once) and the habitually inflected verb pìtungwu (return+HAB), the witness offered a principle of tradition, which is indeed that someone should return once in a while to their land.

But in the very next line, the elder shifted referents, and using the demonstrative I' (this) began referring to the actual woman disputant and actual facts of the dispute.

And with the remainder of her turn she continued in this vein, testifying at lines 016–018 and at lines 021–035 to the fact that neither this woman, nor her husband, nor her sons, ever returned to care for the land in question.

Significantly, the type of gnomic grammarFootnote ¹¹ and the generalized principles of Hopi tradition that the judge claimed to want from the witnesses is evident in the above testimony. The use of the Indefinite+HABITUAL verb form construction at lines 019–020, Hakìy…Hakam…Hakìy…tumalay'tangngwu (someone … somewhere … habitually has such work) follows precisely the framing that the judge proposed. Yet in his response at lines 038–040, the judge rejected this testimony.

It is after this that the witness began to realize that the judge's use of the Indefinite+HABITUAL construction was not simply initiating a topic for her testimony, framing what would be deemed some of the possibly relevant information she could speak to, but was in fact working as a much more complete metadiscursive constraint on her talk, compelling her to speak only of gnomic principles of tradition and expressly not to the particularities of this dispute.

The witness then initiated a challenge to the judge and his efforts to control her talk. At lines 059–061, she questioned why the judge only wanted testimony on generalized principles of custom.

In response, the judge asserted at line 062 that he was asking for umuhnavotiy (your traditions):

and then explained that testimony on the facts had been completed, as follows:

It is this final comment that prompted another elder witness to pointedly question the very purpose of the hearing. At lines 070 and 071, he said,

He then asked, at line 74,

This tense interaction continued, and after the judge reiterated his search for clarity on principles of tradition, it ended when witness 4 finally announced, at lines 087–090,

What these spates of interaction reveal is the considerable difficulty posed by the judge's demand that the witnesses speak only to custom and tradition in the form of gnomic, generalized statements rather than in application to the particularities of the dispute. What motivated this conflict? Why did the judge remain so committed to his restrictions on witness testimony, even when they contributed to the breakdown of the hearing process? And why did the witnesses resist this constraint? An answer comes if we consider the language ideologies that inform these actions to suggest that this conflict talk is as much a struggle over questions of authority and the legitimate exercise of legal power as it is for speaking rights.

The Language Ideologies of Anglo American Law versus Hopi Traditional Authority

Analyses of Anglo American legal discourse contend that the legitimate operation of legal power and authority turns on language practices whereby legal professionals apply abstract, “objective” legal principles to the facts of a particular dispute (Reference Amsterdam and BrunerAmsterdam & Bruner 2000; Reference Mertz, Scheiffelin, Woolard and KroskrityMertz 1998; Reference Conley and O' BarrConley & O'Barr 1998; Reference Mertz, Weissbourd, Mertz and ParmentierMertz & Weissbourd 1985). Anglo American legal processes, informed by “Western” notions of truth as transcending the particularities of any given context, operate by linking “cultural-legal types,” embodied in statutes, rules or principles of case law, to the facts of a particular disputed action or event that are to stand as tokens of those types. But as Mertz and Weissbourd explain, “[L]egal types never have ‘automatic’ tokens … there is no automatic connection between a particular event and its characterization as a cultural-legal type. Rather, the similarity between the two must be culturally created or imputed in a process of judgments” (1985:279). It is by virtue of this process, achieved primarily through discursive and metadiscursive shaping, that the facts of a particular case “take on (symbolic) cultural-legal significance” by their presentation in legal arenas, and as such are transformed by, and contribute to, the ongoing praxis and maintenance of legal institutions and their power and authority (1985:279). Thus, legitimacy for powerful legal outcomes is achieved because this metadiscursive shaping allows, as Mertz explains, for “the putative objectivity of the story once told in the apparently dispassionate language of the law” (1998:158).

In most Anglo American legal arenas, these processes are initiated by the presentations of events and activities through evidence discourses engaged in by the witnesses and advocates of two parties. These presentations often contradict each other insofar as they are undertaken by lawyers who have already significantly “transformed” the events of the dispute in order to highlight those facts most likely to fit under a legal type that best supports their claims. Then through cross-examination, evidence (including witness testimony) is put under a critical lens to test its credibility, giving the finder of fact and the decision maker an opportunity to consider which parties' legal claims find the strongest support, made in light of the presentation of the events, relevant legal principle, and the legal type–token relationship forged between them.

But, out of concern for the cultural (and communicative) expectations of the Hopi elders called to testify, the judge in this hearing excluded the opportunity for parties to question their own witnesses or cross-examine the witnesses produced by their opponents. As a result, processes of forging and legitimizing legal type–token relationships usually performed by the attorneys in adversarial trials here had to be undertaken by the judge himself. This potentially put him in the position of contributing heavily to the construction of the competing arguments that he himself would have to decide between, insofar as he was also the fact finder and decision maker in this trial. Any concern for maintaining legitimacy for the tribal court, its decisions, and its authority, in light of Anglo American notions of juridical “objectivity,” was threatened by the conflation of the various adjudicatory roles under the judge's sole capacity as adjudicator.

Consequently, the judge's repeated use of the metadiscursive Indefinite+HABITUAL Hopi construction, and his rejection of elders' responses that spoke to the facts of the case, worked to compel witnesses to tell tradition in a manner that produced generalized principles such as the legal types announced in Anglo American law. And it is by these discursive choices that the Hopi judge attempted to accommodate the ideologies of gnomic “objectivity” that ground Anglo American legal legitimacy at the very interactional moment that he also invited discourses of Hopi custom and tradition into the court proceedings.

But by excluding the opportunity for adversarial confrontation of testimony on custom and tradition, the judge was forced to impose this gnomic metadiscursive frame on witnesses' testimony so that they would produce generalizable principles of custom amenable to adjudication in an Anglo American–style court. Without doing this, the judge would have to play the role of both advocate and decision maker in the same hearing—a position that violated established Anglo American legal norms and threatened to undermine any legitimacy the legal proceeding (and decisions that flowed from it) could have according to such norms.

Implicit in the judge's moves was a construction of Hopi tradition as at least partly commensurable with Anglo American–style norms and practices of the Hopi court. There is certainly an acknowledgement of differences between the two notions, reflected in the adjustments he made (and attempted to make) to both the witness examination process and the way tradition is told there. Indeed, the very metadiscursive decision to move the entire proceeding to the village both bodily and semiotically re-centered the hearing at least in part away from the usual place of Hopi tribal law to a location “closer” to the community from where the notions of custom and tradition (and the parties and witnesses) relevant to this case emerged. Yet it was still a court proceeding, and the judge was still the presiding authority. Thus there persists a fundamental significance displayed in those moves suggesting that what matters about Hopi tradition—its substantive “principles”—can be sufficiently and effectively elicited through what are ultimately Hopi courtroom practices and the Anglo American–style law it is understood as embodying and enacting. And it is along these lines of metadiscursive negotiation that this Hopi judge attempted to strike a discursive balance of the kind Pommersheim speaks of: working to insure that tribal court proceedings in this case resonated with both the authority of Hopi tradition and the language of “objectivity” required in the legitimate exercise of Anglo American–style jurisprudence (Pommersheim 1995b).Footnote ¹²

While this may explain the judge's stalwart commitment to his use of the gnomic Indefinite+HABITUAL construction (and his other semiotic moves), even in light of the witnesses' relentless challenges to them, it does not reveal what the witnesses found so problematic in the first place. In order to understand this, we must inquire into some of the conceptions of authority, power, and knowledge that many of these Hopi elders may have been carrying with them when they entered the hearing, and the fit these conceptions have with the judicial metadiscursive practices just reviewed.