Is critical theory an appropriate method for analyzing indigenous issues? Many students and scholars are gravitating toward critical methods when analyzing American Indian history and law. Critical approaches examine the actions of states, classes or legal systems and discuss their approaches according to criteria of fairness, equality, civil or human rights. The classical version of critical theory is the analysis of the injustices of class inequality mainly in modern, market-based societies or global economies. Economic critical theory challenges the accepted social methods for distribution of wealth, power and access to goods.
In recent years, critical methods have been applied to the study of the conditions of American Indians. One adaptation derives from critical legal theory, where criticism focuses on cases decided by the Supreme Court or other courts. The purpose is to explore the racial assumptions expressed in the court decisions or in the legal opinions offered by the judges. Critical legal theory is an exercise in upholding civil rights and racial fairness. The analyses examine racial assumptions or biases written into legal opinions. Court decisions discuss whether unfair or unjust decisions have been rendered.
Critical legal theorists publish their works in scholarly journals and hope judges and other scholars will read them and use the analysis to avoid or correct racially biased legal decisions. If the judges, legislators and lawyers see the analysis, they may change their minds about previously biased legislation or legal decisions and make more racially fair decisions and laws in the future. Critical legal theory upholds the American value of unbiased, racial, legal and government decisions, or racial equality.
Some American Indian legal scholars and students have adopted the critical law methods and seek to point out unfavorable biases in legal opinions and court cases. American Indian critical legal theory cannot and should not focus primarily on racial biases in U.S. legal practice. American Indian law is not a vehicle for gaining racial equality in American society, but should rather protect the autonomy of tribal powers of self-government, territory and culture tradition and choice. The issues of American Indian law are not centered on inequalities of economic class, or the difficulties of assimilating racial groups, or attaining a fair interpretation of the core American legal value of racial equality.
In American law, the basic assumption of American Indian law is an aberration, often in conflict with core American values and goals of national integration and assimilation even at a multicultural level. A critical American Indian legal approach does not uphold core American legal values but wants to extend American core values to respect and honor the rights, governments, territories and cultures of indigenous communities. When U.S. law and legal institutions respect and honor the rights of indigenous Americans, then indigenous Americans will share in the core values of American law and society. American law and legislation, however, generally trumps Indian rights, and creates a system of legal, political and cultural priority and domination over tribal communities.
A critical approach to American Indian law must examine the differences in core legal values between indigenous peoples and the American political and legal system. An ultimate goal of such an examination should be the negotiated and reasoned development of legal doctrine that explicitly identifies, discusses and explains the legal ramifications and disadvantages of the differences in core indigenous and U.S. legal and cultural assumptions. Legal scholars should strive for a legal and consensual reconciliation of core Indian and U.S. legal values, but if that is not possible, we need to understand where we agree to disagree, and redouble our efforts toward mutual understanding and respect for, if not unification, of core values.