Othering Knowledge and Unknowing Law: Oppositional Narratives in the Struggle for American Indian Religious Freedom
| DOI | 10.1177/096466390000900405 |
| Date | 01 December 2000 |
| Author | Alice Feldman |
| Published date | 01 December 2000 |
| Subject Matter | Articles |
OTHERING KNOWLEDGE AND
UNKNOWING LAW:
OPPOSITIONAL NARRATIVES IN
THE STRUGGLE FOR AMERICAN
INDIAN RELIGIOUS FREEDOM
ALICE FELDMAN
University College Dublin, Ireland
ABSTRACT
This article explores the underlying pedagogical process implicit in the transformative
use of narrative in formal legal settings. It examines the efforts of a diverse coalition of
American Indian peoples and their advocates to strengthen the 1978 American Indian
Religious Freedom Act by using the legislative process to ‘educate’ lawmakers about
their religious beliefs and the urgency of their situations. I argue that longstanding
orientalism and the need to perpetuate a colonizer/colonized dichotomy engendered
an inability among decision makers and others in positions of influence to ‘learn’ from
American Indian peoples, as well as a seeming paranoia concerning their empowerment.
Moreover, the ‘antidialogic’ nature of the legislative process prevented the type of inter-
action necessary to overcome this resistance and engender effective and appropriate
responses to the coalition’s efforts to ensure the well-being of their communities and
religious lives. This case study demonstrates the ways in which subversion requires
more than deconstruction or the presencing of voice, but requires dialogic structures
of engagement with Other narratives through a more cooperative resolutionary
process. I suggest that incorporating theories and methods of critical pedagogy into
sociolegal scholarship would contribute to developing more comprehensive frame-
works for analysis and practice needed to realize law’s transformative potential.
I was told by a Lakota elder one time. . . ‘You know, the Christians have their
bible. That’s paper and ink. . . The reason for this is, you know, we have to keep
referring back to it and reading it, and reading it, to remember. . . The Lakota,
when we smoke our pipes, our heart is filled with the truth and love and gen-
erosity and understanding, and that is our bible and we remember it every
day’. . . But again, paper and ink is what the U. S. government looks at. (Gregg
Bourland, Hearing Testimony, 8 March 1993: 17)
SOCIAL &LEGAL STUDIES 0964 6639 (200012) 9:4 Copyright © 2000
SAGE Publications, London, Thousand Oaks, CA and New Delhi,
Vol. 9(4), 557–582; 014956
05 Feldman (jl/d) 30/10/00 2:47 pm Page 557
INTRODUCTION
RECENT SOCIOLEGAL scholarship has demonstrated that, despite
its inherent power to oppress peoples and silence alternative voices,
law also has transformative capacities. Many argue that engaging the
legal process provides opportunities to reframe exclusionary principles and
practices subsequently transforming the social discourses, relations and
institutions they help to shape (Mather and Yngvesson, 1980; Merry, 1990;
Trubek and Esser, 1989). Interpretive and critical race scholarship in par-
ticular have explored the crucial roles in the process of social change played
by personal narratives and oppositional storytelling conveyed in legal set-
tings (Crenshaw et al., 1995; Delgado, 1995; Williams, 1991). This work is
based upon an appreciation of the integral function of narratives in con-
structing meanings, identities and communities, and serving as the means
through which they are negotiated and debated within and through the
social relations and institutions they animate (Ewick & Silbey, 1995; French,
1996; Mertz, 1992).
As Robert Cover famously observed, no law or legal institution ‘exists
apart from the narratives that locate it and give it meaning’ (cited in Ball, 1989:
2280). Thus, although law serves predominantly as an arbiter of coercive and
hegemonic power, its narrative foundations make it subject to the same chal-
lenges as all other discursive formations. Because it is embedded within larger
processes of social and cultural production, law ultimately functions as an
‘extended conversation’ (Merry, 1990) that can reshape public discourse. As
such, an increasing body of work has come to focus on the ways in which the
telling of Other narratives in legal settings can provide ways to subvert
oppressive mindsets, legitimate subjugated knowledges, histories and identi-
ties, and create relationship-building opportunities which may then serve as
means for expanding sociolegal imaginations and practices (Cover, 1995;
Lawrence, 1995; Williams Jr, 1986, 1990a, 1994a). The presentation of counter
hegemonic narratives in legal settings constitutes a ‘reconstructive juris-
prudence’ (Harris, 1994) that evolves from ‘the bottom’ up, grounded in the
experiences and wisdom of those most oppressed. In this fashion, Ball
observes:
In contrast to the [law’s] language of command . . . narrative is inherently com-
munal. A story is shared. It establishes a relation of mutuality between narra-
tor and hearer. When it works, the audience becomes a participant in the
performance . . . embark[ing] on a joint venture. To tell and to hear the story of
it is also to engage in a joint enterprise. To this extent, the story does what it
says. (1989: 2288)
The Word – as a ‘tradition of teaching, preaching, and healing . . . an articu-
lation and validation of our common experience . .. a vocation of struggle
against dehumanization’ – ultimately constitutes a praxis, a critical, cultural
pedagogy (Lawrence, 1995: 336). Like other forms of critical pedagogy, the
sociolegal deployment of counterhegemonic narratives has the power to
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