Law Critique (2011) 22:39–57 DOI 10.1007/s10978-010-9079-5

Native American Identity and the Limits of Cultural Defence Alexander V. Kozin

Published online: 17 December 2010  Springer Science+Business Media B.V. 2010

Abstract This article concerns itself with the phenomenon of the cultural defence as it exhibits itself in the US juridical context. Recent socio-legal discussions about this phenomenon reveal three prevalent positions: the illegality of cultural defence on constitutional grounds, the necessity of cultural defence as a matter of discretionary justice, and the intermediary position of working cultural defence into a legal doctrine. By problematizing the operative concept of culture, the author suggests that the idea of cultural defence should be understood in terms of foreignness. This suggestion is supported on the basis of the phenomenological theory of the alien (xenology). In order to illustrate the juridical limits of the cultural defence I examine the history of constructing the Native American as a cultural legal subject. Hence the question that primes this examination: is there a possibility of the traditional cultural defence for the American Indians? After a provisional answer that there is no such possibility, I conclude with the discussion of hospitality as a way to an ethically necessary and legally acceptable idea of culture. Keywords

Cultural defence
Foreignness
Hospitality
Native American
Xenos

Introduction ‘There is no need to be surprised, stranger: this is what we do here; probably you handle these things differently’ (Plato, The Laws, at 637ef). In his last and most extensive dialogue The Laws Plato describes an imaginary country, Magnesia, where people pride themselves in living amidst the best social order one can possibly find among humans. This order is held together by the force A. V. Kozin (&) Fachbereich Philosophie und Geisteswissenschaften, Freie Universita¨t Berlin, Altensteinstrasse 2-4, 14195 Berlin, Germany e-mail: [email protected]

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of law (mo´lo1), which is called to regulate all the affairs of the state, no matter how small, starting from raising children and ending with trade relations. However, in Plato’s vision of the perfect state, laws do not apply equally to all. Among several categories of people who enjoy a special provision when subjected to legal procedure, the foreigner (ne9mo1) is singled out as radically different. No law, states Plato, can apply to the foreigner who resides in Magnesia in the same manner as it applies to a native citizen. The exception bestowed on the foreigner comes out of his special relation to the divine.1 Therefore treating the alien well is an imperative for those people who strive for goodness: ‘the foreigner […] shall be the object of particular care and regard, and receive marks of honor’ (Plato 1961, p. 1497b). When a foreigner commits a crime he should be given the right to explain himself, and his punishment should be less than the one for an analogous crime by a native person because ‘The foreigner is not surrounded by friends and companions, and stirs the compassion of gods and men that much more’ (Plato 1961, p. 729e). At the same time, if the foreigner continues to show himself to be corrupt and unruly, regardless of his persuasion or origin, he should be subjected to exile and in certain cases death because a moral state cannot afford to be undermined from within by outsiders who prove incapable of grasping the native laws. Thus, Plato’s idea about foreigners as ‘special co-habitants’ runs a parallel course to the necessary restrictions as to the foreigner’s influence on the home culture. For Plato, there is no conflict here: the ‘pious service’ to the stranger comes from the importance of attending to the alien community, while subjecting the foreigner to the laws at all arises from the need to uphold the normative morality of the home community. Plato’s thinking about the foreigner as an exceptional legal subject finds its analogue in the contemporary debate about cultural defence. Waged mainly on juridical grounds, this debate is intended to explain and reconcile actual applications of cultural evidence in the court of law with its wider ideological and legal implications for society in general. Among many issues relevant here is the idea of culture as appropriated for the legal context.2 A cursive examination of this appropriation makes it apparent that although the practice of law has recognized the special status of the cultural subject, there is no proper legal ground for explaining this recognition. Guided by this problematic, I would like to investigate some conceptual and empirical implications of culture as they pertain to this phenomenon. I begin by outlining and illustrating three basic positions on cultural defence. At the end of my review I present several of the most pertinent senses of culture that inform these positions. I also argue that the nomological definitions of culture appear necessarily reductive. In the next part I closely examine a criminal case that involves a Native American. I show that neither the universalist, nor the apologist, nor the pragmatist position on cultural defence is capable of accounting for the cultural status of the Native American. Then I suggest an alternative phenomenological perspective on culture as xenos. In the final part I offer a tentative model of cultural defence which is predicated on the notion of hospitality. 1

The use of the gender exclusive pronoun is Platonic. For those interested in the feminist critique of Plato, I suggest Irigaray (2005).

2

In the interest of space and emphasis, I restrict this study to the North American (USA) context.

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Conceptualizing Cultural Defence Cultural defence can be defined as the use of the defendant’s cultural background for absolving her from responsibility or allowing for limited responsibility in criminal matters.3 The emergence of the cultural defence as a legal phenomenon is often explained by a growing awareness among legal scholars, legal professionals, and civic activists over certain discriminatory practices in the courtroom.4 Stemming from a variety of civil rights movements in the 1960s, the antidiscriminatory argument claims that in capitalist society law functions to perpetuate domination (Balbus 1973; Quinney 1975). One immediate effect of this not so unique perspective is the exclusion of horizontal differentials such as race and culture in the name of the universalist application of law.5 In an attempt to create a space for equal protection, administration of justice must change its procedure, first toward acknowledging ‘vulnerable’ groups in general and then responding to their particular vulnerabilities in the courtroom.6 Originally, the main beneficiaries of this change were the traditionally oppressed and disempowered members: women and children.7 Other categories were added by analogy: first, the notion of vulnerability before the law was extended to race, and from this designation another category to benefit was ethnicity. Although the so-called culture-relevant conflicts with criminal law attracted attention long before the contemporary debate about cultural defence, it is only through the current discussion that one can understand the full scope of this phenomenon.8 At the core of the discussion stand two paradigmatic cases: People v. Kimura and People v. Chen.9 The first case involves a young Japanese mother, who emmigrated to California to join her American-born Japanese husband, whom she met while he was in military service in Okinawa. After he abandoned her shortly after the birth of their second child, she committed oyako-shinju¯ or parent–child suicide, by drowning both of her young children in the ocean of Santa Monica. She herself was rescued before she could take her own life. Under pressure from the Japanese-American community who claimed that oyako-shinju¯ was not considered to be murder in the country of Fumiko Kimura’s birth, the charge was reduced to 3

For a comprehensive study of the cultural defence, see Renteln (2004).

4

This shift can be explained by the general trend exhibited by various constituents in the United States, who, in the 1960s, moved to a new understanding of civil action—by collectivization of duties (Torry 1976).

5

For a broadly set sociological study of how law responds to different groups and populations, see Scheingold (1978).

6

On the relationship between the victim’s vulnerability and the defendant’s punishment, see Dyckman (1998).

7

An empirical study by Daly and Tonry (1997) demonstrates that as a result of the feminist movement in the 1960s, at all stages of the criminal process, women are more likely to benefit from broader discretion and greater individualization.

8

Among the first research on the cultural defence, Renteln (2004, p. 222) mentions Sellin (1938). Although, Sellin does not refer to the cultural defence per se, he rather elaborates on the category of culture claim, which is taken by Renteln as an analogue of cultural argument.

9

No. A-091133 (Santa Monica Super. Ct. Nov. 21, 1985) and N. 87-7774 (N.Y. Super. Ct. Mar. 21, 1989).

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voluntary manslaughter with the sentence including one-year mandatory imprisonment plus five years of probation. In the second case, People v. Chen, the male defendant, Dong Lu Chen, beat his wife to death with a hammer after he found out about her infidelity. Similarly to the Kimura case, the defence in the Chen case was built entirely on the customary (in relation to the defendant’s home culture) response to similar matters. In China, argued Chen’s attorney, the shame brought upon a man by his spouse’s infidelity sanctioned a voluntary retaliation, usually in the manner of violence against the bringer of shame.10 As in the previous case, the attorney’s strategy was supported by an extensive expert testimony. The judge’s decision reflects an apparent validity of the defence: ‘the defendant was driven to violence by traditional Chinese values about adultery’ (Jetter 1989, p. 4).11 Although these words implicate culture directly, one should also consider a somewhat contradictory disclaimer given by the judge at the end of his decision: ‘culture was never an excuse’ (Sing 1999, p. 1845). The actual excuse, as it turned out, was the ‘cracking factor’ (ibid.). With this connection, the judge clearly established the primacy of a traditional ‘temporary insanity defence’ in the cultural defence. Although Kimura and Chen stand out as paradigmatic cases, at least for the discussion of cultural defence by legal scholars, the relation between temporary insanity and culture was not a legal necessity.12 For example, in the case of Sadri Krasniqi, a recent immigrant from Albania, who was charged with molesting his four-year old daughter in public, namely, fondling her genitals while watching his son play basketball at a school tournament, the judge cleared the defendant of all charges after expert testimony which showed that Krasniqi’s behaviour should be considered as routine among native Albanians. This case is particularly important for the discussion of cultural defence as it demonstrates that, unlike the Kimura or the Chen cases, the defendant could enjoy the benefits of a cultural defence only on the basis of the claim that he was unfamiliar with the prohibitive nature of his behaviour.13 In the Krasniqi case, the sufficient cultural evidence consisted in an actual demonstration (videotape) of how the acts committed by the defendant were practiced in his native land; therefore, his crime could not stand as premeditated (mens rea) in the new community but should be taken as proof of the non-volitional nature of the offence (actus reus).14 The fact that the defendant was a new immigrant and spoke poor English separated him from the host culture to the degree that provoked the judge to state that Krasniqi ‘was indeed unaware of his offence’ (Coleman 1996, p. 996).

10

I will abstain from further discussing these two cases. Both cases as well as similar ones are examined in great detail in Koptiuch (1996). For an alternative study of the Chen case, see Spatz (1991). 11

Other discussions of the Chen case include Gevirtz (1989), Schuyler (1991), and Yen (1989).

12

In Renteln’s extensive typology of legal prostheses for various cultural issues the cases that benefit from the cultural defence in the weakest sense are based on the notion of automatism. Although automatism constitutes the shortest move from law to culture, arguing this point in court is often limited to the crimes of moral turpitude. 13

Importantly, to claim ignorance of the law in this case would not be possible for a non-foreigner.

14

For Davidson, this category of crime would be acceptable ‘insofar as it negates the intent required to satisfy the definition of a crime’ (1986, p. 1294).

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Here, as in the previous two cases, overriding an essential legal doctrine meant granting an exceptional status to the subject on account of some idea of culture. The legal validity of exception, as well as its far-reaching implications, provoked an ongoing discussion among the members of the legal community. In what follows, I would like to recuperate the main points of this discussion. In doing so, I follow the distinctions made by Daina Chiu, who named three prevalent positions about the issue of cultural defence: antagonistic, sympathetic and intermediary.15 I would like to begin my overview with the opposition to cultural defence. In an early critique of cultural defence, Julia Sams uses the political backdrop when she argues that this phenomenon is discriminatory because it separates ‘the new Americans’, i.e., immigrants, from the ‘American born citizens’, while the equal protection doctrine has no formulaic that would justify this separation (Sams 1986). Doriane Lambelet Coleman elaborates on the discrimination thesis by insisting that the primary purpose of law is to protect the victim; therefore, no relief should be given to the perpetrator of a violent crime, regardless of her place of origin, system of beliefs or unfamiliarity with US laws. From that perspective, multiculturalism should recede before the constitutional promise of equal protection: ‘the use of cultureconscious, discriminatory evidence distorts the substantive criminal law’ (Coleman 1996, p. 1098; modified).16 On the other hand, cultural defence as a juridical fact would create a dangerous precedent of ‘balkanization’ of US criminal law, where various groups of immigrants would begin to claim this or that exception on account of their ‘idiosyncratic’ behaviours (Sacks 1996; Fischer 1998; Lyman 1986). Formalization of cultural defence from this standpoint would not only allow for an occasional excuse but would bring illegality to the level of good for all. In a direct response to Coleman, Volpp (1996) defines the anti-discrimination position as ‘backlash scholarship’, which rejects race consciousness in the name of American ethnocentrism. By putting the notion of egalitarianism into question, Volpp shows that the anti-discrimination thesis rests on a political rather than legal foundation. Furthermore, Volpp finds the political commitment that underlines Coleman’s argument explicitly conservative (despite it presenting itself as ‘progressive’) and exclusionary. For example, in order to argue for equal protection under law for women and children and, at the same time, single them out as the groups that should be given some preferential protection, Coleman must assert exclusivity of the United States as ‘a better place for women’ (Volpp 1996, p. 1576). To claim this kind of exclusivity for a feminist is both racist and colonialist, concedes Volpp. It is racist because American culture is constructed as an exemplary ‘way of life’ against which some other cultures would necessarily appear ‘patriarchical’ and ‘regressive’. It is colonialist because it demands assimilation of any far-fetched cultural difference by way of importation. Most importantly for this discussion, Volpp objects to Coleman’s notion of culture which consists of ‘monolithic, fixed, and static essences’ (Volpp 1996, p. 1589). This should hardly be surprising for a proponent of a cultural typology 15

Adapted from Chiu (1994, pp. 1096–1120).

16

Building her argument on feminist grounds, Coleman chooses the rights of the victims, especially ‘the least powerful members of American Society: women and children’ (1996, p. 1098).

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who sees some cultures as more advanced than others. The criteria for constructing such a typology tend to come from some outdated anthropological lexica (e.g., ‘degrading customs’) and may easily portray foreign cultures as ‘backward’. In order to avoid ‘a better culture’ debate, Volpp proposes that culture should be undertaken in terms of the subject position. The subject position is a particular psycho-social disposition which can be discovered in ‘accurate descriptions of the pressures that individuals face, both within their communities and without’ (ibid., p. 1613). With this definition, Volpp offers a model which privileges a concrete subject who always belongs to several communities and therefore upholds more than one system of values. Competing values create competing imperatives; it is therefore paramount to identify those specific values that feed into a position leading to a criminal act. Daine Chiu, whose typology frames this review, presents an important variation of the sympathetic position. However, unlike Volpp, who deconstructs the antidiscrimination position on a global level, Chiu reformulates Coleman’s original question (whose culture?) by asking instead, whose identity? With this reformulation, Chiu sets herself aside from the above two extreme positions. She finds no value in either supporting a cultural defence that seeks an extension to affirmative action and thus opts for a form of exclusion, nor does she wish to grant the benefit of the doubt to the constitutional approach, accusing them of coercive assimilation. Specifically, she asserts that by excusing a criminal conduct because of culture, the affirmative approach portrays Native Americans as outsiders in their own home. Importantly, her approach does not seek to reconcile the two other positions. Instead, Chiu advocates that culture should be approached as identity. Her argument largely relies on the history of the Asian-American community who, for centuries, have been denied the right to practice their cultural beliefs, which amounts to forceful assimilation into mainstream Anglo-Saxon culture. In order for this kind of community to enjoy equal standing with the majority, the focus must be on how identities are ‘constructed, not essentialized; moreover, these identities must be inclusive of shifting multiple selves, in which no aspect dominates’ (Chiu 1994, p. 1125; modified). We can see how, with this post-modern description of multiple identity, Chiu’s position comes close to that of Letti Volpp but with a significant difference: Volpp diffuses culture further by emphasizing the ever-shifting boundaries of a community. Chiu, on the other hand, utilizes traditional racial boundaries for the same purpose. The legal instability of both progressive positions prompts Sing (1999) to suggest a synthetic model of cultural defence. Sing’s approach is noteworthy in several respects: first, following Volpp, he rightfully points out that in order to argue for a cultural defence on legal grounds, one must abandon the anti-discrimination principle favoured by Coleman. He also notes significant faults in the advocacy of discretionary justice. Specifically, he finds Volpp’s proposal to subject-manage ‘cultural’ cases unrealistic, and advances cultural defence in a working model without mixed strategies and secondary laminates, such as grafting cultural evidence onto the acceptable temporary insanity doctrine, as was explicitly performed in both the Kimura and Chen cases. Inspired by Chiu, Sing suggests that the adequate provocation doctrine should be used to avoid both the formality of

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cultural defence as well as anti-discrimination law as a doctrinal basis for its employment: ‘the influence of foreign culture on criminal defendants need not take the form of substantive incorporation to produce equitable results’ (Sing 1999, p. 1880). The stark differences between and among the above positions about cultural defence seem to be accompanied by equally sharp differences on the issue of culture. Depending on how it functions in the argument, culture is defined as nationality (Coleman 1996; Sams 1986), community (Davidson 1986; Volpp 1996), and/or identity (Chiu 1994; Sing 1999). Although these differences seem to create a developmental continuum for the concept of culture, their individual significance is determined only by their relation to this or that position on the admissibility of a cultural defence, rather than the relation between law and culture that allows for the phenomenon itself. Therefore, neither position by itself can account for the effects of culture on law and vice versa. In the meantime, as is clearly seen by the course of the discussion, the foreigner (who is the central subject in the practice of cultural defence) is treated as a non-conceptual category, which is loosely associated with pre-established categories, such as sovereignty, community or diversity. The movement away from the foreigner as an immediate cultural manifestation disambiguates the foreign and foreignness, reducing them to familiar cultural terms. In order to approach culture as foreignness, it might be helpful to return to Plato, who not only outlines the idea of the foreign and the foreigner but also shows how it is the foreigner himself who draws the limit between law and culture. In Plato’s state people did not distinguish between different kinds of immigrants or migrants, but only between different categories of strangers. It is thus neither national borders, nor the borders set by specific cultural identities, but strangeness itself that had originated the modern idea of culture. From this perspective, strangeness is not just an individual embodiment of prescribed behaviours, but a communal body; hence Plato’s insistence on the vulnerability of the foreigner separated from his community: ‘The foreigners, you see, haven’t the unity of a swarm of bees [at home] you get a certain feeling of community and its laws’ (Plato 1961, p. 708f; modified). Foreign borders, which are crossed by way of visitation, are not defined in advance but emerge only at the point of meeting between one community and another. Unlike the notion of immigration, which has an intrinsic link to law through the legal processes that make one an immigrant, the notion of foreignness eludes a straightforward definition, and thus appears sensibly abstract to be included in the discussion of cultural defence. In order to demonstrate this tension, I suggest that we turn to a foreign subject who has always resided on the territory of the United States (at least as far as modern history is concerned), enjoys a fair degree of territorial autonomy and selfgovernance but claims to be an outsider. This paradoxical subject is the Native American, and it is with regard to this subject that I would like to pose the following question for this paper: is there a possibility of the cultural defence for the Native American subject? An answer to this question aims at demonstrating the juridical boundaries of the concept of ‘culture’ in the court of law.

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The Ambiguous Status of the Native American Cultural Identity The foreignness of the Native American person is not obvious. As the original settler, the Native American has a unique claim to originality or firstness. At first sight, this claim has little to do with foreignness: the first settler has always been considered as the native settler. However, if we approach firstness as the first delimitation, then the native would appear to be a foreigner in reverse. For the newcomer, who is also an outsider, the insider within holds the primacy to that designation; hence, a tendency of presenting this native as an exotic outsider (Garroutte 2003). In that regard, there is little difference, for example, between the descriptions of the Indians by Lewis and Clark and the depictions of Native Americans by the contemporary mass media. Although today the Indians are no longer portrayed as vile and vicious savages, their ways are persistently and firmly predicated on the idea of exoticism (Deloria 1999). This view, albeit perpetuated by the Indians themselves, comes in contrast to the common understanding of the Native American as an ethnic minority, which, for the purposes of Affirmative Action, should not differ from any other minority. At the same time, there is a collective identity of the Indian tribes that comes about as an alliance of semisovereign nations under the protection of the US Government. With the absence of a single qualifying trait, the Indian identity cannot help but be confined to an ambiguous status. The nature of this ambiguity is exacerbated by certain ways of being, commonly and perhaps misleadingly defined as native life-styles. At the helm of the Indian self-identification stands an archaic means of communication representing a diverse historical heritage. For example, Native American peoples, when explaining their origins, relations, social orders or significant events, do not depend on historical accounts. When examining the ‘colourful career’ of the Lumbee Indians, Karen I. Blu gives an example of a concise and yet encompassing way in which the tribe chose to present its genealogy: ‘we have come from there to here and to here from there’ (Blu 1980, p. 137).17 In turn, the myth of the original movement is tightly linked to the myth of law-giving. The execution of legal matters (mostly understood as the matter of ritualistic exchange, lineage and foreign relations) is almost always performed by elected tribal councils.18 Thus, for the Native Americans, procedural law would be entrusted to the distinguished members of the tribe, who, up to this day, follow a binding consensus model known to the European settlers only under the state of exception (Prices 1994).19 The ambiguous sense of their identity led the Indians to address the issue of their identity before the US Government in several ways: politically, legally and culturally. In 1961, by signing the Declaration of the Indian Purpose, the American Indians reaffirmed a strong commitment to own communal land as this meant

17 For the controversial topic of the historico-spiritual foundations of the Plain Indians, see DeMallie (2001), Hein (1997). 18

Noted by Snipp (1992).

19

On the conflictual nature of the Indian identity, see Zentner (1973), Warren (1978), O’Brian (1997).

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upholding their cultural heritage in a way understandable to the white settlers.20 The political struggle by the Indians reflects the same purpose. According to d’Errico, from the beginning Native Americans did not seek ‘a fair share’ in American society but demanded a separate domain. However, domain here should not be understood as landmass only, but rather terrain or a sphere of ‘ownness’, which has a symbolic rather than material value. In order to maintain this sphere, the Indians identified self-government as the primary factor that should distinguish Native Americans from other ‘minority struggles’. That is why they refuse the definition of a minority; moreover, they point to the technical impossibility of belonging to one.21 At the same time, the General Allotment Act of 1887 (Dawes Act), which defines Indian territoriality, is unequivocal as to the restrictions concerning Indian self-government, thus accepting the fact of semi-isolated co-habitation. In the end, it reaffirms the notion of the American Indian without, however, removing the status of the selfdetermined native.22 Undoubtedly, this situation brings native identity to the fore as an identity without an anchor. The US Government has made several attempts to resolve this paradox between 1866 and 1924 by way of securing political incorporation of the American Indians.23 As far as the United States is concerned, there has been enough political interest in keeping the political status quo or the ‘plenary power’ over the Indian tribes.24 Yet, the most recent challenge to the semi-autonomous status of their administration by the Lakota Sioux, who signed a unilateral declaration of independence from the United States in December 2007, revealed the failure of the efforts of the Office of Indian Affairs to construct a semi-autonomous people by regulating their political and economic affairs: the Lakota refused to become a modern people (Biolsi 1995). The history of citizenship for the Native Americans reveals the same ambivalence. Although the struggle for nationwide recognition ended in 1924, granting the Native Americans full citizenship with all corresponding rights, for the states that share the same territory with Indian reservations, the political status of the then Indian tribes remained ambiguous.25 At the same time as the Indians freed themselves from the state, including its law enforcement, they were ‘people under the guardianship’ of the Federal Government (Houghton 1931). For the state that meant that all its affairs with its resident aliens (namely, the Indians) should be 20 At the same time, the notion of owning land for the Indians was not akin to the traditional one. For example, Torry (1976) showed, that for the formerly nomadic tribe, the concept of ‘land use’ is diffused and cannot be equated with cultivating land, even for the purposes of grazing. From this perspective, putting nomadic tribes, such as the Sioux, in reservations, ‘on the land’, would directly violate their cultural imperative to ‘be across the land’. 21 The Council of the Indian Nations has repeatedly refused closing the reservations, arguing that their ‘termination’ would mean forced assimilation (Riggs 2000). 22 A more elaborate act in that respect is The Indian Reorganization Act (Wheeler-Howard Act) of 1934, which promises to settle the existing Indians as long as they require their own land. 23 Valandra (1992) describes the effects of granting American Citizenship to the Indians as a means to bring them into possession of land and thus refuse their cultural legacy. 24

For a detailed exposition of the political interest and plenary power, see Wilkins (1994).

25

(1924) 43 Stat. 253, (1926) 8 U.S. C. §3.

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resolved through a corresponding Federal body, and that would be most exclusively the Bureau of Indian Affairs. As far as legal matters are concerned, the Major Crimes Act of 1885 saw the beginning of the Federal criminal jurisdiction over Indian Territory.26 The Act was passed as a response to a particularly sensational murder, in the wake of which federal courts received full jurisdiction over the following crimes when committed on Indian Territory: murder, manslaughter, rape, assault with intent to kill, arson, burglary, and larceny.27 As far as other crimes are concerned, they can be adjudicated in the tribal court or, if the criminal resides outside the reservation, the state court.28 In comparison to the tribal courts, which undertake the majority of misdemeanours and some felonies, more serious crimes go to the federal court.29 In order to facilitate this passing, the Federal Government enacted Federal Sentencing Guidelines (FSG). The FSG are the rules that set out a uniform sentencing policy for convicted defendants in the United States federal court system. They were designed by the United States Sentencing Commission as part of an overall federal sentencing reform package that took effect in the mid-1980s. The package was intended to provide determinate sentencing (Dyckman 1998). Determinate sentencing is sentencing where the actual limits are determined at the time of sentencing, as opposed to indeterminate sentencing which is determined by a parole commission or similar administrative body after the person has started serving their sentence. In general, indeterminate sentencing is believed to support rehabilitation and other deterrence models of sentencing, while determinate sentencing is believed to support the general deterrence and ‘just deserts’ model of sentencing. By employing a short excerpt from an actual sentencing in the federal court as an example, I would like to illustrate the effects of determinate sentencing within the Federal Sentencing Guidelines on a person with Indian status. The purpose of this analysis is to show how the ambiguous hyper-cultural Indian identity provides no grounds for cultural defence, prompting the question: what should be considered as culture for the purposes of law?

‘Life on the Reservation’ The short excerpt that I would like to offer for analysis was collected during ethnographic fieldwork in a private law firm in Pierre, South Dakota, Dorman, 26 Act of Mar.3, 1885, ch.341, §9, 23 Stat. 385. For a description of the events leading to the passage of the Major Crimes Act see Cohen (1940). For a comprehensive description of the Federal making of the Indian subject, see MacMeekin (1969). 27 The list has been extended to several other crimes, including assault with a dangerous weapon, intent to commit rape, statutory rape, robbery, and organized illegal activity. 18 U.S.C.A. § 1153 (Supp. 1968). 28 For the pros and contras of the Federal power over the Indians see, respectively, Clinto (1981) and Newton (1984). 29

From an analysis of tribal courts, Barsch and Henderson (1976) deduced that the basic model for the tribal penal code consists of ‘a redraft of the old Bureau [of Indian Affairs] regulations, harmonized with the Indian Bill of Rights largely through borrowings from the American Law Institute’s Model Code for Pre-Arraignment Procedure’ (p. 26).

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Tucker and Tucker, in 2003 and 2004.30 The firm did not have a particular speciality; the partners practiced both criminal and civil law: divorce and child custody cases comprised the majority of the practice’s earnings. As a state capital, Pierre features all four types of courts: the Small Claims Court, the State Court, the Federal Court, and the Supreme Court of South Dakota. During my stay the legal life in the capital was very active; in addition to the rural residents of the state, a large number of Native Americans (mostly Lakota) visited the courts.31 Those Indians who live on the reservation and are registered as members of a particular tribe can be prosecuted in the tribal, the state, and the federal courts, depending on where and how an Indian commits a crime. I have mentioned earlier that, as a Federal subject, an Indian person faces the federal court when a certain charge is brought against her. Smaller types of crimes, such as domestic disputes or assaults, tend to be considered in tribal courts; while serious matters, which are required to be reported to federal agents by the tribal police, are decided in the federal court. The latter include various felonies which add much diversity to the original seven major crimes. Indian cases that go to the federal court have to either undergo trial or be plea-bargained. On designated days, one could see a large number of Native American cases which tended to stand out from the other cases. The discourses of the judge, the trial attorneys and the defendant himself demonstrated this peculiarity. In order to capture it, I suggest that we focus on the crucial activity (for any procedural regime) of sentencing. The significance of the sentencing event for this study is stipulated first by my extensive first-hand experience of sitting on Federal sentencings. Second, the event of sentencing has its own procedural significance as it finalizes the position of a particular subject in terms of the criminal system.32 Finally, as an outcome of a particular case, sentencing gives a concise summary of the decision.33 The specific excerpt presented here was also chosen because it clearly deals with issues of cultural identity. Under Federal Sentencing the defendant in this case chose to plead guilty to one count of sexual assault of a minor. The defendant is a member of a local Indian tribe; he resides on the Rosebud Reservation located in the northern South Dakota and, having committed his ‘major’ crime at home, falls under federal jurisdiction. Currently unemployed, he lives in a trailer with his mother and sister, all of whom are also unemployed and live off the federal welfare system. Sentencing is preceded by an exchange of statements and a discussion of objections between the prosecutor and the defence attorney. It is at this point that the defence attorney mentions the harshness of the Federal Sentencing Guidelines and the difficulties of living on the reservation. I consider this exchange as a loosely structured attempt at cultural defence (e.g., cultural argument). Below, the presiding judge announces his sentencing: 30

The names of the participants were changed to protect their anonymity.

31

The majority of the South Dakota Indians (circa 70,000) reside in the five reservations of northern, southern, and western South Dakota. 32

For more on that connection, see Koptiuch (1991) and Biolsi (2001).

33

For more on sentencing, see McBarnet (1981).

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Excerpt (FS/P7/15804/24-26): 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 18. 19. 20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. 37. 38. 39. 40. 41. 42. 43. 44. 45. 46. 47. 48. 49. 50.

Judge: Mr. Big Hill pleaded guilty to one count of sexual abuse of a minor. A lot of times, in this kind of cases, cross-reference applied. This time, the Probation Officer did not recommend cross-reference. For one count the range is 15–21 months. So, many times in sentencings, I had clients receive very severe sentencings based on the Guidelines for the reasons that I perceive as not deserving. Here, I am trying to reap the benefits of the guidelines. Yes, there are a lot of circumstances that made this man suffer in his life. Yet, it is just not going to be right to sentence Mr. Big Hill to a year and a half. DA: I agree. Judge: Although the evidence is insufficient, we must take other considerations into account. My primary concern is the life on the reservation. It perpetuates all sorts of criminal behaviour, drug and alcohol abuse, abuse of the minors and violence, and although I am sympathetic to the plight of the people who live there, I believe that it is their responsibility to straighten them out [to the defendant]. Do you have anything to say? Defendant: I apologize. I am ashamed. I have no excuse. I have to deal with my sin. It is my sin. I know that. I am truly and honestly sorry for my crime. Judge: Okay, you may sit down now. The court will take your apology into consideration. So, dismissal of evidence is sustained. Objections to other paragraphs are overruled. The court may consider any information without any limitation as to the character of the defendant unless prohibited by law. There is no upward departure here: the objection is immaterial. As I have said in the previous cases, there will be no piecemeal application of the guidelines. Either they are in or out. The Guidelines can be a mixed blessing and a curse. Last week I sentenced a person for 5 years, he would have had 12 months under the Guidelines. Here, the defendant is an uncle which is reprehensible for his kind of crime. He was drunk. Pre-sentence Report indicates attempts were made to contact other potential victims. He had a small criminal record. He was put on probation that was revoked. His emotional behaviour is described as ‘‘unstable.’’ He was raised in the household of alcoholics and in a very desperate financial situation. He attempted suicide seven times. The psychological profile indicated that the defendant was deprived and sexually abused. He began drinking at the age of 8 years old and continued to use inhalers; he first tried marijuana at the age of twelve, he went through drug treatment but resisted it; he drank Lysol and hairspray on a daily basis till he was hospitalized. This is the kind of a situation that I have described earlier as the life on the reservation. He went through drug treatment but resisted it. And so, the court is going beyond the guidelines. This means that, following the statutory record, I am going to sentence Mr. Big Hill to 40 months of custody. The bad start he had in his life is taken into account with this sentence as well as the way he changed the life of his nephew for ever. Will you please rise, Mr. Big Hill. I sentence you to 40 months of custody. While in custody, you shall participate in a sex offender rehabilitation program. You shall also participate in the alcohol rehabilitation program. You shall also take part in the acquisition of a productive skill that would allow you to find gainful employment. After your term is served, you shall register as a sex offender. You shall not initiate any contact with a minor. You shall not have correspondence or any other communication with the victim. You shall not go to the parties or places where there are children under the age of 18 years old. Please understand that you cannot have any more felonies. Do you understand all that I have just said? Defendant: Yes. Judge: You can appeal your sentence if you wish. Anything further? Any questions? Then we are done. This court is adjourned. Bailiff: All rise.

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In this excerpt the judge’s decision reveals a wide referential network that focuses on the notion of culture. I approach culture as an event-dependent object of legal discourse and apply discourse analytic methodology for its investigation.34 I attempt to identify different senses of this object that emerge during sentencing, including the senses of identity, community and foreignness. My main objective here lies in showing how the means used by the participants are deployed toward constructing a specific sense of culture. The specificity of this sense, once disclosed, should inform us about the extent to which cultural defence applies to Native Americans and therefore to the cultural defence as a defence strategy. For the sake of methodological precision, I would like to suggest that discourse analytic methodology be taken in a particular, pragmatic configuration. From all the subfields of linguistics, pragmatics, with its emphasis on purposive social action, is best suited for a genetic study of cultural identity.35 In the above case, the communication event is defined as ‘sentencing’. Sentencing represents the last procedural stage in the administration of justice. As a summary of the defendant’s actions after his guilt has been determined, sentencing is a concluding phase of conviction and therefore a particular rhetorical text.36 As such, sentencing presupposes a number of discursive stages, which are coordinated by the presiding figure of the judge: (a) announcement of the case; (b) offer to make statements to one and then the other party; (c) offer to give the floor to the defendant; (d) pronouncement of the sentencing. One finds this classical schema in the academic literature on juridical mechanics as well as training manuals for legal professionals.37 Communication research refines this structure by showing, for example, that the latter stage is not homogenous but also features three distinct phases: announcing the measure of guilt by enumerating the charges (producing a list of ‘complaints’); giving reasons (accounts) for the upcoming sentencing; explaining (clarifying) the sentencing. The feature that should concern us most here is the ‘account’. As a communication phenomenon, an account refers to a past action and, by doing so, explains it38; most importantly, often reflecting local values. In the above instance, the values (expressed as attributions by the judge) concern two themes, or rather the relationship between them: a) the criminal climate where the defendant resided; and b) the defendant’s personal responsibility (lines 9–13). However, the process of connecting the two topics is not as direct as it first appears but requires explanation from the judge. The judge cannot simply admonish the defendant before issuing the decision but must explain the reasoning behind it. To understand this reasoning, I suggest that we employ a particular focus of the 34 The use of only one example should not be taken as a deficiency. My intentions here are not to present a sustainable pattern of sentencing the Native Americans but rather to provide an illustration for and a transition from the preceding argument. 35 For the working definition of pragmatics I take ‘the study of deixis, implicature, presuppositions, speech acts, and aspects of discourse structure’ (Levinson 1983, p. 27). 36

For the rhetorical strategies of conviction, see Barnet (1981).

37

For a detailed ethnomethodological description of the orderly properties of sentencing, see Atkinson and Drew (1995). On sentencing from the discourse analytic perspective, see Levi and Walker (1990). 38

On the notion of account, see Sacks (1992, pp. 650–655).

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pragmatic method, namely, indexicality. The basic instruments of the indexical analysis are ‘micro contextual features’ (Gumpertz 1982, p. 162). Pragmatics recognizes three main types of deixis: person (the role that the speaker assigns to him/herself or others in a speech event), place (the spatial characteristics of the place as relative to the speech event), and time (a specific timeframe). On the level of grammar, deixis includes personal pronouns (e.g., ‘I,’ ‘we,’ ‘they’), adverbs of place (e.g., ‘here,’ ‘at home’), tense (‘will do’) and other grammatical forms that define a communication event. The focus on indexicals is designed to show how the account for the defendant’s identity is constructed by way of a cultural attribution. In the excerpt above, construction of the Indian identity begins with the implicit identification of the case. Identification is carried out with the help of the deixis of person (the name of the defendant, ‘Big Hill’, unmistakably connotes his Indian heritage) and the deixis of place, ‘here, in the federal court’. The presence of the Indian defendant in the federal court on a minor felony should indicate that the defendant is a federal subject de jure. This means that Mr. Big Hill arrives in the federal court as a practicing member of an Indian tribe. In turn, this identification means that the event of sentencing in his case would necessarily involve the FSG. In the excerpted sentencing, reference to the Guidelines comes up straight after the first identification of Mr. Big Hill; in lines 4–6. By meta-commenting on the technical constraints of dealing with the FSG as well as judicial discretion, the judge constructs his opinion as antithetical to the positive interpretation of the Federal Sentencing Guidelines. The shift of valence is explained by indexing the person of the defendant. In lines 6 and 7, the judge mentions ‘a lot of circumstances that made this man suffer in his life’. I find the following assertion crucial for the understanding of the thematic linkage that connects the formal reasoning based on the FSG to the informal one, based on the experience of the type of defendant confronting the judge at this time. In lines 9–13 the judge indexes the place which he, the judge, considers to be formative for the defendant, ‘reservation’ (line 10). In the next sentence, the judge describes the defendant as a cultural subject who follows his cultural ways by choosing to exercise them so as to perpetuate them toward lawlessness. After the defendant’s apology in lines 15 and 16, the judge continues to move from the most general to the most specific by focusing on the life on the reservation as the basic ‘theme’ and then adding to it the specifics of Mr. Big Hill’s case: drugs, petty crime, incest, etc. The manner of presenting the account is analogical to a criminological description: the construction of an Indian person who lives on a semi-autonomous territory within the jurisdiction of the United States is proceeding along the lines of connecting a crime causally to the place of its occurrence. The usual attributes of this place are poverty, alcohol and drug abuse, child neglect, etc. From the general description of the defendant’s ‘home’ and his ‘home comrades’ (line 12) the judge proceeds to individualizing the defendant in terms of his history. Here, the use of the FSG for legal support of the argument becomes particularly important. The second reference in the excerpt to the FSG occurs in lines 22–24 (‘The Guidelines can be a mixed blessing and a curse. Last week I sentenced a person for five years, he would have had 12 months under the Guidelines’). Becoming a topic in itself, judicial discretion leads the judge to diversify his

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previous statement into a list full of person deixis from the Pre-Sentence Report: ‘He had a small criminal record’ … ‘probation’ … ‘unstable’… ‘household of alcoholics’… ‘desperate financial situation’… ‘suicide’ … ‘deprived and sexually abused’ … ‘drinking at the age of eight year old’ … ‘inhalers’ … ‘marijuana’ … ‘drank Lysol and hairspray’ (lines 26–32). The list of modifiers reaches the following generalization: ‘a situation that I have described earlier as the life on the reservation’ (line 33). By identifying the container (typicality) for the preceding items, the judge completes the construction of the Indian identity which begins with the index of personhood (the defendant’s name), continues as the index of a criminal pattern and ends with the thus configured identity of a criminal resident on the federally administered Indian reservation. Most importantly, under the presented conditions, the Indian identity appears to be beyond redemption, as the place that had allegedly created it remains the only cultural place that hosts it. At this juncture, I would like to summarize my brief analysis by arguing for the impossibility of cultural defence for the subject who, for the purposes of legal procedure, is neither fully American, nor fully native; neither an outsider, nor an insider. The only complete identity for this Indian is ‘living on the reservation’; however, this identity can be used only to his own detriment. This analysis is consistent with some scholarly works that show that the common perception of the Native American identity presupposes an element of criminality (Medcalf 1978). As a resident criminal, the Indian cannot be exiled but only confined. The latter does not refer only to her place of residence or incarceration, but various political and legal constraints imposed on her identity. The force of these constraints attempts to conceal the indication that she was and remains foreign. For this study, this indication means that only if the foreign character of the Native American were to be restored would she indeed obtain the possibility of a cultural defence. In the next section, I wish to present the theoretical grounds for this possibility. For that I turn to the phenomenological insights of Edmund Husserl. The choice of phenomenology is not haphazard: proclaiming the primacy of experience over rationality makes phenomenology a perfect tool for investigating the cultural other and to establish his significance for law.

A Community of Culture As a phenomenological theme, the cultural other originated in the works of Edmund Husserl (1859–1938). Presented in different guises, the other acquired the strongest emphasis on culture during Husserl’s late period.39 By recognizing the significance of the limit that separates one world from another, Husserl was capable of switching from treating the other as the opposite of the self to posing the other as the productive limit to one’s self. The other thus gained an ontological status, and with it, a claim to epistemological significance: ‘There are problems emerging here of creating concrete understanding and mutual understanding; at issue is to somehow accomplish a making home of the alien, as if it were home. Of course, there is also 39

This emphasis is best shown by Husserl’s 1931–1936 manuscripts on the problems of intersubjectivity.

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the question of the limits of such knowledge and the question of justifying the idea of complete understanding’ (Husserl 1973, p. 625). From the above descriptions, save the supporting literature, we have sufficient reasons to presume that the Native American is not just an alien, but the bearer of alienness itself. In the analyzed example, the federal judge was explicitly referring to the defendant as the alien other, albeit in non-conventional and even non-legal terms. Despite his references to alienness that allegedly permeates the Native American community, the judge refused to acknowledge the separating boundaries of that community in terms of legal responsibility. The judge’s response to the Indian as an alien was issued in the natural mode: the mundane attitude prescribes that there should be some kind of a social structure, e.g., law, that would provide an equal basis for personal responsibility regardless of a particular origin, or culturally-specific ways of being. Returning to the above example, we can understand why the experience of the alien cannot be accessed through traditional limits, such as national-borders, languages or customs. Phenomenologically, culture is understood differently, as a particular kind of constitutive space. In line with Husserl’s later thinking, this space can be defined as a liminal space, i.e., a space which consists of unfamiliar, unknown and unapproachable matters. It is in this space that another relationship between the home and the alien takes place. The liminal space delimits us from the outside and therefore reaches inside; as a matter of fact, it resides ‘in-between’ (zwischen): ‘We encounter the alien as something that cannot be said or done within our order. The extraordinary makes its appearance as an order existing elsewhere’ (Waldenfels 1996, p. 115). This is the reason why limit-phenomena cannot be appropriated, assimilated, brought home, made whole: ‘Alienness does not proceed from a division but consists in a division’ (ibid., p. 21). The primacy of the home does not mean that the alien can be ignored: as a generative phenomenon, the encounter with the alien gives rise to ‘those mythical narratives which give an account of a ‘‘genesis’’ that is genetically impossible to know, but generatively possible to experience in the generative density of a cultural tradition’ (Steinbock 1995, p. 219). In other words, the encounter with the alien is responsible for the creation of socio-historical worlds; that is, cultural worlds. The boundaries of these worlds are fortified by the stereotypes about the outside. The analyzed excerpt above hinted at a stereotype, ‘the life on the reservation’. Thus defined, the stereotype presupposed a particular knowledge about the Indian way. The perspective which generated this stereotype is normative. At this point, we might want to ask, how can we overcome this stereotype in the legal realm? The answer to this question is two-fold. On the one hand, we must admit that the encounter with the alien is always a matter of ethics, and ethics has always presented a challenge to the idea of law. Mediated by morality, law has managed to avoid ethical issues as too closely related to the individual and her actions. Reinstituting ethical concerns in a manner parallel to the juridical reasoning and legal procedure would allow us to place an extra emphasis on responsivity, which is implied in all acts of the law. For example, as a form of response, sentencing admits to the ethical component by necessitating an account for the coming punishment. In turn, the account makes the responder reflect on the case, its details. Yet, as the analyzed sentencing shows and other observed sentencings

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confirm, the judicial consideration of individual circumstances limits the reflection to the case, ignoring the radical difference of the communal world that produces this case. A judicial decision that is made from within the legal sphere may provide a strong decision but falls short of an adequate—to the foreign world—response. Returning to the beginning, in his explicit response to Plato, Jacques Derrida attempts to explain responsivity by stating that our incomplete understanding of the alien in terms of the border has a particular urgency for the modern world, where the boundaries between private and public, familiar and unfamiliar are being quickly erased by all sorts of mass media effects on the one hand, and by the increasing powers of the state and laws on the other; hence, the need to reconcile the ethics of hosting the alien with concrete (and that would mean legally acceptable) applications. In turn, the latter cannot any longer rely on unconditional acceptance but demand a special kind of ethics; the one of conditional hospitality, which, stipulates Derrida, returns ethics to law. Upon this return, a series of questions would rise to the surface of the legal procedure: ‘What does ‘‘foreigner’’ mean? Who is ‘‘foreign?’’ Who is ‘‘foreign’’ to Law?’ (Derrida 2000, p. 43). These questions point to the same concern: at stake are the limits between the native land and the foreign land, between native ways and foreign ways, between the foreign and the native in general, and between two kinds of terrain in particular. The nature of the law is to communicate these limits, define our singularity, but also, as Plato insisted and Derrida agreed, the nature of a particular community. We should not presume that we know the Indian person without knowing her community. Nor should the Indian herself presume any kind of special knowledge when it comes to the non-native and his community. Only then could conditional hospitality work, allowing us to lean on the law in order to reach beyond it: ‘this right to hospitality offered to a foreigner ‘‘as a family’’, represented and protected by his or her family name, is at once what makes hospitality possible, but by the same token what limits and prohibits it’ (ibid., p. 23; modified). In the face of conditional hospitality, Law’s question about the foreigner surrenders to the question to the foreigner, preserving the ethical component as the main condition of justice, thus preventing the loss of the alien, while emphasizing that culture should be considered as the encounter with the radical Other. This shift of emphasis encourages us to consider the search for conditional hospitality as a political, rather than juridical, project. To restore the Native American as the true foreigner would demand a special legal environment, including equally special circumstances of relief from normative responsibility. Most importantly, however, this environment should be created at the limit of law, where the law is least restricted and restrictive, at the point of the personified culture.

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