Journal of Legal Anthropology

Disaster lawyers navigate bureaucratic impediments to insurance claims and settlement and federal recovery and relief, and they act as third-party facilitators for disaster-affected clients to help enable their survival efforts. The roles of such lawyers in navigating paperwork and bureaucratic processes on behalf of survivors, while assisting them in meeting basic daily needs, has become seen as being integral to recovery in these processes. We utilise findings from semi-structured interviews with disaster law practitioners working with disaster survivors in the south-eastern United States (SEUS) to examine the bureaucratic socio-legal life of disasters. We marshal bureaucratic violence literature to analyse disaster law practitioners’ perspectives of the socio-legal nature of disasters in the SEUS, demonstrating that the bureaucratic technologies of recovery are primary obstacles to expedient recovery and successful legal work with survivors.

This article explores the challenges faced and practices developed by Taiwanese judges in cases involving Indigenous laws and lands to fulfil the objectives of Taiwan's Indigenous court units. Despite the official establishment of these units, local actors debated their real presences within Taiwan courts. Non-Indigenous actors administered proceedings, state laws and justice practices applied, the language of Han mainstream society dominated legal discourse, training for judges and prosecutors was minimal, and court unit proceedings generally replicated ordinary court procedures, rendering the units ambiguous as distinct institutions. While some judges ignored these ambiguities, other judges endeavoured to integrate Indigenous world views, ontologies and meanings into applications of new laws and procedures through varied strategies. In practice, these exploratory approaches constituted the Indigenous court units in Taiwan courts. While these strategies may, in certain circumstances, create possibilities for improving Indigenous recognition within the national court system, they could also work against Indigenous people in their bids for justice through the courts.

This article examines affirmations of differentiated Indigenous rights that are present in national and international legislation in the State of Roraima, Brazil, through significant efforts by Indigenous political movements, including activities by Indigenous lawyers. By creating internal mechanisms for solving conflicts, such activists contribute significantly to realising rights present in the Federal Constitution (1988) and the Indian Statute (Law 6.001/1973), and in international legislation such as the International Labour Organisation (ILO) Convention 169 (1989). These mechanisms include the setting up, by the Indigenous Council of Roraima (CIR) and local Indigenous leader councils, of written customary laws (regimentos internos) as an alternative for solving conflicts to avoid sending people to violent and overcrowded prisons. The efforts of Indigenous organisations, activists, and lawyers also seek to overturn a commonplace notion of equality before the law, which fails to consider existing inequalities.

This article incorporates judicial practice and related research to consider some of the shortcomings and issues relating to the goals of the specialised Indigenous court units. Specialised Indigenous court units, which have been in Taiwan's high courts since 2014, have lofty goals, but critical questions remain in terms of these expectations. Taiwan's high courts administer dozens of Indigenous cases annually, but few are related to Indigenous cultural issues. High court judges attend annual non-mandatory training programmes related to Indigenous people's issues; however, it is questionable whether judges are sufficiently knowledgeable in these fields. The toughest question many judges face is determining whether Indigenous practices are ‘facts’ or ‘customary laws’. If they are facts, then Indigenous defendants and their counsel must take the initiative to explain them; if they are customary laws, then judges must take the initiative to find and apply them. Other issues include how Indigenous cases are sometimes assigned to specialised military courts, a process in which defendants can lose their Indigenous status.

US and Canadian approaches to tribal legal orders have taken different paths, and here I argue that the Canadian model should move towards free-standing Indigenous courts as they currently exist in the United States. The Canadian approach has focussed on the issue of over-incarceration of Indigenous prisoners, but even newer efforts have stopped short of recognising at least partial criminal and civil jurisdiction. The Canadian approach fails to support Indigenous jurisdiction and community rebuilding and leaves Indigenous peoples vulnerable to non-Indigenous judges, who fail to accommodate Indigenous approaches to justice. Early attempts at shared jurisdiction have been naïve regarding Indigenous internal social processes and the struggle over what constitutes proper cultural practices. My data come from my own work with Coast Salish tribes, where I have studied tribal histories and legal practices on both sides of the international border as well their views of federal policy in both Canada and the United States.

Baudouin Dupret (2021), Positive Law from the Muslim World: Jurisprudence, History, Practices (Cambridge: Cambridge University Press). ISBN: 978-1-108-84521-2.