Gregory Gagnon on Chthonic Law in American Indian Law


89 N.D. L. Rev. 29
American Indian Law: A Discourse on Chthonic Law
Gregory Gagnon

The abstract:

This discourse on Chthonic Law, a theory propounded by H. Patrick Glenn among others, is the occasion for describing advantages and disadvantages of the introduction of customary American Indian law (Chthonic law) into the courtroom. Remarks on the theory, considerations of its merits and weaknesses and illustrations from American Indian societies lead to the conclusion that Chthonic law should become part of the admissible evidence in American courts. A major criticism of Chthonic Law theory is that it tends to describe a fictionalized version of society. Examples of American Indian violence, use of punishment, and private property law counter the idyllic construction of Chthonic law. Examples of the actual operation of a different legal system do exist, particularly the use of compensation and the justice goal of restoration after offenses. Chthonic law theory, if modified can be of use to American Indian plaintiffs.