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The law in a liberal state is often a violent instrument. So said Robert Cover. Among those communities to which the law has been particular cruel are Native Americans. Indeed, the traditions and practices of Native American tribes have spawned rich and fascinating narratives. Each tribe has created its own “nomos – its own normative universe” – with a distinct set of rules, expectations, and tenets. Even still, the state and federal governments have historically challenged Native American traditions and culture with various legal and judicial policies. Insofar as the state-imposed law is blunt and imprecise, certain Native American narratives are thus threatened. Over the past decade, several judicial cases have highlighted the clash between the state’s imperial authority and Native American narratives. Our chapter explores these court cases with an eye to the inevitable conflicts that emerge when law exists uneasily in a liberal state.

This chapter explores how the principles of retribution and deterrence were framed and thus used to justify capital punishment in the early years of the Republic, and how the purposes for capital punishment have changed in the past two centuries. We ask several related questions: (1) Has our understanding of the morality and utility of retributive justice changed so dramatically that the historical argument tying justification for capital punishment to the past now ought to carry less weight? (2) Have our perspectives on the purposes for capital punishment changed in ways that now might call the entire experiment into question? and (3) What, in short, can we say about the historical similarities between arguments concerning retribution and deterrence at the Founding and those same arguments today?As is often true of common law principles, the reasons for the rule are less sure and less uniform than the rule itself. (Justice Marshall's majority opinion in Ford v. Wainwright, 477 U.S. 399 (1986))