The idea that 'tradition' doesn't count in American law was basically made up on the spot just so the government could seize Native American land.
March 25, 2026
Original Paper
"In My Defense, I Have None:" 1 Taylor Swift, Indian Law, And A Re-Examination Of Custom's Inapplicability In The United States
SSRN · 6446518
The Takeaway
American courts have long claimed that old-world 'customary law' is inapplicable in the US. This Article argues that this was a strategic lie invented by early lawmakers to justify taking land from indigenous people and to distance the US from English law, effectively erasing a pillar of justice to serve political goals.
From the abstract
Traditions matter. They connect people with their past and provide a sense of identity and community in the present. When they disappear, the opposite occurs; individuals are left isolated and detached. The common law doctrine of custom was crafted to protect community customs and traditions, yet for centuries, American courts have repeatedly declared this doctrine inapplicable and irrelevant. This Article demonstrates that the inapplicability of customary law in the United States has been great