Tribalism, Constitutionalism, and Cultural Pluralism: Where Do Indigenous Peoples Fit within Civil Society?
Rebecca A. Tsosie
Arizona State University (ASU) - Sandra Day O'Connor College of Law
University of Pennsylvania Journal of Constitutional Law, Vol. 5, No. 2, 2003
With each successive transfer of lands between colonizing governments and indigenous peoples, the Native people lost rights, gained other rights, and reached a new political accommodation with the national sovereign. This dual citizenship justifies certain special rights, which distinguish indigenous people from citizens belonging to other cultural groups. At a fundamental level, Native American tribalism - best represented by the concept of tribal sovereignty - appears to conflict with national sovereignty. In reality, the perceived conflict between tribalism and constitutionalism appears to be a response to the character of tribal sovereignty in its relationship to the normative structure of the American constitutional democracy. The tensions between tribalism and constitutionalism throughout history, as well as in the modern era, involve whether the exercise of tribal sovereignty tends to defeat the uniform exercise of state law and authority and whether it impairs the normative foundations of Anglo-American democratic society. Non-Indian residents raise a variety of objections to tribal jurisdiction, often claiming that they are the victims of unfairness because they cannot participate in the tribe's political governance and that they never consented to such governance merely by accepting homestead rights under the federal government's public land policies. The tribe's rights under the ICWA are collective group rights that sometimes trump individual rights, such as the right of an Indian parent domiciled on the reservation to subvert exclusive tribal jurisdiction.
Number of Pages in PDF File: 49
Keywords: Land, Tribalism, Indian rightsAccepted Paper Series
Date posted: May 9, 2009 ; Last revised: June 9, 2011
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