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Liberalism and Republicanism in Federal Indian Law


Bethany Berger


University of Connecticut School of Law


Connecticut Law Review, Vol. 38, p. 813, 2006

Abstract:     
This essay shows the ways that, despite apparent contradictions, tribal claims fit within the liberal and republican strands of American democratic theory. Critics of tribal sovereignty and, I believe, the modern Supreme Court, are influenced by the seeming conflict between tribal interests and a liberal philosophical framework. I argue that properly understood, most tribal claims do fit within classical liberal theory, with its emphasis on equality and freedom. It is true that some tribal claims are distinctly those of groups or peoples, and so cannot be adequately captured by an individualist liberal framework. Drawing on the later work of John Rawls, however, I show that even these claims fit within a liberal theory of the rights of peoples. Despite this, liberalism, with its neutrality towards conceptions of the good and its emphasis on formal equality, may still fall short in capturing the nuances of tribal legal claims. I argue that the second dominant strain of American political philosophy, the communitarian or republican strain, may better capture these elements of tribal claims to justice. I conclude by proposing an approach that combines these two strands of American democratic theory and discuss several Supreme Court decisions that utilized this approach.

Number of Pages in PDF File: 19

Keywords: Federal Indian Law, Liberlaism, Republicanism, Rawls, Democratic Theory

JEL Classification: K10

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Date posted: July 17, 2006  

Suggested Citation

Berger, Bethany, Liberalism and Republicanism in Federal Indian Law. Connecticut Law Review, Vol. 38, p. 813, 2006. Available at SSRN: http://ssrn.com/abstract=917145

Contact Information

Bethany Berger (Contact Author)
University of Connecticut School of Law ( email )
65 Elizabeth Street
Hartford, CT 06105
United States
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