Distributing Sovereignty: Indian Nations and Equality of Peoples

57 Pages Posted: 17 Jul 2008

See all articles by Patrick Macklem

Patrick Macklem

University of Toronto - Faculty of Law

Date Written: 1993

Abstract

This article aims to provide a justification of Indian government by recasting claims of prior sovereignty in the discourse of distributive justice. By assessing the justice of the distribution of sovereignty in North America, the author offers a defense of Indian government that ventures beyond the conventional confines of the domestic nation-state and challenges traditional assumptions about the reach of sovereign state power. In Part II, he outlines the legal frameworks in which Indian government currently operates in the United States and Canada, in order to highlight similarities and differences between the two jurisdictions and, more importantly, to illustrate what is at stake in debates concerning the legitimacy of Indian government. In Part III, he examines one similarity in some detail, namely, that it is common in both jurisdictions to base Indian government on the fact of prior occupancy. He argues that the fact of prior occupancy, standing alone or as a proxy for other claims, is insufficient to meet concerns of critics of race- or culture-specific measures. In Part IV, he addresses the debate between cultural relativists and those who believe in the possibility of universal human rights, and argues that invoking cultural relativism or universalism does not assist in shielding Indian government from potential erosion. In parts V and VI, he proposes a justification for the recognition of Indian government, one that he hopes will obtain some degree of intercultural agreement between indigenous and nonindigenous people in both the United States and Canada.

Suggested Citation

Macklem, Patrick, Distributing Sovereignty: Indian Nations and Equality of Peoples (1993). Stanford Law Review, Vol. 45, 1993, Available at SSRN: https://ssrn.com/abstract=1162211

Patrick Macklem (Contact Author)

University of Toronto - Faculty of Law ( email )

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Toronto, Ontario M5S 2C5
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