Tribalism, Constitutionalism, and Cultural Pluralism: Where Do Indigenous Peoples Fit within Civil Society?

49 Pages Posted: 9 May 2009 Last revised: 14 Sep 2017

See all articles by Rebecca A. Tsosie

Rebecca A. Tsosie

University of Arizona - James E. Rogers College of Law

Date Written: 2003

Abstract

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.

Keywords: Land, Tribalism, Indian rights

Suggested Citation

Tsosie, Rebecca A., Tribalism, Constitutionalism, and Cultural Pluralism: Where Do Indigenous Peoples Fit within Civil Society? (2003). University of Pennsylvania Journal of Constitutional Law, Vol. 5, No. 2, 2003. Available at SSRN: https://ssrn.com/abstract=1401491

Rebecca A. Tsosie (Contact Author)

University of Arizona - James E. Rogers College of Law ( email )

P.O. Box 210176
Tucson, AZ 85721-0176
United States

HOME PAGE: https://law.arizona.edu/rebecca-tsosie

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