58 Pages Posted: 22 Jun 2006
Liberalism struggles with an ancient paradox. That is, it must navigate the sometimes treacherous course between individual autonomy and pluralism's accommodation. In this article, Professor Riley argues that this philosophical tension has manifested in very concrete intrusions on American Indians' tribal sovereignty. On the one hand, tribal sovereignty guards Indian nations' inherent right to live and govern beyond the reach of the dominant society. This measured separatism embodies liberalism's commitment to the accommodation of pluralism. On the other hand, however, critics charge that imposing liberalism onto Indian nations is necessary to prevent infractions of individual rights by tribal governments. For these scholars, individual autonomy must always be given preference above Indian nations' continued existence.
Scholars concerned with illiberal practices perpetrated by tribal governments are increasingly calling for an expansion of federal civil rights laws into tribal communities. But these urgings are rarely accompanied by a thorough and thoughtful analysis of American Indian tribal sovereignty. In fact, most scholars writing in this area fail to acknowledge that expansion of such laws into tribal communities would potentially eviscerate tribal sovereignty and wipe out Indian differentness altogether. Accordingly, based on a detailed examination of tribal sovereignty - both as embodied in American law and as experienced by Indian nations on the ground - Professor Riley concludes that the United States' own theory of Indian sovereignty supports the perpetuation of Indian nations' autonomous existence. Further, it mandates that internal tribal decisions regarding Indian culture and tradition be left to Indian tribes, even when those decisions are inapposite to Western liberal ideals.
Keywords: american indian, native american, indigenous, indian civil rights act, sovereignty, illiberalism, santa clara pueblo, indigenous justice systems, rawls, kymlicka, indian tribes, tribal government, liberalism, pluralism
Suggested Citation: Suggested Citation
Riley, Angela, Sovereignty and Illiberalism. California Law Review, Vol. 95, 2007. Available at SSRN: https://ssrn.com/abstract=910611