Kristen Carpenter on Interpretative Sovereignty

Kristen Carpenter has posted her paper, “Interpretative Sovereignty: A Research Agenda,” on SSRN. It is forthcoming from the American Indian Law Review. Here is the abstract:

In federal Indian law, the treaty operates as our foundational legal text. Reflecting centuries-old historical political arrangements between Indian nations and the United States, treaties remain vital legal instruments that decide dozens of legal cases each year. Yet, these treaties — originally drafted in English by the federal government, following negotiations with tribal representatives who usually spoke their own languages — present a number of ambiguities for contemporary courts. The dominant model of treaty interpretation is one in which judges interpret treaties in a manner they they believe to reflect Indians’ understanding of treaty terms and, more generally, to promote the interests of Indian nations. While this liberal approach to treaty interpretation has secured a number of important Indian rights in the courts, it does not necessarily reflect the ways in which Indians actually perceived treaty terms in their own languages and cultures.

Deeper investigation of treaty law reveals, however, that Indians have long been interpreting treaties for themselves. From their earliest encounters on the negotiating field to recent advocacy in the courts, Indians have, out of necessity or strategy, articulated what treaty provisions mean to them. Here I identify this much-overlooked practice as “interpretive sovereignty” and define it as the interpretation of treaties through the lens of tribal cultures, and more particularly, through tribal languages. The practice of interpretive sovereignty has particularly great potential today as a tribal language revitalization movement sweeps Indian Country. Interpretive sovereignty may have the power to transform historical understandings of treaties and help tribes forge contemporary legal approaches that reflect tribal norms and values. Beyond federal Indian law, attention to the role of language differences can inspire reflection on the interpretation of other legal texts. For these reasons, this Essay calls for research into the role of tribal languages in treaty interpretation and begins to contemplate some of the challenges associated with such work.