Kirsty Gover

New Paper from Kirsty Gover, “Indigenous Membership and Human Rights: When Self-Identification Meets Self-Constitution”

Kate Fort

Here.

Abstract:

Rules and principles governing indigenous membership have a dual aspect. First, a group’s capacity to decide its own membership is an essential element of indigenous self-governance. Second, a person’s claim to membership is sometimes supported by human rights, especially the right to enjoy one’s culture in community with other members of a minority. Because of this duality, in some instances, the interests of a self-constituting group and the interests of a self-identifying individual are directly opposed. In this chapter I argue that international human rights norms, jurisprudence and methodologies have not generated principles that could assist states and tribes in the governance of indigenous membership disputes. While the structure and ideology of international human rights law is such that the interests of tribes (and tribal members) are almost always subordinated to the interests of aspirant members and the public, CANZUS states (the affluent western settler states of Canada, Australia, New Zealand and the United States) have been able to augment domestic human rights law in order to provide normative space for tribal self-constitution. This, I argue, contributes to the development of a distinctive settler-state political theory which is premised on the cardinal importance of indigeneity and tribalism in settler-state constitutionalism, and on the enduring relevance of descent as a source of political and legal status in settler societies. I draw primarily on examples from the public and tribal law of membership in the CANZUS states and on the jurisprudence of the Human Rights Committee that oversees the implementation of the International Covenant on Civil and Political Rights (the ICCPR). I take a closer look at the interplay of HRC jurisprudence and the domestic law of Canada, by examining the origins and aftermath of Lovelace v. Canada (HRC, 1981).

Now Available: “Tribal Constitutionalism” by Kirsty Gover

Matthew L.M. Fletcher

Here is the flyer: Tribal Constitutionalism – Flyer

From the website:

Description

Recognized tribes are increasingly prominent players in settler state governance, but in the wide-ranging debates about tribal self-governance, little has been said about tribal self-constitution. Who are the members of tribes, and how are they chosen? Tribes in Canada, Australia, New Zealand and the United States are now obliged to adopt written constitutions as a condition of recognition, and to specify the criteria used to select members. Tribal Constitutionalism presents findings from a comparative study of nearly eight hundred current and historic tribal constitutions, most of which are not in the public domain.

Kirsty Gover examines the strategies adopted by tribes and states to deal with the new legal distinction between indigenous people (defined by settler governments) and tribal members (defined by tribal governments). She highlights the important fact that the two categories are imperfectly aligned. Many indigenous persons are not tribal members, and some tribal members are not legally indigenous. Should legal indigenous status be limited to persons enrolled in recognized tribes? What is to be done about the large and growing proportion of indigenous peoples who are not enrolled in a tribe, and do not live near their tribal territories? This book approaches these complex questions head-on.

Using tribal membership criteria as a starting point, this book provides a critical analysis of current political and sociolegal theories of tribalism and indigeneity, and draws on legal doctrine, policy, demographic data and tribal practice to provide a comparative evaluation of tribal membership governance in the western settler states.

Book Announcement: Kirsty Gover’s “Tribal Constitutionalism”

Matthew L.M. Fletcher

Oxford University Press will publish Kirsty Gover’s “Tribal Constitutionalism: States, Tribes and the Governance of Membership” in December.

Here is the blurb:

Recognised tribes are increasingly prominent players in settler state governance, but in the wide-ranging debates about tribal self-governance, little has been said about tribal self-constitution.

Who are the members of tribes, and how are they chosen? Tribes in Canada, Australia, New Zealand and the United States are now obliged to adopt written constitutions as a condition of recognition, and to specify the criteria used to select members. This book presents findings from a comparative study of nearly eight hundred current and historic tribal constitutions, most of which are not in the public domain.

Kirsty Gover examines the strategies adopted by tribes and states to deal with the new legal distinction between indigenous people (defined by settler governments) and tribal members (defined by tribal governments). She highlights the important fact that the two categories are imperfectly aligned. Many indigenous persons are not tribal members, and some tribal members are not legally indigenous. Should legal indigenous status be limited to persons enrolled in recognized tribes? What is to be done about the large and growing proportion of indigenous peoples who are not enrolled in a tribe, and do not live near their tribal territories? This book approaches these complex questions head-on.

Using tribal membership criteria as a starting point, this book provides a critical analysis of current political and sociolegal theories of tribalism and indigeneity, and draws on legal doctrine, policy, demographic data and tribal practice to provide a comparative evaluation of tribal membership governance in the western settler states.

Kirsty Gover on Tribal Membership Criteria

Matthew L.M. Fletcher1 Comment

Kirsty Gover, a grad student, has posted “Genealogy as Continuity: Explaining the Growing Tribal Preference for Descent Rules in Membership Governance” on SSRN. Here is the abstract:

This article presents the findings of a large-scale study of current and historic tribal membership rules contained in the constitutions of federally-recognized tribes. The constitutions of 245 tribes in the lower 48 states are surveyed. The article explains changes in membership governance by reference to changes in the political, legal and social environments of tribes, including especially shifts in federal Indian policy and tribal demography. It discusses the increasing tribal preference for lineal descent and tribal blood quantum rules, relative to older criteria such as parental enrollment, parental residence and Indian blood quantum rules. It explains that these rules are tribe-specific, in contrast to the pan-tribal measures of Indianness and Indian blood quantum used in federal law and policy, and suggests that while tribes deploy familiar administrative mechanisms, such as blood quantum, they increasingly refashion these as measures of genealogy rather than race. It further argues that these rules are a form of tribal self-help, that assist a tribe to repair disruptions in its continuity, especially those occurring as a result of the operation of termination policy.