legal theory

Jacob Levy on Indigenous Rights, Modern Political Concepts, and the State

Matthew L.M. Fletcher

Jacob Levy has posted his new paper, “Indigenous Rights, Modern Political Concepts, and the State,” on SSRN.

Here is the abstract:

This paper considers the relationship of indigenous rights to four foundational principles of modern political theory: sovereignty, the nation, property, and constitutionalism. All took their familiar intellectual forms as the European state was crystallizing – and as European states were embarking on their imperial projects around the world. All were reshaped by both the development of the state and the European encounter with indigenous peoples. The absolutist idea of state sovereignty, developed as the modern Weberian state was crystallizing in Europe, was deeply connected with the justifications of imperial power that could lawfully conquer, expropriate, and kill indigenous peoples. The subsequent joining of the idea of the nation to state sovereignty heightened the latter’s absolutism. Settler states conceived as sovereign unitary nation-states left no normative legal space for indigenous rights, and indeed were profoundly hostile to them. By contrast, property and constitutionalism drew on natural law ideas and pluralist political traditions and were sometimes developed in ways that made room for indigenous rights, even as rival interpretations were developed in ways that subordinated both property and constitutionalism to state sovereignty. The paper argues that both nationhood and sovereignty are problematic ways to conceive of indigenous rights today, and that property and constitutionalism offer the more promising foundation.

Real Property and Personhood by Kristen Carpenter (Denver)

Matthew L.M. Fletcher

Real Property and Peoplehood by Kristen Carpenter (Denver)

From the abstract:

This Article proposes a theory of “real property and peoplehood” in which lands essential to the identity and survival of collective groups are entitled to heightened legal protection. Although many Americans are sympathetic to American Indian tribes and their quest for cultural survival, we remain unable to confront the uncomfortable truth that the very thing Indian peoples need is their land, the same land that the U.S. took from them. This is especially the case with regard to the sacred sites of Indian peoples, whose religions and cultures are inextricably linked to those sites. Federal law permits the United States to destroy sacred sites essential to Indian ceremonial practices. The Supreme Court has held that destruction of sacred sites does not impinge on individual religious belief and falls within the government’s powers as an owner of the public lands. Although recent federal policy has evolved in favor of accommodating Indian sacred sites practices, land management agencies use their considerable discretion to permit competing uses of the public lands – such as natural resource development and tourism – that threaten the physical integrity of sacred sites. Such decisions devastate Indian people and undermine our shared expectation of free exercise rights for all Americans. Thus, federal law needs to prioritize Indian interests in sacred sites over competing uses of the public lands. Unfortunately, we don’t yet have a legal theory justifying such a position.

My theory of real property and peoplehood furthers the work of scholars who have recognized the relationship between human beings and property, albeit in other contexts. Most influentially, Professor Margaret Jane Radin has long argued for special legal protection of property that expresses an individual’s sense of self and therefore cannot be translated into a monetary value. But whereas Radin focuses on property that expresses individual personhood, I am interested in property that expresses collective “peoplehood”. As a descriptive matter, this concept of peoplehood reflects that, even in the United States where the individual rights paradigm dominates, individuals affiliate themselves along sub-national political, religious, ethnic, and cultural lines and their exercise of fundamental liberties occurs in those contexts. As a normative concept, John Rawls has argued that as a matter of “reasonable pluralism,” liberal states like the United States should recognize peoples and treat them fairly. To do otherwise is to fall short of our best democratic principles, such as the idea that all Americans are entitled to religious freedom. Working at the confluence of Radin and Rawls, the Article argues that Indian tribes are peoples whose legitimate interests in sacred sites deserve special legal protection as a testament to American liberty for both individuals and groups.