sovereignty

Michalyn Steele: “Comparative Institutional Competency and Sovereignty in Indian Affairs”

Matthew L.M. Fletcher

Michaelyn Steele has posted her paper, “Comparative Institutional Competency and Sovereignty in Indian Affairs,” on SSRN.

Here is the abstract:

While vigorous debate surrounds the proper scope and ambit of inherent tribal authority, there remains a critical antecedent question: whether Congress or the courts are best situated ultimately to define the contours of inherent tribal authority. In February 2013, Congress enacted controversial tribal jurisdiction provisions as part of the Violence Against Women Act reauthorization recognizing and affirming inherent tribal authority to prosecute all persons, including non-Indian offenders, for crimes of domestic violence in Indian country. This assertion by Congress of its authority to set the bounds of tribal inherent authority — beyond where the Supreme Court has held tribal inherent authority to reach — underscores the importance of addressing the question of which branch ought to resolve the issue. This Article proposes a framework drawn from Supreme Court jurisprudence in the field of state sovereignty to argue that when sensitive issues of sovereignty are at stake, the comparative competence of the respective branches must be considered. Unlike any preceding work in this field, this Article proposes a model based on the indicia of institutional competence to suggest that Congress, rather than the courts, is the branch best suited to determine the scope of inherent tribal sovereignty.

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.