American Indian tribes have long been recognized as "domestic, dependent nations" within the United States with powers of self-government that operate within the tribes' sovereign territories. Yet, over the years, the Congress, and more recently, the US Supreme Court, have steadily eroded these
tribal powers. In some respects, the erosion of tribal powers reflects the legacy of an imperialist impulse within the nation that operates to constrain or eliminate any political power that may compete with it. These developments have served to move the nation away from its formative commitments to
a legally plural society, or in other words, the idea that multiple nations and their legal systems could co-exist peacefully in shared territories.
This book argues for redirecting the trajectory of tribal-federal relations to better reflect the formative ethos of legal pluralism that
operated in the nation's earliest years. Such efforts will require that we confront and redress a number of ideological, constitutional and institutional challenges that may otherwise impede the important work of revitalizing tribal systems of self-government. From an ideological standpoint, this
means that we must reexamine our long-held commitments to legal centralism, the view that the nation-state and its institutions are the only legitimate sources of law, as well as our commitments to liberalism, the dominant political philosophy that undergirds our democratic structures and situates
the individual, not the group or a collective, as the bedrock moral unit of society. From a constitutional standpoint, establishing more robust expressions of tribal sovereignty will require that we take seriously the concerns of citizens, tribal and non-tribal alike, who will demand that tribal
governments operate consistent with constitutional values. Finally, from an institutional standpoint, these efforts will require a new, flexible and adaptable institutional architecture that is better suited to accommodating these competing interests.
Acknowledgments
Introduction
1. Tribal Sovereignty and Legal Pluralism
2. In the Shadows of the Nation-State
3. Pluralism and Liberalism: Testing the Limits of a Measured Separatism for Tribal Nations
4. Of Guardians and Wards: The Indian as Homo Sacer
5. Structure and
Relationship: The Constitutional Dimensions of Federal and Tribal Power in Indian Country
6. Coming Full Circle: (Re)Building Institutions to Advance the Ethos of Legal Pluralism
Conclusion
Bibliography
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Bruce Duthu is the Samson Occom Professor of Native American Studies at Dartmouth College. An internationally recognized scholar of Native American law and policy, Duthu is the author of American Indians and the Law (2008) and was a contributing author to Felix S. Cohen's Handbook of Federal
Indian Law (2005), the leading treatise in the field. He previously served as professor of law at Vermont Law School and as visiting professor of law at Harvard Law School and institutions in Australia and Italy. He is a member of the United Houma Nation of Louisiana.
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