Document Type

Article

Publication Date

2005

Abstract

As a cure for what ails democracy in a pluralistic modem society, such as ours, Michael Sandel recommends "dispersing" sovereignty to a "multiplicity of [civic republican] communities--some more, some less extensive than nations." He intimates that doing this "may entail according greater cultural and political autonomy to subnational communities," which, in turn might "ease the strife that arises when state sovereignty is an all-or-nothing affair, absolute and indivisible, the only meaningful form of self-determination." He sees in federalism not just a "theory of intergovernmental relations," but a "political vision" that "self-government works best when sovereignty is dispersed and citizenship formed across multiple sites of civic engagement." Although Sandel appears not to have had American Indian tribes in mind when he made these comments, his thoughts have interesting implications for tribes, whose members have retained separate cultural and political identities despite concerted efforts to assimilate them into American society.

This article uses Michael J. Sandel's twin concepts of a civic republican polity and dispersed sovereignty as a starting point for developing a theoretical justification for returning greater political and cultural autonomy to tribes. Republican thinking contains some very useful principles for the cause of enhanced tribal sovereignty. These principles should be persuasive because of the important role they played in the founding of this nation and their continuing relevance to theoreticians struggling to find a harmonic place for difference in our democratic society. However, there is a need to find a way to do this without destabilizing the country's capacity to govern or creating separate racial homelands for tribes. The article suggests that granting tribes a constrained power to nullify laws and policies that diminish their sovereignty may offer a structural solution that assures the continuation not only of Indian tribes as vibrant, unique cultures, but also of the United States as a nation and as a robust, pluralistic, tolerant democratic society. "[T]he moral independence of local nomic communities is not a burden to be tolerated or overcome, but is, instead, an essential part of how we build personal integrity and moral freedom as rooted, situated, and well-constituted selves." In order to reach the article's goal of proposing a new theoretical foundation upon which to build solutions to the problem of tribal sovereignty, much ground must be covered. Part II starts this journey by looking briefly at modern conceptions of sovereignty to see whether granting tribes enhanced sovereignty within the United States would offend archetypical notions of sovereignty. Finding it would not, part II concludes that there is much to be gained by tribes, if they were to succeed in their quest. Part III discusses the basic elements of tribal sovereignty, identifies its principal theoretical sources, and then briefly describes its status at the start of the fifth century of contact with non-Indians. Part III concludes that, despite centuries of ill-conceived federal policies and destructive Supreme Court decisions that have weakened the theoretical sources of tribal sovereignty, Indian tribes have retained sufficient core elements of what it means to be sovereign, as described in part II, to qualify objectively as sovereign entities. Part IV acquaints the reader with classical and contemporary republican principles and discusses three such principles that provide particular support for a more robust tribal sovereignty than exists today, as well as one that might undermine it. Part IV of the article shows that Indian tribes not only deserve and need enhanced self-governing authority to protect what is unique about their communities, it also demonstrates that, despite everything that has happened to them, the tribes have retained sufficient cultural, political, and even territorial separation to qualify as repositories of Sandel's downward dispersed sovereign authority. Part V acknowledges the problems that recognizing difference as a basis for separate sovereignty pose to our national norm of a blended society--as well as to any notion of territorial integrity. However, it argues that modem republican thinking, particularly Sandel's multiply-situated citizen and Frank Michelman's dialogic deliberation, assures the survival of both.

It is not enough to establish a theoretical basis for reinvigorated tribal sovereignty. A practical means for its exercise must be found. Otherwise, the painful history of Indian tribes in this country may still end with their disappearance. Accordingly, part VI examines various practical solutions to the problem of tribal sovereignty and finds each of them wanting in some aspect. The article proposes that tribes be allowed to exercise a constrained power to nullify (or opt out of) laws that diminish their sovereignty. Part VI ends with a brief discussion of how the application of republican principles might make this result palatable to both Congress and the Court.

Publication Citation

2005 Utah L. Rev. 443-571