Indigenous, Indian, and Aboriginal Law | Law and Philosophy | Legal Theory
This essay shows the ways that, despite apparent contradictions, tribal claims fit within the liberal and republican strands of American democratic theory. Critics of tribal sovereignty and, I believe, the modern Supreme Court, are influenced by the seeming conflict between tribal interests and a liberal philosophical framework. I argue that properly understood, most tribal claims do fit within classical liberal theory, with its emphasis on equality and freedom. It is true that some tribal claims are distinctly those of groups or peoples, and so cannot be adequately captured by an individualist liberal framework. Drawing on the later work of John Rawls, however, I show that even these claims fit within a liberal theory of the rights of peoples. Despite this, liberalism, with its neutrality towards conceptions of the good and its emphasis on formal equality, may still fall short in capturing the nuances of tribal legal claims. I argue that the second dominant strain of American political philosophy, the communitarian or republican strain, may better capture these elements of tribal claims to justice. I conclude by proposing an approach that combines these two strands of American democratic theory and discuss several Supreme Court decisions that utilized this approach.
Berger, Bethany, "Liberalism and Republicanism: in Federal Indian Law" (2006). Faculty Articles and Papers. 198.