Tribal Constitutionalism

Recognized tribes are increasingly prominent players in settler state governance, but in the wide-ranging debates about tribal self-governance, little has been said about tribal self-constitution. Who are the members of tribes, and how are they chosen? Tribes in Canada, Australia, New Zealand and the United States are now obliged to adopt written constitutions as a condition of recognition, and to specify the criteria used to select members. Tribal Constitutionalism presents findings from a comparative study of nearly eight hundred current and historic tribal constitutions, most of which are not in the public domain. Kirsty Gover examines the strategies adopted by tribes and states to deal with the new legal distinction between indigenous people (defined by settler governments) and tribal members (defined by tribal governments). She highlights the important fact that the two categories are imperfectly aligned. Many indigenous persons are not tribal members, and some tribal members are not legally indigenous. Should legal indigenous status be limited to persons enrolled in recognized tribes? What is to be done about the large and growing proportion of indigenous peoples who are not enrolled in a tribe, and do not live near their tribal territories? This book approaches these complex questions head-on. Using tribal membership criteria as a starting point, this book provides a critical analysis of current political and sociolegal theories of tribalism and indigeneity, and draws on legal doctrine, policy, demographic data and tribal practice to provide a comparative evaluation of tribal membership governance in the western settler states.

"Two prominent scholars of American Indian law and politics undertake a full historical examination of the relationship between Indians and the United States Constitution that explains the present state of confusion and inconsistent application in U.S. Indian law." -- Jacket.

"Drafting and adopting a constitution is a collective journey of self-discovery and reflection for any nation, Indigenous or non-Indigenous. This book is a guide for communities engaged in the process of drafting a constitution and for students who are studying that process. It draws on research, firsthand experience with constitution writing and constitutional change, and numerous examples from actual governing documents to demonstrate the many ways that Indigenous nations can structure their sovereignty"--UCLA American Indian Studies Center Publications website.

"In this work, Keith Richotte explores Native American tribal constitutional history in order to, as he argues, decenter the U.S. federal actors, laws, and policies from the study of tribal constitutionalism and instead refocus attention back onto tribal members, underlining their agency and importance. Richotte uses the Turtle Mountain Band of Chippewa Indians as a case study and follows the tribe's history in forming its own 1932 constitution, detailing every step and decision taken, good and bad, in its creation. He shows that the tribe's dominant political goal was pursuing a claim against the federal government for the damages it suffered during the establishment of its reservation and the negotiations for a treaty. However, political forces in and outside the tribe pushed the decision to a compromise, and the tribe adopted a constitution that limited their own authority while keeping open the possibility of later claims against the U.S. Federal government. Importantly, all of this took place before the Indian Reorganization Act - the piece of federal legislation most associated with modern tribal constitutionalism - became law, making Turtle Mountain's path to its own constitution a story of tribal agency, one that disrupts the commonly held idea that IRA lies at the epicenter of tribal constitutionalism"--

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, Congress and the Supreme Court have steadily eroded these tribal powers. In some respects, the erosion of tribal powers reflects the legacy of an imperialist impulse to constrain or eliminate any political power that may compete with the state. These developments have moved the nation away from its early commitments to a legally plural society--in other words, the idea that multiple nations and their legal systems could co-exist peacefully in shared territories. Shadow Nations 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. From an ideological standpoint, this means that we must reexamine several long-held commitments. One is to legal centralism, the view that the nation-state and its institutions are the only legitimate sources of law. Another is 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 demand that tribal governments operate consistently with basic constitutional values. From an institutional standpoint, these efforts will require a new, flexible and adaptable institutional architecture that is better suited to accommodating these competing interests. Argued with grace, humanity, and a peerless scholarly eye, Shadow Nations is a clarion call for a true and consequential rethinking of the legal and political relationship between Indigenous tribes and the United States government.

Tabled document no. 63-12 (6) tabled on Nov. 10, 1994.

This book explains how colonial legacies and the postcolonial state of Pakistan negatively influenced the socio-political and cultural dynamics and the security situation in Pakistan’s Pashtun ‘tribal’ areas, formerly known as the Federally Administered Tribal Areas (FATA). It offers a local perspective on peace and conflict resolution in Pakistan’s Pashtun ‘tribal’ region. Discussing the history and background of the former-FATA region, the role of Pashtun conflict resolution mechanism of Jirga, and the persistence of colonial-era Frontier Crimes Regulations (FCR) in the region, the author argues that the persistence of colonial legacies in the Pashtun ‘tribal’ areas, especially the FCR, coupled with the overarching influence of the military on security policy has negatively impacted the security situation in the region. By focusing on the Jirga and Jirga-based Lashkars (or Pashtun militias), the book demonstrates how Pashtuns have engaged in their own initiatives to handle the rise of militancy in their region. Moreover, the book contends that, even after the introduction of constitutional reforms and FATA’s merger with the Khyber Pakhtunkhwa province, little has changed in the region, especially regarding the treatment of ‘tribal’ Pashtuns as equal citizens of Pakistan. This book explains, in detail, why indigenous methods of peace and conflict resolution, such as the Jirga, could play "some" role towards long-term peace in the South Asian region. Historically and contextually informed with a focus on North-West Pakistan, this book will be of interest to academics researching South Asian Studies, International Relations, Peace and Conflict Studies, terrorism, and traditional justice and restorative forms of peace-making.

Examines 73Rd Constitutional Amendment Which Gives Political Decentralization To The Tribal Women. Covers Bhils-Panchayati Raj Institutions Etc. Has 7 Chapters And An Annexure, Bibliography And Index.