(Tribal) sovereignty and illiberalism

California Law Review

Volumn 95, Issue 3, 2007, Pages 799-848

  Riley, Angela R ^a,b  

^a UNIVERSITY OF OKLAHOMA   (United States)

^b Southwestern Law School

Author keywords

[No Author keywords available]

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EID: 34548611404     PISSN: 00081221     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Review

References (17)

1. See LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAW 974 (1978) (discussing the conflict between freedom and equality).
2. See Margaret Jane Radin, Market-Inalienability, 100 HARV. L. REV. 1849, 1887 (1987);
3. see also John Rawls, The Idea of an Overlapping Consensus, 7 OXFORD J. LEGAL STUD. 1, 4-5 (1987).
4. For a definition of "illiberal" see infra Part I.
5. JOHN RAWLS, POLITICAL LIBERALISM 6-7 (1993).
6. CHARLES F. WILKINSON, AMERICAN INDIANS, TIME, AND THE LAW: NATIVE SOCIETIES IN A MODERN CONSTITUTIONAL DEMOCRACY 14, 16 (1987) (asserting that a central thrust of federal Indian law is to create a "measured separatism").
7. See WILL KYMLICKA, MULTICULTURAL CITIZENSHIP: A LIBERAL THEORY OF MINORITY RIGHTS 166-67 (1995). My analysis is limited to tribal governments' authority over their own members. Tribal authority over nonmembers implicates other issues beyond the scope of this paper.
8. See, e.g., The Major Crimes Act, 18 U.S.C.A. § 1153 (2006), passed in response to Ex parte Crow Dog, 109 U.S. 556, 571 (1883), in which the Supreme Court held that tribes have exclusive jurisdiction over crimes committed by an Indian in Indian Country. Crow Dog caused much controversy, because the Sioux imposed a traditional penalty on Crow Dog for murdering Spotted Tail: Crow Dog's people agreed to pay Spotted Tail's people $600, eight horses, and one blanket. Reformers were outraged and succeeded in convincing Congress to extend federal criminal jurisdiction over Indian Country.
9. See infra Part I.
10. 436 U.S. 49, 61 (1978).
11. Id. (holding, inter alia, that there is no jurisdictional basis upon which a federal court can review an Indian Civil Rights Act claim, unless it involves a habeas corpus action).
12. I supply this caveat because many of the tribal practices and customs labeled "illiberal" are in fact much more nuanced and complicated than critics realize. For example, a tribe's de-emphasis on individual rights may reflect communitarian values rather than opposition to liberal values. Nevertheless, it is not my goal here to argue that tribes are not "illiberal." Instead, I seek to show how imposing liberal norms onto Indian tribes will result in homogenization, assimilation, and cultural destruction.
13. See, e.g., Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 901 (2d Cir. 1996) (holding that permanent banishment ordered by the tribal council is a punitive sanction, and as such is a "sufficiently severe potential or actual restraint on liberty" to justify federal habeas review under ICRA); Quair v. Sisco, 359 F. Supp. 2d 948, 971 (E.D. Cal. 2004) (following Poodry, holding that disenrollment and banishment are equivalent to "detention" such that federal habeas review under ICRA is authorized).
14. Santa Clara Pueblo, 436 U.S. at 61.
15. See, e.g., KYMLICKA, MULTICULTURAL CITIZENSHIP, supra note 6, at 169-70 (arguing that liberalism need not impose its values on illiberal minority groups and can tolerate illiberal values to the extent they are not inconsistent with respect for individual autonomy);
16. Nomi Maya Stolzenberg, The Return of the Repressed: Illiberal Groups in a Liberal State, 12 J. CONTEMP. LEGAL ISSUES 897, 939 (2002) (examining how liberalism does not treat all illiberal groups consistently, leading in some cases to destructive effect, but in others to supportive effect);
17. Gerald Doppelt, Illiberal Cultures and Group Rights: A Critique of Multiculturalism in Kymlicka, Taylor, and Nussbaum, 12 J. CONTEMP. LEGAL ISSUES 661, 692 (2002) (concluding that true liberalism requires honoring liberal values at all levels and in all categories, whether individual/group, majority/minority, or cultural/political);