has consequences for tribal culture, member well-being, and even tribal survival. The development of tribal constitutions—and sovereign status through constitutionalism—is poorly understood. Certain tribes constitutionalized early, seeking to protect their interests, but the 1871 Dawes Act intentionally sought to erode tribal sovereignty through assimilation. It was not until 1934, with the passage of the Indian Reorganization Act (IRA), repealing the Dawes Act, that tribes were actively encouraged to adopt constitutions.
The Tribal Constitutions Project examines the evolution of tribal sovereignty though constitutionalization. We have gathered more than 2,000 tribal constitutions passed between 1934 and 2020, to study the structures of self-governance in the development of tribal sovereignty.
Tribes develop structures of governance for many reasons. Some of these structures developed within a system of federal constraints, their nature being externally inflicted on the tribe. Others were designed to stave off federal involvement. Still others to reflect distinctly Indigenous priorities or history. We examine the development of sovereignty in three areas:
tribal sovereignty and constitutional path dependency
How should we evaluate the development of tribal sovereignty in light of the colonial origins of tribal constitutionalization? The literature on the IRA constitutions is full of contradictions about the intentions of the federal government in early constitutions. How much did that early involvement determine tribal sovereignty, and to what extent do these early constitutions dictate the trajectory of tribal governance?
constitutions, culture, and citizenship
American Indian identity is unique, in that it does not derive mainly from self-identification, but from an interaction of federal law, tribal constitutional sovereignty, citizenship, and institutional definitions. To be Indian in modern America is to be both American and not American (Porter 1999). While most Americans view “Native” as just another racial group, racial identity for Indians has always been a confluence of legal, economic, social, and political factors. The dividing line between mixed-race Indian and non-Indian is one of the most significant definitions in tribal life (Prucha 1973, Tallbear 2013), so much that Cook-Lynn (2001) compared being mixed-blood to being “voiceless”. Given its paramount import, tribal membership – its definition and evolution – has naturally produced one of the richest literatures in Native American studies (e.g. Champagne et al. 2005; Doerfler 2012, 2015). Indeed, the federal government itself played an extensive role in constructing, limiting, producing, and perverting tribal membership (Goldberg 2002).
Constitutions are thought to reflect and sometimes create a “people”. Tribes as nations derive their right to determine citizenship from more than 2,000 treaties and quasi-treaties signed with the federal government. This right has been tempered by historic forms of cultural genocide designed to explicitly reduce tribal enrollment so more land might be made available for White settlement. While most scholars discuss the ‘blood quantum’ as a colonial construct, this project traces the definition of tribal citizenship through constitutions to understand how citizenship develops in tangent with other tribal institutions and forms of sovereignty.
legislative power and the development of tribal sovereignty
What are the various ways legislative power is constructed in tribal constitutions? How have different constitutional choices impacted the expansion (or diminution) of tribal sovereignty? Tribal constitutions are diverse in their approaches to structuring legislative authority. Legislative responsibility can lie with all tribal members, or with delegated representatives, and can be structured through tribal councils or delegated to subject-matter specific committees. The demarcation between legislative and administrative power can be blurred. Drawing on our unique database, we assess whether institutional design matters for the nature and expanse of a legislative areas and how tribes structure their governments to practically administer their sovereignty.
with Erin F. Delaney, Professor of Law, Northwestern Pritzker School of Law
National Science Foundation, section on Law and Society
Cook-Lynn, Elizabeth. 2001. Anti-Indianism in Modern America : A Voice from Tatekeya’s Earth. Urbana: University of Illinois Press.
Porter, Robert B. 1999. “Demise of the Ongwehoweh and the Rise of the Native Americans: Redressing the Genocidal Act of Forcing American Citizenship Upon Indigenous Peoples, The.” Harv. BlackLetter LJ 15:107.
Prucha, Francis Paul. 1973. Americanizing the American Indians. Cambridge, Mass: Harvard University Press.
Tallbear, Kim. 2013. Native American DNA. Minneapolis: University of Minnesota Press.