The Harvard Law Review has published "Indigenous Constitutionalism," by Tanner Allread (University of California, Los Angeles). The abstract:
By standard accounts, there are fifty-four constitutions across the
federal, state, and territorial governments of the United States. But in
fact, there are 230 other governmental constitutions that currently
govern peoples and territories within the United States. These
constitutions not only flow from a sovereignty that existed prior to the
United States but also came out of a legal movement that asserted its
independence from both the U.S. Constitution and state constitutions.
This
Article tells the story of these constitutions — the constitutions of
Native nations. Having existed for over two centuries with an archive of
thousands of constitutional documents and amendments, tribal
constitutions have been left out of the narratives of American
constitutional history while being obscured within the fields of
American constitutional law and federal Indian law. This Article
corrects these oversights and calls for the recognition of a tradition
of “Indigenous constitutionalism” in the United States.
This
Article’s aims are both theoretical and historical. On one hand, it
conceptualizes Indigenous constitutionalism as a distinct and shared
constitutional practice through which Native nations claim and exercise
self-governance while embedded in the wider constitutional — and
colonial — landscape of the United States. On the other hand, this
Article draws Indigenous constitutionalism’s features from the
two-hundred-year history of tribal constitutions. It explores, for the
first time, three major eras of tribal constitutional development: the
first constitutions during the early nineteenth-century period of Indian
Removal, the explosion of constitutions under the Indian Reorganization
Act in the early twentieth century, and the movement for tribal
constitutional reform that has stretched from the late twentieth century
to today.
But this Article also brings theory and history
together to rethink the prevalent narratives surrounding tribal law,
federal Indian law, and American constitutionalism. Indigenous
constitutionalism reveals the fundamental and persistent questions
around which a tribal constitutional law framework can be constructed.
It also revises the origin stories of federal Indian law, demonstrating
that the field did not coalesce in isolation from tribal law but was
actually cocreated with tribal constitutions. Finally, by placing tribal
constitutions into conversation with other American charters,
Indigenous constitutionalism disrupts and expands the category of
constitutionalism itself. This Article demonstrates that tribal
constitutions — unique among American constitutions — showcase how these
documents can appear in many forms, function as external-facing
declarations of sovereignty, and exist alongside other forms of
fundamental law.
-- Karen Tani
