Tribal Constitutionalism States, Tribes, and

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.

Kirsty Gover is a Senior Lecturer at Melbourne Law School and directs the Law School's Comparative Tribal Constitutionalism Research Program. Her research and publications address the domestic and international law, policy and political theory of indigeneity and indigenous self-governance. She has worked as a senior advisor and consultant to New Zealand's Ministry of Maori Development and Ministry of Justice, on international and domestic policy on indigenous peoples, and taught in this field at the University of Canterbury Law School.

Table of Cases	p. xix
Table of Legislation	p. xxi
	p. 1
Tribal Membership Governance and the Cultural Production of Indigeneity: Reflecting Inter-indigenous Recognition in Public Policy	p. 10
Introduction	p. 10
Recognition in Pluralist Theory: Giving Public Meaning to Culture	p. 14
Culture, continuity and constitution: the recognition and transformation of tribal communities	p. 17
'New culture' and the cultural production of indigeneity	p. 19
Recognition of cultural production: human boundaries in relational pluralism	p. 22
New culture and its discontents: consequences for indigenous continuity claims	p. 27
Tribal Practice: Enrolment and Recognition in Tribal Membership Governance	p. 31
Tribes are descent-based communities but self-constitute relationally	p. 31
Tribes use tribe-specific definitions of descent and also recruit non-descendants	p. 32
'Descent' can be reframed to serve tribal purposes	p. 32
The descent class is supplemented by rules allowing the enrolment of non-descendants	p. 36
Tribes sometimes include non-descendants as honorary, associate, and probationary members	p. 38
Shared residency is not an essential element of constitutionalized tribalism	p. 40
Tribes use concepts of indigeneity in the governance of membership	p. 41
Tribes recognize indigeneity when they express a preference for indigenous applicants	p. 41
Tribes recognize indigeneity when they limit the eligibility of persons enrolled in other tribes	p. 43
Voluntary and associational characteristics of tribes: resignation and disenrolment	p. 45
Operationalizing Indigenous Recognition Practices in Public Law and Policy	p. 47
Tribal and indigenous demography: what is at stake and for whom?	p. 48
Public categories: indigenous people and tribes	p. 53
Conclusion	p. 61
Tribalism Constitutionalized: The Tribal Governance of Membership in Australia, Canada, New Zealand, and the United States	p. 67
Introduction	p. 67
Tribal Constitutions: Legibility and Accessibility	p. 68
Publicity rules: tribes are usually not required to publish their constitutions	p. 71
The Substance of Tribal Membership Regimes	p. 76
Mandatory regimes: the meaning of descent	p. 77
New Zealand	p. 87
Australia	p. 89
Canada	p. 90
The United States	p. 92
Multiple Membership	p. 94
Loss of Membership	p. 98
Conclusion	p. 104
Descent and Genealogy: The Changing Landscape of Tribal Membership Governance in the United States	p. 108
Introduction	p. 108
Race, genealogy, and tribes: normative controversies	p. 111
Indianness v Descent	p. 113
Indian blood v Tribal blood: the federal and tribal use of blood quantum rules	p. 114
Formal Federal Influences on US Tribal Constitutionalism	p. 116
Legislative mandates for secretarial review	p. 117
Congressionally restored tribes: federal interventions on membership	p. 120
Census rolls and base rolls: the legal meaning of descent	p. 121
The Federal Concept of Blood Quantum and Its Enduring Influence on Tribes	p. 123
Indian blood quantum and the sovereign status of tribes	p. 125
Changes in Tribal Membership Governance: The Genealogic Shift	p. 130
Constitutional amendments	p. 130
Changes in membership governance: 1941-2008	p. 132
Changes to descent rules	p. 132
Changes to discretionary incorporation rules	p. 133
Changes to multiple membership rules	p. 133
Explaining Membership Changes: The Mutual Influences of Ideology, Money, and Documentation	p. 134
IRA-era constitution making: creating tribes by organizing Indians	p. 134
Establishing the Indianness of tribes: organizing persons of one-half or more Indian blood	p. 139
The Act's ideal type and tribal migrations: setting the scene for termination policy	p. 143
Termination policy	p. 147
The impact of demographic and policy change on post-IRA membership governance	p. 150
Conclusion	p. 155
Tribal Constitutionalism and Historic Claims: The Impact of Claims Settlement on Tribal Membership Governance in Australia and New Zealand	p. 157
Introduction	p. 157
The Normative Challenge of Tribal ConstitutionalismùThe Consequences of Formalizing Membership Rules	p. 159
Formalization of tribal membership: anxieties and assumptions	p. 161
Claims processes: Australia and New Zealand	p. 167
Choosing tribal boundaries: the impact of public law and policy on the external boundaries of tribes	p. 170
The Function of Descent Rules in the Claims Process and Post-claim Tribal Governance	p. 176
Maoriness and membership in New Zealand: descent and the Treaty settlements process	p. 181
Competing official and tribal concepts of descent: Australia	p. 190
Indigeneity and membership in Australia: debates about descent in the native title process	p. 199
Separating Culture and Governance: Strategies for Managing 'Membership Juridification'	p. 202
Conclusion	p. 207
Conclusion	p. 209
List Of Tribal Constitutions And Codes	p. 213
Tribal Membership in The United States-Charts	p. 235
Bibliography	p. 245
Index	p. 265
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Tribal Constitutionalism States, Tribes, and the Governance of Membership

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