Comparative Tribal Constitutionalism Research Program

 

Kirsty Gover

Canada, Australia, New Zealand and the United States

 

Program Director: Dr Kirsty Gover

The Comparative Tribal Constitutionalism Research Program is co-sponsored by Melbourne Law School’s Centre for Comparative Constitutional Studies, Institute for International Law and Humanities, and Centre for Resources, Energy and Environmental Law. Comments, suggestions and expressions of interest can be forwarded to the Program Director, Dr Kirsty Gover, at kgover@unimelb.edu.au. Please also contact Dr Gover to be included on the programme’s mailing list.

 

Tribal constitutions and Self-governance in the Western Settler States

In the western settler states, efforts to implement indigenous self-governance and settle historic land claims have produced a class of officially recognized tribes. As a condition of recognition, tribes are increasingly required to adopt written constitutions, often for the first time. These documents contain the formal rules used by tribal communities to organize and self-govern. They allocate decision-making authority amongst tribal institutions, specify the means by which representatives and decision-makers are to be appointed, define territorial jurisdictions, prescribe law and policy-making processes and provide for dispute resolution fora. The constitutions also contain tribal self-descriptions, including tribal membership criteria. The practice of formal tribal constitutionalism is well underway in these countries, and gaining momentum. Much work goes on in very local settings. To date, these practices have not been the subject of sustained scholarly interest, even while tribal constitutionalism shapes the political theory, governance and constitutional culture of the countries in which it occurs. In this research programme, written tribal constitutions provide a lens through which to observe the rapidly evolving relationship between states, tribes and indigenous communities in the western settler states.
The programme makes use of a newly collated collection of tribal constitutions, comprising 737 constitutions and membership codes, representing 586 tribes. The collection will be continually updated, and made available to researchers on request. All of the groups in the study are officially recognized by the governments of the states in which they are located, and hold communal assets on behalf of their members. All have a historic connection with a pre-contact group or groups, on which their status is premised, and all are territorial, in the sense that part of their self-description is a defined “ancestral” tribal territory or reserved land. For purposes of this comparative study, the groups are named here as recognized tribes, with the caveat that terminology varies from country to country and the word “tribe” is not in use in some jurisdictions.

The program aims to engage indigenous and non-indigenous scholars, practitioners and policy-makers involved in tribal governance and institutional design. Its goal is to advance thinking on the ways in which tribes self-govern and regulate their relationships with other governments and communities (including other tribes and indigenous groups). Tribal documents provide a formal back-drop for further inquiries into tribal methodologies and strategies. It is hoped that research undertaken in the project will complement and inform work underway on indigenous interests in the more established fields of human rights, comparative constitutional studies, public and private international law, and sociolegal studies. The program is organized around five broad thematic strands:

  1. Tribal self-constitution through membership governance. This is the first-order question of tribal self-governance. By selecting their members, tribes define their jurisdictions. What strategies do they pursue in membership governance?
  2. Checks and balances and procedural justice provisions. How do recognized tribes allocate power amongst governing bodies and what mechanisms exist to restrain governance power exercised by elected officials?
  3. Inter-indigenous relations, boundary-setting and agreement-making. What strategies are used by recognized tribes to share power, conserve resources and maximize efficiency through collaboration with other indigenous communities? What forms do these agreements take? What evidence of inter-indigenous comity is evident in tribal constitutionalism?
  4. Formal constraints operating on tribes in constitutional design, including demands made and enforced via agreement or judicial determination. What form do these constraints take? How many are specific to tribal governments (as opposed to generic national provisions binding all governments)? How are these constraints enforced? Under what circumstances are they imposed (as a condition of recognition, as a sanction, or as a result of changes in ambient public law and policy?)
  5. Informal incentives and pressures operating on tribes, namely the influence of demographic and economic change, and of opportunities for market participation.

Back-drop and Rationale

The opacity of tribal self-governance

Inquiries into tribal constitutionalism have been made more difficult by the opacity of tribal self-governance. Tribal constitutions themselves are often not part of the official public record, kept by settler governments. While most tribes are required to prepare a written constitution as a condition of recognition, most are not thereafter required to publish one. As a consequence, questions about tribal self-governance tend to be debated as matters of normative principle and policy, rather than by reference to tribal practice, and with a focus on the acts and omissions of settler governments. There has been a corresponding lack of attention to the tribal experience of tribal self-governance, and the ways tribal communities formally assign and allocate authority to their representatives. An important body of legal and theoretical scholarship evaluates settler state policies on tribal self-governance. There are also illuminating studies of tribal self-governance in particular communities. This research programme aims to complement that work by contributing a different set of ideas and information to the field, namely a comparative analysis of tribal constitutionalism, as it is practiced by recognized tribes as a distinct class of political actors.

The sui generis quality of tribes and tribal constitutionalism

Tribes are sui generis in the constitutional frame of settler states. Their jurisdictions are usually defined by negotiated agreement with settler governments, or by the terms of a judicial pronouncement (and sometimes by both). These instruments are ordinarily issued as either as part of the settlement of a historic land claim, or a formal recognition process. There are strong differences in the scope and type of jurisdiction exercised by tribes in Australasia and North America respectively. However, formal jurisdictional arrangements (such as agreements and pronouncements and legislation) also contain evidence of transnational policy sharing. These point to an emerging consensus on what sorts of substantive policy areas “belong” within the jurisdictions of tribes. They are in turn reveal the ideas circulating in public law and policy about what tribes really “are” and “do”, but do not offer much traction on the question from the perspective of tribal communities themselves.

Despite the specificity of intergovernmental arrangements, tribal jurisdictions share characteristics that distinguish them from those of other governments. First, their jurisdiction is primarily consent-based. It is largely confined to members, and to persons who have consented to be governed by tribal law. Secondly, tribal jurisdiction is usually defined by reference to ancestral or reserved territories, regardless of what proportion of their membership is resident on those territories, and regardless of whether the governing body is itself “in situ”. As a result, tribal governments represent members wherever they reside, but many services are provided only on reserved or ancestral territory, and tribal authority in respect of land or resources is confined to that territory. Their human and territorial boundaries accordingly overlap with those of other local governments, in complex ways. This is true notwithstanding the fact that in most cases their primary constitutional relationship is with the central or federal government of the countries in which they live, rather than local governments.

The increasing prominence of tribes in national governance

As a result of claims settlement and self-governance, tribes are increasingly important players in national governance. Non-tribal governments are obliged to make space for the operation of formal tribal jurisdictions within the constitutional framework of the state. Tribal self-governance has operated since pre-colonial times, but its new formality and legibility raises many novel questions of boundary placement. These occur both in respect of human boundaries, for instance where the constituencies of governments overlap, and territorial boundaries, where there is imperfect alignment between tribal boundaries and those used to organize the administrative structure of the state. Scholarship has tended to define tribal jurisdictions in the negative, by focusing on the degree to which public governance is or should be constrained to allow for tribal law-making. There has not been a focus on the ways in which tribal communities define and express their own jurisdiction. The lacunae has practical and methodological import. For example, very little attention has been paid to tribal practices of delegating or sharing powers to which they are formally entitled, through arrangements with other governments. Such practices are relatively common however, as is evidenced in the frequency of agreements between tribal and local governments on policing, service-provision and resource management. Focusing on the negative space in which tribal self-governance operates perpetuates a bias in the field towards the actions of states. It does not sufficiently account for tribal policy-making on jurisdictional issues.

The transformative impacts of tribal constitutionalism on indigeneity

Tribal constitutionalism is a transformative process. It creates new human and territorial boundaries between indigenous communities and recreates longstanding social and cultural boundaries as legal ones. These position tribal communities in formal, jurisdictional relation to one another and to non-tribal indigenous communities. Inter-indigenous boundaries created and reinforced by tribal constitutionalism operate across and within the administrative boundaries used to allocate power amongst settler governments. This adds a layer of indigenous multilateralism to the more visible bilateral relationship between tribes and states. The possible emergence of a semi-autonomous “inter-indigenous” order of governance is consequently of some significance for the political theory of the settler states. Inter-indigenous relations and boundaries on which they are based often predate the acquisition of sovereignty by settler governments, and operate largely independently of their preferences. The inter-indigenous dimensions of tribal governance rarely appear in jurisdictional agreements, since they do not directly implicate the relationship between settler governments and tribes. These arrangements are, however, more likely to be referenced in the governing documents of tribes, as part of the mandate granted by a tribal community to its governing body and officials. These show tribes positioning themselves relative to other political actors. Boundary-placement is the mechanism by which tribes form their constituencies.

Tribal constitutionalism is a field that promises to yield insight on the ways in which the practice of tribal and indigenous self-governance influences settler societies.