Connecticut Law Review
Sarah Krakoff, The Virtues and Vices of Sovereignty, 38 Conn. L. Rev. 797 (2006), available at https://scholar.law.colorado.edu/faculty-articles/370.
American Indian tribal sovereignty is viewed very differently in the United States Supreme Court than it is in American Indian tribal nations. The United States Supreme Court, the progenitor of the legal doctrine of tribal sovereignty, appears skeptical of the doctrine's continuing viability. The Court is therefore veering away from any strong notion of retained inherent tribal sovereignty. American Indian tribes, the sources and perpetuators of de facto tribal sovereignty, are more committed than ever to enacting their sovereignty on the ground, as well as promoting and protecting its legal status in the courts and in Congress. There is an ironic feedback loop created by these different conceptions of tribal sovereignty, in that the more tribes exercise their sovereignty in practice, the more frequently conflicts about tribal powers end up being litigated in federal courts, where the skeptical view about the vitality of sovereignty tends to prevail.
The Supreme Court is skeptical of tribal sovereignty for two predominant reasons. First, there is a formalist objection to the paradoxical nature of the legal doctrine. Second, the Court exhibits an inchoate sense that tribal sovereignty is little other than the contradictory doctrine that the Court itself has generated. The tempered sovereignty that tribes possess is therefore in need of a defense. The defense explored in this short essay has a positive and a negative aspect. The positive part of the defense consists first of describing the historical and philosophical pedigree for tempered sovereignty, and then putting forth an argument for tempered sovereignty's virtues. Those virtues include preserving the prerogative of a people to choose a form of government that protects distinct yet evolving cultures. The negative part will wade into discussions of the powers of another sovereign: the United States. As recent legal and historical events reveal, sovereignty in its absolutist formulation has considerable potential for vice. Moreover, the pedigree for absolute sovereignty is no more sanctified than that for divided sovereignty. Given the virtues of tempered sovereignty and the vices of absolute sovereignty, the Supreme Court might want to reconsider its current path.
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