Kansas Journal of Law & Public Policy
Kristen A. Carpenter, Considering Individual Religious Freedoms Under Tribal Constitutional Law, 14 Kan. J.L. & Pub. Pol'y 561 (2004-2005), available at https://scholar.law.colorado.edu/faculty-articles/465.
As American Indian nations revitalize their legal systems, there is renewed interest in "tribal law," that is, the law of each of the Indian nations. Today, there is a particular focus on the subject of "individual rights" under tribal law. In tribal contexts, people are highly interested in the legal institutions and rules that govern their lives, especially as many tribal communities are experiencing a period of great political, social, and economic change. At the national level, the Supreme Court repeatedly expresses concern about whether individuals, especially non-Indians, will be treated fairly in tribal court. For scholars, individual rights under tribal law raises a number of issues including potential tension between individual rights and the collective interests and cultures of Indian tribes, the expectation of reservation residents that the law will protect their individual rights, and the meaning of tribal sovereignty in the contemporary era. For those outside the Indian law field, the question of American Indians' individual rights in tribal settings seems to inspire reflection on the broader question of individual rights under law.
This Article enters the discussion about individual rights under tribal law by considering the specific area of individual religious freedoms. It explores, in the religious freedoms context, an emerging scholarly consensus that the presence of individual rights in tribal settings represents the assimilation of tribal law, institutions, and peoples. By examining historical and contemporary sources on individual freedoms under tribal law, the article concedes that the scholarly critiques offer important cautions. It argues, however, that tribes may be able to implement constitutional provisions on individual religious freedoms in ways that enhance tribal communities and advance sovereignty.
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