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Shadow NationsTribal Sovereignty and the Limits of Legal Pluralism$
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Bruce Duthu

Print publication date: 2013

Print ISBN-13: 9780199735860

Published to Oxford Scholarship Online: September 2013

DOI: 10.1093/acprof:oso/9780199735860.001.0001

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Of Guardian and Wards: The Indian as Homo Sacer

Of Guardian and Wards: The Indian as Homo Sacer

(p.74) Chapter 4 Of Guardian and Wards: The Indian as Homo Sacer
Shadow Nations

N. Bruce Duthu

Oxford University Press

The “peculiarization” of American Indians throughout large swaths of American history involved the recognition of social and cultural elements within tribal societies that served to justify, in the minds of the dominant society, the marginalization and suppression of Indian tribes. This chapter examines how this strategy of peculiarization morphed from an ideological conceit into an instrumentality of law that became the underpinning for a radicalized plenary federal power that allowed the national government to empire at will over tribal nations and Indian people. In particular, the chapter considers how legal concepts like incorporation and dependency evolved over the years to inhibit, if not totally suppress, the formative ethos of legal pluralism. In the process, the chapter references the work of Giorgio Agamben and his notion of homo sacer through which he examines the exercise of exceptional sovereign power over an increasingly powerless subject.

Keywords:   peculiarization, incorporation, dependency, Insular Cases, plenary power, comparative pluralism, internal/external sovereignty, federal union, incorporating union, homo sacer, state of exception, constituting power, constituted power, autonomy of potentiality, complete defeasance

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