Structure and Relationship: The Constitutional Dimensions of Federal and Tribal Power in Indian Country
Structure and Relationship: The Constitutional Dimensions of Federal and Tribal Power in Indian Country
In the modern era, the constitutional challenge for policymakers, lawmakers and academics is to articulate a vision for tribal sovereignty that avoids the imperialist impulses of past eras while ensuring that national commitments to liberal democracy and individual freedoms are duly honored and respected by tribal governments. Focusing on the Indian law jurisprudence of Associate Justice Anthony Kennedy, this chapter examines the constitutional limits on Congress’ power to reshape the contours of inherent tribal power. In the process, we consider whether so-called structural limitations emanating from the Constitution may in fact constrain federal power to empire at will in Indian Country. The resulting tensions expose the necessity of envisioning a new institutional architecture by and through which matters of common concern to tribes and the nation-state may be negotiated in bilateral terms.
Keywords: structuralism, federalism, separation of powers, consent of the governed, invisible Constitution, plenary power
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