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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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Coming Full Circle: (Re)Building Institutions to Advance the Ethos of Legal Pluralism

Coming Full Circle: (Re)Building Institutions to Advance the Ethos of Legal Pluralism

(p.162) Chapter 6 Coming Full Circle: (Re)Building Institutions to Advance the Ethos of Legal Pluralism
Shadow Nations

N. Bruce Duthu

Oxford University Press

The political theorist Duncan Ivison urged nation-states and indigenous groups to pursue what he called an “institutional design approach” to encourage dialogue between the parties on matters of mutual interest and concern. For Ivison, the intent is to facilitate the “circulation of power between authorities, rather than allowing its systematic unequal accumulation.” This chapter examines several of the most prominent legal and political institutional arrangements that have been or might be employed to mediate the varied and sometimes conflicting interests of the nation/state and tribal groups. These include continued reliance on (federal) statutory protections, amendments to the national constitution, and the revival of treaty making. Ultimately, this chapter rejects all of those models and urges the pursuit of a form of bilateral nation-building called conventions on tribal sovereignty, a mode of intergovernmental discourse founded on mutual respect and peaceful coexistence. This arrangement offers the best hope for redirecting the trajectory of tribal-federal relations to better reflect the formative ethos of legal pluralism.

Keywords:   institutional design approach, juridical assimilation, sovereignty of sufferance, treaty federalism, conventions on tribal sovereignty

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