Tribal Sovereignty, Individual Rights, and the Myth of Special Privileges

Steve Russell, Indiana University

ABSTRACT
Before the European invasion, tribal governments had little need for a theory of individual rights. Governmental structures varied widely, but most cultures recognized the tribe's right to exile a dissenter or the dissenter's right to go his own way. Subject to these minor disruptions, most tribal cultures were homogeneous. Indian Reorganization Act governments are based upon prior U.S. government before sunshine laws and the due process revolution. They have remained frozen while the U.S. government has changed. As a result, individual Indians' ability to deal with corruption in tribal government is severely limited. Policies that empower individual Indians do so at the expense of tribal sovereignty, which is why few Indians endorse expansion of remedies under the Indian Civil Rights Act. Corruption in tribal governments obstructs attempts to attract capital to Indian Country and feeds the myth of Indian "special privileges" at the center of attacks on sovereign immunity, gaming, and treaty rights. The solution is an Indian theory of individual rights enforceable against tribal governments without resort to state or federal courts. Unless Indians bind themselves to a code of fairness enforced by Indian laws, public opinion will lead Congress to invoke its plenary powers in ways that will further marginalize tribal governments on their remaining lands.

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Updated 05/20/2006