Comparative Tribal Constitutionalism: Membership Governance in Australia, Canada, New Zealand, and the United States

Abstract

In the “self‐governance era” of indigenous‐state relations, there is a growing interest in the first‐order question of tribal governance: who are the members of recognized tribes, and how are they chosen? Tribal constitutions contain formal tribal membership criteria but are not ordinarily in the public domain. This article presents findings from a study of the membership rules used in more than seven hundred current and historical tribal constitutions and codes. It offers a comparative analysis to explain significant differences between North American and Australasian tribal constitutionalism, particularly in the administration of descent, multiple membership, and disenrollment. It advances the argument that tribes self‐constitute in ways that are more relational and less ascriptive than is suggested in current political theory and policy; that existing representations of tribes obscure nontribal expressions of indigeneity, on which tribes depend; and that these expressions should be officially supported in public law and policy.