Indigenous Individual Rights: Theory, Praxis and 'Special Privileges'

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Tribal governments before the European invasion had little need for a theory of individual rights. Governmental structures varied widely, but most cultures recognized the right of the tribe to exile a dissenter or the right of a dissenter to go his own way. Subject to these minor disruptions, most tribal cultures were homogeneous. Most modern tribal governments are based upon United States government of a particular time, before sunshine laws and before the due process revolution. These governments remain frozen in the form adopted from the United States while United States government has continued to evolve. As a result, the ability of individual Indians to deal with corruption in tribal government is severely limited. Policies that tend to empower individual Indians do so at the expense of tribal sovereignty, which is why few Indians endorse an expansion of remedies available under the Indian Civil Rights Act. Corruption in tribal governments obstructs attempts to attract capital to Indian Country economies 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 fundamental fairness enforced by Indian laws, public opinion will eventually lead Congress to invoke the plenary powers doctrine in ways that are unpredictable except in that tribal governments will be marginalized on what remains of their own lands.