Edited by Susan M. Sterett and Lee D. Walker
Chapter 25: Conflicts in indigenous law: courts and federalism in the United States and common law nations
This chapter offers an overview of the complex and evolving relationship between common law nations and indigenous First Nations, who are neither fully integrated into the dominant social and political institutions nor entirely separate as sovereign political entities. We examine how the United States Supreme Court enabled the devolution of federal obligations to First Nations, which then catalyzed increasing federal delegation of indigenous affairs to states to generate these conflicts. We find that this devolution directly undermines indigenous sovereignty and pushes indigenous rights to state courts, which tend to view Indigenous Peoples as interest groups and associations rather than sovereign Nations. This combination ensures that that indigenous rights are rarely secured either politically or via litigation. We compare these trends to two other common law, federalist democracies with British colonial history: Australia and Canada. Changes in federal policy and federalist delegation of indigenous affairs vary dramatically across these three nations despite their similar colonial histories and approaches to indigenous affairs. In the United States, indigenous policy authority shifted from the federal government to the states, while the opposite trend emerges in Australia, where states had initial authority over indigenous affairs, which increasingly shifted to the (federal) Commonwealth. Finally, indigenous affairs in Canada have largely stayed within the authority of the federal government since colonization. Hence, these three cases aid our evaluation of how shifts of indigenous policy across federalist institutions affect court roles and indigenous rights protections.
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