American Indian tribal sovereignties and U.S. constitutional democracy do coexist, however fraught their relationship, as institutions, communities, and practices. In relation to one another, the United States is the dominant power; its law paradoxically recognizes that tribal sovereignty predates that of the United States, yet claims plenary, or complete power over tribes, despite this power's lack of a clear Constitutional source. In one view, the survival of tribal sovereignties within and outside of the U.S. law exposes the instability of narratives that anchor the U.S. legal and political postures—for example, the history of intrepid pilgrims and pioneers embraced by the federal government, and its professed commitment to the ideals of liberty, freedom, and equality. But can the ideology, ethos, and national history that the United States embraces be reconciled with those of tribes? Is it possible to institutionally respect all these interests—and if yes, can the U.S. legal system specifically do so?
N. Bruce Duthu's second book, Shadow Nations: Tribal Sovereignty and the Limits of Legal Pluralism, stages an intervention in U.S. constitutional democratic discourse that offers positive answers to these questions. Duthu employs a legal pluralist theoretical framework to seek reformative possibilities for “establish[ing] peaceful, respectful, and enduring relations between divergent societies coexisting within common territories” (p. 5). He recognizes the constraints presented by contemporary constitutional and institutional arrangements, but focuses the most on the obstacle of U.S. ideological commitments to the concept of the unitary nation-state, with but one law for all, to the individual as the liberalism's “bedrock moral unit” (p. 3), and to “ONE national memory” (p. 161). To meet these challenges, Duthu draws from political theory to deftly demonstrate sovereign pluralism's compatibility with liberalism's professed ideals. In the tradition of leading scholars of American Indian law, he adopts an optimistic and pragmatic voice, and displays both ingenuity and a remarkable patience for parsing the field's most damaging landmark cases yet again, to produce novel interpretations that show capacities with respect to his agenda where only limitations had been visible before. The book's beauty especially stems from Duthu's conceptual commitment to rooting his argument in indigenous-centered understandings of “the historico-legal relationship with citizens of the settler state” (p. 115).
However, Duthu's historical narrative betrays the complications of his attempt to reconcile this commitment with the “positional deference” to the state that shapes his argument (a decision he emphasizes is “purposeful”), as “no credible tribal leader in the modern era articulates tribal sovereignty claims with the view towards displacing the state,” (p. 48). His effort to ground his forward-looking program for structural legal pluralism on the repeated historical claim that legal pluralism was the “foundational ethos” of the nation is perplexing. Although law in colonial America and the early Republic was undoubtedly plural, consisting of indigenous, English and natural legal orders, it has rarely been claimed that this pluralism issued from design, and not necessity. Duthu offers little historical evidence to contradict the volume of historical scholarship establishing that the English settlers who founded the colonies and the United States were peculiarly committed, even compared with other European colonists, to segregation, legal domination, and racial homogeneity, before, during, and after the time of the Revolution. Neither historical indigenous perspectives committed to peaceful coexistence with settlers—not detailed here—nor the extent to which the English appropriated Haudenosaunee political concepts suggests that the founders of the United States meant to represent indigenous interests or to lay the structural foundations for a radically plural political order.
Historical claims notwithstanding, Duthu acknowledges that the major premises of federal Indian law are “inevitably and hopelessly mired in the muck of colonialism” (p. 160), and he is steadfast in his call to reject them. Like his first book, Shadow Nations concludes by suggesting the U.S. return to bilateral relations conducted through treaty-making between tribes and the federal government, under the rubric of conventions on tribal sovereignty, to create “a more robust and meaningful form of territorial sovereignty for Indian tribes” (p. 1). In contrast to its substance, Duthu's argument for legal pluralism conforms to conventions of legal argument, in emphasizing the evidence favorable to his argument, minimizing what is not, and forging a formalist claim about the past. But an alternative unitary historical narrative hides how the present narrative division flags the very material conflict between tribes and the United States that makes his program unlikely to be realized.
As his title suggests, Duthu explores the limits of legal argument itself as he rides the paradoxical boundary line between the internal/external that fundamentally characterizes the relationship between tribes and the U.S. law. In choosing to use formal norms of law, he navigates its perils—its tendency to obscure the violence of conquest and the law's material functions and consequences, by operating in the register of universal ideals. In appealing to the U.S. legal institution, as he is no doubt aware, he runs the risk that it will neither listen nor respond. But these pitfalls become visible because Duthu braves engaging with the situation on the ground while refusing to compromise his vision and optimism. Thus, in addition to students of American Indian law, legal and political theory, anyone struggling with the balance between pragmatism and ethics, critique and construction, political theory and practice will learn much from reading Shadow Nations, which raises the most important and challenging questions that such a project can.
