Indigenizing Legal Republicanism

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Article

Abstract

This Article proposes and evaluates a synthesis of neorepublican legal theory and Indigenous peoples law and philosophy. Neorepublican legal theory, a critical reappraisal of legal republicanism, is a philosophy of law as a means to eliminate (or to minimize) domination and thus to secure for all of us a rich, deeply felt freedom. Domination is not simply overwhelming force or power; it is subjection to another's will, the potential for public or private interference when that potential is not democratically constrained. Shaped substantially by antislavery constitutionalism, neorepublican legal theory affords powerful critiques of oligarchy and empire. Yet there has been little neorepublican engagement with Indigenous justice and little Indigenous engagement with neorepublicanism. The dearth is understandable but warrants revisiting. In theorizing at the convergence, the Article addresses preliminary questions: If neorepublican legal theory demands each person's liberation and active government to achieve it, then what does that mean for Indigenous peoples and for Indian country? Should we use the republican idiom to achieve Indigenous justice nevertheless? Indigenizing legal republicanism offers promise but also peril. On one hand, neorepublicanism can be useful in reframing Indigenous peoples law to uncover widespread domination, often judicially sanctioned. In addition, reinterpreting the United States' constitutional commitment to republican government could transform the federal government's relationships with Indigenous peoples. Indigenous peoples law and philosophy in turn has much to offer neorepublican theory writ large; Indigenous understandings of dependence and interdependence challenge widespread assumptions that dependence of any kind amounts to domination. On the other hand, neorepublicanism is a universalist philosophy and thus risks sustaining aspects of colonialism, despite being premised on Indigenous consent and contestation. Reengaging Indigenous intellectual traditions, the Article proposes, could enable valuable collaboration in refining the neorepublican idiom consistent with Indigenous justice.

https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5123218

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