Kirsty Gover

Genealogy as Continuity: Explaining the Growing Tribal Preference for Descent Rules in Membership Governance in the United States

This article presents the findings of a large-scale study of current and historic tribal membership rules contained in the constitutions of federally-recognized tribes. The constitutions of 245 tribes in the lower 48 states are surveyed. The article explains changes in membership governance by reference to changes in the political, legal and social environments of tribes, including especially shifts in federal Indian policy and tribal demography. It discusses the increasing tribal preference for lineal descent and tribal blood quantum rules, relative to older criteria such as parental enrollment, parental residence and Indian blood quantum rules. It explains that these rules are tribe-specific, in contrast to the pan-tribal measures of Indianness and Indian blood quantum used in federal law and policy, and suggests that while tribes deploy familiar administrative mechanisms, such as blood quantum, they increasingly refashion these as measures of genealogy rather than race. It further argues that these rules are a form of tribal self-help, that assist a tribe to repair disruptions in its continuity, especially those occurring as a result of the operation of termination policy.

The Impact of Climate Change Mitigation on Indigenous and Forest Communities: International, National and Local Law Perspectives on REDD+

The Impact of Climate Change Mitigation on Indigenous and Forest Communities is a rich and much-needed new contribution to contemporary understanding of this topic.

A fugitive jurisprudence

I begin this essay by noting the apt analogy proposed by the editors in the book’s introduction, where they say of its title that ‘[t]he pursuit of pluralist jurisprudence is suggestive of a chase, possibly with no quarry in sight’. The object of inquiry, a pluralist jurisprudence, is fugitive in more than one sense: it is both difficult to perceive and to control. Like a wild animal it is prone to escape and return to the commons as ‘fair game’, a res nullius belonging to everyone and no one. The metaphor captures some of the excitement of the open vistas revealed by the contributions to this collection, but also some of the risks, chief among them the possibility of becoming disorientated, and getting lost. When one looks more closely for the object of study, the ‘quarry’, the complexity of the project is immediately apparent. The editors and contributors invite us to consider pluralist jurisprudence from a variety of vantage points, in order to appreciate its perspectival, protean nature. There is one sentence of the introduction, however, in which the editors seem less ambivalent than they are elsewhere. Whatever else may be at stake, ‘pluralist jurisprudence’, Roughan and Halpin say, ‘involves the recognition of non-state law in a way that is independent of both the agency and the authority of states’. It is the idea of recognition, with its subtext of normative evaluation and selection, that appears to me to be the Achilles’ heel of pluralist jurisprudence. Everything turns on the ‘what’ and ‘who’ deemed to activate the noun. If pluralist jurisprudence is to be regarded as a ‘distinctive intellectual discipline’ as the editors hope, theories of recognition will inevitably be recurring features of pluralist inquiry. Michaels’ thoughtful contribution to this collection offers one approach, complete on its own terms, but my feeling is that there is much more to be said, especially about the normative dimensions of recognition.

Indigenous-State Relationships and the Paradoxical Effects of Antidiscrimination Law: Lessons from the Australian High Court in Maloney v The Queen

In this chapter, I consider the precariousness of Indigenous rights to selfgovernance when advanced or defended as nondiscrimination claims. In the absence of settled concepts of Indigenous rights in domestic law, any differential treatment of Indigenous peoples is susceptible to characterisation as a ‘special measure’, designed to ensure substantive equality by addressing Indigenous disadvantage. The special measures justification allows settler governments to defend benefits conferred on indigenous peoples when these are challenged as forms of preferential treatment, consistently with the understanding that special measures and affirmative action are interchangeable concepts (Committee on the Elimination of Racial Discrimination (CERD) 2009). The same logic, however, enables governments to defend coercive measures imposed on indigenous peoples against challenges brought by members of the burdened group. The special measures exception, designed to protect the interests of disadvantaged groups, paradoxically can make it harder for indigenous peoples to challenge settler state unilateralism and paternalism. In this chapter, I address the particular shortcomings of the special measures exception in situations where indigenous peoples are seeking to enforce the relational responsibilities of settler governments. These responsibilities have variously been expressed in settler law as trust obligations, fiduciary duties, government-to-government relationships, and significantly, as duties to consult indigenous peoples about proposed measures affecting their established or claimed rights.