TRIBALISM AND DEMOCRACY.

• Author: Davis, Seth

TABLE OF CONTENTS INTRODUCTION 433 I. "DEMOCRACY" AND "TRIBALISM" 438 A. Democracy 438 B. Tribalism 441 II. THE INCOMPATIBILITY THESIS 445 A. Political Tribes and Democracy 445 B. The Incompatibility Thesis in Federal Indian Law 449 1. Within U.S. Territory, but Outside American Democracy? 450 2. Indian Tribalism as a Threat to American Democracy 453 a. The Incompatibility Thesis Within the History of Federal Indian Law 453 b. The Democratic Deficit Claim as a Modern Example of the Incompatibility Thesis 456 C. The Incompatibility Thesis's Essentialism 461 III. THE COMPATIBILITY THESIS: INDIAN TRIBALISM AND AMERICAN DEMOCRACY 464 A. Indian Tribalism and Self-Government 465 1. Rights, Powers, and Votes 465 2. The Democratic Deficit in American Colonialism 467 3. Indian Tribalism and the Structure of American Democracy 468 a. Participatory Democracy 469 b. Democratic Pluralism: Tribes and / as Interest Groups 470 c. Tribes and National Democratic Deliberations 473 B. Democratic Practices of Negotiation and Compromise in Indian Country 477 1. Negotiated Federalism 477 2. Negotiations in Indian Country 479 C. Tribalism, Democracy, and Historical Memory 482 CONCLUSION 486 INTRODUCTION

There is a specter haunting American democracy--the "retreat to tribalism." (1) "Tribalism," it seems, is to blame for authoritarianism, (2) and for moral absolutism, (3) and even for the questioning of truth itself. (4) To describe "American politics today requires a word as primal as 'tribe' to get at the blind allegiances and huge passions of partisan affiliation." (5) Destructive "tribalism," commentators warn, is hardwired within the human brain. (6) Tribes are "badges of identity, not of thought." (7) Tribes play "zero-sum politics." (8) They treat other peoples "as some kind of alien." (9) Democracy requires that we transcend these tribal attitudes and practices. (10) As the Founding Fathers well knew, (11) "tribalism" and democracy are incompatible. (12)

In America today, talk of "tribalism's" incompatibility with democracy often ignores American Indian Tribes. (13) There is, however, a long history of American leaders treating Indian Tribalism as a threat to American democracy. The signers of the Declaration of Independence offered the Crown's support for "merciless Indian Savages" as one of their reasons for declaring independence. (14) Such racist tropes have been a persistent feature of U.S. history. Like the signers of the Declaration, President Ulysses S. Grant saw Indian Tribalism as a threat when he authorized the deputizing of Christian missionaries as Indian agents. (15) When the 83rd Congress decided to pursue a policy of terminating Indian Tribal governments, it too saw Indian Tribalism as a threat. (16)

These "savage anxieties" (17) are reflected in federal Indian law, that body of federal law concerning American Indian Tribes. Indians have persisted as self-governing peoples notwithstanding federal policies designed to assimilate them. (18) Indian Tribes' powers of self-government do not derive from the U.S. Constitution. (19) As pre-constitutional sovereigns, moreover, Indian Tribes are not bound by the Bill of Rights, (20) and may have structures of government and substantive laws that are unfamiliar to students of American democracy. (21) Tribal governance, American judges have worried, suffers a democracy deficit and therefore warrants a "chary" attitude from federal lawmakers. (22) As Justice Anthony Kennedy put it, because "[t]he Constitution is based on a theory of original, and continuing, consent of the governed," there is a serious constitutional question regarding whether the federal government may subject a U.S. citizen to Tribal sovereignty unless that citizen is also a Tribal member. (23) Such jurisdiction would be anomalous, or so Justice Kennedy reasoned. (24) Taken for all that view might suggest, Indian Tribalism and American democracy are incompatible.

This Article critiques the incompatibility thesis. Americans have long talked about "tribalism" as a way of talking about their democracy. Very little of this talk--within federal Indian law, and also without it--has had much to do with the actual practices of Indian Tribes. Just as the "primitive" Indian Tribes ruled by "crude customs" of the Supreme Court's jurisprudence are a myth, (25) so too the "primal" tribes ruled by "huge passions," (26) not by thought, (27) are a myth of the contemporary commentariat. The politics of actual Indian Tribes are consistent with a conception of democracy as a process of arriving at collective decisions based upon mutual compromise and respect. (28) This process requires empowering groups to contest claims about the common interest through discourse and negotiation, as well as historical memory about the times in which those contests have been resolved through coercion and violence.

Thus, this Article argues that Indian Tribalism is compatible with American democracy. Indian Tribal sovereignty ensures opportunities for self-government. Indian Tribal governance is compatible with democracy because it depends in no small measure upon discourse and negotiation, not upon coercion and zero-sum gaming, as the Supreme Court recently recognized in McGirt v. Oklahoma. (29) Indian Tribalism is part of the history of American democracy. The persistence of Indian Tribes as self-governing peoples challenges Americans to honor the democratic ideal of consent of the governed. In all three ways, Indian Tribalism and American democracy are compatible. (30)

This Article's overarching aim is to call "tribalism" into question as a tool for thinking about what ails American democracy. (31) At times in the commentary, "tribe" and "tribalism" seem empty signifiers that tell us nothing because they try to tell us too much about human groups. When commentators try to give these terms content--when, for example, some of them cite Indian Tribes as examples--they fail to take seriously actual Tribal polities and histories. The discourse of "tribalism" versus "democracy" has justified ongoing practices of colonial rule and denied the ways in which Indian Tribes are part of American democracy. Indian Tribal politics have reflected the very sort of democratic attitudes and practices that commentators embrace. Invoking abstract conceptions of "tribalism" does little to help us think through hard questions about the place of Indian Tribes within American democracy, much less questions about the dysfunctions of American democracy.

The argument unfolds in three Parts. Part I defines "tribalism" and "democracy" as contested and contestable terms, and suggests, therefore, that we should be skeptical of conceptual generalizations about them. Focused analysis of how particular societies act and interact is a more useful methodology in thinking through problems of democratic governance. (32) Part II sketches the thesis that tribalism and democracy are incompatible, shows how this thesis surfaces within federal Indian law, and critiques the thesis. Part III makes the affirmative case that Indian Tribalism is consistent with American democracy. The Article concludes by arguing that commentators should abandon the trope of "tribalism" in their discussions of the dysfunctions of democracy.

1. "DEMOCRACY" AND "TRIBALISM"

   The incompatibility thesis holds that tribalism is a threat to democracy. (33) But what is "democracy"? And what is the "tribalism" that threatens it? "Democracy" is what W.B. Gallie called an "essentially contested concept[]," (34) with descriptive and evaluative components and disagreement about what the core cases are. (35) On one conception, some Tribal societies may be more democratic than the United States itself. (36)

   1. Democracy

      Many people agree that democracy is a good thing, but disagree about what democracy means. The answer is that it is contestable. It is common to say that democracy is a political system that requires consent of the governed, but how is that consent soug ht? (37) Perhaps democracy requires the regular selection of representatives in competitive elections in which every citizen can vote. (38) Or maybe it means local self-determination and grassroots organization. (39) There are other, more substantive definitions. Perhaps democracy is a way of living with each other. Maybe, for instance, it means minimum standards for how we interact, ranging from norms of equal concern and respect to respect for autonomy and free exchange. (40)

      The incompatibility thesis suggests a vision of democracy that includes how we relate to each other. In Against Identity Politics: The New Tribalism and the Crisis of Democracy, for example, Francis Fukuyama is concerned that "tribalism" threatens a way of living with each other that is necessary for democracy. (41) In particular, he argues that "[d]emocratic societies are fracturing into segments based on ever-narrower identities, threatening the possibility of deliberation and collective action by society as a whole." (42) Thus, Fukuyama worries that "tribalism" undermines democratic attitudes and democratic practices necessary for democracies to function.

      Which attitudes and practices are democratic? This answer too is contestable.

      Of Greek origin, the term originally referred to a political arrangement under which the people are the "governing body." (43) As Aristotle put it, "[W]hat is held to be democracy or rule of the people above all is what results from the sort of justice that is agreed to be democratic, which is all having equal share on the basis of number." (44) Under a democratic system, there is "election to all offices from among all," with most offices "of short duration"; governance is based upon the "rule of all over each, and of each over all in turn"; and "the assembly," not specific individuals, have "authority over all matters or the greatest." (45) Thus understood, democracy connotes direct rule by citizenry.

      If direct rule is what democracy...