Kevin J. Worthen,
Two Sides of the Same Coin: The Potential Normative Power of American Cities and Indian Tribes,
44 Vand. L. Rev.,
Available at: http://digitalcommons.law.byu.edu/faculty_scholarship/255
Local government, federalism, tribal government, municipal organizations, city, Native American law, sovereignty, normative roles, pluralism, community
People do not normally associate cities with Indian reservations. The mental images typically conjured by each term are radically different. Perhaps for that reason, few think of city governments and tribal governments in similar terms.
However, the two forms of government - cities and Indian reservations - have many things in common. Both are excluded from the federal constitutional framework. Both are subject to the plenary power of one of the constitutionally recognized governments - cities to the state government, tribes to the federal government. Both are the most intimate form of government with which most of their residents are familiar.
More importantly, cities and tribes both have the potential to perform a role that neither national nor state governments are capable of performing. Local governments can create and give meaningful voice to diverse value systems. This function of cities and tribes furthers two important societal interests. First, it provides people with a much-needed sense of community, reversing the sense of alienation prevalent in modern liberal society. Second, it promotes the preservation and tolerance of disparate viewpoints, contributing to a vibrant pluralistic society.
This Article draws on the experiences of both cities and tribes to define the role that local governments could and should play in the American federal structure. Part II examines the current theoretical and practical status of cities and Indian tribes in the United States. Part III outlines the similarities and Part IV the differences between cities and Indian tribes. These sections highlight the meaningful comparisons between cities and tribes, and demonstrate that they share characteristics which equip them to perform functions that neither the federal nor state governments can carry out. Part V provides an explanation of the unique normative role that cities and tribes can play in modern society. Part VI demonstrates how courts could facilitate the implementation of this unique role in discrete judicial controversies. This Article concludes that cities and tribes truly are different sides of the same coin with which modern American society can purchase both pluralism and a strong sense of community.
Vand. L. Rev.