"Active Liberty" and Active Sovereignty
Justice Breyer's new book, "Active Liberty," is an interesting discussion of Supreme Court views, helpful to Supreme Court practitioners and Indian law scholars. One major theme of the book, in the words of Paul Gewirtz, is "democratic participation." Here is an important theme within the Court (or at least for Justice Breyer alone, way out there in the moderate left) that tribal advocates should consider carefully. Indeed, this year's Federal Bar Association conference theme was "Active Sovereignty," a deliberate choice on the part of the co-chairs (myself, Allie Maldonado, Gabe Galanda, Cheryl Fairbanks, Mike McBride, and Donna Goldsmith). Here's an excerpt from the blurb:
Tribal leaders and advocates have long known, understood, and even memorized Felix Cohen's classic statement of tribal sovereignty appearing on page 122 of his original Handbook of Federal Indian Law: The powers vested in Indian tribes are inherent powers of a limited sovereignty that has never been extinguished. In the early years of the 21st century, after years of struggle to prevent further extinguishment of those powers, it is time to move away from focusing on the "limits" of sovereignty and examine how Indian tribes can activate those inherent, but often latent, powers that will expand and solidify tribal sovereignty. Indians and Indian tribes live and learn in the real world, on the ground, and in daily interactions with Indian and non-Indian community members; federal, state, and local governments and government officials; and Indian and non-Indian businesses.
The 2006 FBA Indian Law Conference focuses on the active, dynamic, and often untapped resource of inherent tribal sovereignty. ***This conference invites trial leaders and advocates to look inward and to strengthen the core of inherent sovereignty. We believe that a strong inner foundation will help build a greater capability to face opposition.***
Perhaps Justice Breyer's vote is tied to (and now we're quoting from Judge Posner's description of John Hart Ely's argument) "mak[ing] American government more democratic." Federal Indian law created a little room for tribes to operate. With what will the tribes fill that space?