The Road

Indian Tribes and Political Liberty

Russell Lawrence Barsh, James Youngblood Henderson

• Publisher: University of California Press
• Year: 2023
• Print ISBN: 9780520326736
• eBook ISBN: 9780520326743
• Edition: 1
• Topic: Politics & International Relations
• Subtopic: North American History
• Index: Politics & International Relations

The Road: Indian Tribes and Political Liberty offers a rigorous constitutional and methodological rethinking of the United States’ relationship to Indigenous polities. Russell Lawrence Barsh and James Youngblood Henderson set aside individual-rights framings to interrogate the collective political status of tribes as sovereigns, arguing that contemporary American jurisprudence traps them in a subordinate constitutional space—distinct from states and even from U.S. territories—through a doctrinal “borderline history” built on nineteenth-century assumptions about tribal disappearance. Against this legacy of plenary power and ad hoc precedent, the authors foreground tribalism as a living normative order and political consciousness, one that has endured federal assimilationist policies and continues to anchor Indigenous governance. They situate the problem within the American project of political liberty—recalling the colonies’ revolt against metropolitan domination—and contend that the constitutional architecture was designed to preclude precisely the kind of majoritarian subordination now imposed on tribal nations.

Methodologically ambitious, the book critiques courts’ reliance on selective historical narratives that harden into constraints on constitutional imagination. Drawing on Thomas Kuhn’s paradigm theory and Roberto Unger’s call for reconceptualization, Barsh and Henderson show how precedent—treated as neutral continuity—functions instead to fossilize error and foreclose remedies. They propose “treaty federalism,” or a federal-tribal compact model, as a principled alternative that reconciles tribal self-government with core U.S. commitments to limited, delegated powers and meaningful participation. The result is both a diagnosis of doctrinal incoherence (the Supreme Court’s avowed absence of “general principles” in Indian law) and a prescriptive framework for restoring political liberty to tribal citizens without rupturing constitutional continuity. Essential reading for scholars of federal Indian law, constitutional theory, and Indigenous governance, The Road combines normative clarity with analytic depth to reopen foundational questions about sovereignty, consent, and the rule of law in a genuinely plural federal order.

This title is part of UC Press's Voices Revived program, which commemorates University of California Press’s mission to seek out and cultivate the brightest minds and give them voice, reach, and impact. Drawing on a backlist dating to 1893, Voices Revived makes high-quality, peer-reviewed scholarship accessible once again using print-on-demand technology. This title was originally published in 1980.

Table of contents

• Cover
• Title
• Copyright
• Contents
• Prologue
• The New Order
• The Inheritors of Locke and Filmer
• The Federal System
• Discovery, Entitlement, and Tribal Property, 1700-1823
• The Conceptualization of Tribal Sovereignty, 1823-1836
• The Emergence of Federal Intervention and the Citizenship Dilemma, 1871-1886
• Another Judicial Vindication of Congressional Intervention: The Territorial Analogy, 1854-1886
• The Doctrine of the Dependent Ward, 1883-1934
• Tribes’ “New Deal”: The Indian Reorganization Act, 1934
• The Triumph of the Doctrine of Plenary Power, 1934-1968
• 11 A New Role for the Court
• 12 The Illusion of the “Infringement Test”
• 13 The Bewildering Alaskan Connection
• 14 The Shadow of the “Infringement Test”
• 15 Territorial Sovereignty and the Shadow
• 16 Economic Self-Determination and the Return of the Idea of Personal Rights
• 17 Tribes, Territories, and Colonies
• 18 Tribal Political Liberty in Contemporary Society
• 19 The Politics of Tribal Influence
• 20 Wealth and Power
• 21 Tribal Political Liberty and Social Forces
• 22 Constitutional Guarantees
• 23 Treaty Federalism
• Conclusion The Road and the Chain
• Postscript Cycles and Portents
• Index