JSI Seminar Series: Dr Kirsty Gover

23 August 2012

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As part of the JSI Seminar Series 2012, Dr Kirsty Gover will present the seminar Racial Discrimination and the Tribal Demos: the Impact of Tribes on Settler-state Political Theory.

As the western settler states reconfigure their constitutional arrangements to accommodate indigenous jurisdictions, they encounter a series of constitutive problems that otherwise rarely arise in the day-to-day of democratic governance. Settler societies are required to confront the puzzle of democratic self-constitution itself, namely, how can a demos enclose itself, by drawing boundaries, in a way consistent with liberal principles of non-discrimination? In settler-state public law and policy, and in academic commentary, it is generally agreed that tribes may exclude aspirant members on the basis of their race. In doctrinal terms this is in fact unavoidable, because in the law of all four countries, for better or worse, indigeneity is emphatically a measure of race and tribes are indigenous polities. In the settler societies, therefore, some liberal non-discrimination norms have been substantively modified in order to accommodate tribes as racially-constituted polities. The immutable characteristics of race, descent, ethnicity are present in the settler states not as a transitory remnant of premodernism, but as a necessary constitutive premise and a living organizational principle, of recognised tribes and therefore also of settler states. In this paper, Kirsty Gover argues that in the western settler states, tribal discrimination on the basis of race is tolerated (barely) because race is a constitutive principle of tribal polities, not merely the expression of tribal policy. To accommodate tribalism and make sense of their own constitutional origins in the process, settler states have come to rely on a normative distinction between constitutive premises (rules that constitute a polity) and prospective law and policy (rules that control entry to that polity once formed). This is a promising move, not just because it is a distinctive response to the exigencies of settler-state pluralism, but because it helps to draw our attention to the illiberal origins of liberal states. We cannot imagine a tribe that admits all comers, because such an entity would not be a tribe at all, but we can imagine a liberal polity that was first constituted on the basis of race, because race is shared descent writ large, and descent-based-membership is never far from the ideology of nation-states, liberal or otherwise.


Dr. Kirsty Gover joined the Melbourne Law School faculty in 2009. Her research and publications address the law, policy and political theory of indigenous rights, institutions and jurisdiction. She has a particular interest in tribal constitutionalism. Dr Kirsty Gover is a graduate of the New York University (NYU) JSD Doctoral Program, where she was an Institute for International Law and Justice (IILJ) Graduate Scholar and New Zealand Top Achiever Doctoral Fellow. Kirsty received her B.A./LL.B. from the University of Canterbury, New Zealand, and her LL.M. from Columbia University, United States, where she was a Columbia University School of Law Human Rights Fellow and James Kent Scholar.

Dr. Gover is the author of "Tribal Constitutionalism: States, Tribes and the Governance of Membership" (Oxford University Press 2010). She is interested in the role played by "indigeneity" in the constitutionalism of settler societies, and in the importance of indigenous concepts of law and politics in settler state political theory. Recent work addresses the friction between tribal and settler state laws on the status of adopted children, the political theory of state-tribal jurisdictional agreements, and the absence of empirical reference to indigenous claims in theories of indigeneity.

Lawyers/barristers: attendance at this lecture is equal to2 MCLE/CPD units.

This event presented by the The Julius Stone Institute of Jurisprudence.

Time: 6-8pm

Location: Sydney Law School, Common Room, Level 4, New Law School Building, University of Sydney

Cost: Free, but registration is essential

Contact: PLaCE Coordinator

Phone: 9351 0323

Email: 1f3336772e042a05192418300c172a4a0b7e283004494e00