论美国印第安部落的自治权--联邦宪制分权的另一种样态

On Self-governance Powers of American Indian Tribes:Another Modality of Constitutional Powers Separation in the United States

印第安部落与美国联邦、州之间独特的法律关系,是在两百多年的历史中由联邦宪法确认,通过联邦与部落缔结的一系列条约、国会立法、行政命令、司法判决、协议契约共同建构的。部落自治权力的确认及其在联邦宪法架构内的展开,体现了宪制分权的另一种样态,是美国宪政、历史、文化和社会共同塑造的独特的权力形态。印第安人认为其自治权力是天然的、内在的固有主权,但部落自治权的恢复与落实充满了曲折和坎坷,未能遵循其本身固有的逻辑而发展,其变迁过程更缠结了复杂的历史诸因素。部落文明开化与自治自决相伴相生,部落文化的冲突与自治的回归皆非单向度的逻辑运动,其历史与现实皆充满了悖论,其归宿亦面临令人困惑的两难。

The legal relationship among Indian tribes,the federal government and states in the United States is unique,which was constructed by the Federal Constitution,treaties between the federal government and the Indian tribes,congressional legislation,administrative orders,judicial decisions,together with agreements during more than two hundred years. The confirmation of self- governance powers of American Indian tribes and its expansion in the framework under the Federal Constitution reflect another modality of constitutional powers separation. It has been a peculiar power formation which was built by the constitutionalism,history,culture and society of the United States. American Indians consider their self- governance powers as a sort of natural and inherent sovereignty,but the recovery and implement of self- governance powers have been encountered difficulties and frustrations,and Indian tribes can＇t follow their own inherent logic for development,entangling themselves in a lot of historical factors during the evolution process. The civilization of Indian tribes was accompanied with their self- governance and self- determination,and both of the cultural conflict and self- governance returning will be not one- dimensional logic movement. There is full of complex paradoxes no matter in its history or reality,while its destination will be confronted with difficult choices.