Non-ideal theory and reparative justice: The logic of "Indigenous Rights"

Liberal theorists tend to associate "equality" with the need for identical moral recognition of individuals and ideal theories of justice, as do most Constitutional law theorists. It is important to remember, however, that United States civil rights law arose precisely because of the striking inequalities among the rights enjoyed by women and members of minority groups. The notion of equality emerged out of the post-Civil War Constitutional amendments designed to end the institution of slavery, but it took another century for US civil rights law to effectuate the Constitutional guarantees. In fact, as the author demonstrates, non-ideal theory is the basis for understanding US Constitutionalism over time, along with the disparate treatment accorded to Black and Indigenous peoples. The author draws on Charles Mills's work on recognition and racial justice to argue that non-ideal theory allows us to understand why various forms of injustice continue to impact Native peoples and are considered acceptable under the symmetrical model of "equality" that otherwise governs recognition and access to social goods.