Peter d'Errico: National strategy for protecting tribal sovereignty
"Charles Trimble and Sam Deloria recently called on American Indians across the land to begin coordinated discussions about sovereignty. Trimble’s column, “Pushing the envelope of sovereignty” [Vol. 30, No. 13], raised an alarm about the unplanned way Indian sovereignty struggles are being fought. Trimble argues that the current “national atmosphere of simplistic populism and revolt. … can escalate into. … widespread backlash” by non-Indians who have little understanding of indigenous sovereignty and see only casinos.

Trimble’s well-taken point reminds me of the path taken by Thurgood Marshall in his epic black civil rights struggle to overthrow the doctrine of “separate but equal.” Time and again, Marshall assembled other lawyers and activists to thrash out all possible arguments and counter-arguments. He called on people in national civil rights organizations, like the NAACP, as well as people from local communities eager to challenge legalized racism. The battle for black civil rights was developed through continuing national discussions.

We sometimes forget how carefully the black civil rights struggle approached lawsuits. Marshall knew each lawsuit had potential either to build momentum toward civil rights or to undermine the whole effort. As a good lawyer, he knew he couldn’t just rush into court and wave the Constitution. He had to work with the full range of leadership and local activism, among whom were many who wanted to jump right into court and others who wanted to stay out of court altogether, for fear of angering powerful racists. Not everyone agreed, but a consensus and a foundation for action were developed.

Like Trimble and Deloria, Marshall knew legal principles don’t exist in a vacuum. Law is made of words and force. Words take meaning in social contexts; and words are deployed to justify the use of force. This is as true of sovereignty as it is of civil rights. Sovereignty is different from civil rights: Sovereignty is group power of self-government, not an individual constitutional right against the government. Sovereignty grows out of the history of a people and not out of the Constitution. The U.S. Constitution recognizes Indian sovereignty, but it didn’t create it. Even treaties are only the signs of sovereignty, not its source. The source of sovereignty is in the lives and actions of a people, in how they live and govern themselves. The defense of sovereignty is not a simple legal matter, even if the legal principle of self-government seems simple."

Get the Story:
Peter d'Errico: Strategizing sovereignty (Indian Country Today 9/3)

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