A view of the U.S. Supreme Court. Photo by Indianz.Com
Steven Newcomb (Shawnee / Lenape) of the Indigenous Law Institute wonders why Indian law practitioners are buying into the "limited sovereignty" that the United States has imposed on the original nations through U.S. Supreme Court decisions and other actions:
Five years ago, in June 2011, a Native Leadership Forum was held at the Pechanga Resort and Casino in Temecula, California. A Forum manual for the event opens with the following quote from Felix S. Cohen, dated 1942: "Perhaps the most basic principle of all Indian law, supported by a host of {U.S. Supreme Court] decisions, is the principle that those powers lawfully vested in an Indian tribe are not, in general, delegated powers granted by express acts of Congress…" This quote from Cohen makes clear that he was presupposing the existence of an “entity” called “an Indian tribe” and positing that each “tribe” has “lawfully vested” “powers.” The word “vest” in this context is “to place or give into the possession or discretion of some person or authority.” Cohen, in other words, was saying that “an Indian tribe” has certain “powers” in its possession. In the above quote, Cohen is also telling us that if we go looking for the source of the powers possessed by a particular “Indian tribe” we need not look at any “express acts of Congress.” Cohen expresses the view that the “vested” powers of an “Indian tribe” do not originate with any act of Congress. Sounds good, right? But a close reading of Cohen’s quote tells us something far more important. It is the fact that Cohen went on to posit later in the quote a “limited sovereignty” for the entities called “tribes.” By using the Cohen quote, the Native Leadership Forum presented the idea of a limited sovereignty as a mental starting point for the event.Get the Story:
Steven Newcomb: Striving for Intellectual Curiosity and Historical Precision in Indian Law (Indian Country Today 7/29)
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