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Striving for Intellectual Curiosity and Historical Precision in Indian Law

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 startingpoint for the event. To quote Cohen, “an Indian tribe” is vested (has in its possession) with only “inherent powers of a limited sovereignty” (my emphasis).

In Cohen’s estimation, then, there are aspects of this “limitedsovereignty” of an “Indian tribe” which have “never been extinguished.” Yet, this quietly accepts as a given that there are other aspects of sovereignty that have been extinguished, or else simply vanished without any accounting or explanation of how this supposedly happened. Cohen’s quote also leaves open the possibility that the U.S. Congress can further limit the “limited sovereignty” of an Indian “tribe.”

It is true that Cohen says each “tribe” begins its relationship with the [U.S.] federal government as “a sovereign power.” But he says that after he has already acknowledged that he is talking about “a limited sovereignty” for any Indian “tribe.” The Native Leadership Forum presents this “limited sovereignty” for “tribes” as a starting point for its two day discussion, with no invitation to discuss the rationale or basis that the United States uses for presuming a limited sovereign power for “tribes.”

What Felix Cohen calls “limited sovereign power” for any Indian tribe is ignored and overlooked in the subtitle chosen for the Native Leadership Forum, which is this: “TRIBES AS SOVEREIGN GOVERNMENTS IN AN UNSTABLE POLITICAL ENVIRONMENT.” The following subtitle would have been more consistent with Cohen: “TRIBES AS SOVEREIGN GOVERNMENTS OF A LIMITED SOVEREIGNTY IN AN UNSTABLE POLITICAL ENVIRONMENT IN THE UNITED STATES.”

I’m sure that the American Indian Resources Institute which created the “Native Leadership Forum” plays an important role in Indian Country. Nevertheless, based on the above it is clear that Native advocacy organizations of this sort could do a better job of being more fundamental and accurate when it comes to providing intellectual guidance for Native leaders.

As the Native Leadership Forum manual stated in its opening sentence after the Cohen quote: “During the first decade of the 21st Century, we have witnessed the Supreme Court grow increasingly hostile to tribal positions and more determined to limit the fundamental powers of tribal self-government within the boundaries of Indian Country.” In keeping with the uncritical use of Cohen’s quote about “limited sovereignty” for “tribes,” that sentence ought to talk about the Supreme Court being “increasingly hostile to tribal positions and more determined to limit fundamental powers of a limited sovereignty of tribal self-government.”

How odd that the Native Leadership Forum would feel perfectly comfortable with the idea of “limited sovereignty” for “tribes” being stated by Felix Cohen in his quote from 1942, and yet not feel comfortable making that position of “limited sovereignty” explicit in its promotional literature for Native leaders. By not making Cohen’s claim of “limited sovereignty” for “tribes” explicit, the Native Leadership Forum thereby declined to give that idea any direct focus in the two days of discussions. Although it was acknowledged as “limited sovereignty” in the Cohen quote, it was then written entirely out of the program. It could not be discussed if it was not a specific focus of the Forum.

Further on, the organizers stated: “This Native Leadership Forum is an opportunity for tribal and Native leaders to explore approaches and strategies for addressing some of the key challenges facing tribal governments and tribal communities, to discuss ideas that can bring about meaningful change…” Not one word about bringing about meaningful change to the fundamental concepts and language that make up the diminishing field of federal Indian law and policy, including the fundamental idea of “limited sovereignty” for Indian “tribes” based on Christian discovery and dominion.

I attended a similar event sometime after the 2011 Forum. During the first day there was some understandable anguish over the direction the Supreme Court has taken in Indian decisions in recent years. There was also a fair amount of focus placed on the Supreme Court ruling Oliphant v. Suquamish Tribe, which held that “tribes” have a limited sovereignty that does not include the capacity to prosecute non-Indians for crimes committed on an Indian reservation.

On the second day of the event I made a comment. I said that if you barely scratch the surface of the Oliphant ruling you are already at the 1823 Johnson v. M’Intosh decision. Chief Justice Rehnquist relied upon and directly cited Johnson in the Oliphant ruling.

Rehnquist lifted from the Johnson ruling the wording “their rights to complete sovereignty, as independent nations, were necessarily diminished, by the original fundamental principle that discovery gave title to those who made it [the discovery].” Rehnquist modified that sentence with his own edits for his decision in Oliphant. Rehnquist’s edited sentence reads: “Their rights to complete sovereignty as independent nations [are] necessarily diminished.”

Rehnquist replaced Marshall’s word “were” with his own word “are” and thereby made the supposed “diminishment” of rights to complete sovereignty as independent nation present tense and ongoing. Rehnquist also deleted any mention of the Christian discovery doctrine so that the reader would have no source for the supposed diminishment to point to.

After I finished explaining to the attendees what Rehnquist had done in Oliphant--while adding my point about the Christian/non-Christian (heathen) basis of what Chief Justice Marshall called the “right of discovery,” my comments were met by stone silence. Not one word of response. But as Gregory Bateson has said, “All behavior is communication.” Even stone silence can speak volumes of denial, and raises a central question for certain members of the federal Indian law community: What happened to their capacity for intellectual curiosity and for dealing with precision in language and history?

Steven Newcomb (Shawnee, Lenape) is co-founder and co-director of the Indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery(Fulcrum, 2008). He is a co-producer of the documentary movie, “The Doctrine of Discovery: Unmasking the Domination Code,” directed and produced by Sheldon Wolfchild (Dakota), with narration by Buffy Sainte-Marie (Cree).The movie can be ordered from 38Plus2Productions.com.