In this episode, Steven T. Newcomb and Peter d’Errico return to one of the most repeated phrases in federal Indian law and public advocacy: “tribal sovereignty.” But what does the phrase actually mean within the legal framework of the United States?
Steve and Peter argue that “tribal sovereignty” is an oxymoron when it is defined by federal anti-Indian law as “limited sovereignty” or as sovereignty that the United States has not yet extinguished. Drawing on definitions of sovereignty from Jean Bodin and Sterling Edmonds, they explain that sovereignty means a claim of supreme and unlimited authority. If Native nations are said to be sovereign only to the extent that the United States permits, then the phrase no longer describes free and independent existence. It describes domination.
The conversation turns to Felix Cohen’s Handbook of Federal Indian Law, often treated as the “Bible” of federal Indian law, and examines how its framework converts original Native independence into a legal system of U.S. supremacy. Steve and Peter also discuss treaty rights, land claims, religious freedom, consultation, “federal lands,” and the danger of accepting the opponent’s premise.
The episode concludes with a discussion of the Pe’ Sla / Black Hills drilling controversy and how legal and environmental advocacy can unintentionally reproduce the very domination framework it seeks to resist.
Resources mentioned:
Felix Cohen, Handbook of Federal Indian Law
Pe’ Sla drilling analysis
Complaint filed in the Pe’ Sla case
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