Peter d’Errico’s op-ed “Advocacy and Change in Federal Indian Law” in last week’s ICT raises some critical questions about the Supreme Court as we conclude yet another Term with more bad news for Indian Country. Of note, Mr. d’Errico argues that Justice Scalia (and probably some other Justices) regard federal Indian law being based in “conquest” as opposed to the “pretense of conquest” under the rhetoric used by Chief Justice Marshall in the 1820s and 1830s. d’Errico then argues that Indian lawyers dutifully accept this notion of “conquest” in refusing to argue against the plenary power of Congress over Indian affairs, and by extension Indian tribes.
This is not a new debate, as Indian law scholars like Rob Williams and Rob Porter have been making these arguments against plenary power and against the complicity of Indian lawyers in accepting the plenary power framework since the 80s, extending claims originally made by Vine Deloria in the 70s.
But it’s a bit dated now. It is true that Congress and the Executive have asserted and abused plenary power since the Supreme Court recognized plenary power, allowing the government virtually absolute power over Indian tribes’ internal and external workings. But since about the 1970s, plenary power is a footnote. “Plenary” no longer means “absolute” — it means all the power necessary to effectuate Congress’s authority, as in the Necessary and Proper Clause. And tribes now rely on Congress’ plenary power — in the Duro Fix, the Indian Child Welfare Act, etc. Congress hasn’t unilaterally abrogated an Indian treaty in decades.
The real problem now is judicial review of Indian affairs. Going to the Supreme Court and asserting that the U.S. never conquered Indian tribes will confuse and likely anger the Court. As Rob Williams suggested in his recent book “Like a Loaded Weapon,” tribal advocates need a plan to undermine judicial review of Indian affairs (my phrasing). What would happen if tribal advocates persuaded the Court that Congress has limited authority under the Indian Commerce Clause? Just as Justice Thomas suggested in his Lara concurrence, the states or perhaps the President would acquire the authority in Congress’s void. No net advantage to tribes there. No, a strategy is needed.
And the strategy should be grounded in the constitutional principles followed — at least in its rhetoric — by the Roberts Court. That means tribal advocates need to reassess what the Roberts Court’s Indian law jurisprudence means. First off, it doesn’t give much respect to plenary power. Carcieri v. Salazar shows us what the Roberts Court thinks of plenary power on the Executive branch side, and the dozens of federalism cases since the 1990s give us a sense of what the Court thinks of Congressional power vis a vis the states. Indian affairs plenary power is a red herring.
Justice Scalia might believe that Indian tribes were conquered and that is that, but he can’t say that in the United States Reporter. All he and the rest of the Court have to do is look at the Constitution. State sovereignty is protected by numerous provisions; for example, the 10th and 11th Amendments. Tribal sovereignty is protected, but only implicitly. And the Roberts Court doesn’t like implied constitutional rights. Right now, the only reason for the Court to hear an Indian law case is to correct the lower courts when they allow an Indian tribe to defeat a state in some jurisdictional dispute.
But when the Court hears a case about the jurisdictional authority of Indian tribes over non-Indian individuals, the Court is on much shakier ground, in its own terms. Consider Plains Commerce Bank. How did that case reach federal court in the first instance? Because in 1985, the Court created a federal common law cause of action allowing federal courts to review whether a tribal court had jurisdiction over a nonmember. That makes sense if a party seeks to enforce the tribal court order in federal court, but Court has allowed the federal judiciary blanket review of tribal court proceedings over all cases involving nonmember defendants. That goes against two bedrock principles defining the Roberts Court — the requirement that petitioners prove standing to sue and the current Court’s distaste for Warren/Burger Court-era implied causes of action.
A proper challenge to the standing of nonmembers to challenge the jurisdiction of tribal courts where nobody is trying to enforce the tribal court judgment in federal court might be an avenue to test the ongoing viability of the federal common law cause of action. With a great deal of luck, the Supreme Court might shut down the ability of nonmembers to challenge tribal jurisdiction in certain cases. By doing so, the Court will have to reconsider its judicial review powers in Indian affairs, asserted without basis in the Constitution.
A strategy of this kind is better than simply trying to shout down the Roberts Court.
Turtle Talk 
The problem here is that conquered nations do not make Treaties, if plenary authority stemmed from the Indian Commerce Clause it goes back to the fact Congress can only make commerce with the Indian Tribes not for the Tribes….so how can one be a ward of the government? When that Tribe never consented to be one. Now what say you all?
When you say “this is not a new debate,” it is not clear what part of d’Errico’s article you’re referring to. It’s true that Williams made great strides in arguing against plenary power, but where specifically has it been pointed out that marshall used the term “pretension” to refer frame the notion of “conquest”? In Johnson, Marshall referred to “the pretension of converting the discovery [by “Christian people”] of an inhabited country into conquest.” The idea that originally free and independent Indian nations are now subject to the authority of the United States (whether congress or the supreme court) as a result of a “discovery” by “Christian people” of lands “inhabited by natives, who were heathens” ought to be a focus of ridicule, yet most federal Indian law scholars have left it entirely out of focus. What makes this argument regarding the religious dimension of the Johnson ruling “dated,” especially given the fact that this argument has not been made in federal Indian law circles? If anything, the debate has previously been about the doctrine of European discovery, not the doctrine of Christian discovery, and the pretension of conquest based on the pretension of the Christian discovery of heathen and infidel lands.
I have further columns along this line in the works, so this will be a quick reply at this stage. First: my target in this column was not ‘plenary power,’ but the deeper foundation doctrine of ‘Christian discovery.’ Second, as Newcomb points out (and modestly, his “Pagans in the Promised Land,” being a basic archaeology of the doctrine), the critique of that foundation is a new debate. Third, if the foundation were removed, neither the states nor the president would acquire authority, for the status quo ante ‘Christian discovery’ is indigenous sovereignty (and the failure to see this is itself a sign of how truncated conventional FIL thinking actually is). Fourth, I don’t know what to make of the digression into ‘nonmember standing,’ but the suggestion to base Indian strategy on the ‘Indian law jurisprudence’ of the Roberts court assumes there is such a jurisprudence rather than a straightforward antagonism to the concept of Indian Country.