plenary power

Michalyn Steele on “Plenary Power, Political Questions, and Sovereignty in Indian Affairs”

Matthew L.M. Fletcher1 Comment

Michalyn Steele has posted “Plenary Power, Political Questions, and Sovereignty in Indian Affairs” on SSRN.

Here is the abstract:

A generation of Indian law scholars has roundly, and rightly, criticized the Supreme Court’s invocation of the political question doctrine to deprive tribes of meaningful judicial review when Congress has acted to the detriment of tribes. Similarly, many Indian law scholars view the plenary power doctrine — that Congress has expansive, virtually unlimited authority to regulate tribes — as a tool that fosters and formalizes the legal oppression of Indian people by an unchecked Federal government. The way courts have applied these doctrines in tandem has frequently left tribes without meaningful judicial recourse against breaches of the federal trust responsibility or intrusions upon tribal interests and sovereignty. Furthermore, there is a troubling inconsistency in the courts’ application of these doctrines to questions of inherent tribal sovereignty. For example, courts consider congressional abrogation of a treaty a kind of political question beyond the reach of the judiciary. At the same time, challenges to the inherent, or aboriginal, authority of tribes are deemed justiciable. The Court’s approach represents a kind of “heads I win; tails you lose” application of the political question and plenary power doctrines in Indian affairs.

This paper proposes that rather than facing a rigged coin toss in the courts, tribes should be able to avail themselves of the political question and plenary power doctrines to have Congress rather than the courts decide questions of inherent tribal authority. Under current precedent, the Court has aggrandized its own power in Indian affairs through the theory of implicit divestiture, which holds that the Court may find tribes divested of inherent powers even without Congressional action. This Article argues that whether inherent tribal authority endures and which sovereign powers tribes exercise are political rather than judicial questions given the current landscape of plenary power, political question, and implicit divestiture doctrines in Indian law. Under this reading of the Court’s Indian law precedent, unless the Supreme Court reexamines these fundamental assumptions, the Supreme Court should treat questions challenging inherent tribal authority in much the same way it treats questions raised by tribes challenging congressional exercise of the Indian affairs power: as political questions that do not present justiciable controversies. This argument builds upon the author’s earlier work assessing the comparative institutional competency of Congress and the courts with regard to questions of inherent tribal authority and proposes a fundamental shift in the conception of the plenary power doctrine and the political question doctrine’s application in federal Indian law. Scholars have traditionally rejected and critiqued both the plenary power and the political question doctrines in Indian affairs because they leave a discrete and insular minority vulnerable to political whims. The critique has generally envisioned the Court as a counter-majoritarian bastion standing between the tyranny of the majority and the tribes. However, in recent decades, the Court has been the instrument for eroding inherent tribal authority, primarily without the input of Congress. This paper challenges long-held assumptions about these fundamental doctrines of federal Indian law and poses important questions about the role of the courts and the Congress, and the future of inherent tribal sovereignty.

Justice Harlan’s Multicultural Theory of the Commerce Clause?

Matthew L.M. Fletcher2 Comments

Law scholars have recently published the text of Justice John Marshall Harlan’s lectures on constitutional law.

An excerpt, of course related to Indians:

Our relations with the Indians in this country are of a peculiar character. Here is the power given to Congress to regulate commerce with the Indian tribes. The Indian tribes are a peculiar people, and our relations with them are peculiar. We sometimes have made treaties with the Indians, but our making treaties with them does not stand exactly upon the footing of our treaties with foreign nations. We have been in the habit, since the foundation of the government, of making treaties with the Indians, and then when we wanted another treaty, compelled them to make another. If we want a treaty modified, why the chiefs are brought here, and broadcloth clothes put on them, and they are shown all the sights around Washington, and we get out of them such a treaty as we want. They are the wards of the nation, not citizens of the United States. They are dependent upon us. They are mere wards, but the men who framed the Constitution knew what infinite trouble there would be if the subject of our relations with the Indians were not put in Congress, but left with the states.

Therefore, the Congress of the United States may say exactly what may go to the Indians, and what may not. Congress may say that no spirituous liquors may be carried into the Indian nations. Congress may prescribe the rule by which you are to be governed in your trading with them. Congress may say, you shall not trade with this tribe at all, or if you do trade with it, it shall be under certain circumstances, and it was necessary to put it there because no state had exclusive interests or control over the Indians. They were scattered throughout the country, and it would never have done at all, as bad as has been the conduct of the United States towards that dying race, to have left it to the states. The states would have dealt with them in a way that might have shocked humanity, as some of them did, and although they have been fairly well treated in their general control by the United States, it is a race that is disappearing, and probably within the lifetime of some that are now hearing me there will be very few in this country. In a hundred years, you will probably not find one anywhere, so that clause of the Constitution about regulating commerce with the Indian tribes will amount to nothing.

A very robust defense of Congressional plenary power over Indian affairs, along the lines the Court was going in United States v. Kagama. But the next paragraph is interesting:

That is not the only race that is disappearing. I may digress this far, and I only do so for the purpose of indicating the immense reach of this commerce power after awhile. To my mind, to my apprehension, it is as certain as fate that in the course of time there will be nobody on this North American continent but Anglo-Saxons. All other races are steadily going to the wall. They are diminishing every year, and when this country comes to have, as it will before a great many years, two or three hundred million of people, when states that are now sparsely populated become thickly populated, we will then appreciate, or the country will then appreciate more than it does now, the immense importance of the common government of the whole country having power to protect trade between the states and with foreign nations, beyond the power of any state for its selfish purposes to harass it.

Pages 132-33.

Hmmm. So if the non-whites will all die off, then the 300 million people of the United States (virtually all white) will really need the commerce clause and the national power that comes with it. Ok, so what does that say about a nation of 300 million where whites are soon going to be in the minority? Would Justice Harlan say national power is more or less necessary to govern in that circumstance? It seems to me that the national power to regulate Indian affairs remains viable and important so long as there are Indian nations. It turned out that Justice Harlan was wrong, as so many were in the 19th and early 20th centuries, that the vanishing race would vanish.

Interestingly, Justice Harlan appears to regret his dissent in Elk v. Wilkins (or maybe just saying that as a dissenter, he was inherently wrong by virtue of the vote):

Judge, does that include Indians?
No. The case of Elk against Wilkins—I wish I knew the volume—they were considered an exception.488 You will find a very learned opinion there by the majority of the Court. It was the case of an Indian who had left his tribe and came into the state of Nebraska, intending to become a part of that people, and the majority of the Court thought that he could not become a citizen of the United States. That case was apart from this Amendment. They were wards of the nation, and they thought he could not become a citizen of the United States. I had the misfortune to differ from the Court upon that question, and of course I was wrong.

Pages 266-67.

New Scholarship on Plenary Power and Indian Affairs and Immigration

Matthew L.M. Fletcher

Susan Bibler Coutin, Justin B. Richland, and Veronique Fortin have posted Routine Exceptionality: The Plenary Power Doctrine, Immigrants, and the Indigenous Under U.S. Law on SSRN.

Here is the abstract:

Our paper examines how law-making regarding Native and Central Americans in the United States gives rise to documentary forms that challenge binaries that have plagued sociolegal scholarship. In the United States, plenary power gives the federal government what former U.S. attorney general Michael Mukasey termed the “administrative grace” to grant privileges to members of groups, such as immigrants and Native Americans, who are citizens of other nations, and thus whose allegiance is questioned. Matter of Compean 24 I&N Dec. 710 (A.G. 2009). Plenary power is understood by the Supreme Court as having “always been deemed a political one, not subject” to judicial oversight. Lone Wolf v. Hitchcock, 187 U.S. 553 (1903). This understanding makes plenary power something of a legal black box – analysis typically ends with the determination that the authority in question is a political one beyond legal review. Yet members of these groups experience plenary power precisely in its regulatory form, in the ways in which they are demanded to produce documents to establish juridical and political identities before the state. Such documents, which simultaneously produce and contest accounts of immigrant and indigenous histories, create alternative understandings in which law is characterized neither by gaps nor by gaplessness, but rather by embodiment in material form.

Philosophical critique of plenary power

Ann Tweedy

George Martinez has published an interesting article critiquing plenary power in the Indian law context and other contexts from a philosophical standpoint.  Basically, he says that plenary power harms those that wield it.  The article is “Race, American Law and the State of Nature,” 112 W. Va. L. Rev. 799 (2010).  Unfortunately, it doesn’t seem to be available on SSRN or Bepress.   Here’s the abstract:

“This Article advances a new theoretical framework to help explain and understand race and American law. In particular, the Article argues that we can employ a philosophical model to attempt to understand what often occurs when the dominant group deals with persons of color. The Article contends that when the dominant group acts with great power or lack of constraint, it often acts as though it were in what political philosophers have called the state of nature. Thus, the Article argues that there is a tendency for the dominant group to act as though it were in the state of nature when dealing with persons of color. There is a tendency not to feel any constraints or move toward a situation with fewer constraints on the dominant group. The Article contends that there is reason to believe that operating with great power or lack of constraint will have bad effects on the persons wielding such power.”

On Peter d’Errico, the Supreme Court, and Plenary Power

Matthew L.M. Fletcher4 Comments

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.

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