"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and against the complicity of Indian lawyers in accepting the plenary power framework since the 80s, extending claims originally made by Vine Deloria in the 70s.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."
Get the Story:
On Peter d’Errico, the Supreme Court, and Plenary Power
(Turtle Talk 6/29)
Peter d'Errico: Excising conquest from the law