Peter d'Errico: No basis in the Constitution for plenary power

"Mark Savage published his groundbreaking research on federal Indian law in 1991, “Native Americans and the Constitution: The Original Understanding” (NYU Rev. of Law & Social Change). He proved that the framers of the U.S. Constitution explicitly rejected a federal “plenary power” over Indian affairs. He wrote: “knowledge is power, and this new evidence of the original intent [of the Constitution] may very well provide a powerful tool to end five hundred years of injustice.”

Twenty years may not be long in the history of a nation or the history of law, but it is certainly long enough for us to say it’s time to exercise the power of our knowledge. Steve Newcomb has set the stage for action by reminding us of Savage’s work, saying it is no longer “new,” but it is still powerful.

The notion of federal “plenary power” is one of the major concepts by which federal Indian law operates to undermine Indigenous sovereignty. As Savage shows, based on the 1787 Proceedings of the Federal Convention, there is no basis in the actual history of the U.S. Constitution to support the concept of “plenary power” over Indians. In fact, the framers of the Constitution rejected James Madison’s suggestion to include such a power! This means that the U.S. Supreme Court created “plenary power” out of whole cloth; it is totally false as a Constitutional doctrine."

Get the Story:
Peter d'Errico: Knowledge Is Power: Plenary Power Is False (Indian Country Today 11/21)

Related Stories:
Steven Newcomb: No plenary power over the tribal nations (11/14)

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