Does U.S. have plenary power over tribes?A complicated issue most tribes misunderstand
By James Giago Davies
Native Sun News Today Correspondent
nativesunnews.today RAPID CITY—Throughout Indian Country tribal governments assume that the United States is bound to Indian treaty obligations. But the working reality is, if not the technical reality, no tribe, and no tribal member, has rights beyond what are available to any American citizen under the 5th Amendment. Many legal scholars rankle at the nature of such an assertion, that the United States has absolute power in certain matters, but disagreeing about the validity and principle does not mean that the assertion is not the reality we are all forced to operate under. To acknowledge the supremacy of the plenary power of the United States is not to advocate or justify it, but the first step in finding ways to fight it. Plenary power is not a power of which most people are aware. Its definition is as follows: “…a power that has been granted to a body, or person, in absolute terms, with no review of, or limitations upon the exercise of that power. The assignment of a plenary power to one body divests all other bodies from the right to exercise that power, where not otherwise entitled. Plenary powers are not subject to judicial review in a particular instance or in general.” It is hard to imagine a greater power in any judicial context, and certainly it fundamentally alters the relationship between the federal government and any federally recognized tribe. It has been asserted by Stephen Newcomb, co-founder and co-director of the Indigenous Law Institute that the “United States has no plenary power over Indian Nations.” Newcomb adds, “…during the secret deliberations of the Federal Convention, James Madison proposed a plenary power over relations with Native American nations. The Framers expressly rejected such plenary power….”
However, citing this rejection alone, ignores over two hundred years of subsequent legal rulings that fundamentally alter the legal relationship between the federal government and Indian tribes, not as lofty legal principle, but as it actually played out in judicial reality. Fast forward a hundred years from Madison, to the Rosebud Indian Reservation. Sicangu sub-chief, Crow Dog, murders head chief, Spotted Tail. The Tribal Council applies Lakota justice, and instructs Crow Dog to pay restitution to the Spotted Tail family. Subsequently, Crow Dog is tried in federal court, and sentenced to hang. Appeals went all the way to the United States Supreme Court, and they ruled federal courts had no jurisdiction to try cases already ruled on by tribal courts. Crow Dog is set free. The consequence of this case was the Major Crimes Act of 1885. Ex parte Crow Dog’s major significance is it is the beginning of the United State’s assertion of the plenary power legal doctrine, as that power applies to Indian case law and limits tribal sovereignty. How? A Congressional Act was imposed on Indians, and the nature of the act, whether helpful or hurtful, is not relevant. Eighteen years later, came the landmark Lone Wolf v Hitchcock, a 1903 United States Supreme Court case that overtly established the plenary power of the United States Congress, declaring that Congress could unilaterally abrogate treaty obligations. Lone Wolf, a Kiowa chief, had alleged that tribes, signatory to the Medicine Lodge Treaty, had been defrauded in violation of the treaty by Congressional action. Newcomb fails to even cite this case in his Indian Country Today column from 2011. The idea that Congress has plenary power over Indian tribes is a highly disturbing reality, perhaps even an evil one, but it is the reality. Many scholars also compare Lone Wolf v Hitchcock to the odious Dred Scott Supreme Court decision of 1857. But these two rulings are fundamentally different in how they were received by society.