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No Plenary Power Over Indian Nations

A column by Steven Newcomb on the misconception that the United States Congress has plenary power over all Indian affairs, and, by implication, over Indian Nations.

For generations now, Indian Country has been conditioned to believe and act upon the false view that the United States Congress has plenary power over all Indian affairs, and, by implication, over Indian Nations. This has resulted in our Indian Nations being wrongly deprived of the free exercise of our rights and liberty, and of the vast majority of our traditional territories across the length and breadth of the continent. This has been due in large part to the assumption about U.S. plenary power that has wrongfully empowered U.S. courts, congressional committees, and the U.S. presidency in relation to Indian Nations.

However, we are about to experience a massive shift in our understanding of federal Indian law and policy: In 1991, attorney Mark Savage published “Native Americans and the Constitution: The Original Understanding.” (American Indian Law Review, Vol. 16, No. 1, p. 57.) In 1993 he published, “The Great Secret About Federal Indian Law—Two Hundred Years in Violation of the Constitution—And the Opinion the Supreme Court Should have Written to Reveal it.” (N.Y.U Review of Law Social Change, Vol. 20, No. 2, p. 343) In the second article Mr. Savage states:

One morning, a few years ago, I discovered evidence that the United States has apparently overlooked for these past two hundred years. On August 18, 1787, 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 and instead greatly limited federal power to the regulation of commerce between the United States and Native American nations.” (Emphasis added.)

Based on what occurred during the Federal Convention in 1787, Savage argues:

The national government has never had such plenary power. For two hundred years, federal Indian law has violated the Constitution and the original intent of the Framers.... Consequently, federal and state statutes, enacted over the past two hundred years to control Native Americans in such matters as taxation, civil and criminal jurisdiction, hunting and fishing rights, water rights, and religion, are unconstitutional.

Nor can those statutes become constitutional after the fact.

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Today, twenty years after the publication of Mr. Savage’s first article, his research provides Indian Country with the perfect opportunity to assess, discuss, and act upon the implications of his powerful arguments. The implications are profound indeed: Congress has repeatedly passed legislation during the course of its history, purporting to exercise a plenary power over all Indian affairs, and over Indian Nations or ‘Tribes’ that, as stated above, the Framers of the Constitution specifically rejected in 1787.

It has become part of the federal Indian law "catechism" (as Vine Deloria, Jr. once called it) that the Commerce Clause of the U.S. Constitution is the basis for congressional plenary power over all Indian affairs. That clause reads, “The Congress shall have Power. . .To regulate Commerce with foreign nations, and among the several States, and with the Indian Tribes.” (U.S. Const. art. I, §8, cl 3).” As Mr. Savage pointedly states, “Clearly the words themselves do not grant plenary power. The power extends only to ‘Commerce. . .with the Indian Tribes,’ not commerce within Native American nations and tribes.”

Savage bases his view on the U.S. Supreme Court’s decision that when interpreting the Commerce Clause, the word commerce “must carry the same meaning throughout the sentence, and remain a unit, unless there is some plain intelligible cause which alters it.” (citing Securities & Exch. Comm’n v. Myers, 285 F. Supp. 743, 746 (D. Md. 1968)). Following that rule of interpretation, the U.S. Supreme Court has said that Congress’s power to regulate “‘Commerce with foreign nations’ and ‘Commerce . . . among the several States’ have never been imputed to Congress a plenary power to regulate the essential internal affairs of states or foreign nations.’” (emphasis added)

In order for the United States to have any authority over Indian Nations or ‘Tribes,’ it must be derived from the Constitution. The Framers of the Constitution specifically decided to limit the United States to the regulation of commerce between the United States and Indian Nations. This is all the authority that can be derived from the Constitution, and it includes no constitutional authority—whether claimed by Congress, the U.S. President, or the U.S. Supreme Court—over any Indian Nation or ‘Tribe’ without its consent.

A discussion of the massive implications of Mr. Savage’s brilliant arguments will require the involvement of all Indian nations and peoples with a history of dealings with the U.S. The following quote from Mark Savage will contribute to that discussion: “The endurance of constitutional error, whether by accident or artifice, and the neglect of constitutional and historical research cannot create a power that never existed.”

Steven Newcomb, Shawnee/Lenape, is co-founder and co-director of the Indigenous Law Institute, author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery, and a columnist for the Indian Country Today Media Network. He is also the Indigenous and Kumeyaay Research Coordinator for the Sycuan Band of the Kumeyaay Nation.