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.
Vine Deloria, Jr., wrote in Of Utmost Good Faith (1971) that the Supreme Court, as it creates federal Indian law, “skips along spinning off inconsistencies like a new sun exploding comets as it tips its way out of the dawn of creation.”
The inconsistencies within federal Indian law are mind-boggling. In one year alone (1978), the Supreme Court went from almost completely subordinating Indigenous sovereignty in Oliphant v. Suquamish (435 U.S. 191) to affirming it as a third kind of sovereignty in the United States in United States v. Wheeler (435 U.S. 313). Wheeler, in turn, was a complete contradiction of the Court’s analysis in U.S. v. Kagama (118 U.S. 375), about a hundred years earlier, despite which Kagama is still regarded as valid law.
Another example: in 1997, in Idaho v. Coeur d’Alene Tribe (521 U.S. 261), the Supreme Court held that “Indian tribes … should be accorded the same status as foreign sovereigns, against whom States enjoy Eleventh Amendment immunity.” This is a startling contradiction of the foundational 1831 federal Indian law decision in Cherokee Nation v. Georgia (5 Pet. 1) that the Cherokee were not sovereign as a “foreign nation.” Yet both cases are regarded as valid in federal Indian law!
The inconsistencies and contradictions in federal Indian law are at best a major headache for Native nations and at worst a complete impediment to their existence as free and independent peoples. Federal Indian law blocks the straightforward exercise of Indigenous sovereignty.
In my view, a critical and close reading of the history of federal Indian law shows that the blockage of Indigenous sovereignty was intentional from the earliest cases forward. The U.S. Supreme Court created the “special status” of Indian Nations as a vehicle to define the relationship between federal and state governments. Both levels of government coveted Indian lands; the Supreme Court wrote the federalist position into law, using the “trust” and “wardship” doctrines to give the feds a trump card against the states. Over the years, the contest has been waged back and forth. The only consistency is that Indian sovereignty is “less than” full sovereignty.
The time has come to insist on a new and different approach to federal Indian law, building on a historically accurate reading of the U.S. Constitution and an appreciation of international interdependence. It is well past time when we can accept without question unilateral pronouncements of one nation claiming to be superior to another.
The United Nations Declaration on the Rights of Indigenous Peoples provides a starting point for insistence on a new approach to federal Indian law. The Declaration stands for the basic human rights proposition that Indigenous nations have a rightful place as equals in the global international community of nations. There can be no legacy of superior-inferior relationships rooted in racist religious colonial assumptions.
The UN Declaration also establishes a perspective from which to analyze the history of federal Indian law as an aspect of U.S. Constitutional structure. To the extent that decisions and actions of the U.S. government have ignored the Constitutional recognition of the original free and independent existence of Native Nations, the Declaration supports a critique within federal Indian law, to cure the contradictions and inconsistencies, replacing them with adherence to the standard of international equality.
Our agenda is clear. The tasks ahead are clear. Our motivation is clear. What remains to be done is action in law.
Peter d’Errico graduated from Yale Law School in 1968. Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970. Taught Legal Studies at University of Massachusetts, Amherst, 1970-2002. Consulting attorney on indigenous issues.