2.3 Plenary Power Doctrine and Its Implications

The plenary power doctrine gives Congress broad authority over Native American affairs, stemming from the Constitution. This power shapes federal-tribal relations, influencing legislation and policy decisions that impact tribal sovereignty and self-governance.

While extensive, Congress' plenary power isn't absolute. Courts can review Indian affairs legislation, and the trust responsibility requires the government to act in tribes' best interests. This balance affects tribal rights and federal obligations.

Congressional Authority Over Indian Affairs

Plenary Power and Congressional Authority

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• Congress has plenary power over Indian affairs, meaning it has broad and exclusive authority to legislate on matters related to Native American tribes
• This authority is derived from the Indian Commerce Clause (Article I, Section 8, Clause 3 of the U.S. Constitution) and the Treaty Clause (Article II, Section 2, Clause 2)
• The Supreme Court affirmed Congress' plenary power in United States v. Kagama (1886), stating that Congress has the power to regulate the affairs of Native American tribes as "dependent domestic nations"
• This power includes the authority to regulate commerce with tribes, manage tribal lands, and define the status of tribes and their members

Judicial Review and Constitutionality

• Despite Congress' plenary power, the Supreme Court has the authority to review the constitutionality of Indian affairs legislation through judicial review
• The Court has generally been deferential to Congress in this area, rarely striking down legislation related to Native American affairs
• However, the Court has occasionally invalidated laws that violate individual rights or exceed Congress' authority under the Constitution (e.g., United States v. Sioux Nation of Indians, 1980)
• The Court has also recognized some limitations on Congress' power, such as the requirement that legislation be rationally related to Congress' trust responsibility to the tribes (Delaware Tribal Business Committee v. Weeks, 1977)

Federal-Tribal Relationship

Trust Responsibility and Federal Indian Policy

• The federal-tribal relationship is characterized by the trust responsibility, a legal and moral obligation of the federal government to protect tribal sovereignty, lands, and resources
• This responsibility stems from treaties, statutes, and the historical relationship between the federal government and Native American tribes
• The trust responsibility requires the federal government to act in the best interests of the tribes and to consult with them on matters affecting their welfare
• Federal Indian policy has evolved over time, from the early era of treaty-making and removal to the current era of self-determination and government-to-government relations

Evolution of Federal Indian Policy

• In the early 19th century, federal policy focused on removing tribes from their ancestral lands and relocating them to reservations (Indian Removal Act of 1830)
• The late 19th century saw a shift towards assimilation, with policies aimed at breaking up tribal lands and encouraging Native Americans to adopt white cultural practices (General Allotment Act of 1887)
• In the 1930s, the Indian Reorganization Act (1934) sought to strengthen tribal governments and restore tribal lands
• The termination era of the 1950s and 1960s aimed to end the federal-tribal relationship and assimilate Native Americans into mainstream society
• The self-determination era, beginning in the 1970s, has emphasized tribal sovereignty and the government-to-government relationship between the federal government and tribes (Indian Self-Determination and Education Assistance Act of 1975)

Tribal Sovereignty and Its Limitations

Inherent Tribal Sovereignty and Self-Governance

• Tribal sovereignty is the inherent right of Native American tribes to govern themselves and manage their internal affairs
• This sovereignty predates the formation of the United States and is recognized in treaties, statutes, and Supreme Court decisions
• Tribes have the authority to establish their own governments, laws, and courts, and to regulate activities within their territories (e.g., taxation, land use, and membership)
• The Indian Self-Determination and Education Assistance Act (1975) and subsequent legislation have strengthened tribal self-governance by allowing tribes to contract with the federal government to administer programs and services

Limitations on Tribal Authority

• Despite their inherent sovereignty, tribes are subject to limitations imposed by Congress and the Supreme Court
• In Lone Wolf v. Hitchcock (1903), the Supreme Court held that Congress has the power to unilaterally abrogate treaties with Native American tribes, emphasizing Congress' plenary authority over Indian affairs
• Tribes generally lack criminal jurisdiction over non-Indians within their territories (Oliphant v. Suquamish Indian Tribe, 1978), although Congress has restored some tribal jurisdiction in certain circumstances (Violence Against Women Reauthorization Act of 2013)
• Tribal authority may also be limited by federal statutes, such as the Indian Civil Rights Act (1968), which applies many of the protections of the Bill of Rights to tribal governments
• The extent of tribal sovereignty and the scope of tribal authority continue to be shaped by ongoing legal and political developments, as well as the evolving relationship between tribes and the federal government