Excerpted From: Henry Ishitani and Alexandra Fay, Revising the Indian Plenary Power Doctrine, 29 Michigan Journal of Race and Law 1 (Spring, 2024) (192 Footnotes) (Full Document)

IshitaniFayHaaland v. Brackeen marked a turning point in federal Indian law. It did not eviscerate the Indian Child Welfare Act, nor did it threaten all of Title 25 of the United States Code as Indian law scholars feared. The Court rejected the appellants' tenuous anticommandeering and Article I claims, and it neatly dodged the dreaded equal protection question. Yet in affirming Congressional power in Indian affairs, the Court made some subtle and not-so-subtle challenges to the status quo. In Brackeen, the Court signaled its interest in reevaluating the nineteenth-century doctrine of Congressional plenary power.

The Indian law doctrine of plenary power is a relic of a more racist, imperialist American past--the ghost of manifest destiny that will not let go. Plenary power suggests broad Congressional power over Indian affairs, with limits that are undefined. The nineteenth-century cases that first articulated this doctrine, United States v. Kagama and Lone Wolf v. Hitchcock, justified Congressional intervention in internal Tribal government and the unilateral abrogation of a federal treaty, respectively. Since then, plenary power has facilitated dispossession, the horrific Indian boarding school system, and Tribal termination. None of these historic abuses resulted in enforceable limits on Congressional power. Today, plenary power still justifies paternalist national policies that harm Indian country and impede Tribal development.

Consequentialist critiques aside, the doctrine's foundational caselaw is flawed. It relied on racist depictions of Native people and the false presumption that Tribes were destined to disappear in the wake of American civilization. It explicitly relied on the Chinese Exclusion Case, Chae Chan Ping as precedent, operated in parallel to imperialist projections of national power in the territories, and laid the groundwork for extraconstitutional action in foreign affairs. In its initial articulation, the plenary power doctrine had no connection to constitutional text. For all these reasons, legal scholars have long criticized plenary power in the strongest of terms.

In Brackeen, the Court at last appears to be troubled by the colonial project it has facilitated. From questioning in oral argument to the careful delivery of the majority opinion to the impassioned concurrence and dissents, plenary power remained highly visible in the fight for the Indian Child Welfare Act. In this Article, we draw out this aspect of Haaland v. Brackeen, We recount the majority's subtle changes to the doctrine and the dissents' furious incredulity. Most of all, we explore Justice Neil Gorsuch's concurrence and his call for a new accounting of Congressional power in Indian affairs. As Justice Gorsuch recognized, nothing remotely like a “plenary federal authority over the Tribes” existed at the time of the founding. Instead, the founders chose to exclusively vest the federal government with “limited and enumerated [constitutional] powers.” These it would use specifically for the twin purposes of “preserving] th[e] equilibrium between Tribes and the States,” and “regulat [ing] the ways in which non-Indians may interact with Indians.” And in exchange for surrendering control over their external relations, the Tribes would be guaranteed in their “exclusive” sovereign authority over all aspects of internal self-government, in a fundamental “Indian-law bargain written into the Constitution's text.”

We ask, what if Justice Gorsuch is right? What if Kagama v. United States, the first case in plenary power's genealogy, was the fatal misstep that sent federal Indian law spiraling off course from “the Constitution's original design” for more than a century? If plenary power is fundamentally, irredeemably flawed, what then?

In this Article, we suggest an approach for identifying legislative overreach and excising the Court's irredeemable precedents. It identifies a broad class of suspect cases--namely every major decision drawing authority from Kagama, its immediate successor Lone Wolf, and their direct progeny, or otherwise citing to the notion of federal Indian law plenary power. It then applies two criteria to screen these cases, distilled from Justice Gorsuch's originalist conception of Congressional power.

In addition to this sorting process, we suggest an additional heuristic for flawed constitutional decisions: reliance on racist reasoning. Taken altogether, this approach flags abuses of Congressional power to invade matters of internal Tribal government or diminish Tribal sovereignty, especially when those incursions are premised on offensive racist logics.

In this way we outline a much larger, future project to carry out Justice Gorsuch's logic to its natural end. The immediate goal is academic: we set out the conceptual groundwork for a scholarly inquiry we hope to pursue in the near future. The secondary goal is broader: by taking up the perennial critique of plenary power informed by recent developments, we hope to arm practitioners and judges with timely arguments. Finally, implicit to this entire project is the assurance that should the Supreme Court find the courage to admit it was wrong and repudiate the constitutionality of the doctrine, such a decision would not mean utter destruction for federal Indian policy. Rather, we tentatively suggest that a reformed, workable, constitutional account of federal power over Tribal nations can be rescued from the troubled history of federal Indian law.

The Article proceeds in the following manner. First, we review the role of unchecked federal power in the history of the Indian Child Welfare Act. Second, we recount the various Brackeen opinions' engagement with plenary power doctrine. We walk through Justice Gorsuch's assessment in fine detail. Third, we imagine what Justice Gorsuch's vision would entail, should his view ever gain majority support. We present a process for generating a revised body of federal Indian law, one in which Congressional power is still robust, but crucially limited in line with our constitutional commitments.

[. . .]

Congressional plenary power in Indian affairs has long justified extraordinary federal intervention into Tribal government, often with dire consequences for Indian country. It is well overdue for revision. In this Article, we have identified an opportunity to refashion the troubled Indian law doctrine of plenary power. In our review of Brackeen, we drew out the majority's subtle revisionary moves, the dissenters' wholesale rejection of the doctrine, and Justice Gorsuch's distinct originalist account of federal power in Indian affairs. We embraced Justice Gorsuch's conception of our constitutional order, and from that conception we outlined an approach to review and improve Indian law precedent. Federal intervention is inappropriate and unconstitutional when it undermines internal Tribal self-government or enhances state invasions into Tribal governance. Moreover, precedent tinged with racist language or reasoning is doubly suspect. By sifting through Supreme Court caselaw with this method, we endeavor to bring greater coherence to federal Indian law, expunge the most offensive and embarrassing judicial reasoning from the record, and ultimately vindicate the enduring role of Tribal sovereignty in our constitutional structure.

M. Henry Ishitani is a Ph.D. Candidate in History at Yale University. He received his J.D. from Yale Law School.

Alexandra Fay is the inaugural Richard M. Milanovich Fellow at UCLA School of Law's Native Nations Law & Policy Center. She also received her J.D. from Yale Law School.