Federal Power Over Indians: Its Sources, Scope, and Limitations Nell Jessup Newton Notre Dame Law School, [email protected]

Notre Dame Law School NDLScholarship Journal Articles Publications 1-1984 Federal Power over Indians: Its Sources, Scope, and Limitations Nell Jessup Newton Notre Dame Law School, [email protected] Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Indian and Aboriginal Law Commons Recommended Citation Nell J. Newton, Federal Power over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev. 195 (1984). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/1202 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. 1984] University of Pennsylvania Law Review FOUNDED 1852 Formerly American Law Register VOL. 132 JANUARY 1984 No. 2 FEDERAL POWER OVER INDIANS: ITS SOURCES, SCOPE, AND LIMITATIONS NELL JESSUP NEWTONt INTRODUCTION Judicial deference to federal legislation affecting Indians is a theme that has persisted throughout the two-hundred-year history of American Indian law. The Supreme Court has sustained nearly every piece of federal legislation it has considered directly regulating Indian tribes, whether challenged as being beyond federal power or within that power but violating individual rights.' This judicial deference often has been justified by invoking federal plenary power to regulate Indian affairs and the political question doctrine's requirement of deference to the political branches. Indeed, not until 1977 did the Court explicitly repudiate use of the political question doctrine to bar equal protection t Associate Professor of Law, Catholic University of America. B.A. 1973, Univer- sity of California, Berkeley; J.D. 1976, University of California, Hastings College of the Law. I wish to thank Robert Clinton of the University of Iowa College of Law and Roger Hartley of the Catholic University Law School for their many helpful comment and criticisms of earlier drafts of this article. I would also like to acknowledge the fine research assistance of Nancy Dunn and Aline Henderson, both of the Catholic Univer- sity Law School. 1 In only one case did the Court invalidate a congressional law as violating Indian property rights, but it was careful to distinguish earlier cases by stressing that the rights at issue were individual and not tribal property rights. Choate v. Trapp, 224 U.S. 665, 671, 678 (1912); see infra notes 347-50 and accompanying text. (195) 196 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 132:195 challenges to federal legislation regulating Indian affairs.2 The judiciary's frequent invocation of federal plenary power over Indian affairs is curious since the Constitution does not explicitly grant the federal government a general power to regulate Indian affairs. One suspects, therefore, that, as in other areas of constitutional law, the terms "plenary power"' and "political question ' 4 are not so much jus- tifications for decisional outcomes as they are restatements of the Court's intent to defer to the other branches of government and, con- comitantly, to abdicate any role in defining the unique status of Indian tribes in our constitutional system or accommodating their legitimate claims of tribal sovereignty and preservation of property. The unique nature of Indian tribes in our federal system helps to explain this deference. Through almost two hundred years of constitutional adjudication, the courts have labored to decipher the Constitu- tion's exquisite tensions allocating power between the federal and state governments and between governmental power and individual rights. Yet, when the issue of Indian tribal sovereignty is placed within this matrix, none of the Constitution's familiar power allocation rules seem to fit. First of all, Indian tribes are not merely private associations.' a Delaware Tribal Business Comm. v. Weeks, 430 U.S. 73, 84 (1977) (citing Morton v. Mancari, 417 U.S. 535, 555 (1974)). a The term "plenary power" has been used to describe several distinct concepts. Engdahl has synthesized three, Engdahl, State and Federal Power over Federal Prop- erty, 18 ARIz. L. REV. 283, 363-66 (1976): first, plenary meaning exclusive power, as, for example, the exclusive power of Congress to spend federal money, U.S. CONST. art. I, § 8, cl.1; second, plenary meaning an exercise of power capable of preempting state law, as, for example, Congress's commerce power, U.S. CONST. art. I, § 8, cl.3; third, plenary meaning unlimited power. This final category includes two subgroups: (a) power unlimited by other textual provisions of the Constitution; and (b) power unlimited as to the objectives Congress might pursue. An example of the latter is the use of the taxing power to deter conduct Congress deems inimical to the public welfare, but which it cannot prohibit directly. See, e.g., United States v. Kahriger, 345 U.S. 22 (1953) (federal tax on bookmakers upheld). In Indian law, the term plenary power has been used with each of these connota- tions. See, e.g., Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561 (1832) (Marshall, C.J.) (federal law is exclusive and preemptive of state law); see also Lone Wolf v. Hitchcock, 187 U.S. 553, 564-65 (1903) (congressional plenary authority over Indians is political and not subject to judicial control). Contra, Delaware Tribal Business Comm. v. Weeks, 430 U.S. 73 (1977) (congressional plenary power over Indian affairs does not mean that due process challenge is not justiciable). As to the category of unlimited power, if a general power over Indian affairs exists, any legislation relating to Indians would be permissible. See, e.g., United States v. Rogers, 45 U.S. (4 How.) 567, 572 (1840) (congressional policy decisions dealing with Indians are not open to question by the judiciary); see also FELIX S. COHEN'S HANDBOOK OF FEDERAL INDIAN LAW 211 (R. Strickland & C. Wilkinson eds. 1982) [hereinafter cited as 1982 HANDBOOK]. " See Baker v. Carr, 369 U.S. 186, 217 (1962); see also Henkin, Is There a "Po- litical Question" Doctrine?, 85 YALE L.J. 597, 606, 622 (1976). ' "Indian tribes within 'Indian country' are a good deal more than 'private, volun- 19841 FEDERAL POWER OVER INDIANS They elect political officers who enact civil and criminal laws adminis- tered by tribal courts, and they hold title to tribal land. In short, they assert a measure of political sovereignty over the persons and property within the boundaries of their reservations.' In a constitutional sense, however, Indian tribes are strange sover- eigns. Unlike foreign countries, dealt with at arms length by the federal government, Indian tribes are subject to the ultimate sovereignty of the federal government: they govern within the territorial borders of the United States, and their members are United States citizens. Yet, In- dian tribes are "domestic dependent nations, ' 7 and not states of the Union able to claim rights against the central government through the traditions and constitutional structures supporting federalism.' At the same time Indian tribes do not have a full property interest in their lands; federal power to govern tribes has been translated into federal ownership of an interest in tribal lands, with a concomitant in- crease in federal power to confiscate that land.' How then, do Indian tribes and tribal claims fit within our constitutional framework? In particular, what constitutional arguments are available to an Indian tribe seeking to limit the exercise of federal power encroaching on the tribe's political sovereignty or its property interests? How has judicial deference to Congress impeded the development of constitutional protection of tribal rights? These questions are the subjects of the present Article. Because extraordinary deference to congressional power over Indi- ans is closely related to the courts' failure to protect Indian tribal rights, this Article begins by tracing the history of federal power over Indians, with special focus on the development of the Plenary Power Doctrine. History reveals that the original reasons for the doctrine are no longer applicable. While the doctrine has been narrowed in recent cases, the courts continue their truncated role, invoking plenary power, or its equivalent, and deferring to Congress to accommodate the com- peting interests affected by legislation. The music has stopped, but the melody lingers on. tary organizations' . ." United States v. Mazurie, 419 U.S. 544, 557 (1975). 1 See, e.g., Merrion v. Jicarilla Apache Tribe, 455 U.S. 130 (1982) (tribe's inher- ent sovereignty upheld exercise of tribal power to impose oil and gas severance tax on non-Indian lessees). For a recent review of the sources of and limitations upon tribal sovereignty, see 1982 HANDBOOK, supra note 3, at 229-57. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 15-18 (1831). 8 See, e.g., National League of Cities v. Usery, 426 U.S. 833 (1976) (state sovereignty can operate as a limitation on federal commerce power); cf. Hodel v. Virginia Surface Mining & Reclamation Ass'n, 452 U.S. 264 (1981) (federal mining act did not interfere with states' traditional governmental function). ' See infra text accompanying notes 58-80 & 122-28. 198 UNIVERSITY OF PENNSYLVANIA LAW REVIEW [Vol. 132:195 Undue deference to congressional power over Indians only par- tially explains the consistent failure of tribal claims against the government. A second cause is the unusual nature of those claims-especially

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