In Lone Wolf the court formally established the plenary power doctrine. But in reading through Leeds’ “The More Things Stay the Same,” I was skeptical of the Court’s reasoning in justifying that doctrine.
The plenary power of Congress is first identified in 1899 where the Court in a series of appeals’ decided that “Congress possesses plenary power of legislation in regard to [Indian Tribes], subject only to the Constitution of the United States…” In neither case do I see the justification for assuming Congressional plenary power. In it’s 1899 appeals’ decision the Court itself admits to assuming this power, rather than identifying some constitutional or other legal basis. In Lone Wolf however the Court makes the dangerous leap of logic to declare that this power “has been exercised by Congress from the beginning.” Why would the Court ever believe this?
Lone Wolf was decided in 1903, in the midst of national assimilationist policy, so it is understandable why it would be necessary for the federal government to affirm an unquestionable authority of indigenous peoples. But the Court boldly asserts that this power has always existed. Had the Court been acting a hundred years earlier could this same statement been considered reasonable? Looking back to the Indian Removal Act, the President was authorized and encouraged by Congress to arrange for the displacement of Indian tribes, but even this was done through theoretical consensual treaty agreements. Had Congress possessed plenary power since inception why would they have sought removal by treaty, a process which had dragged on for decades and was contested in Supreme Court? The only reasonable answer I can perceive is that the accretion of U.S military might and subsequent loss of indigenous land claims now enabled the federal government to act without indigenous consent.
In addition the Court claims that when “treaties were entered into between the United States and a tribe of Indians, it was never doubted that the power to abrogate existed in Congress…” I can only ask why? Is it then likewise assumed that Congress can abrogate treaties with European nations? Even if the domestic dependent nation status of Indian tribes and the subsequent fiduciary relationship are the basis for this ability to abrogate, nonetheless these doctrines did not exist at the birth of the United States.
In both these wild assumptions the Court was not simply incorrect in claiming that plenary power and the right to abrogate have always been available to Congress. Coupled together these lies have perhaps created the greatest single threat to indigenous sovereignty in the United States.