Plenary Power, Conservative Hypocrisy, and the Jurisprudence of Racism

Plenary Power, Conservative Hypocrisy, and the Jurisprudence of Racism

by Yili Yao -
Number of replies: 0

One of the most infamous Court cases still cited and used as precedent is Lone Wolf v. Hitchcock (1903), which ruled that Congress possesses a plenary power to unilaterally abrogate treaties between the US and Indian tribes. The unanimous decision ossified white superiority in the realm of federal Indian policy, departing from the lip service paid to Indian sovereignty in the Marshall Trilogy and Crow Dog.

            First, one must study the author of Lone Wolf, Justice Edward White, and the justices who joined the opinion. By today’s standards, White was a conservative who supported limited government, corporate rights, and antitrust law. Despite siding with the majority in Plessy v. Ferguson (1896), he struck down disenfranchising grandfather clauses in Guinn v. United States (1915). In fact, the Fuller Court that decided Lone Wolf and the White Court both invalidated historic legislation, such as unapportioned income taxation in 1895, part of the Sherman Antitrust Act in 1895, New York’s Bakeshop Act in 1905, and the Keating-Owen Act in 1918. Willis Van Devanter, who argued Lone Wolf for the government, voted as a judge against all New Deal legislation. One might consider that time period a triumph for corporations and individuals at the expense of the federal government. But for some reason, federal legislation regulating Indian affairs was upheld. So is it just hypocrisy that let conservative judges sustain expansive government for Indians? Or perhaps the answer lies more with race, in the idea that Indians do not deserve the same protections from a tyrannical Congress as nonnatives.

            Lone Wolf used horrifically racist language that affirms white superiority: “It is presumed that in this matter the [US] would be governed by such considerations of justice as would control a Christian people in the treatment of an ignorant and dependent race.”1 Unfortunately for the Court, the Constitution is supposed to be color blind, and even had new provisions to protect traditionally oppressed minorities—e.g., the Fourteenth Amendment. There is no textual authority inside whatsoever for Congressional plenary power over Indians. Stacy Leeds floats the cynical idea that the Court had predetermined an outcome and simply conjured something to justify the position (Leeds 76). First, that reasoning is extraconstitutional and judicial activism at its worst. Therefore, racism drove jurisprudence in a decision that has been called the Indians’ Dred Scott, a decision that continues to hurt them today. Leeds concludes with the idea that education is sorely needed to correct the injustice of Lone Wolf and its legacy of racist rulings (Leeds 86). In order for a future Court to rectify that, law students and citizens alike should learn about how in the early 20th century the Court unforgivably gifted Congress infinite power over an entire class of persons.




1. Lone Wolf v. Hitchcock, 187 U.S. 553, 23 S.Ct. 216, 47 L.Ed. 299