Revising the Indian Plenary Power Doctrine

M. Henry Ishtani*, Alexandra Fay** April, 2024

The federal Indian law doctrine of Congressional plenary power is long overdue for an overhaul. Since its troubling nineteenth-century origins in Kagama v. United States (1886), plenary power has justified invasive Congressional interventions and undermined Tribal sovereignty. The doctrine’s legal basis remains a constitutional conundrum. This Article considers the Court’s recent engagement with plenary power in Haaland v. Brackeen (2023). It argues that the Brackeen opinions may signal judicial readiness to reevaluate the doctrine. The Article takes ahold of Justice Gorsuch’s critical assessment and runs with it, ultimately proposing a method for cleaning up this destructive and constitutionally dubious line of caselaw.

Introduction

Haaland v. Brackeen marked a turning point in federal Indian law.¹ It did not eviscerate the Indian Child Welfare Act,² 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,³ and it neatly dodged the dreaded equal protection question.⁴ 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.⁵ The nineteenth-century cases that first articulated this doctrine, United States v. Kagama and Lone Wolf v. Hitchcock, justified Congressional intervention in internal Tribal government⁶ and the unilateral abrogation of a federal treaty,⁷ respectively. Since then, plenary power has facilitated dispossession,⁸ the horrific Indian boarding school system,⁹ and Tribal termination.¹⁰ None of these historic abuses resulted in enforceable limits on Congressional power.¹¹ Today, plenary power still justifies paternalist national policies that harm Indian country and impede Tribal development.¹²

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.¹³ It explicitly relied on the Chinese Exclusion Case, Chae Chan Ping¹⁴ as precedent,¹⁵ operated in parallel to imperialist projections of national power in the territories,¹⁶ and laid the groundwork for extraconstitutional action in foreign affairs.¹⁷ In its initial articulation, the plenary power doctrine had no connection to constitutional text.¹⁸ For all these reasons, legal scholars have long criticized plenary power in the strongest of terms.¹⁹

In Brackeen, the Court at last appears to be troubled by the colonial project it has facilitated. From questioning in oral argument²⁰ to the careful delivery of the majority opinion²¹ to the impassioned concurrence²² and dissents,²³ 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.”²⁴ These it would use specifically for the twin purposes of “preserv[ing] th[e] equilibrium between Tribes and the States,” and “regulat[ing] the ways in which non-Indians may interact with Indians.”²⁵ 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.”²⁶

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”²⁷ for more than a century?²⁸ 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.

I. Plenary Power and the Indian Child Welfare Act

Brackeen offers an illuminating study of Congressional power. The Brackeens and their fellow petitioners argued that the Indian Child Welfare Act (ICWA) was unconstitutional because it surpassed the limits of Congressional power set out in Article I.²⁹ In Article I, Congress is given the power to regulate commerce with Indian Tribes.³⁰ Yet as the petitioners repeatedly intoned, “children are not commodities that can be traded.”³¹ To protect ICWA, the Court had to endorse a broader account of Congressional power.

One traditional approach has been to argue that the Indian Commerce Clause, like the Interstate Commerce Clause,³² encompasses much more than material goods being bought and sold across political boundaries³³—that in fact, it authorizes federal intervention into state court child custody proceedings. But given the Court’s efforts to rein in the Interstate Commerce Clause, such an expansive reading of this provision was unlikely.³⁴ Such an Indian Commerce Clause-reliant understanding would face attacks analogous to those that have corralled the expansive New Deal conception of Congress’ Interstate Commerce powers in recent years.³⁵ Moreover, this approach is vulnerable to originalist criticism. Recent legal history scholarship describes it as “historically untenable,” given how it centers federal Indian-law power around an “open-ended . . . afterthought” of a clause,³⁶ at the expense of the “bundle of [other] powers” that the founders and the Washington Administration knew to be the heart of their authority to manage Indian affairs.³⁷ In its place, a second approach finds a broad federal power articulated in a constellation of constitutional provisions.³⁸ This argument implicates not only the Indian Commerce Clause, but also the Treaty Clause,³⁹ the Territories Clause,⁴⁰ the War Powers Clause,⁴¹ the Supremacy Clause,⁴² and the Powers Denied States Clauses.⁴³ Taken altogether, these powers elicit a constitutional structure in which the federal government enjoys an exclusive, if not always plenary power to deal with Native Nations. This reading is backed up by federal action in Indian affairs in the Early Republic, as legal historian and Indian-law scholar Gregory Ablavsky has described.⁴⁴

Historically, the Court has also considered a third approach, one that invokes tremendous national power without reference at all to the constitutional text. In the 1886 decision of Kagama v. United States, the Supreme Court reviewed the Major Crimes Act,⁴⁵ which asserted federal criminal jurisdiction over crimes committed by Indians, against Indians, on Tribal land.⁴⁶ In the Major Crimes Act, Congress sought to intervene in matters of internal Tribal governance, based on a racist perception of Tribal justice as weak and uncivilized.⁴⁷ When Kagama challenged the Act’s constitutionality, the Supreme Court sided with Congress.⁴⁸

To justify its decision, the Court did not cite the Constitution. In fact, the Court explicitly rejected the suggestion that the Indian Commerce Clause could authorize the invasive criminal statute.⁴⁹ Instead, the Court emphasized Tribes’ dependence on the federal government: “From their very weakness and helplessness, so largely due to the course of dealing of the federal government with them . . . there arises a duty of protection, and with it the power.”⁵⁰ The Court found that this paternalist power simply “must exist in [the federal] Government.”⁵¹ Philip Frickey called this reasoning “an embarrassment of constitutional theory.”⁵² And yet Kagama has long been cited as the precedential origin point of the Indian plenary power doctrine.⁵³

The Court affirmed Kagama in its 1903 decision in Lone Wolf v. Hitchcock. In Lone Wolf, the United States unilaterally abridged its treaty⁵⁴ with the Kiowa, Apache, and Comanche Nations in order to open reservation lands to white settlers.⁵⁵ Kiowa leader Lone Wolf brought the case to federal court to enforce the treaty, to hold the federal government to its word. But the Court offered no relief. Extending the dependency reasoning of Kagama, the Lone Wolf decision held that Congress had the power to abrogate its treaties with Indian Tribes.⁵⁶ In doing so, the Court announced Congressional “[p]lenary authority over the Tribal relations of the Indians.”⁵⁷

In the years since, the Court has shifted in its description of the plenary power. Having started with the bold Constitution-less proclamation of Kagama, it has at times reworked its reasoning to include constitutional hooks that align with the first two described accounts of Congressional power.⁵⁸ Yet even as it has pointed to differing sources for its authority at different times, the Court has nevertheless repeatedly endorsed a plenary Congressional power over Tribes and their citizens.

The question of plenary power is particularly poignant in Brackeen, because the Indian Child Welfare Act carries a troubling history of federal overreach. Congress passed ICWA in 1978 to address the alarming rates of child removal from Native families.⁵⁹ In the 1970s, 25% to 35% of all Native children were taken from their homes and placed in adoptive homes, foster homes, or institutions.⁶⁰ 90% of those kids were placed with non-Natives.⁶¹ This largescale removal of children was the product of the Bureau of Indian Affairs’ Indian Adoption Project of the 1960s,⁶² as well as the legacy of the Indian boarding schools program, the devastating assimilationist policy initiated by the Bureau of Indian Affairs in 1860.⁶³ ICWA sought to halt the terrible rate of Indian family separation and to reject destructive federal policies of the past.⁶⁴ If the Indian boarding school and adoption programs were ever constitutional, they were justified by a theory of plenary power. The notion of remedying abuses of federal power with an assertion of more federal power is unsettling, to say the least. Behind such a resolution lurks an ongoing threat of future government abuse.⁶⁵

Plenary power is not unlimited nor absolute, regardless of what Justice Samuel Alito’s dictionaries say.⁶⁶ However, those limitations are hardly defined. Scholars have suggested limiting plenary power by the trust relationship: Congress can only exercise its power in Indian affairs in efforts to preserve or enhance Tribal interests.⁶⁷ But this suggestion raises a crucial follow-up question: who defines Tribal interests? If Congress believed in the late nineteenth century that integration and assimilation into white American society was the best future for Native people, was it authorized to force Native children into boarding schools? To pass the General Allotment Act and strip Tribes of 90 million acres of land so that individual Indians might become more American?⁶⁸ Can the federal government, in good faith, place Native children with white families based on white American ideas of good parenting? An Indian law doctrine that can authorize such destructive, misguided policies is unquestionably dangerous, as it extends the pattern of non-Native elites making the essential choices of Tribal governance.

In the Brackeen oral argument, Justice Alito raised this line of questioning.⁶⁹ Did Congress have the power to force Indian children into boarding schools? Deputy Solicitor General Edwin Kneedler struggled, understandably. Despite his prior statement that Congress’ actions must be “in service of its obligations to the Indians,”⁷⁰ Kneedler admitted that yes, “Congress had the power at the time.”⁷¹ Both Edwin Kneedler and Ian Gersherhorn, the advocate for the Tribal parties, remarked that the Supreme Court had never struck down a statute for exceeding the bounds of Congress’ plenary power.⁷²

II. The Brackeen Opinions

We begin with the majority, written by Justice Amy Coney Barrett. In the majority opinion, we observe a subtle but significant shift in the Court’s approach to plenary power. Next, we briefly recount the dissenting opinions by Justice Clarence Thomas and Justice Samuel Alito, both of whom challenge the plenary power doctrine and the constitutionality of ICWA. Finally, we get to Justice Gorsuch’s concurrence. We give the concurrence careful review because it serves as the basis for the revisionary proposal sketched out in Part III. We do not review Justice Kavanaugh’s short concurrence, because it does not engage with the issue of Congressional power.

A. The Majority

In Haaland v. Brackeen, the Court once again affirmed Congress’s broad power over Indian affairs to uphold the Indian Child Welfare Act. Writing for the majority, Justice Amy Coney Barrett invoked the plenary power doctrine. Echoing the second approach laid out above, she rooted the power in a collection of constitutional sources, citing the Commerce Clause and the Treaty Clause,⁷³ as well as the general structure of the Constitution.⁷⁴ She observed that “[a] power unmoored from the Constitution would lack both justification and limits.”⁷⁵ Justice Barrett also pointed to the trust relationship as a basis and limitation of plenary power.⁷⁶ But she did not go so far as to define that relationship or its restrictions on Congressional action.⁷⁷

Nevertheless, Justice Barrett adamantly insisted that Congress’s power “is not absolute.”⁷⁸ Our constitutional structure will not stomach unchecked federal power; our national government is one of enumerated powers.⁷⁹ Congressional power in Indian affairs is no exception.⁸⁰ In Justice Barrett’s words: “we reiterate that Congress’s authority to legislate with respect to Indians is not unbounded. It is plenary within its sphere, but even a sizeable sphere has borders.”⁸¹ This description gets at the heart of a linguistic ambiguity that troubles the doctrine of plenary power: whether “plenary” means exclusive (at the expense of the states) or absolute (unrestricted in terms of substance).⁸² The sphere has borders, even if the Court will not tell us where they lie.

The Brackeen majority opinion marked an important albeit subtle change in the Court’s approach to plenary power. The emphasis on a limited but exclusive power, based in and bounded by the Constitution, was backed up by a curated account of precedent. Most notably, Kagama v. United States was nowhere to be found. In her two major string cites illustrating the doctrine’s history, Justice Barrett wholly excluded Kagama.⁸³ By excising the most dubious and offensive case from the canon, the majority appears to have shut the door on any version of plenary power not accountable to the Constitution.⁸⁴

We can only speculate as to the actual intentions of Justice Barrett and the discussions that led to her choice of authorities. However, considering Justice Gorsuch’s extensive engagement with the doctrine’s genealogy and his singling out of Kagama, it seems likely that the elision was no mere accident. Optimistically, we suggest that this subtle change and the majority’s emphasis on constitutional limits denote an opportunity to reevaluate the plenary power doctrine and bring greater coherence to federal Indian law.

B. The Dissenters

Justice Clarence Thomas dissented. He found no constitutional basis for the Indian Child Welfare Act.⁸⁵ In broad terms, he rejected the entire doctrine of plenary power: “I have searched in vain for any constitutional basis for such a plenary power, which appears to have been born of loose language and judicial ipse dixet.”⁸⁶ He reviewed each constitutional source referenced by the majority and found that each individually failed to justify ICWA.⁸⁷ In this reasoning, he declined to read a general power out of a collection of discrete, enumerated powers.⁸⁸ He took issue with Kagama as “lack[ing] any constitutional basis.”⁸⁹ Unlike the majority, he highlighted this mistake as evidence that the entire doctrine was constitutionally compromised.⁹⁰ Justice Thomas’s hostility toward plenary power is informed by his general skepticism of Tribal sovereignty.⁹¹

Justice Samuel Alito also dissented. He asserted that ICWA violated “the fundamental structure of our constitutional order” by interfering in the domain of states.⁹² He also took issue with the majority’s treatment of plenary power, namely its formulation that “Congress’s power over Indian affairs is ‘plenary’ but not ‘absolute.’”⁹³ Relying on various dictionaries defining “plenary” as “absolute,” Justice Alito disparaged the majority’s formulation as asserting “that absolute ≠ absolute and plenary ≠ plenary, violating one of the most basic laws of logic.”⁹⁴

C. The Concurrence

Justice Neil Gorsuch took another route in his concurrence: he voted to uphold ICWA, but not on the basis of the plenary power. Indeed, as an originalist, Justice Gorsuch found that “our founding document does not include a plenary federal authority over Tribes” at all.⁹⁵ Instead, he justified ICWA with an original constitutional arrangement that he labeled “the Constitution’s Indian-law bargain,” by which the federal government exercises a broad and exclusive power to manage the relations between Indians and non-Indians.⁹⁶

Under that original Indian-law bargain, the Tribes are guaranteed in their “exclusive” sovereign authority in all aspects of internal self-government, while the federal government regulates all external relations for the Tribes. As a “corollary” to that fundamental commitment to Tribal self-government, Justice Gorsuch contended that the states have “virtually no role” in governing Indian affairs. Instead, the federal government exclusively holds “limited and enumerated” constitutional powers specifically for the twin purposes of “preserv[ing] th[e] equilibrium between Tribes and the States” and “regulat[ing] the ways in which non-Indians may interact with Indians.”⁹⁷

This bargain “predated the founding”; it developed in prior diplomacy between the Tribes and the British Empire, the colonies, and pre-Constitution Congresses.⁹⁸ It then passed into the “Constitution’s text” at the founding, with the document affirming the specific powers of the federal government needed to fulfill its part in the bargain. But the “bundle of federal authorities” thus conveyed were emphatically not the plenary power described by the Court in Kagama and its progeny.⁹⁹

Instead, this “bundle of federal authorities” coheres out of a structural reading of the Constitution.¹⁰⁰ Justice Gorsuch followed Ablavsky in looking to Constitutional Convention records and the practices of the Washington Administration in particular. There he found that Congressional power to manage the bargain functioned most prominently during the founding period through the “authority to ‘make Treaties’ with the Tribes,” with further “facilitat[ion]” by the War, Territories, and Spending Powers.¹⁰¹ Under this reading, the Commerce Power was originally intended as a backstop when “all those powers came up short.”¹⁰² However, given how the relationship of the Tribes to the United States developed away from frontier diplomacy to internal administration of reservations, “[m]uch of modern federal Indian law” since the mid-nineteenth century has found its basis in the Indian Commerce Clause.¹⁰³

The Indian Commerce Clause in turn provides “powers” that are “broader than those it enjoys under the Interstate Commerce Clause.”¹⁰⁴ Yet these powers are in no way plenary. While Congressional authority is “robust” where it “regulates the ways in which non-Indians may interact with Indians,” “[n]othing in the Clause grants Congress the affirmative power to reassign to the federal government inherent sovereign authorities that belong to the Tribes.”¹⁰⁵ Not only would this run afoul of the original Indian-law bargain’s overriding commitment to protecting Tribal sovereignty in internal self-government, something that the Constitution “promises [the Tribes] for as long as they wish to keep it.”¹⁰⁶ More specifically, it is “inconceivable” to Justice Gorsuch “that a power to regulate non-Indians’ dealings with Indians could be used to dives[t Tribes] of the right of self-government.”¹⁰⁷

Thus, for Justice Gorsuch, the Court of the “late 19th century” made a fundamental “doctrinal misstep”—one comparable to Plessy v. Ferguson¹⁰⁸—in departing from the original bargain’s limited conception of federal power in Indian affairs. In its place, the Kagama Court and its successors constructed the plenary power as a free-standing, “supposedly inherent right” of the federal government to unilaterally “enforce its laws over th[e] remnants of a race once powerful, now weak.”¹⁰⁹

The majority’s approach of endorsing a more modest version of plenary authority therefore does not go far enough. Plenary power must be rooted out in favor of the original structure of the Indian-law bargain. This would bring “the scope of congressional authority over the Tribes under the Indian Commerce Clause” back to its more modest original bounds. That scope is “best construed as a negative one,” limited only to “creating federal restrictions concerning what United States citizens and States may do in the context of Indian ‘[T]ribes.”¹¹⁰

Yet this more modest scope still provides more-than sufficient authority for ICWA. For while “Indian children are not (these days) units of commerce,”¹¹¹ the Indian Commerce Clause does afford the federal government power to restrict “how non-Indians” like Texas and the Brackeens “may engage with Indians.”¹¹² The “removal of Indian children by States and private parties . . . directly interferes with tribal intercourse” and “threatens the Tribes’ ‘political existence.’” Congress is thus fully empowered—if not downright obligated—to fulfill its role in the original Indian-law bargain by using its Indian Commerce Clause powers to override state family law and protect the integrity of Tribal families.¹¹³

III. Refashioning Congressional Power in Indian Affairs

Justice Gorsuch’s critique of plenary power suggests over a century of suspect caselaw. In this last Part, we consider the kind of precedential reckoning necessary to excise the plenary power doctrine from federal Indian law. A total doctrinal overhaul would be a large and detailed project. The language of plenary power suffuses much twentieth-century caselaw, yet not every case that invokes plenary power marks an unconstitutional overreach of federal power. The work of cataloging and evaluating every suspect case is beyond the scope of this Article. For now, we outline a potential approach, guided by criteria distilled from the Brackeen concurrence.

First, we suggest that every decision drawing authority from Kagama, Lone Wolf, or plenary power by name is suspect. This initial class of cases is overly broad and must be examined in more detail to determine which precedents would still pass constitutional muster in the absence of the plenary doctrine and which would fail.

Second, we draw two criteria from Justice Gorsuch’s reasoning to begin to make these further evaluations. We ask whether the Congressional action under review (a) infringes on Tribal self-government directly, or (b) facilitates the state encroachment into Tribal governance. These criteria present two useful and historically founded modes for approaching the core shared principle of Tribal sovereignty.

Third, we suggest another heuristic for identifying faulty precedent. A troubling pattern in federal Indian law decisions is the recurring invocation of the trope of the “vanishing Indian.”¹¹⁴ Kagama itself relies on an image of a diminished people, increasingly dependent on the national government in the wake of America’s manifest destiny.¹¹⁵ When judicial reasoning rests more on racist tropes than constitutional interpretation, the decision is likely fundamentally flawed. Moreover, the narrative of the vanishing Indian is inherently hostile to Tribal survival.¹¹⁶ For these reasons, we suggest that references to vanishing Indians and vanishing Tribes can serve as additional red flags in our review of suspect caselaw.

A. Identifying Suspect Cases

According to Justice Gorsuch, the Constitution provides zero basis for a federal plenary power in Indian law. If embraced by the rest of the Court, this conclusion would render much of federal Indian law post-Kagama—and especially that implemented in the “high plenary power era of U.S. Indian law” at least preliminarily suspect.¹¹⁷

To put things in terms of analytical process, this first conclusion provides us with an initial tranche of suspect caselaw. Those being every federal Indian law case that relies upon Kagama, Lone Wolf, or the plenary power doctrine as a core part of its analysis, as well as every federal Indian law policy that the Court has defended on these same principal grounds. For instance, initial searches in Westlaw reveal that 82 Supreme Court cases cite Kagama and 45 cite Lone Wolf. Given that 16 cases cite both precedents, this leaves a first flyover population of some 111 potentially suspect Supreme Court cases. That population will fluctuate as further searches for the plenary power doctrine are added and cases are also subtracted for not relying sufficiently upon these doctrines.

To be sure, there are many policies and precedents that will not be captured by this initial study. It will not include statutes that have never been directly challenged in the Supreme Court yet are likely unconstitutional, such as termination acts,¹¹⁸ the General Allotment Act,¹¹⁹ and Public Law 280.¹²⁰ It will not include judge-made law unconnected to any Congressional action, such as Oliphant v. Suquamish Indian Tribe,¹²¹ Montana v. United States,¹²² and Oklahoma v. Castro-Huerta.¹²³ This project of weeding out the most constitutionally offensive plenary power precedents has no pretension of fixing all of federal Indian law. But we do see this effort as a step toward reasserting a better conception of federal power in Indian affairs. We can hope that increased scrutiny from the academy and the profession can lead to a much more ambitious attack on the Indian law doctrine of plenary power in all its destructive manifestations. As we sift through Supreme Court precedent to illustrate a reformed vision of Congressional power, we can dream of a larger movement involving strategic litigators and federal judges.

B. The Gorsuch Criteria

Having sketched out at least an initial population of suspect caselaw, we next need criteria for beginning to sift through the plenary doctrine caselaw to establish which precedents are and are not presumptively constitutional. We draw the two criteria from Justice Gorsuch’s reasoning in Haaland v. Brackeen: (1) Does the act in question interfere in Tribal self-government? (2) Does the act in question project state authority into Tribal affairs? If either of these questions are answered in the affirmative, the decision is likely unconstitutional.

1. Unilateral Federal Derogations of Tribal Self-Governance are Presumptively Unconstitutional

In rejecting the plenary doctrine, Justice Gorsuch commits wholeheartedly to the inviolability of the Tribes’ position of limited sovereignty within our constitutional order. The Tribes’ exclusive sovereign authority in all aspects of internal self-government cannot be abridged, except with their explicit consent to a federal offer that non-Indian institutions assume internal governance responsibilities. In Gorsuch’s words, the Constitution “promises” the Tribes this exclusive right to internal self-governance “for as long as they wish to keep it.”¹²⁴

In coming to this conclusion, Justice Gorsuch clearly sees that the Commerce Clause does not convey authority to the United States to unilaterally encroach on Tribal internal self-government. Such encroachment can only occur through one of the other powers in the “bundle of federal [Indian-law] authorities,”¹²⁵ and then only with the bilateral consent of both the Tribe and the federal government—thus implicitly returning us to the Treaty Power as the original primary foundation of federal Indian-law authority. The Commerce Clause gives no “plenary power.” What it does convey is federal power to fulfill the “promise”¹²⁶ of sovereign inviolability to the Tribes and to otherwise “regulate non-Indians’ dealings with Indians.”¹²⁷

To our initial class of suspect cases, we can apply the following rule: to the extent that these cases feature unilateral federal derogations of Tribal self-governance, they are presumptively unconstitutional. By contrast, where they feature federal attempts to foster and protect Tribal self-governance—often in seeking to repair what the states or the federal government has previously damaged—they are presumptively constitutional. This latter circumstance is exactly the situation with ICWA, making the Brackeen Court’s decision presumptively constitutional under this test.

Yet this rule also includes a caveat drawn from the treaty-making past. That is, where the federal government has secured the explicit consent of a Tribe to the transmission of specific internal governance responsibilities, then that transmission may still be deemed constitutional under this test. However, it is also properly subject to further judicial scrutiny as to the ability of the Tribe to make its decision free of duress.¹²⁸

The foundational plenary power decisions, United States v. Kagama¹²⁹ and Lone Wolf v. Hitchcock¹³⁰ both fail this test. In Kagama, the Court reviewed the constitutionality of the Major Crimes Act,¹³¹ a statute that imposed federal criminal law jurisdiction over “major crimes” committed between Tribal members, thereby inserting federal criminal law directly into internal Tribal affairs.¹³² This legislation—which still governs Indian country today—violated the exclusive sphere of Tribal sovereignty, without Tribal consent. Under the Gorsuch account, the Major Crimes Act is beyond the limits of Congressional power and Kagama was wrongly decided.¹³³

Lone Wolf is similarly flawed. In 1900, Congress materially altered the terms of a treaty with the Kiowa, Comanche, and Apache Tribes in violation of the treaty’s explicit amendment provisions.¹³⁴ Congress did so to enact a policy of allotment and open up the reservation to white settlement.¹³⁵ The Court upheld the new treaty and the subsequent allotment legislation in the name of plenary power.¹³⁶ Under our proposed test, this decision was plainly mistaken. Congress’s actions were a direct affront to Tribal sovereignty, taking away Tribal lands without proper consent. We believe that the other allotment acts of the Assimilation Era are likely unconstitutional on comparable grounds. ¹³⁷

Other cases will pass constitutional muster under our proposed test. Consider the Court’s decision in United States v. Mazurie.¹³⁸ In this 1975 decision, the Court cited to both Kagama and Lone Wolf to uphold Congressional action regulating the introduction of liquor into Indian country.¹³⁹ First, the Court affirmed Congress’s power to regulate the sale of alcohol by non-Indians on Tribal land.¹⁴⁰ This first claim of authority falls squarely in Gorsuch’s reading of the Indian Commerce Clause. Second, the Court affirmed Congress’s power to delegate that regulatory authority to the Tribe.¹⁴¹ This second conclusion also succeeds under the proposed test, because it does not diminish Tribal self-government, but rather, enhances it. Thus, we find Mazurie to be presumptively constitutional.

The Court’s decision in United States v. Lara also withstands scrutiny.¹⁴² Lara reviewed the constitutionality of the “Duro Fix,” a statutory rebuke of a former Supreme Court decision, Duro v. Reina.¹⁴³ Duro v. Reina held that Tribes had been implicitly divested of the power to prosecute non-member Indians.¹⁴⁴ Congress disagreed and passed the Duro Fix to restore Tribal jurisdiction over all Indians.¹⁴⁵ Thus, the Lara Court had to consider whether Congress had the power to reinstate an attribute of inherent Tribal sovereignty that the Court had previously restricted.¹⁴⁶ Finding that Congress did possess the requisite power,¹⁴⁷ the Court relied on the doctrine of plenary power.¹⁴⁸ Here, the invocation of plenary power is not fatal, because the underlying Congressional action is plainly in service of Tribal sovereignty. The restoration of powers of self-government, especially to rectify bad precedent, is compatible with our conception of Congressional power. While it has yet to be challenged, the Violence Against Women Acts of 2013 and 2022,¹⁴⁹ which restore some Tribal jurisdiction over non-Indians in a partial Oliphant fix,¹⁵⁰ should be presumptively constitutional on the same reasoning.

2. Federal Facilitation of State Encroachment on Tribal Self-Governance is Presumptively Unconstitutional

In his Brackeen concurrence, Justice Gorsuch repeatedly affirms that “the States have virtually no role to play when it comes to Indian affairs.”¹⁵¹ The guaranteed “sovereign authority of Tribes” under the Constitution comes with the “concomitant jurisdictional limit on the reach of state law” over Indian affairs, with management of interactions with the Tribes therefore “rest[ing] exclusively with the federal government.”¹⁵² Where state law conflicts with federal Indian policy, then, state law clearly loses. This was the case in Brackeen. And where states seek to apply policies to the Tribes which affect those Tribes’ internal self-government, they can only do so through voluntary cooperation.¹⁵³

We translate this point into a broad formulation: wherever states unilaterally encroach on Tribal self-governance without Tribal consent, those actions are presumptively unconstitutional. Such action might be undertaken independently by the state, in violation of federal law.¹⁵⁴ Such action might also be directly facilitated and condoned by Congress.¹⁵⁵ Since our tranche of caselaw for this project specifically centers on plenary doctrine cases, it is only likely to capture cases in this second category.

Negonsott v. Samuels is an example of unconstitutional state encroachment facilitated by Congress.¹⁵⁶ In Negonsott, the Court reviewed the Kansas Act,¹⁵⁷ to determine whether it granted the state jurisdiction to prosecute state crimes committed by Indians on reservations.¹⁵⁸ While the opinion primarily concerned statutory interpretation, the Court made a passing statement on the constitutionality of such a delegation. According to the Court: “Congress has plenary authority to alter these jurisdictional guideposts.”¹⁵⁹ In this way, Negonsott mistakenly affirmed Congress’ power to assert state jurisdiction into internal Tribal affairs. Without any provision for Tribal consent, this result plainly violates our second rule. It would be considered presumptively unconstitutional.

The same reasoning should upset Public Law 280, by which Congress forcibly integrated reservations into state legal systems in California, Minnesota, Nebraska, Oregon, Wisconsin, and Alaska.¹⁶⁰ Public Law 280 also allowed other states to voluntarily take up jurisdiction over Indian country.¹⁶¹ Like the Kansas Act, the original statute asserted state jurisdiction over Tribes without any provision for Tribal consent. While 1968 amendments incorporated a consent requirement, it did not apply retroactively.¹⁶² Unfortunately, the Court has never reviewed the basic constitutionality of Public Law 280. It has considered the meaning of the statute, its applications, and even its interaction with the Fourteenth Amendment.¹⁶³ But it has never asked whether Congress had the power to pass the law in the first place.

Of course, other cases directing state jurisdiction are perfectly acceptable. In Board of Com’rs of Creek County v. Seber, the Court upheld a 1936 act shielding Indian-owned land from state taxation.¹⁶⁴ The decision involved an invocation of Congressional plenary power and substantial quotations of United States v. Kagama.¹⁶⁵ Unlike in Negonsott, the federal intervention here is one that shields Tribal members from state jurisdiction. Congress was fulfilling its constitutional obligation to limit state overreach in Tribal affairs. The act in question is presumptively constitutional under our test.¹⁶⁶

One final example worth visiting is Morton v. Mancari.¹⁶⁷ In Mancari, the Court upheld the Bureau of Indian Affairs’ employment preference for Tribal members.¹⁶⁸ It observed that “[r]esolution of the instant issue turns on the unique legal status of Indian Tribes under federal law and upon the plenary power of Congress.”¹⁶⁹ This invocation of plenary power places the case in the suspect category. However, the decision passes both criteria. The employment preference does nothing to enhance state authority in Tribal affairs, nor does it interfere with internal Tribal government. Thus, the BIA policy should be constitutional as an extension of legitimate Congressional authority.

C. Additional Red Flags

By comparing Kagama v. United States to Plessy v. Ferguson, Justice Gorsuch alludes to another telling characteristic.¹⁷⁰ He observes: “as sometimes happens when this Court elides text and original meaning in favor of broad pronouncements about the Constitution’s purposes, the plenary-power idea baked in the prejudices of the day.”¹⁷¹ Throughout the opinion, Gorsuch repeatedly highlights how racist ideas plagued the emergence of this doctrine and operated to legitimate termination, child removal, and the other assimilationist policies organized under the plenary power banner.¹⁷² In particular, boarding schools and state adoptive programs for Indian children were often justified with the idea that they were for the “benefit to the children,” even as they inflicted untold horror and death upon Native families and their Tribes.¹⁷³ We push Justice Gorsuch’s observations a step further with the following suggestion: reliance on racist tropes in judicial reasoning presents a red flag for dubious constitutionality.¹⁷⁴ We can enhance the revisionary project by systematically noting the employment of racist tropes as we work our way through the plenary doctrine’s genealogy.

By bringing racist reasoning to light in each individual case, we strengthen the argument for overturning both the individual holdings and the doctrine as a whole. Conservative and progressive legal actors often disagree on whether formally neutral, “colorblind” policies unconstitu-tionally reinforce structural biases against historically marginalized groups.¹⁷⁵ However, they generally share a common reaction against blatantly racist language and thinking when it is brought under scrutiny.¹⁷⁶ Some observers may try to reject racist commentary as dicta with no bearing on the constitutionality of the holdings—to save the doctrinal baby while tossing out the prejudiced bathwater of the time. Indeed, this reaction resembles the majority’s approach in Brackeen—excising the most offensive cases and keeping the doctrine. It should be said that we have reservations about this approach—doubts as to whether constitutional doctrine can ever truly be extricated from its historic, racist context. Still, we believe that drawing attention to the racist assumptions underpinning foundational plenary power cases undermines the doctrine’s legitimacy. By today’s standards, indi-sputably racist ideas permeate many plenary power decisions, especially those drawn from the late nineteenth and early twentieth centuries.¹⁷⁷

Justice Gorsuch’s Plessy comparison is thus especially apt as the decision showcases how racist assumptions can lead the Court to fatally flawed interpretations of the Constitution. While the Plessy majority paid lip-service to formal equality, its discussion of the Fourteenth Amendment appealed to “the nature of things” to assert that the Constitution had nothing to say about social equality or racial integration.¹⁷⁸ The reasoning of this infamous opinion was infused with assumptions about Black inferiority and the naturality of racial difference and hierarchy.¹⁷⁹ Justice John Marshall Harlan’s famous dissent drew attention to decision’s racist logic by highlighting the law’s nanny exception—whereby Black people were allowed in the cars for white people so long as they were attending white passengers as subordinate servants.¹⁸⁰ Yet even Justice Harlan affirmed the dominance and superiority of the “white race,” while claiming that the “constitution is color-blind.”¹⁸¹

To be sure, Plessy’s defense of segregation was formally premised on the law’s alleged neutrality to white and Black people.¹⁸² Nevertheless, we now recognize Plessy as anathema to our constitutional commitments. An essential part of the process by which de jure segregation was overturned was the demonstration of the supposedly neutral policy’s prejudicial context—the racist reasons why it was repeatedly enacted, the assumptions about Black and white people that it made, and the racialized inequity it continually reproduced.¹⁸³

The plenary power doctrine also rests on flawed, racist assumptions. Like Plessy, its judicial reasoning is inflected with ideas of white supremacy.¹⁸⁴ Having failed to find a basis for expanding federal power into Tribal internal affairs in the Constitutional text, the Kagama Court could only intone that “[t]he power of the general government over these remnants of a race once powerful, now weak and diminished in numbers is necessary for their protection, as well as to the safety of those among whom they dwell.”¹⁸⁵ This is the same “vanishing Indian” trope that stands as one of the bedrock assumptions in our myth of manifest destiny, whereby Americans recast conquest as harmless expansion.¹⁸⁶ Along with the myth of the virgin American wilderness,¹⁸⁷ the “vanishing Indian” has worked to absolve Americans of the colonial violence and dispossession central to westward expansion.¹⁸⁸ The national policies of assimilation and Tribal termination—including the Indian boarding school program—emerged as variations on the same theme. In the notorious words of R. H. Pratt, founder of the archetypical Carlisle Indian Industrial School, civilizing¹⁸⁹ efforts must “kill the Indian. . . and save the man.”¹⁹⁰

In all these narratives, Tribes are cast as relics of the past, destined to fade away from American life. Legal reasoning premised on such an expectation of Tribal decline is fundamentally flawed. To state the obvious: Tribes have not disappeared. Legal decisions that lean into the story of the vanishing Indian are especially suspect because the trope is inherently hostile to Tribal sovereignty.¹⁹¹ Complementary notions of Native people as primitive, uncivilized, and racially inferior have also worked to justify incredible federal power and paternalist intervention at the expense of Tribal self-determination.¹⁹²

We do not assert that every decision that invokes the plenary power doctrine or the racist ideas that have surrounded it is necessarily unconstitutional. Rather, we recognize these attributes as important signals of what deserves special scrutiny in our scholarly project—and hopefully the review of the Court in the near future.

Conclusion

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.