No Plenary Power Over Indian Nations

Steven Newcomb

For generations now, Indian Country has been conditioned to believe and act upon the false view that the United States Congress has plenary power over all Indian affairs, and, by implication, over Indian Nations. This has resulted in our Indian Nations being wrongly deprived of the free exercise of our rights and liberty, and of the vast majority of our traditional territories across the length and breadth of the continent. This has been due in large part to the assumption about U.S. plenary power that has wrongfully empowered U.S. courts, congressional committees, and the U.S. presidency in relation to Indian Nations.

However, we are about to experience a massive shift in our understanding of federal Indian law and policy: In 1991, attorney Mark Savage published “Native Americans and the Constitution: The Original Understanding.” (American Indian Law Review, Vol. 16, No. 1, p. 57.) In 1993 he published, “The Great Secret About Federal Indian Law—Two Hundred Years in Violation of the Constitution—And the Opinion the Supreme Court Should have Written to Reveal it.” (N.Y.U Review of Law Social Change, Vol. 20, No. 2, p. 343) In the second article Mr. Savage states:

One morning, a few years ago, I discovered evidence that the United States has apparently overlooked for these past two hundred years. On August 18, 1787, during the secret deliberations of the Federal Convention, James Madison proposed a plenary power over relations with Native American nations. The Framers expressly rejected such plenary power and instead greatly limited federal power to the regulation of commerce between the United States and Native American nations.” (Emphasis added.)

Based on what occurred during the Federal Convention in 1787, Savage argues:

The national government has never had such plenary power. For two hundred years, federal Indian law has violated the Constitution and the original intent of the Framers.... Consequently, federal and state statutes, enacted over the past two hundred years to control Native Americans in such matters as taxation, civil and criminal jurisdiction, hunting and fishing rights, water rights, and religion, are unconstitutional.

Nor can those statutes become constitutional after the fact.

Today, twenty years after the publication of Mr. Savage’s first article, his research provides Indian Country with the perfect opportunity to assess, discuss, and act upon the implications of his powerful arguments. The implications are profound indeed: Congress has repeatedly passed legislation during the course of its history, purporting to exercise a plenary power over all Indian affairs, and over Indian Nations or ‘Tribes’ that, as stated above, the Framers of the Constitution specifically rejected in 1787.

It has become part of the federal Indian law "catechism" (as Vine Deloria, Jr. once called it) that the Commerce Clause of the U.S. Constitution is the basis for congressional plenary power over all Indian affairs. That clause reads, “The Congress shall have Power. . .To regulate Commerce with foreign nations, and among the several States, and with the Indian Tribes.” (U.S. Const. art. I, §8, cl 3).” As Mr. Savage pointedly states, “Clearly the words themselves do not grant plenary power. The power extends only to ‘Commerce. . .with the Indian Tribes,’ not commerce within Native American nations and tribes.”

Savage bases his view on the U.S. Supreme Court’s decision that when interpreting the Commerce Clause, the word commerce “must carry the same meaning throughout the sentence, and remain a unit, unless there is some plain intelligible cause which alters it.” (citing Securities & Exch. Comm’n v. Myers, 285 F. Supp. 743, 746 (D. Md. 1968)). Following that rule of interpretation, the U.S. Supreme Court has said that Congress’s power to regulate “‘Commerce with foreign nations’ and ‘Commerce . . . among the several States’ have never been imputed to Congress a plenary power to regulate the essential internal affairs of states or foreign nations.’” (emphasis added)

In order for the United States to have any authority over Indian Nations or ‘Tribes,’ it must be derived from the Constitution. The Framers of the Constitution specifically decided to limit the United States to the regulation of commerce between the United States and Indian Nations. This is all the authority that can be derived from the Constitution, and it includes no constitutional authority—whether claimed by Congress, the U.S. President, or the U.S. Supreme Court—over any Indian Nation or ‘Tribe’ without its consent.

A discussion of the massive implications of Mr. Savage’s brilliant arguments will require the involvement of all Indian nations and peoples with a history of dealings with the U.S. The following quote from Mark Savage will contribute to that discussion: “The endurance of constitutional error, whether by accident or artifice, and the neglect of constitutional and historical research cannot create a power that never existed.”

Steven Newcomb, Shawnee/Lenape, is co-founder and co-director of the Indigenous Law Institute, author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery, and a columnist for the Indian Country Today Media Network. He is also the Indigenous and Kumeyaay Research Coordinator for the Sycuan Band of the Kumeyaay Nation.

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arachiya's picture
I keep reminding the State of Florida, Marion County and the Federal government about all the violations of the Constitution and the rights of my tribe. They all ignore us completely and continue to violate our rights. As seen on the nightly news, Florida is constantly violating the Constitution and passing laws that purposely disregards the promises made by the Constitution. When I go through channels to report these violations, I am ignored. One politician wrote back, Bill Nelson, and he stated that the "complaints" (he purposely avoided mentioning the Constitution or its laws) were a matter of the county not of the Federal government and stated in regards to the state and county not honoring their agreements to honor our tax exemption, that we deserve no special treatment as the state does not recognize us as a tribe. Yet, former governor Crist stated in writing that the state can not make deals with us because the Constitution does not allow states to make deals with foreign governments (which is what Native American Indian Tribes are referred to) and yet they made a deal with the Seminole tribe. the local press will not give us any attention even when we send them the documents to prove our accusations. They made access to the courts impossible to afford which is yet another violation of the Constitution. How come Native Americans are still being treated like trash and why are the Native Americans not uniting to get the word out to the world how the United States is treating its indigenous peoples the same way the US denounces China for treating its people? No one wants to help.
wahsontiio's picture
Many tribes are buying into the "economic development" scheme to "improve" their communities. Once in, they are to behave as partners to the big companies and governments and do not want to jeopardize the relationship by supporting Indian Sovereignty ideals. Why is it necessary to be rich with money??? Why do our nations need to look Western in order to be perceived as successful??? Is it not good enough to be healthy, happy and grateful for creation anymore??? I, too believe that its time for the indigenous nations on each continent to unite. It sounds daunting but I believe it has to be the traditional governments or leaders that need to guide the stand for our survival as a unique people.
n4tiv3's picture
It is a very interesting site to behold, to say the least. As the world watches a failed business model, tribal leaders rush in to adopt the same business model.
n4tiv3's picture
>sight to behold
arachiya's picture
The unfortunate part is trying to get tribes to unite. For example, my tribe is nearly extinct, there are many confirmed descendants but very few of them want to have anything to do with us. Some local Native American Indian groups and tribes have found our continued existence to be a threat to them and we are called liars and asked to go away. It falls into the way the capitalist governments what the people to behave; to fight each other and force each other to accept the way of life they have chosen, even if it violates the very laws they created in the first place. that is the case in the United States and in Florida. they say a signed, written document made between two parties is a legally binding contract yet Florida and Marion County have violated three contracts with us and the Federal government will do nothing about it. The state even insists it is above the Constitution and encourages the county to threaten to take away the lands we legally purchase for our new nation if we exercised our right to refuse to pay their taxes (we are a registered non-profit and yet they passed laws, violating their 14th amendment to defraud and extort money from their citizens). It is the tribes who have the knowledge of the ancient ways that will survive the upcoming fall of the capitalist civilization, yet they teach their people to depend completely upon the government rather than themselves. Is there any wonder why it is so difficult to unite?
michaelmack's picture
I've been saying for years that Indian Country needs to develop its own independent (NO federal $) advocacy organization to combat the myths that have become institutionalized in the U.S. government, educational system, and the media. Every other "minority" group in this country has an independent organization continually monitoring and lobbying Congress, monitoring the proposals and actions of federal departments, state governments, etc. EXCEPT American Indians - we are the only group that has not invested in creating such an organization. NCAI, NARF, ANA, all rely upon federal dollars in order to exist, so they can never truly address the core legal issues that continue to hem us in today. The average American Indian is not educated enough, nor aware enough, nor in the position to think beyond survival or just getting by. The newly educated are focused on developing their careers, and the new casino rich to a large extent focused on developing business contacts or settling into the comforts of their new found affluence. Tribal governments, tribal leaders, and those Indians successful in the white world need to lead in the development of a completely independent American Indian organization modeled after a combination of the NAACP, GLAAD, Jewish Defense League, etc. - those organizations monitor 24/7 the plans and proposals of Congress, governments, the media, corporations, etc. so that anything that might impact their communities is confronted and responded to in an appropriate, organized, timely fashion. Those groups make CERTAIN that have, they DEMAND, a seat at the table of any effort that impacts their people. To date, Indian Country simply waits for others to make decisions that impact Indian Country, then Indian Country responds after the fact. This is a losing strategy. Other minority groups have learned to turn losing strategies into ones that increase success on their terms, when will Indian Country learn? We have to be organized to DEMAND a seat at the table of those who make decisions over us, and DEMAND that we be consulted BEFORE decisions are made. Every other group does this, why not us? Until Indian Country invests in developing its own independent loggying/monitoring organization, we will be on the receiving end of decisions others make for us. How do we like it so far? There's an old saying? "if you don't know the game and something negative results, its not your fault, but if you do know the game and don't do anything about it, then don't blame others when bad stuff happens because you allowed it to happen. Another appropriate saying I recall "Silence = Consent", if Indian Country continues to allow others to make decisions that negatively impact us, we get what we deserve.
arachiya's picture
That is the same thing I have been telling everyone that will listen. Of course no one does. The people of the US are having their rights violated by their own government on a daily basis, not just the Native Americans. If they do not stand up for their own rights, they will never stand up for anyone else's rights. Of course when they realize their rights are being violated no one will come to their aid simply because they failed to come to some one else's aid. I wish I could gather those together and build enough influence to force the various government entities to keep their promises and agreements, but too many as stated do not think beyond survival or are too brain washed to believe anything is actually wrong.
curtj's picture
To begin with, why do the Indigenous people continue to wear the name "Indian" with pride? To keep the name bestowed on us by a lost slaver, rapist and mass murderer with the deaths of over 500,000 Indigenous people to his credit, shows me that our people have no pride in the names that their ancestors called their people. Do we come from India? Are our ancestors from India? Are our kids going to be from India? Our so called leaders refuse to educate themselves to the history of this hemisphere, before, and after, the illegal European immigrants began stealing and murdering their way across this continent. Our so called leaders are forced to think in a box of colonialism, with its ideals, philosophies and parameters based on a race of people who makes their living off stealing other countries resources and lands, stealing and murdering their way through those countries. To this day America spends trillions of dollars to invade and manipulate destabilizing countries. The money used for that comes from cannibalizing domestic health and social programs and cannibalizing American infrastructure. The profits from the invasions go first to: The military industrial complex Foreign Aid to dictators Foreign owned oil, energy and mining conglomerates Our very own bribed Washington politicians and officials In return we get 4 trillion dollars plus bill for Afghanistan and Iraq Terrorist attacks Our leaders, educated in universities, uneducated to the Indigenous history, stuck in a colonial box with no original thoughts of taking their peoples grievances to the Indigenous Peoples Forum of the United Nations. If you notice, they are getting more corrupt in the ways of the whites. Go ahead and refuse to post this, you have to think about your corporate sponsors.