The Plenary Power Cases

“Plenary power” means “absolute control.” The Indian Commerce Clause gives Congress control over Indian Affairs. However, in the “Plenary Power Cases”, the Court decided that Congress has absolute control over Indians. This means that Congress can make any law concerning Indians that Congress deems is necessary and proper. For example, Congress can recognize and terminate tribes, make laws concerning crimes on Indian lands, and even decide who is “Indian” for the purposes of federal law. Even though plenary power sounds disturbing, later we will see that it has positive and negative aspects for Indians.

The U.S. Supreme Court case Ex Parte Crow Dog prompted the political reactions that resulted in the plenary power doctrine.^[1] In Crow Dog, the issue before the Supreme Court was whether it had jurisdiction over Crow Dog, an Indian who had killed another Indian. Because Crow Dog’s tribe had already punished him, the Court decided that the federal government had no jurisdiction to punish Crow Dog. The Court said that the federal courts were too foreign to Crow Dog, and thus, could not afford him justice. However, Congress was unhappy with the Court’s decision and quickly passed the Major Crimes Act, which gave the federal government criminal jurisdiction over Indians who committed felonies in Indian Country.^[2]

Indians quickly challenged the Major Crimes Act in United States v. Kagama, claiming that the U.S. Constitution did not give Congress the power to assume criminal jurisdiction over Indians.^[3] In Kagama, a California Indian killed another member of his tribe, and the federal government sought criminal jurisdiction. The Supreme Court upheld the constitutionality of the Major Crimes Act, reasoning that the power to regulate crime on Indian lands must exist somewhere with some government. Because the U.S. government claimed ownership of the territory and because the Indians were “wards” of the federal government, the Supreme Court reasoned that Congress must have the power to regulate felonies committed by Indians in Indian Country.

The Supreme Court reasoned that the federal government had to fill the power vacuum left by the “weak” and “diminished” state of the Indian tribes. The Kagama Court admitted that the Indian Commerce Clause^[4] did not grant criminal jurisdiction over Indians. Even so, the Court analogized Indian Country to federal territories, like Puerto Rico, which are under control of the federal government. By virtue of the federal government’s claim to Indian lands, the Court reasoned that the power must exist to regulate the lives of Indians.

Therefore, the basis for federal criminal jurisdiction is circular: there is no source for the federal government’s claim to control Indians in Indian Country, except for the claim itself. Simply put, the doctrine of discovery gives the U.S. a claim to Indian land, and therefore the U.S. must control the land and the Indians on the land. This power is not defined in the U.S. Constitution, and therefore, is extra-constitutional. Moreover, the federal government did not claim to have conquered the Indians. This is because the doctrine of discovery gave the U.S. a claim to all Indian lands. If the Supreme Court had relied on the “doctrine of conquest,” set forth in MacIntosh,^[5] the U.S. would have to respect all Indians’ property rights. It was simply a matter of efficiency and a low cost claim to Indian lands.

Two other cases exhibit the extent Congressional power over Indians. First, in Lone Wolf v. Hitchcock, the Supreme Court held that Congress could abrogate, or abolish, Indian treaties.^[6] This means that Congress can cancel treaties signed with Indian tribes at any time. Second, in United States v. Sandoval, the Court held that Congress had plenary power to define who is “Indian.”^[7] This means that Congress has the power to define which tribes it recognizes and which “Indians” will receive federal services.

As mentioned above, Congress’ “plenary power” over the Indians sounds disturbing. However, the plenary power can be useful. For example, Congress used its plenary power to reaffirm tribal sovereignty in the Indian Gaming Regulatory Act. In the Act, Congress stated that Indians had the right to continue with gaming development. This effectively halted the States’ challenges to the Indians’ sovereign right to gaming.