[News] Yankton Sioux Challenges ‘Plenary Power’ Doctrine in DAPL Case

Anti-Imperialist News news at freedomarchives.org
Tue Feb 28 17:23:16 EST 2017


  Yankton Sioux Challenges ‘Plenary Power’ Doctrine in DAPL Case

Peter d'Errico 
<https://indiancountrymedianetwork.com/author/peter-d-errico/> • 
February 27, 2017

The Yankton Sioux and their Chairman, Robert Flying Hawk, have broken 
new ground in litigation against the U.S. Army Corps of Engineers 
protect the waters of the Missouri River from invasion and desecration 
by the Dakota Access Pipeline (DAPL): Their complaint challenges the 
federal Indian law concept of “plenary power,” by which the U.S. claims 
total authority over Indians and Indian lands.

To my knowledge, a litigation challenge to federal Indian law basic 
concepts has only been done once before, by the Western Shoshone 
National Council in 1995 
<http://people.umass.edu/derrico/shoshone/index.html>. The Western 
Shoshone challenged the whole structure based on the so-called “right of 
Christian Discovery”—including the “trust doctrine” that the U.S. uses 
in conjunction with “plenary power.”

Standing Rock 
and other parties challenging DAPL 
have limited their arguments to conventional federal Indian law and U.S. 
statutes like the National Historic Preservation Act and the National 
Environmental Policy Act. These arguments presume the U.S. does have a 
“right” to dominate Indian country, but challenge the specifics of the 
domination—such as whether the U.S. followed proper procedures in its 
claim of domination.

The Yankton Sioux complaint raises those issues, but goes beyond, 
stating, the “alleged [plenary] powers in fact violate Article VI of the 
United States Constitution which declares treaties to be the supreme law 
of the land. Federal approvals for a trespass to the Tribe’s treaty 
territory violate Article VI….”

Yankton Sioux further states that the United Nations Declaration of the 
Rights of Indigenous Peoples requires “the Tribe’s free, prior and 
informed consent is required” for any action like DAPL that affects 
Indigenous Peoples and their lands.

The 1958 U.S. invasion of Standing Rock through U.S. Public Law 85-915 
to build the Oahe dam illustrates the problem with the concept of 
“plenary power” 
<https://www.gpo.gov/fdsys/pkg/STATUTE-72/pdf/STATUTE-72-Pg1762.pdf>: it 
was the claimed basis for the U.S. Congress authorization of the dam—”To 
provide for the acquisition of lands by the United States required for 
the reservoir created by the construction of Oahe Dam on the Missouri 

Prior to that public law, the U.S. District Court for the District of 
South Dakota said Treaties between the U.S. and the Sioux Nation 
prevented any dam building without the consent of the Sioux. 
The court then set up the basis for invasion by saying Congress could 
“abrogate” the Sioux Treaty, even though the Treaty says the lands are 
“for the absolute and undisturbed use and occupation of the Indians” and 
that there can be no cession of land except with the consent of 
three-fourths of the adult male Indians.

The U.S. says “plenary power” derives from the U.S. Constitution. Many 
scholars have criticized this argument and shown through historical 
evidence that the Constitution does not provide for “plenary power” over 

U.S. Supreme Court Justice Clarence Thomas has joined the scholarly 
critique. In a concurring opinion in /U.S. v. Bryant/ (2016), Thomas 
said, “Congress’ purported plenary power over Indian tribes rests on 
even shakier foundations. No enumerated power—not Congress’ power to 
‘regulate Commerce … with Indian Tribes,’ not the Senate’s role in 
approving treaties, nor anything else—gives Congress such sweeping 
[T]he Court has searched in vain for any valid constitutional 
justification for this unfettered power.”

Critiques showing “plenary power” has no basis in the U.S. Constitution 
are important, but they beg a fundamental question: How does anyone—even 
the critics— presume the U.S. Constitution /could/ govern Native 
Nations? Even when the U.S. Congress enacted the Northwest Ordinance to 
propose new colonial territories, it acknowledged Native Nations’ lands, 
which “shall never be taken from them without their consent.”

Native Nations have been in existence far longer than the United States. 
The Constitution of the United States sets up a government for the 
United States. Native Nations are not a party to that constitution. How 
could it govern them, let alone provide “plenary power” against them?

The U.S. Supreme Court has admitted that Native Nations are not party to 
the constitution: In /Blatchford v. Native Village of Noatak and Circle 
Village/ (1991), Justice Scalia dismissed an argument about tribal 
sovereign immunity by saying,“it would be absurd to suggest that the 
tribes surrendered immunity in a convention to which they were not even 
parties.” <https://supreme.justia.com/cases/federal/us/501/775/case.html>

What does provide the basis for “plenary power”? The answer: the 
so-called “right of Christian Discovery 
by which the U.S. claims it has a right of domination over Indigenous 

Why does the “plenary power” doctrine continue to exist in federal 
Indian law, with so much evidence it has no basis in the U.S. 
constitution and the admission that the constitution in any event does 
not include Native Nations?

One part of the answer stems from the U.S. government’s insistence—no 
matter what the scholars and Justice Thomas say—that it has sovereignty 
over Native Nations.

The Supreme Court approved that insistence in 1903, in /Lone Wolf v. 
Hitchcock/, where it stated that “Plenary authority…has been exercised 
by Congress from the beginning, and the power has always been deemed a 
political one, not subject to be controlled by the judicial department 
of the Government.”

In other words, the U.S. government claims that Congress does not have 
to justify its “plenary power” based on its “right of discovery”!

But Native Nations have also played a part in perpetuating the dangerous 
doctrine of “plenary power.” They often rely on the doctrine when they 
see it as protection against the states. This happens frequently. But 
for every Indian “win” under that doctrine, they dig themselves deeper 
into a hole under the domination of the federal government.

The Yankton Sioux challenge to the doctrine suggests another question: 
Do Native Nations need to rely on the dangerous, two-edged concept of 
“plenary power”?

By asserting treaty rights and the U.N. Declaration, Yankton Sioux 
begins to stand on their own in an international relations context. 
Yankton Sioux puts this position forward as their first “claim for 
relief,” followed by conventional claims based on historic preservation 
and environmental laws. Unfortunately, the Yankton Sioux critique of 
“plenary power” does not extend to a critique of the “trust” doctrine, 
which results in an element of confusion in their position.

Nevertheless, the move by Yankton Sioux deserves strong support from 
other Native Nations. My research so far shows only one other Native 
Nation moving in that direction: The Confederated Tribes and Bands of 
the Yakama Nation.

In an Appendix to an /amici curiae/ brief filed by the National Congress 
of American Indians, Yakama Nation characterizes DAPL as “a continuation 
of the domination exercised by the non-Native governments first 
supported by the Inter Caetera Papal Bull of 1493 and continuing into 
modern American government practices. The Papal Bull and so-called 
‘Doctrine of Discovery’ that has dehumanized Original Nations 
have continuing and extraordinary influence in Indian country beginning 
with /Johnson v. M’Intosh/, and continuing to modern times in 
/Tee-Hit-Ton v. US/ in 1955, and the Oneida line of cases, culminating 
in /City of Sherrill/ in 2005.”

The “plenary power” doctrine—based on “Christian Discovery”—has two 
faces, and one of them cuts sharply against Native Nations. Every time 
the U.S. wants to invade Native lands or interfere with Native 
governments, it relies on its claim of “plenary power.” It did this 
against Standing Rock in 1958 and wants to do it again with DAPL.

/Peter d’Errico graduated from Yale Law School in 1968. He was Staff 
attorney in Dinébe’iiná Náhiiłna be Agha’diit’ahii Navajo Legal 
Services, 1968-1970, in Shiprock. He taught Legal Studies at the 
University of Massachusetts, Amherst, 1970-2002. He is a consulting 
attorney on Indigenous issues./

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