[News] Yankton Sioux Challenges ‘Plenary Power’ Doctrine in DAPL Case
news at freedomarchives.org
Tue Feb 28 17:23:16 EST 2017
Yankton Sioux Challenges ‘Plenary Power’ Doctrine in DAPL Case
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.”
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
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
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
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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