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<h1 id="reader-title">Yankton Sioux Challenges ‘Plenary Power’
Doctrine in DAPL Case <br>
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<div class="postmeta-lefttop"> <span class="vcard author"><a
href="https://indiancountrymedianetwork.com/author/peter-d-errico/"
title="Posts by Peter d'Errico" rel="author">Peter
d'Errico</a></span> • <span class="date updated
published"> February 27, 2017</span><br>
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<p>The <a
href="https://turtletalk.files.wordpress.com/2016/09/16-09-08-complaint.pdf"
target="_blank">Yankton Sioux and their Chairman,
Robert Flying Hawk, have broken new ground in
litigation against the U.S. Army Corps of Engineers </a>to
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.</p>
<p>To my knowledge, <a
href="http://people.umass.edu/derrico/shoshone/index.html"
target="_blank">a litigation challenge to federal
Indian law basic concepts has only been done once
before, by the Western Shoshone National Council in
1995</a>. 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.”</p>
<p><a
href="https://indiancountrymedianetwork.com/news/opinions/yankton-sioux-challenges-plenary-power-doctrine-dapl-case/news/politics/standing-rock-sioux-tribe-files-motion-overturn-lake-oahe-easement/">Standing
Rock</a> and other parties <a
href="https://indiancountrymedianetwork.com/news/opinions/yankton-sioux-challenges-plenary-power-doctrine-dapl-case/news/politics/challenges-dakota-access-pipeline-shifting-new-shapes-new-fronts/">challenging
DAPL</a> 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.</p>
<p>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….”</p>
<p>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.</p>
<p>The <a
href="https://www.gpo.gov/fdsys/pkg/STATUTE-72/pdf/STATUTE-72-Pg1762.pdf"
target="_blank">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”</a>: 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 River.”</p>
<p>Prior to that public law, <a
href="https://casetext.com/case/united-states-v-200532-acres-of-land-etc#%21"
target="_blank">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.</a> 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.</p>
<p>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
Indians.</p>
<p>U.S. Supreme Court Justice Clarence Thomas has joined
the scholarly critique. In a <a
href="https://supreme.justia.com/cases/federal/us/579/15-420/concur4.html"
target="_blank">concurring opinion in <em>U.S. v.
Bryant</em> (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
authority. </a>… [T]he Court has searched in vain for
any valid constitutional justification for this
unfettered power.”</p>
<p>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 <em>could</em> 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.”</p>
<p>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?</p>
<p>The U.S. Supreme Court has admitted that Native Nations
are not party to the constitution: In <em>Blatchford v.
Native Village of Noatak and Circle Village</em>
(1991), Justice Scalia dismissed an argument about
tribal sovereign immunity by saying,<a
href="https://supreme.justia.com/cases/federal/us/501/775/case.html"
target="_blank"> “it would be absurd to suggest that
the tribes surrendered immunity in a convention to
which they were not even parties.”</a></p>
<p>What does provide the basis for “plenary power”? The
answer: the so-called “right of <a
href="https://indiancountrymedianetwork.com/news/opinions/yankton-sioux-challenges-plenary-power-doctrine-dapl-case/news/opinions/christian-discovery-as-source-of-reservation-crime/">Christian
Discovery</a>,” by which the U.S. claims it has a
right of domination over Indigenous Peoples.</p>
<p>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?</p>
<p>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.</p>
<p>The Supreme Court approved that insistence in 1903, in
<em>Lone Wolf v. Hitchcock</em>, 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.”</p>
<p>In other words, the U.S. government claims that
Congress does not have to justify its “plenary power”
based on its “right of discovery”!</p>
<p>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.</p>
<p>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”?</p>
<p>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.</p>
<p>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.</p>
<p>In an Appendix to an <em>amici curiae</em> brief filed
by the National Congress of American Indians, Yakama
Nation characterizes <a
href="https://turtletalk.files.wordpress.com/2017/02/130-2-ncai-amicus.pdf">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</a> have continuing and extraordinary
influence in Indian country beginning with <em>Johnson
v. M’Intosh</em>, and continuing to modern times in <em>Tee-Hit-Ton
v. US</em> in 1955, and the Oneida line of cases,
culminating in <em>City of Sherrill</em> in 2005.”</p>
<p>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.</p>
<p><em>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.</em></p>
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