The Yankton Sioux and their Chairman, Robert Flying Hawk, have broken new ground in litigation against the U.S. Army Corps of Engineers 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.
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. 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.
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”: 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.”
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 Indians.
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 authority. … [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.”
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 Peoples.
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.
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.