The US Supreme Court has called the power of Congress over Indian nations plenaryÂÂ and based, in part, on the Doctrine of Discovery. The courts have upheld the termination of Indian nations, the taking of aboriginal territory without compensation, and the removal of Indian peoples to lands not part of their aboriginal territories.
This plenary power is not considered absolute but consists of all the power necessary to effectuate Congress's authority, as in the Necessary and Proper Clause. However, the only limits to congressional power recognized by the courts have been those limits that Congress has placed on itself.
Tribal nations must continually inform and contest these decisions through education and lobbying in the corridors of Congress and through grassroots activism and litigation. National Indian organizations such as National Congress of American Indians, National Indian Education Association, Native American Rights Fund and many others have been an important bulwark against the fear that Congress will use this plenary power to damage and even destroy Indian nations.
Explore legal underpinnings of the Discovery Doctrine and plenary power.
Review analysis under current majority opinions and alternative analyses offered in Native Land Law.
Gain deeper understanding of priorities of Indian nations on the national political stage.
Interested in learning more? Be sure to check out the book
Native Land Law.
This groundbreaking legal treatise (a companion guide to the Native land law CLE series) advances a new framework of law that is fair and workable within a U.S constitutional framework. It offers insightful historical and legal analysis of key laws and court rulings that impact Native land law and provides critical arguments to represent the interests of Indian nation governments today.
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