Constitutional and Canonical Limits on Federal Power
Federal Power in Indian Affairs
Has been described as plenary and exclusive
but less clear what that means
No obvious source of power
previously rooted in sovereignty and Indian Trust – now in the Indian Commerce Clause
Are there any limits to that power?
Originally not really, modernly its reviewable under rational review (Mancari)
a hazy issue
Constitutional Limits
Const. limits not often used bc the court has not been clear about them and its not clear what would limit Congressional power
fluctuates over time – two main doctrines – may be at odds with one another:
trust obligation
federal government incl. courts must enforce
plenary powers
ill defined
seems to act as a limit on judicial review of Congressional action
Standard Constitutional challenges
beyond legislative authority
run afoul of limitations such as the bill of rights
Non justicability
most Indian affairs decisions are political questions like foreign affairs
Theoretical arguments
Cohen framework places limits that Constitution doesn’t
international norms may act to place some limits on federal power
UN Resolution on Indigenous People of 2007
US has not signed (possibly bc the resolution called for redress for past wrongs)
Canonical Limits
Argued much more often than Constitutional Limits
They have been inconsistently enforced
the case law is often difficult to reconcile (see Menominee and Dion)
they seem very dependent on the courts view of a matter
Clear Statement Rule
typically seen where Congress has the theoretical power but where the court might think it unwise to do so
can cause problems bc Congress usually passes generally applicable laws
Clear that the US has the power to abrogate treaty rights. But how? Menominee says there must be a clear statement by Congress, Dion requires something less.
Menominee Tribe of Indians v. US
Tribe had under its treaty guaranteed rights to hunt and fish
After tribe was terminated Wisconsin charged several members for hunting and fishing without a license the question was: did termination terminate the tribes treaty rights?
Despite pretty clear indication that Congress intended on abrogate treaty rights (there were termination bills that said treaty rights to hunting and fishing would not be abrogated and Congress rejected those versions) the court …
HOLD the hunting and fishing rights still stood
Reasoned
even though the termination act is clear that state law applies after its passed, that PL 280 allows the tribes to keep hunting and fishing rights
PL 280 passed around the same time as the Termination Act and specifically gives an exemption to state jurisdiction over hunting and fishing
Reasoning is pretty pragmatic, dissent probably has the better textual argument
dissent says: PL 280 is about jurisdiction over “Indian Country” this case is not about Indian Country, its about individual Indians after Indian Country has been terminated
Congress wouldn’t have likely terminated a treaty right without a clear statement
US v. Dion
Native American is convicted of violating the ESA and the Bald Eagle Protection Act after killing four bald eagles on his reservation
A treaty with the reservation specifically protects tribes right to hunt in their custom and matter
Issue: Could he be convicted, given the treaty?
Hold: The statute abrogated the treaty right to hunt bald eagles
Law:
the ct back tracks on the clear statement rule and creates an easier standard
What is essential is clear evidence that Congress actually considered the...