Constitutional And Canonical Limits On Federal Power Outline

Constitutional and Canonical Limits on Federal Power

1. Federal Power in Indian Affairs

   1. Has been described as plenary and exclusive

      1. but less clear what that means

   2. No obvious source of power

      1. previously rooted in sovereignty and Indian Trust – now in the Indian Commerce Clause

   3. Are there any limits to that power?

      1. Originally not really, modernly its reviewable under rational review (Mancari)

         1. a hazy issue

      2. Constitutional Limits

         1. Const. limits not often used bc the court has not been clear about them and its not clear what would limit Congressional power

            1. fluctuates over time – two main doctrines – may be at odds with one another:

               1. trust obligation

                  1. federal government incl. courts must enforce

               2. plenary powers

                  1. ill defined

                  2. seems to act as a limit on judicial review of Congressional action

         2. Standard Constitutional challenges

            1. beyond legislative authority

            2. run afoul of limitations such as the bill of rights

         3. Non justicability

            1. most Indian affairs decisions are political questions like foreign affairs

      3. Theoretical arguments

         1. Cohen framework places limits that Constitution doesn’t

         2. international norms may act to place some limits on federal power

            1. UN Resolution on Indigenous People of 2007

               1. US has not signed (possibly bc the resolution called for redress for past wrongs)

      4. Canonical Limits

         1. Argued much more often than Constitutional Limits

         2. They have been inconsistently enforced

            1. the case law is often difficult to reconcile (see Menominee and Dion)

            2. they seem very dependent on the courts view of a matter

         3. Clear Statement Rule

            1. typically seen where Congress has the theoretical power but where the court might think it unwise to do so

               1. can cause problems bc Congress usually passes generally applicable laws

2. 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.

   1. Menominee Tribe of Indians v. US

      1. Tribe had under its treaty guaranteed rights to hunt and fish

      2. 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?

      3. 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 …

      4. ...

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