Plenary (complete-full) Power over Indian Affairs [Courtesy: John A. Fleming] January 26, 2000 (all rights reserved) Other articles by John Fleming on HeartbeatUSA.com Tucked away in the American Indian Dilemma, are a number of "doctrines" or practices developed and continued by the Federal Government, that demonstrate gross misconduct and abuse of power, by those officials who originated and continued such doctrines. In fact those very same persons violated their oaths of office when they imposed these doctrines on the citizens of this Nation. The Constitutional basis generally used by the Federal Government in these matters are the Commerce clause (Art. I, Sec. 8{3}) and The Treaty Clause (Art. II, Sec.2{2}) of the U.S. Constitution. Of these clauses, the Commerce with Indian Tribes clause has been used in a most pervasive and pre-emptive manner, forcing the doctrine that proclaims the Congress has "plenary power" over Indian tribes within the boarders of our Nation. What better source then to quote Canby, in his text American Indian Law (ISBN 0-314-41160-7), page 78, "Congress' power over Indian Affairs is plenary, and numerous examples exist of federal statutes limiting the sovereignty of the tribes." Is the presence of this doctrine-- "Congress' power over Indian affairs is plenary," an abuse of power and or gross misconduct on the part of the Federal Government? Consider the following. a.. The Federal Government is a government of ONLY delegated powers- not plenary powers, or a mixture of delegated and plenary powers. b.. The Body-politics of each of the several states, alone have plenary power that is expressed Constitutionally within their particular state through their states Constitutional processes. These same Body-politics express plenary power regarding the Federal Governments delegated powers through the express procedures found in the U.S. Constitution. These Body-politics alone posses the power of sovereignty (limited only by established Constitutions procedure for change) which includes the right to establish, change or in any manner, alter the Constitutions of their states, or if they wish, and as the U.S. Constitution provides for, so change that document. This is the essence of plenary power. c.. Our U.S. Constitution speaks directly about Indian matters in the Commerce Clause (Art.1, Sec.8(3), wherein it says the Congress shall have the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." That document speaks of Indians only two more times and that only concerns Indians not taxed relative to apportionment of Representatives and direct taxes. The Articles of Confederation; however, contain specific references to Indians, concerning absolute retention of the States rights to control Indians within their borders and restricting the U.S. Government from taking any action that would infringe or violate their legislative rights over Indians within their borders. See Article IX of the Articles of Confederation. This declaration of restriction of power to the U.S. Government was a clear statement by the 13 original States pertaining to the POWER they had and retained as Independent sovereign republics, concerning Indians within their borders. The reader must understand that the delegates to the Constitutional Convention had NO AUTHORITY to give more sovereignty or states rights away to the Federal Government in their proceedings-- they were authorized only to revise the Articles of Confederation to make them effective and eliminate a number of problems already identified. See J. R. Tucker, text on Constitutional Law (ISBN 0-8377-1206-8), Sec 153, pages 300-305. d.. The Tenth Amenment of our Constitution clearly states "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." We can easily observe that Indian tribes are indeed foreclosed, by this Amendment alone, from having any governmental or other such powers, to include "sovereignty." Any statute, federal rule or regulation, as well as executive order, that gives any such power to tribes, then appears to be without Constitutional authority! See Tucker, pages 355 through 358 at least. The best way to sum up both the above statements and to assure original understanding of these Constitutional issues is to quote Tucker on this matter (page 62). "It follows from this relation between the Body-politic in its constitution-making power and the government in the ordinary exercise of political powers-the first holding original authority, and the latter only derivative-that when government exercises powers which the constitution allows, its action has the full force of the sovereign will; but when the government does what the constitution does not allow, the action of the government is ultra vires and void. This is the great American discovery in political science." It is clear to a number of us that "Congress' power over Indian affairs is plenary" as stated by Canby, and exercised by federal statutes, rules and regulation and executive orders, demonstrates an abuse of power and gross misconduct on the part of the Federal Government. It further demonstrates an absence of concern and oversight by the governments of the several States. -------------------------------------------------------------------------------- Submit related news items or links to: Ground Zero Webmaster -------------------------------------------------------------------------------- Return to Ground Zero home page