DAPL Suit Raises Critical Issue: Does U.S. Have Unlimited Power Over Native Nations?

The legal challenges to the Dakota Access Pipeline (DAPL) to date make their arguments within the framework of U.S. regulatory law. They refer to laws regarding historic preservation or environmental protection, but they do not challenge the very framework of the federal Indian system: That the United States has full and complete power over Native lands and peoples.

The legal term for this unfettered control of Native Nations is “plenary power,” and the Yankton Sioux are taking “plenary power” head on in their legal efforts to stop the pipeline.

Again, credit to Peter d’Errico for writing another illuminating piece in Indian Country Media Network: Yankton Sioux Challenges ‘Plenary Power’ Doctrine in DAPL Case.

Before quoting directly from the article, some quick background.

The U.S. Constitution refers to “Indians” in very few places. For instance, Article I, Section 8 says: “Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes.”

The concept of plenary power over Native Americans didn’t emerge for a century after the signing of the Constitution (1887), in the U.S. Supreme Court case United States v. Kagama (1886). The Kagama case revolved around the Indian Appropriations Act of 1871, which ended federal recognition of new Indian nations and stopped treaty making, according to Wikipedia’s entry on tribal sovereignty. The court’s decision upheld the law.

[It] affirmed that the Congress has plenary power over all Native American tribes within its borders by rationalization that “The power of the general government over these remnants of a race once powerful … is necessary to their protection as well as to the safety of those among whom they dwell”. The Supreme Court affirmed that the US Government “has the right and authority, instead of controlling them by treaties, to govern them by acts of Congress, they being within the geographical limit of the United States….

The United States did this unilaterally, brushing aside past treaties.

Now, let’s return to d’Errico’s article. He notes that when Native nations rely solely  on legal arguments about environmental protection to challenge DAPL, they cede important legal ground — it presumes the United States has a “right” to dominate Indian country.

The Yankton Sioux complaint raises those [environmental] issues, but goes beyond, stating, the “alleged [plenary] powers in fact violate Article VI of the United States Constitution which declares treaties to be the supreme law of the land.”

Here is the relevant paragraph of Article VI of the Constitution:

This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.

d’Errico continues:

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.”

The Western Shoshone challenge was not successful. Details in the link above.

Read d’Errico’s full article here.

Event Reminders

Wednesday, March 8: Red Power Energy will be shown as part of Augsburg College’s Native American film series. The event is free and open to the public. It will be shown at the Sateren Auditorium, Music Hall, 715 22nd Ave. S. A reception starts at 6:15 p.m., with the screening starting at 7 p.m. First-person stories illustrate the complex realities of American Indian reservations grappling with how to balance their natural resources with their traditional beliefs.

Saturday, March 11, 6:00 -8:30 p.m. Fundraiser to support the Decade of Water Summit, All My Relations Gallery,  1414 East Franklin Ave. Those attending will include Oceti Sakowin (Seven Council Fires) traditional knowledge keepers, indigenous human rights observers, relatives from Standing Rock, filmmaker Sheldon Wolfchild (Lower Sioux) and rapper Tall Paul. The event will include indigenous food and music, and be youth and community oriented. More background here.

Thursday, March 16: Doctrine of Discovery: Unmasking the Domination Code will be shown at Centennial United Methodist Church in St. Anthony Park, 2200 W Hillside Ave. It is free and open to the public. There is an optional meal at 5:30 p.m., with the film starting at 6:30 p.m. Panel follows. The film lays out the church’s influential role in mistreating native peoples around the world, a legacy that continues today.

Thursday, March 16: The Seventh Fire will be shown from 1:30-3:10 p.m. at the University of St. Thomas, at the John Roach Center auditorium (JRC 126), located on the corner of Summit and Cleveland avenues. The event is free and open to the public.

Sunday, March 26: Creation Stories. Sheldon Wolfchild’s latest film documents elders telling Dakota creation stories. It will be shown at 3 p.m. at the East Side Freedom Library, 1105 Greenbrier St., St. Paul. Wolfchild and indigenous educator Jim Rock will lead a post-film discussion on these creation stories, star knowledge, and sacred sites and objects in the Saint Paul and Minneapolis area. The event is free but registration is required. For more information and to register, go to www.lowerphalencreek.org/events.

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