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14 - There Is No Federal Supremacy Clause for Indian Tribes

from Part IV - (Mis)Understandings

Published online by Cambridge University Press:  11 December 2019

By
Robert N. Clinton
Edited by
Grant Christensen  and
Melissa L. Tatum
Grant Christensen
Affiliation:
University of North Dakota
Melissa L. Tatum
Affiliation:
University of Arizona
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Summary

There Is No Federal Supremacy Clause: illustrates how the Supreme Court’s federalism jurisprudence has recognized the rights of states and placed new limits on the powers of the federal government, even while the courts have steadfastly deferred to the ‘plenary power’ of Congress in the area of Indian affairs. Clinton suggests that the plenary power doctrine is no longer consistent with a textualist reading of the Constitution, and urges instead an interpretation where there is no federal power over Indian tribes at all without their consent manifested through treaty.

Keywords

plenary powerconsentIndian treatyfederalismtribal government
Type
Chapter
Information
Reading American Indian Law
Foundational Principles
 , pp. 334 - 356
Publisher: Cambridge University Press
Print publication year: 2019

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References

Further Reading

Collins, Richard B., Indian Consent to American Government, 31 Ariz. L. Rev. 365 (1989).Google Scholar
Davis, Seth, American Colonialism and Constitutional Redemption, 105 Calif. L. Rev. 1751 (2017).Google Scholar
Fredericks, Carla F. & Heibel, Jesse D., Standing Rock, the Sioux Treaties, and the Limits of the Supremacy Clause, 89 U. Colo. L. Rev. 477 (2018).Google Scholar
Frickey, Philip, Domesticating Federal Indian Law, 81 Minn. L. Rev. 31 (1996).Google Scholar
Newton, Nell Jessup, Federal Power over Indians: Its Sources, Scope, and Limitations, 132 U. Penn. L. Rev. 195 (1984).Google Scholar
Porter, Robert Odawi, The Inapplicability of American Law to the Indian Nations, 89 Iowa L. Rev. 1595 (2004).Google Scholar
Riley, Angela R., Good (Native) Governance, 107 Colum. L. Rev. 1049 (2007).Google Scholar
Saito, Natsu Taylor, The Plenary Power Doctrine: Subverting Human Rights in the Name of Sovereignty, 51 Cath. U.L. Rev. 1115 (2002).Google Scholar
Singel, Wenona, The First Federalists, 62 Drake L. Rev. 775 (2014).Google Scholar
Skibine, Alex Tallchief, Formalism and Judicial Supremacy in Federal Indian Law, 32 Am. Indian L. Rev. 391 (2008).Google Scholar
Skibine, Alex Tallchief, Constitutionalism, Federal Common Law, and the Inherent Powers of Indian Tribes, 39 Am. Indian L. Rev. 77 (2015).Google Scholar
Williams, Robert A. Jr., Like a Loaded Weapon: The Rehnquist Court, Indian Rights, and the Legal History of Racism in America (University of Minnesota Press 2005).Google Scholar

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