The DOI matches its Crossref record; 6 of the 6 references it cites were found in a registry or an index; none of the 86 sources its claims cite is checked for support yet.
Revising the Indian Plenary Power Doctrine
Open accessAbstract
The federal Indian law doctrine of Congressional plenary power is long overdue for an overhaul. Since its troubling nineteenth-century origins in Kagama v. United States (1886), plenary power has justified invasive Congressional interventions and undermined Tribal sovereignty. The doctrine's legal basis remains a constitutional conundrum. This Article considers the Court's recent engagement with plenary power in Haaland v. Brackeen (2023). It argues that the Brackeen opinions may signal judicial readiness to reevaluate the doctrine. The Article takes ahold of Justice Gorsuch's critical assessment and runs with it, ultimately proposing a method for cleaning up this destructive and constitutionally dubious line of caselaw.
Overview
AI snapshot
Written from the paper’s full text.
TL;DR
This Article argues that the Indian plenary power doctrine is constitutionally dubious and that *Haaland v. Brackeen* (2023) signals judicial openness to reconsidering it, especially through Justice Gorsuch’s originalist concurrence. It proposes a screening method for identifying suspect plenary power precedents based on interference with Tribal self-government, facilitation of state encroachment, and reliance on racist reasoning.
Key findings
- The *Brackeen* majority upheld ICWA while subtly revising plenary power: it rooted congressional authority in constitutional sources and the trust relationship, said Congress’s power “is not absolute,” and omitted *United States v. Kagama* from its major string cites.
- Justices Thomas and Alito dissented in ways that challenged the doctrine: Thomas said he had “searched in vain” for a constitutional basis for plenary power and called *Kagama* “lack[ing] any constitutional basis”; Alito criticized the majority’s “plenary but not absolute” formulation as logically incoherent.
- Justice Gorsuch’s concurrence rejected any founding-era “plenary federal authority over Tribes,” describing instead an “Indian-law bargain” in which the federal government has limited enumerated powers over external relations while Tribes retain exclusive internal self-government.
- The authors propose treating every case relying on *Kagama*, *Lone Wolf*, or plenary power as suspect; an initial Westlaw search found 82 Supreme Court cases citing *Kagama* and 45 citing *Lone Wolf*, with 16 citing both, leaving “some 111 potentially suspect Supreme Court cases.” They add two Gorsuch-derived criteria—whether the act interferes with Tribal self-government or projects state authority into Tribal affairs—plus racist reasoning as an additional red flag.
Methods
- Doctrinal and historical legal analysis of federal Indian law, centered on *Haaland v. Brackeen* and the plenary power line of cases from *Kagama* and *Lone Wolf*.
- The authors review the *Brackeen* majority, dissents, and Gorsuch concurrence, then outline a proposed framework for sorting suspect precedents using two criteria distilled from Gorsuch’s originalist account and a heuristic flagging racist tropes.
- They illustrate the framework with selected cases such as *Kagama*, *Lone Wolf*, *Mazurie*, *Lara*, *Negonsott*, *Seber*, and *Mancari*, and mention an initial Westlaw count of potentially suspect Supreme Court cases.
Limitations
- The authors state that cataloging and evaluating every suspect case is beyond the Article’s scope, that the initial class of cases is “overly broad,” and that the project does not pretend to fix all of federal Indian law.
- They note the initial study will not capture statutes never directly challenged in the Supreme Court, such as termination acts, the General Allotment Act, and Public Law 280, nor judge-made law unconnected to congressional action, such as *Oliphant*, *Montana*, and *Oklahoma v. Castro-Huerta*.
- The text also makes evident that the proposal is preliminary and programmatic, that the authors speculate about the *Brackeen* majority’s intentions, and that the criteria are not empirically tested or exhaustively applied.
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Claims the paper makes
81 Sources not found · 62 Own interpretation · 11 Not checked yet · 4 No basis given · 1 Own result
In the paper
“The Court rejected the appellants' tenuous anticommandeering and Article I claims,3 and it neatly dodged the dreaded equal protection question.4”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > INTRODUCTION [VOL. 29:1
What the sources say
- Not matchedcites Brackeen, 599 U.S. at 292-94
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainSingle case- Asserted: passes — The authors put it forward as true.
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In the paper
“In Haaland v. Brackeen, the Court once again affirmed Congress's broad power over Indian affairs to uphold the Indian Child Welfare Act.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > A. The Majority
What the sources say
- Not matchedcites Brackeen
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plainstates a causeSingle case- Asserted: passes — The authors put it forward as true.
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In the paper
“In her two major string cites illustrating the doctrine's history,Justice Barrett wholly excluded Ka_l?ama.83”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 82.
What the sources say
- Not matchedcites Brackeen
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plainSingle case- Asserted: passes — The authors put it forward as true.
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In the paper
“Given that 16 cases cite both precedents, this leaves a first flyover population of some 111 potentially suspect Supreme Court cases.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > A. Identifyin;? Suspect Cases
hedgedn = 82- Asserted: passes — The authors put it forward as true.
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In the paper
“It argues that the Brackeen opinions may signal judidal readiness to reevaluate the doctrine.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > Abstract
What the sources say
- Not matchedcites Haaland v. Brackeen (2023)
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hedgedstates a possible causeSingle case- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Since then, plenary power has facilitated dispossession, 8 the horrific Indian boarding school system, 9 and Tribal termination.10”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > INTRODUCTION [VOL. 29:1
plainstates a cause- Asserted: passes — The authors put it forward as true.
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In the paper
“90% of those kids were placed with non-Natives.61”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 53.
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In the paper
“When Kagama challenged the Act's constitutionality, the Supreme Court sided with Congress.48”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 35.
What the sources say
- Not matchedcites Kagama
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plainstates a causeSingle case- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“To protect ICWA, the Court had to endorse a broader account of Congressional power.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > I. PLENARY POWER AND THE INDIAN CHILD WELFARE ACT
plainstates a cause- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Since then, plenary power has facilitated dispossession, 8 the horrific Indian boarding school system, 9 and Tribal termination.10”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > INTRODUCTION [VOL. 29:1
plainstates a cause- Asserted: passes — The authors put it forward as true.
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- It may state two separate claims as one. 34
- Probably not a substantial claim. 55
In the paper
“The Court rejected the appellants' tenuous anticommandeering and Article I claims,3 and it neatly dodged the dreaded equal protection question.4”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > INTRODUCTION [VOL. 29:1
What the sources say
- Not matchedcites Brackeen, 599 U.S. at 280-86
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainSingle case- Asserted: passes — The authors put it forward as true.
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In the paper
“Justice Barrett also pointed to the trust relationship as a basis and limitation of plenary power.76”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > A. The Majority
What the sources say
- Not matchedcites Brackeen
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In the paper
“But she did not go so far as to define that relationship or its restrictions on Congressional action.77”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > A. The Majority
What the sources say
- Not matchedcites Brackeen
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plainSingle case- Asserted: passes — The authors put it forward as true.
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A result the paper reports from its own data — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“For instance, initial searches in W estlaw reveal that 82 Supreme Court cases cite Ka;?ama and 45 cite Lone Wolf.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > A. Identifyin;? Suspect Cases
plainn = 82- Asserted: passes — The authors put it forward as true.
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In the paper
“Echoing the second approach laid out above, she rooted the power in a collection of constitutional sources, citing the Commerce Clause and the Treaty Clause, 73 as well as the general structure of the Constitution.74”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > A. The Majority
What the sources say
- Not matchedcites Brackeen
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plainSingle case- Asserted: passes — The authors put it forward as true.
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In the paper
“Most notably, Ka_l?ama v. United States was nowhere to be found.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 82.
What the sources say
- Not matchedcites Brackeen
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plainSingle case- Asserted: passes — The authors put it forward as true.
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In the paper
“Writing for the majority, Justice Amy Coney Barrett invoked the plenary power doctrine.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > A. The Majority
What the sources say
- Not matchedcites Brackeen
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plainSingle case- Asserted: passes — The authors put it forward as true.
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In the paper
“Since its troubling nineteenth-century origins in Kagama v. United States (1886), plenary power has justified invasive Congressional interventions and undermined Tribal sovereignty.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > Abstract
What the sources say
- Not matchedcites Kagama v. United States (1886)
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plainstates a causeSingle case- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“The doctrine's legal basis remains a constitutional conundrum.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > Abstract
plain- Asserted: passes — The authors put it forward as true.
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None of the sources cited for this claim have been checked yet.
In the paper
“In the Major Crimes Act, Congress sought to intervene in matters ofinternal Tribal governance, based on a racist perception of Tribal justice as weak and uncivilized.47”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 35.
plainstates a cause- Asserted: passes — The authors put it forward as true.
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In the paper
“Both Edwin Kneedler and Ian Gersherhorn, the advocate for the Tribal parties, remarked that the Supreme Court had never struck down a statute for exceeding the bounds of Congress' plenary power.72”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 53.
What the sources say
- Not matchedcites Transcript of Oral Argument
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plain- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“If the Indian boarding school and adoption programs were ever constitutional, they were justified by a theory of plenary power.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 53.
hedgedstates a possible cause- Asserted: passes — The authors put it forward as true.
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In the paper
“This largescale removal of children was the product of the Bureau of Indian Affairs' Indian Adoption Project of the 196Os, 62 as well as the legacy of the Indian boarding schools program, the devastating assimilationist policy initiated by the Bureau oflndian Affairs in 1860.63”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 53.
plainstates a cause- Asserted: passes — The authors put it forward as true.
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The paper states this without a source or data behind it here, so there is nothing to check it against. The quote shows it is in the paper.
In the paper
“For all these reasons, legal scholars have long criticized plenary power in the strongest of terms.19”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > INTRODUCTION [VOL. 29:1
boosted- Asserted: passes — The authors put it forward as true.
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In the paper
“Kiowa leader Lone Wolf brought the case to federal court to enforce the treaty, to hold the federal government to its word.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > See generally SIDNEY L. HARRING, CROW Do G'S CASE: AMERICAN INDIAN SOVEREIGNTY, TRIBAL LAW, AND UNITED STATES LAW IN THE NINETEENTH CENTURY (1994).
What the sources say
- Not matchedcites Lone Wolf
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In the paper
“It relied on racist depictions of Native people and the false presumption that Tribes were destined to disappear in the wake of American civilization. 13”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > INTRODUCTION [VOL. 29:1
plainstates a cause- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Today, plenary power still justifies paternalist national policies that harm Indian country and impede Tribal development.12”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > INTRODUCTION [VOL. 29:1
plainstates a cause- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Plenary power is not unlimited nor absolute, regardless of what Justice Samuel Alito's dictionaries say.66”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 53.
plain- Asserted: passes — The authors put it forward as true.
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In the paper
“Scholars have suggested limiting plenary power by the trust relationship: Congress can only exercise its power in Indian affairs in efforts to preserve or enhance Tribal interests.67”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 53.
hedged- Asserted: passes — The authors put it forward as true.
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In the paper
“In Brackeen, the Court at last appears to be troubled by the colonial project it has facilitated.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > INTRODUCTION [VOL. 29:1
What the sources say
- Not matchedcites Brackeen
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hedgedSingle case- Asserted: passes — The authors put it forward as true.
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In the paper
“ICWA sought to halt the terrible rate of Indian family separation and to reject destructive federal policies of the past.64”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 53.
What the sources say
- Not matchedcites ICWA
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plainstates a cause- Asserted: passes — The authors put it forward as true.
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In the paper
“In its place, a second approach finds a broad federal power articulated in a constellation of constitutional provisions.38”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > I. PLENARY POWER AND THE INDIAN CHILD WELFARE ACT
plain- Asserted: passes — The authors put it forward as true.
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In the paper
“In the Brackeen oral argument, Justice Alita raised this line of questioning.69 Did Congress have the power to force Indian children into boarding schools?”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 53.
What the sources say
- Not matchedcites Transcript of Oral Argument
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plain- Asserted: passes — The authors put it forward as true.
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In the paper
“In Article I, Congress is given the power to regulate commerce with Indian Tribes.30”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > I. PLENARY POWER AND THE INDIAN CHILD WELFARE ACT
plain- Asserted: passes — The authors put it forward as true.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“The Indian law doctrine of plenary power is a relic of a more racist, imperialist American past-the ghost of manifest destiny that will not let go.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > INTRODUCTION [VOL. 29:1
plain- Asserted: passes — The authors put it forward as true.
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In the paper
“Plenary power suggests broad Congressional power over Indian affairs, with limits that are undefined.5”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > INTRODUCTION [VOL. 29:1
What the sources say
- Not matchedcites Brackeen, 599 U.S. at 272-73
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
hedgedSingle case- Asserted: passes — The authors put it forward as true.
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Probably not a substantial claim. It may state two separate claims as one.
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A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“The majority's approach of endorsing a more modest version of plenary authority therefore does not go far enough.Plenary power must be rooted out in favor of the original structure of the Indian-law bargain.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 100. Id.
plain- Asserted: passes — The authors put it forward as true.
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Probably not a substantial claim. It may be too vague to check against evidence. It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“However, considering Justice Gorsuch's extensive engagement with the doctrine's genealogy and his singling out of Ka_l?ama, it seems likely that the elision was no mere accident.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 82.
hedgedstates a possible cause- Asserted: passes — The authors put it forward as true.
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Probably not a substantial claim. It may be too vague to check against evidence. The paper’s conclusions may not depend on it.
- Rests on an assumption: The Supreme Court's elision of Kagama in Brackeen was intentional rather than accidental.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“It will not include judge-made law unconnected to any Congressional action, such as Oliphant v. Suquamish Indian Tribe, 121 Montana v. United States, 122 and Oklahoma v. Castro-Huerta.123”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > A. Identifyin;? Suspect Cases
plain- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Optimistically, we suggest that this subtle change and the majority's emphasis on constitutional limits denote an opportunity to reevaluate the plenary power doctrine and bring greater coherence to federal Indian law.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 82.
hedgedstates a possible cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence.
- Rests on an assumption: The Supreme Court's elision of Kagama in Brackeen was intentional rather than accidental.
In the paper
“By excising the most dubious and offensive case from the canon, the majority appears to have shut the door on any version of plenary power not accountable to the Constitution.84”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 82.
What the sources say
- Not matchedcites Brackeen
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
hedgedstates a possible cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
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Probably not a substantial claim. It may be too vague to check against evidence.
- Not matched
In the paper
“The Court upheld the new treaty and the subsequent allotment legislation in the name of plenary power.136”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 1. Unilateral Federal Derogations of Tribal Self-Governance are Presumptively Unconstitutional
What the sources say
- Not matchedcites Lone Wolf, 187 U.S. at 565-66
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a causeSingle case- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“This initial class of cases is overly broad and must be examined in more detail to determine which precedents would still pass constitutional muster in the absence of the plenary doctrine and which would fail.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > III. REFASHIONING CONGRESSIONAL POWER IN INDIAN AFFAIRS
plain- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“The sphere has borders, even if the Court will not tell us where they lie.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > A. The Majority
plain- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence. The paper may give no reason why it holds.
In the paper
“The emphasis on a limited but exclusive power, based in and bounded by the Constitution, was backed up by a curated account of precedent.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 82.
What the sources say
- Not matchedcites Brackeen
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“When judicial reasoning rests more on racist tropes than constitutional interpretation, the decision is likely fundamentally flawed.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 113. Id.
hedgedstates a possible cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence.
In the paper
“Justice Clarence Thomas dissented.He found no constitutional basis for the Indian Child Welfare Act.85 In broad terms, he rejected the entire doctrine of plenary power:”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > B. The Dissenters
What the sources say
- Not matchedcites Brackeen, 599 U.S. at 335 (Thomas, J., dissenting)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainSingle case- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
- Not matched
In the paper
“Congress did so to enact a policy of allotment and open up the reservation to white settlement.135”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 1. Unilateral Federal Derogations of Tribal Self-Governance are Presumptively Unconstitutional
What the sources say
- Not matchedcites Lone Wolf, 187 U.S. at 561
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a causeSingle case- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
- Not matched
In the paper
“Kaj?ama itself relies on an image of a diminished people, increasingly dependent on the national government in the wake of America's manifest destiny.11 5”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 113. Id.
What the sources say
- Not matchedcites United States v. Kagama, 118 U.S. 375, 384 (1886)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a causeSingle case- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence.
- Not matched
In the paper
“In this 1975 decision, the Court cited to both Kaiama and Lone Wolf to uphold Congressional action regulating the introduction of liquor into Indian”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 1. Unilateral Federal Derogations of Tribal Self-Governance are Presumptively Unconstitutional
What the sources say
- Not matchedcites United States v. Mazurie
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a causeSingle case- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: fails — The paper’s conclusions may not depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. The paper’s conclusions may not depend on it.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“and Lone Wolf v. Hitchcock 130 both fail this test.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 1. Unilateral Federal Derogations of Tribal Self-Governance are Presumptively Unconstitutional
plain- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“That is, where the federal government has secured the explicit consent of a Tribe to the transmission of specific internal governance responsibilities, then that transmission may still be deemed constitutional under this test.However, it is also properly subject to further judicial scrutiny as to the ability of the Tribe to make its decision free of duress.128”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 1. Unilateral Federal Derogations of Tribal Self-Governance are Presumptively Unconstitutional
hedgedstates a possible cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“This second conclusion also succeeds under the proposed test, because it does not diminish Tribal self-government, but rather, enhances it.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 1. Unilateral Federal Derogations of Tribal Self-Governance are Presumptively Unconstitutional
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Congress's actions were a direct affront to Tribal sovereignty, taking away Tribal lands without proper consent.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 1. Unilateral Federal Derogations of Tribal Self-Governance are Presumptively Unconstitutional
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“This latter circumstance is exactly the situation with ICW A, making the Brackeen Court's decision presumptively constitutional under this test.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 1. Unilateral Federal Derogations of Tribal Self-Governance are Presumptively Unconstitutional
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: unclear — It is unclear why the paper says it holds.
It may state two separate claims as one.
In the paper
“Moreover, the narrative of the vanishing Indian is inherently hostile to Tribal survival.116”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 113. Id.
What the sources say
- Not matchedcites Lauren van Schilfgaarde, (Un)Vanishing the Tribe, 66 AR.rz.L. REv.(forthcoming 2024)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“First, we suggest that every decision drawing authority from Ka,eama, Lone Wolf, or plenary power by name is suspect.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > III. REFASHIONING CONGRESSIONAL POWER IN INDIAN AFFAIRS
plain- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence.
In the paper
“Under the Gorsuch account, the Major Crimes Act is beyond the limits of Congressional power and Kaiama was wrongly decided.133”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 1. Unilateral Federal Derogations of Tribal Self-Governance are Presumptively Unconstitutional
What the sources say
- Not matchedcites Brackeen, 599 U.S. 326-31 (Gorsuch,]., concurring)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“For these reasons, we suggest that references to vanishing Indians and vanishing Tribes can serve as additional red flags in our review of suspect caselaw.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 113. Id.
hedgedstates a possible cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence.
In the paper
“According to Justice Gorsuch, the Constitution provides zero basis for a federal plenary power in Indian law.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > A. Identifyin;? Suspect Cases
What the sources say
- Not matchedcites Brackeen, 599 U.S. at 326-31 (Gorsuch, J., concurring)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainSingle case- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“We draw the two criteria from Justice Gorsuch's reasoning in Haaland v. Brackeen: (1) Does the act in question interfere in Tribal selfgovernment?(2) Does the act in question project state authority into Tribal affairs?If either of these questions are answered in the affirmative, the decision is likely unconstitutional.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > B. The Gorsuch Criteria
hedgedstates a possible causeSingle case- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“That population will fluctuate as further searches for the plenary power doctrine are added and cases are also subtracted for not relying sufficiently upon these doctrines.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > A. Identifyin;? Suspect Cases
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: fails — The paper’s conclusions may not depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. The paper’s conclusions may not depend on it.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“This first claim of authority falls squarely in Gorsuch's reading of the Indian Commerce Clause.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 1. Unilateral Federal Derogations of Tribal Self-Governance are Presumptively Unconstitutional
boosted- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim.
In the paper
“Justice Neil Gorsuch took another route in his concurrence: he voted to uphold ICW A, but not on the basis of the plenary power.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > B. The Dissenters
What the sources say
- Not matchedcites Brackeen, 599 U.S. at 307-08, 318 (Gorsuch, J., concurring)
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainSingle case- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“We push Justice Gorsuch's observations a step further with the following suggestion: reliance on racist tropes in judicial reasoning presents a red flag for dubious constitutionality.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > C. Additional Red Flais
plainstates an association- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence.
In the paper
“The decision involved an invocation of Congressional plenary power and substantial quotations of United States v. Ka;?ama.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > Mapping Dual Sovereignty and Double jeopardy in Indian Country
What the sources say
- Not matchedcites [165]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates an association- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: unclear — It is unclear whether the paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
- Not matched
In the paper
“He observes: “as sometimes happens when this Court elides text and original meaning in favor of broad pronouncements about the Constitution's purposes, the plenary-power idea baked in the prejudices of the day.””
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > C. Additional Red Flais
What the sources say
- Not matchedcites [171]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim.
- Not matched
In the paper
“While 1968 amendments incorporated a consent requirement, it did not apply retroactively.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > Mapping Dual Sovereignty and Double jeopardy in Indian Country
What the sources say
- Not matchedcites [162]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plain- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
- Not matched
In the paper
“Having failed to find a basis for expanding federal power into Tribal internal affairs in the Constitutional text, the Ka;?ama Court could only intone that “[t]he power of the general government over these remnants of a race once powerful, now weak and diminished in numbers is necessary for their protection, as well as to the safety of those among whom they dwell.””
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 177.
What the sources say
- Not matchedcites [185]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
hedgedstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim.
- Not matched
In the paper
“This is the same “vanishing Indian” trope that stands as one of the bedrock assumptions in our myth of manifest destiny, whereby Americans recast conquest as harmless expansion.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 177.
What the sources say
- Not matchedcites [186]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates an association- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim.
- Not matched
In the paper
“Legal decisions that lean into the story of the vanishing Indian are especially suspect because the trope is inherently hostile to Tribal sovereignty.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 185.
What the sources say
- Not matchedcites [191]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence.
- Rests on an assumption: Tribes have not disappeared.
- Not matched
In the paper
“While it was amended to require consent, the amendment did not apply retroactively, nor did it give tribes the power to initiate retrocession.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > Mapping Dual Sovereignty and Double jeopardy in Indian Country
What the sources say
- Not matchedcites [155]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plain- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: unclear — It is unclear whether the paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
- Not matched
None of the sources cited for this claim could be matched to a paper in Crossref, so there is nothing to check it against.
In the paper
“Finding that Congress did possess the requisite power, 147 the Court relied on the doctrine of plenary power.148”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 1. Unilateral Federal Derogations of Tribal Self-Governance are Presumptively Unconstitutional
What the sources say
- Not matchedcites Lara, 541 U.S. at 210
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
- Not matchedcites Lara, 541 U.S. at 202
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a causeSingle case- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“The employment preference does nothing to enhance state authority in Tribal affairs, nor does it interfere with internal Tribal government.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > Mapping Dual Sovereignty and Double jeopardy in Indian Country
plainSingle case- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Since our tranche of caselaw for this project specifically centers on plenary doctrine cases, it is only likely to capture cases in this second category.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 2. Federal Facilitation of State Encroachment on Tribal Self-Governance is Presumptively Unconstitutional
hedgedstates a possible cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim.
In the paper
“It observed that “[r]esolution of the instant issue turns on the unique legal status of Indian Tribes under federal law and upon the plenary power of Congress.””
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > Mapping Dual Sovereignty and Double jeopardy in Indian Country
What the sources say
- Not matchedcites [169]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a causeSingle case- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Justice Gorsuch's Plessy comparison is thus especially apt as the decision showcases how racist assumptions can lead the Court to fatally flawed interpretations of the Constitution.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 177.
boostedstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim.
In the paper
“Thus, the Lara Court had to consider whether Congress had the power to reinstate an attribute of inherent Tribal sovereignty that the Court had previously restricted.146”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 1. Unilateral Federal Derogations of Tribal Self-Governance are Presumptively Unconstitutional
What the sources say
- Not matchedcites Lara, 541 U.S. at 196
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainSingle case- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim.
- Not matched
In the paper
“In Neionsott, the Court reviewed the Kansas Act, 157 to determine whether it granted the state jurisdiction to prosecute state crimes committed by Indians on reservations.158”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 2. Federal Facilitation of State Encroachment on Tribal Self-Governance is Presumptively Unconstitutional
What the sources say
- Not matchedcites Negonsott v. Samuels
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainSingle case- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim.
- Not matched
In the paper
“Throughout the opinion, Gorsuch repeatedly highlights how racist ideas plagued the emergence of this doctrine and operated to legitimate termination, child removal, and the other assimilationist policies organized under the plenary power banner.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > C. Additional Red Flais
What the sources say
- Not matchedcites [172]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a causeSingle case- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim.
- Not matched
In the paper
“By comparing Kaiama v. United States to Plessy v. Feriuson, Justice Gorsuch alludes to another telling characteristic.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > C. Additional Red Flais
What the sources say
- Not matchedcites [170]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates an association- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: fails — The paper’s conclusions may not depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. The paper’s conclusions may not depend on it.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“This invocation of plenary power places the case in the suspect category.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > Mapping Dual Sovereignty and Double jeopardy in Indian Country
plainstates a causeSingle case- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Without any provision for Tribal consent, this result plainly violates our second rule.It would be considered presumptively unconstitutional.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > Mapping Dual Sovereignty and Double jeopardy in Indian Country
boostedstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
In the paper
“While the opinion primarily concerned statutory interpretation, the Court made a passing statement on the constitutionality of such a delegation.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 2. Federal Facilitation of State Encroachment on Tribal Self-Governance is Presumptively Unconstitutional
What the sources say
- Not matchedcites Negonsott v. Samuels
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainSingle case- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. It may state two separate claims as one.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“By bringing racist reasoning to light in each individual case, we strengthen the argument for overturning both the individual holdings and the doctrine as a whole.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > C. Additional Red Flais
boostedstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim.
- Rests on an assumption: Racist assumptions in judicial reasoning can mask the absence of rigorous constitutional analysis and compromise otherwise sound logic because the underlying assumptions are false.
In the paper
“Congress disagreed and passed the Dura Fix to restore Tribal jurisdiction over all Indians.145”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 1. Unilateral Federal Derogations of Tribal Self-Governance are Presumptively Unconstitutional
What the sources say
- Not matchedcites Act of Nov. 5, 1990, § 8077, 104 Stat.1892-1893
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Such action might be undertaken independently by the state, in violation of federal law.154 Such action might also be directly facilitated and condoned by Congress.155”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 2. Federal Facilitation of State Encroachment on Tribal Self-Governance is Presumptively Unconstitutional
hedged- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: fails — The paper’s conclusions may not depend on it.
- Based: passes — The paper gives a reason why it holds.
Probably not a substantial claim. The paper’s conclusions may not depend on it. It may state two separate claims as one.
In the paper
“In particular, boarding schools and state adoptive programs for Indian children were often justified with the idea that they were for the “benefit to the children,” even as they inflicted untold horror and death upon Native families and their Tribes.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > C. Additional Red Flais
What the sources say
- Not matchedcites [173]
Couldn’t be matched to a paper in Crossref, so it can’t be checked.
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: passes — It can be checked against evidence.
- Load-bearing: unclear — It is unclear whether the paper’s conclusions depend on it.
- Based: passes — The paper gives a reason why it holds.
It may state two separate claims as one.
- Not matched
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Moreover, precedent tinged with racist language or reasoning is doubly suspect.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > CONCLUSION
plainstates an association- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence. The paper may give no reason why it holds.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Congressional plenary power in Indian affairs has long justified extraordinary federal intervention into Tribal government, often with dire consequences for Indian country.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > CONCLUSION
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence. The paper may give no reason why it holds. It may state two separate claims as one.
A conclusion the paper draws from its own results — it cites no other source for it, so there is none to check. The quote shows it is in the paper.
In the paper
“Federal intervention is inappropriate and unconstitutional when it undermines internal Tribal self-government or enhances state invasions into Tribal governance.”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > CONCLUSION
plainstates a cause- Asserted: passes — The authors put it forward as true.
- Checkable: fails — It may be too vague to check against evidence.
- Load-bearing: passes — The paper’s conclusions depend on it.
- Based: fails — The paper may give no reason why it holds.
Probably not a substantial claim. It may be too vague to check against evidence. The paper may give no reason why it holds. It may state two separate claims as one.
The paper relies on this without support.
The Supreme Court's elision of Kagama in Brackeen was intentional rather than accidental.
“We can only speculate as to the actual intentions of Justice Barrett and the discussions that led to her choice of authorities.However, considering Justice Gorsuch's extensive engagement with the doctrine's genealogy and his singling out of Ka_l?ama, it seems likely that the elision was no mere accident.”
The paper relies on this without support.
A Supreme Court decision repudiating the constitutionality of plenary power would not mean utter destruction for federal Indian policy.
“Finally, implicit to this entire project is the assurance that should the Supreme Court find the courage to admit it was wrong and repudiate the constitutionality of the doctrine, such a decision would not mean utter destruction for federal Indian policy.”
The paper relies on this without support.
The Constitution's original design is the proper standard for evaluating Congressional power over Indian affairs.
“It then applies two criteria to screen these cases, distilled from Justice Gorsuch's originalist conception of Congressional power.”
The paper relies on this without support.
The proposed two criteria distilled from Justice Gorsuch's originalist conception can screen cases for legislative overreach.
“It then applies two criteria to screen these cases, distilled from Justice Gorsuch's originalist conception of Congressional power.”
The paper relies on this without support.
A reformed, workable, constitutional account of federal power over Tribal nations can be rescued from the troubled history of federal Indian law.
“Rather, we tentatively suggest that a reformed, workable, constitutional account of federal power over Tribal nations can be rescued from the troubled history of federal Indian law.”
The paper relies on this without support.
Tribes have not disappeared.
“To state the obvious: Tribes have not disappeared.”
The paper relies on this without support.
Racist assumptions in judicial reasoning can mask the absence of rigorous constitutional analysis and compromise otherwise sound logic because the underlying assumptions are false.
“We do mean to suggest that racist assumptions in judicial reasoning can (a) mask the absence of rigorous constitutional analysis, and (b) compromise otherwise sound logic because the underlying assumptions are false.”
Self-check
Percentages, sums and reported differences re-computed from the paper’s own numbers.
Each contradiction between two passages listed here was confirmed by an independent check.
Rated minor: it would not touch a result — a value no result rests on, a p-value that stays on the same side of the significance level, or a conflict that is clerical, resolved elsewhere in the paper, or outside its own findings.
In the paper
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 34.
“United States v. Morrison, 529 U.S. 598 (2000)”
§ Revising the Indian Plenary Power Doctrine Revising the Indian Plenary Power Doctrine > 35.
“Morrison, 528 U.S. at 609”
Citations
Cites
Political ecology: a critical introduction
(2005) · Choice Reviews Online · doi:10.5860/choice.42-5341 · Cited by 2,240
35. The Advantages of Mingling Indians with Whites
Pratt, R. Η. (1973) · Harvard University Press eBooks · doi:10.4159/harvard.9780674435056.c39 · Cited by 171
Red: Racism and the American Indian
Berger, B. (2019) · Cambridge University Press eBooks · doi:10.1017/9781108770804.006 · Cited by 34
Domesticating Federal Indian Law
Frickey, P. P. (1996) · Minnesota Law Review · doi:10.24926/265535.2992 · Cited by 12
Beyond the Indian Commerce Clause
Ablavsky, G. (2015) · eYLS (Yale Law School) · Cited by 10
State Prosecutors' Offices with Jurisdiction in Indian Country, 2007
Perry, S. W., Malega, R., & Banks, D. (2011) · Cited by 3
Research works printed but not linked: 3
- Lone Wolfv. Hitchcock, 187 U.S. 553, 566 (1903).
- see, e.g., United States v. Vaello Madero, 596 U.S. 159, 180 (2022) (
- See Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins ef Plenary Power over Foreign Affairs, 81 TEX. L. REv. 1, 7 (2002) ( describing the Indian plenary power origins of the Curtiss-Wright doctrine). 18. See Kagama, 118 U.S. at 384-85 ("The power of the general government over [the Tribes] ... must exist in th
Cited by
Sorted by citations
Asoni, E. (2025) · RIVISTA GEOGRAFICA ITALIANA · doi:10.3280/rgioa2-2025oa20566
Metadata
- Authors
- Ishtani, M., & Fay, A.
- Affiliations
- University of California, Los Angeles (US)
- Corresponding author
- Ishtani, M.
- ORCID
- Fay, Alexandra
- Venue
- Michigan Journal of Race & Law
- Publisher
- University of Michigan Law Library
- Published
- 2024
- Issue
- 29.1
- Pages
- 1
- ISSN
- 1095-2721 (ISSN-L)
- 2688-5492
- OpenAlex
- W4394773762
- Semantic Scholar
- 797e228db7778faa299e6db05cd0b8eb391400cc
- Cited by
- 1
- References
- 6
- Citations by year
- 2025: 1
- FWCI
- 2.62
- Type
- journal article
- Language
- en
- Open access
- diamond
- doi.org
- Locations
- Michigan Journal of Race & Law (publishedVersion)
- SSRN Electronic Journal (acceptedVersion)
- eYLS (Yale Law School) (submittedVersion)
- Topics
- Social Sciences › Law › Indigenous Peoples' Rights and Law
- Social Sciences › Political Science and International Relations › American Constitutional Law and Politics
- Social Sciences › Law › Judicial and Constitutional Studies
- Keywords
- plenary powers, federal Indian law, tribal sovereignty, tribal self-determination
About these checks
Registry, retraction, Cites and statistics results are computed, not judged, with one exception: a printed reference that no index lists is read once by a model before it counts as a citation error. Claims are extracted by a model and kept only when their quote appears verbatim in the text; each cited source is then checked, with a model’s help, for whether it says what the claim relies on. Those verdicts can be wrong — read the claim’s quote and the cited source before relying on one.
A language model drew the claims from the paper on 2026-10-23, under version 3 of the claim definition (model deepseek-v4.1-flash, prompt extract-v3).
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Confidence bands are shown only for fields calibrated on our annotated test set. None is calibrated yet, so no band is shown.
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Cite CoChat for the checks on this page, and the paper for its own findings.
- This page
- CoChat. (2026). Citation check: Revising the Indian Plenary Power Doctrine. https://app.cochat.ai/papers/10.36643/mjrl.29.1.revising
- The paper
- Ishtani, M., & Fay, A. (2024). Revising the Indian Plenary Power Doctrine. Michigan Journal of Race & Law. https://doi.org/10.36643/mjrl.29.1.revising
