Attorneys and scholars like to wax poetic about theories of interpretation and jurisprudence, but sometimes all it takes to change the law is a vote. In the context of Native American Law, the “Plenary Power of Congress” has become almost a throw-away phrase—one often referenced but far less frequently relied upon. That Power can be destructive or productive, depending upon the direction in which the winds of political change blow. Congress could and is providing Tribes with just enough wind at their backs to make up the ground recently lost in the courts, most recently in the 9th Circuit’s decision against the Big Lagoon Rancheria. Big Lagoon Rancheria v. California, 4:09-CV-01471-CW (2014).
Enter Senator Jon Tester and his bill proposing simple changes to the text of the Indian Reorganization Act that would effectively overturn the Supreme Court’s Carcieri v. Salazar opinion. That decision interpreted the Act’s original language to disallow those Tribes who were recognized after the time of the law’s passage from participating in the fee-to-trust process. Carcieri, 555 U.S. 379 (2009). Not only did the ruling prevent Tribes later recognized from enjoying the full benefits of sovereignty, but it also caused a significant disruption for those Tribes who had not been recognized at the time of the IRA’s passage but whose land had been taken into trust by the BIA and developed prior to Carcieri.
All it takes to overturn Carcieri is the will of Congress to exercise its plenary power by passing an amendment to the IRA. While this bill has Republican and Democrat co-sponsors from states across the country and was just unanimously passed out of the Senate’s Indian Affairs Committee, there is still opposition on the part of many states and their Attorneys General. It remains to be seen whether or not that opposition can gain a foothold somewhere in the arduous process of Federal lawmaking.
Christopher is a citizen of the Cherokee Nation and just completed his second year at the University of Oklahoma College of Law.
Ted is head of the Native American Law practice group and primary editor for the Blogging Circle. Connect with Ted at firstname.lastname@example.org and 619.515.3277.