Against Tribal Fungibility

Abstract

The federal courts maintain that the Constitution grants the federal government a plenary power over all Indian tribes. In response, some Indian law scholars claim that the federal government does not have plenary power over any Indian tribe. Both parties to this dispute fall into the unfortunate trap of treating the Indian tribes as if they are all similarly situated. In fact, there are reasons to believe that the federal government's power over individual Indian tribes varies from tribe to tribe. When an Indian tribe is located on federal property or within a federal territory, the federal government enjoys something like a plenary power by virtue of the Territory/Property Clause. Likewise, some Indian tribes might have ceded to the federal government a plenary power via treaty or agreement. When a tribe does not fit within either of these two categories, the federal government does not have plenary power over it. The misguided tendency to regard the tribes as fungible has obscured the possibility of relevant differences that might yield variable federal power. Once we stop treating the tribes as if they were fungible, we can begin to see more clearly how and why federal authority might vary across tribes.