The Indian Treaty Power

*J.D., University of Virginia School of Law, 2026. I am deeply grateful to Professor Michael Doran, whose class inspired this Note and whose guidance was essential in bringing it to publication. I would also like to thank my classmates Alex Hanna, Alex Webb, Brian Curtis, and Philip Hedden, who generously volunteered their time to read and provide feedback on previous drafts and who had to teach themselves federal Indian law from scratch to do it. Finally, I would like to thank Caroline Davisson and the members of the Virginia Law Review for their diligent efforts in editing and publishing my work.Show More

Introduction

“Great nations, like great men, should keep their word.”¹ 1.Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 142 (1960) (Black, J., dissenting).Show More

The Supreme Court has an Indian law problem.² 2.This Note uses “Indian” and “Native American” interchangeably to refer to indigenous peoples, consistent with the norms of Indian law scholarship. See, e.g., Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L.J. 1012, 1014 n.3 (2015).Show More For the first century of this country’s history, Indian tribes were treated as sovereign nations capable of signing treaties, selling their lands, and governing themselves. But 140 years ago, in United States v. Kagama, the Court changed course, bestowing upon the federal government a “plenary”—that is, an exclusive and unlimited—power over Indian affairs, which extended even to regulating the tribes’ internal affairs.³ 3.118 U.S. 375, 384–85 (1886).Show More Kagama has been described as “the ghost of manifest destiny that will not let go,”⁴ 4.M. Henry Ishitani & Alexandra Fay, Revising the Indian Plenary Power Doctrine, 29 Mich. J. Race & L. 1, 2 (2024).Show More and the plenary power it inaugurated has been condemned by scholars as untethered from the Constitution,⁵ 5.See, e.g., Philip P. Frickey, Domesticating Federal Indian Law, 81 Minn. L. Rev. 31, 43 (1996) (observing that the “text of the Constitution lacks much of a hint of any plenary power”).Show More rooted in racialized stereotypes,⁶ 6.See, e.g., Ishitani & Fay, supra note 4, at 2–3.Show More at odds with historical practice recognizing Indian sovereignty,⁷ 7.See, e.g., Steven Paul McSloy, Back to the Future: Native American Sovereignty in the 21st Century, 20 N.Y.U. Rev. L. & Soc. Change 217, 218–20 (1993).Show More and “repugnant to the doctrine of enumerated powers.”⁸ 8.Id. at 253.Show More Despite the criticisms lobbed at the plenary power, it has facilitated virtually the entire statutory framework governing Indian affairs—both good and bad. In addition to policies that have enabled the displacement and ethnic cleansing of Indian tribes,⁹ 9.See Nell Jessup Newton, Federal Power Over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev. 195, 227 (1984) (describing the criminalization of indigenous religions and the removal of Native children to boarding schools).Show More the power also serves as the basis for most of Title 25—the portion of the United States Code that houses legislation designed to benefit the tribes in areas ranging from education to healthcare to child welfare.¹⁰ 10.See Ishitani & Fay, supra note 4, at 17; Ablavsky, supra note 2, at 1016.Show More

But 2023’s Haaland v. Brackeen highlighted cracks in the plenary power’s foundation. Brackeen considered, but did not settle, the constitutionality of the Indian Child Welfare Act (“ICWA”),¹¹ 11.Haaland v. Brackeen, 143 S. Ct. 1609, 1629–31 (2023).Show More which regulates state custody proceedings regarding the placement of Indian children with the aim of keeping them in their tribal communities.¹² 12.Indian Child Welfare Act, 25 U.S.C. §§ 1901–1963.Show More If the Court had faithfully applied Kagama, this would have been an easy case—it could have simply invoked the plenary power without further discussion. But it did not. While the Court gestured at the doctrine, it also canvassed possible bases for ICWA rooted in the Constitution’s text and structure.¹³ 13.Brackeen, 143 S. Ct. at 1630–32.Show More Among the potential alternatives the Court considered were the Indian Commerce Clause,¹⁴ 14.Id. at 1630.Show More the Treaty Clause,¹⁵ 15.Id. at 1631.Show More and the federal government’s inherent power over foreign affairs.¹⁶ 16.Id.Show More But the opinion never settled which textual basis, if any, could sustain ICWA.¹⁷ 17.Id. at 1630–31 (upholding ICWA because petitioners failed to discharge their “burden of establishing ICWA’s unconstitutionality”).Show More By invoking the plenary power while in the same breath exploring specific constitutional provisions, the Court betrayed its lack of faith in the plenary power’s continuing vitality. The stakes of this doctrinal instability are high; although Brackeen narrowly concerned ICWA, the Court’s waning confidence in the plenary power imperils all of Title 25.

Some scholars have argued that abandoning the doctrine would “effectively erase[]” a myriad of essential programs covering Indian healthcare, housing, education, and more.¹⁸ 18.See Ablavsky, supra note 2, at 1016 (internal quotation marks omitted); Ishitani & Fay, supra note 4, at 17.Show More But if this is the only reason for adhering to a doctrine that is both contrary to the principle of enumerated powers and unsupported by the Constitution’s text, that reason has weak persuasive force. If the problem is that, without the plenary power, much of Title 25 would fall, the solution is to ground Indian legislation in a textual provision that can legitimately support it.

This Note proposes that the Treaty Clause of Article II, together with the Necessary and Proper Clause of Article I, allows the federal government to fulfill its obligations to Indian nations without resorting to plenary authority. Prior scholarship has largely converged on the Indian Commerce Clause as the proper constitutional home for Title 25;¹⁹ 19.See, e.g., Stephen Andrews, In Defense of the Indian Commerce Clause, 9 Am. Indian L.J. 182, 204–06 (2021); Ablavsky, supra note 2, at 1029.Show More but, as this Note demonstrates, that provision is insufficient to sustain legislation like ICWA, which lacks any nexus to commerce. While the Court has invoked the Treaty Clause a few times in addressing federal authority over Indian affairs,²⁰ 20.Brackeen, 143 S. Ct. at 1628; McClanahan v. Ariz. State Tax Comm’n, 411 U.S. 164, 172 n.7 (1973); United States v. Lara, 541 U.S. 193, 200 (2004); Morton v. Mancari, 417 U.S. 535, 552 (1974).Show More and a handful of scholars have briefly gestured at the provision,²¹ 21.See, e.g., Lorianne Updike Toler, The Missing Indian Affairs Clause, 88 U. Chi. L. Rev. 413, 482 (2021) (arguing that, in the absence of a plenary power, the solution is to ratify new treaties with the tribes); Saikrishna Prakash, Against Tribal Fungibility, 89 Corn. L. Rev. 1069, 1095–97 (2004) (arguing that specific treaties might give the government narrow authority vis-à-vis particular tribes).Show More this Note is the first piece of legal scholarship to fully consider its potential and to operationalize it through the Necessary and Proper Clause.

This Note proceeds in three parts. Part I details the origins and scholarly critiques of the plenary power doctrine and traces the Supreme Court’s slow retreat from it. Part II argues that the most popular alternative to the plenary power, the Indian Commerce Clause, is insufficient to sustain portions of Title 25, specifically the provisions lacking any nexus to economic enterprise. Such provisions exist in a state of constitutional limbo. Part III fills that gap, arguing that the Necessary and Proper Clause authorizes Congress to implement the United States’ treaties with Indian tribes, and that Title 25 legislation is “necessary and proper” to honor those commitments. While this Note focuses on ICWA as a uniquely vulnerable statute, its arguments apply with equal force to other provisions in Title 25.²² 22.Doing away with the plenary power “would render much of federal Indian law . . . at least preliminarily suspect.” Ishitani & Fay, supra note 4, at 17. Because noneconomic crimes, United States v. Morrison, 529 U.S. 598, 617 (2000), and land use, Lake Country Ests., Inc. v. Tahoe Reg’l Plan. Agency, 440 U.S. 391, 402 (1979), are traditionally regulated at the local level, Title 25 legislation that operates in these areas, similar to ICWA, cannot be sustained under the Commerce Clause. Nonetheless, this legislation too might be considered “necessary and proper” to implementing various treaties. Compare, e.g., Indian Civil Rights Act § 204, 25 U.S.C. § 1304 (authorizing tribal jurisdiction over domestic violence offenses committed on Indian lands), Indian Reorganization Act, 25 U.S.C. §§ 5101–5129 (taking land into trust for the tribes and managing its use), and 25 U.S.C. §§ 371–380 (regulating the intestacy of Indian lands), with Treaty with the Navajo Indians, Navajo-U.S., art. I, ¶ 2, June 1, 1868, 15 Stat. 667, https://treaties.okstate.edu/treaties/treaty-‌with-the-navaho-1868-1015 [https://perma.cc/2WQY-8EUN] (providing for the punishment of white offenders in Indian country), Treaty with the Cherokees, Cherokee-U.S., arts. VIII–IX, July 2, 1791, 7 Stat. 39, https://treaties.okstate.edu/treaties/treaty-with-the-cherokee-179‌1-0029 [https://perma.cc/Z45F-ZQZ4] (setting apart land for the tribe and providing for assistance in managing it), and Treaty with the Chickasaw, Chickasaw-U.S., art. IV, May 24, 1834, 7 Stat. 450, https://treaties.okstate.edu/treaties/treaty-with-the-chickasaw-183‌4-0418 [https://perma.cc/JX24-KPQS] (providing for the descent of Indian lands to heirs).Show More

1.  Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 142 (1960) (Black, J., dissenting). ↑
2.  This Note uses “Indian” and “Native American” interchangeably to refer to indigenous peoples, consistent with the norms of Indian law scholarship. See, e.g., Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L.J. 1012, 1014 n.3 (2015). ↑
3.  118 U.S. 375, 384–85 (1886). ↑
4.  M. Henry Ishitani & Alexandra Fay, Revising the Indian Plenary Power Doctrine, 29 Mich. J. Race & L. 1, 2 (2024). ↑
5.  See, e.g., Philip P. Frickey, Domesticating Federal Indian Law, 81 Minn. L. Rev. 31, 43 (1996) (observing that the “text of the Constitution lacks much of a hint of any plenary power”). ↑
6.  See, e.g., Ishitani & Fay, supra note 4, at 2–3. ↑
7.  See, e.g., Steven Paul McSloy, Back to the Future: Native American Sovereignty in the 21st Century, 20 N.Y.U. Rev. L. & Soc. Change 217, 218–20 (1993). ↑
8.  Id. at 253. ↑
9.  See Nell Jessup Newton, Federal Power Over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev. 195, 227 (1984) (describing the criminalization of indigenous religions and the removal of Native children to boarding schools). ↑
10.  See Ishitani & Fay, supra note 4, at 17; Ablavsky, supra note 2, at 1016. ↑
11.  Haaland v. Brackeen, 143 S. Ct. 1609, 1629–31 (2023). ↑
12.  Indian Child Welfare Act, 25 U.S.C. §§ 1901–1963. ↑
13.  Brackeen, 143 S. Ct. at 1630–32. ↑
14.  Id. at 1630. ↑
15.  Id. at 1631. ↑
16.  Id. ↑
17.  Id. at 1630–31 (upholding ICWA because petitioners failed to discharge their “burden of establishing ICWA’s unconstitutionality”). ↑
18.  See Ablavsky, supra note 2, at 1016 (internal quotation marks omitted); Ishitani & Fay, supra note 4, at 17. ↑
19.  See, e.g., Stephen Andrews, In Defense of the Indian Commerce Clause, 9 Am. Indian L.J. 182, 204–06 (2021); Ablavsky, supra note 2, at 1029. ↑
20.  Brackeen, 143 S. Ct. at 1628; McClanahan v. Ariz. State Tax Comm’n, 411 U.S. 164, 172 n.7 (1973); United States v. Lara, 541 U.S. 193, 200 (2004); Morton v. Mancari, 417 U.S. 535, 552 (1974). ↑
21.  See, e.g., Lorianne Updike Toler, The Missing Indian Affairs Clause, 88 U. Chi. L. Rev. 413, 482 (2021) (arguing that, in the absence of a plenary power, the solution is to ratify new treaties with the tribes); Saikrishna Prakash, Against Tribal Fungibility, 89 Corn. L. Rev. 1069, 1095–97 (2004) (arguing that specific treaties might give the government narrow authority vis-à-vis particular tribes). ↑

22.  Doing away with the plenary power “would render much of federal Indian law . . . at least preliminarily suspect.” Ishitani & Fay, supra note 4, at 17. Because noneconomic crimes, United States v. Morrison, 529 U.S. 598, 617 (2000), and land use, Lake Country Ests., Inc. v. Tahoe Reg’l Plan. Agency, 440 U.S. 391, 402 (1979), are traditionally regulated at the local level, Title 25 legislation that operates in these areas, similar to ICWA, cannot be sustained under the Commerce Clause. Nonetheless, this legislation too might be considered “necessary and proper” to implementing various treaties. Compare, e.g., Indian Civil Rights Act § 204, 25 U.S.C. § 1304 (authorizing tribal jurisdiction over domestic violence offenses committed on Indian lands), Indian Reorganization Act, 25 U.S.C. §§ 5101–5129 (taking land into trust for the tribes and managing its use), and 25 U.S.C. §§ 371–380 (regulating the intestacy of Indian lands), with Treaty with the Navajo Indians, Navajo-U.S., art. I, ¶ 2, June 1, 1868, 15 Stat. 667, https://treaties.okstate.edu/treaties/treaty-‌with-the-navaho-1868-1015 [https://perma.cc/2WQY-8EUN] (providing for the punishment of white offenders in Indian country), Treaty with the Cherokees, Cherokee-U.S., arts. VIII–IX, July 2, 1791, 7 Stat. 39, https://treaties.okstate.edu/treaties/treaty-with-the-cherokee-179‌1-0029 [https://perma.cc/Z45F-ZQZ4] (setting apart land for the tribe and providing for assistance in managing it), and Treaty with the Chickasaw, Chickasaw-U.S., art. IV, May 24, 1834, 7 Stat. 450, https://treaties.okstate.edu/treaties/treaty-with-the-chickasaw-183‌4-0418 [https://perma.cc/JX24-KPQS] (providing for the descent of Indian lands to heirs). ↑