Last week, Wisconsin Law in Action from the UW Law Library welcomed Richard Monette back to the podcast (both audio and video available). Monette is Professor of Law and Director of the Great Lakes Indian Law Center at the University of Wisconsin Law School. Monette talks with host Kris Turner about Brackeen v. Haaland which is currently before the U.S. Supreme Court. This case focuses on the Indian Child Welfare Act (ICWA) and whether its placement preferences, which currently disfavor non-Indian, adoptive families in child placement proceedings involving an Indian child, discriminate on the basis of race in violation of the U.S. Constitution.
Monette on the implications of siloed doctrines in Brackeen:
[The oral arguments in Brackeen] illustrated for us that in the last couple, three decades, we have taken all these doctrines, moving parts in federal Indian law, and tucked them into each their own silo. Over the years, you can just go through and look at federal Indian law, and see articles on plenary power, or preemption, or trust responsibility. This showed, number one, that we’ve done that probably to a fault. It showed that it’s probably time to go back and look more holistically at all of these doctrines, all of these moving parts, and try to wend them back together to show their interrelationships, show the logic of the interrelationships.
Monette on preemption:
Let’s just think about the trajectory of preemption. First, it was in the discovery doctrine and it’s so important to hear that doctrine right. But in the end what it was, was the discoverer preempting others from discovering. It’s important to say that out loud. Again, … the relationship there was not the Euros and the Natives.
In Johnson v. McIntosh, Justice Marshall writes, “But as they were all in pursuit.” They all, the European countries, Christian, European countries, were all in pursuit of nearly the same object. “It was necessary in order to avoid conflicting settlements between them, and consequent war with each other.” It’s not in regard to the Natives, to establish a principle that’s the doctrine of discovery…. In the law, we have to recognize that the doctrine of discovery is largely an exercise in preemption…. This principle was that discovery gave title to the government by whose authority it was made, against all other European governments, which title might be consummated by possession.
Monette on plenary power:
An exercise of that power of preemption is an exercise of plenary power… This has more to do with the relationship that Congress has with all of the states…. They are preempted and Congress instead will exercise this sort of plenary power… The first place in any related context… where the Supreme Court used the word plenary was in Gibbons v. Ogden, and it was construing the Commerce Clause… This isn’t a word that’s just in Indian law.
There’s no reason that the word should mean something different when we’re talking about international commerce or interstate commerce, just because we’re talking about Indian commerce. It’s the same Commerce Clause, it’s the same word. Plenary is the same word as a word of construction. It’s important to… read it against that logical context… It was important to say in the Commerce Clause, the states and their people, gave the Union the plenary power over the states and the people, to deal with interstate commerce. That’s steeped in Republican democracy. Those basic ideas of government by the governed. You don’t give the government power over somebody else. You give the government power over you. That’s… the source of sovereignty.
See, when you say it that way, there doesn’t seem to be an issue with it. We generally accept that after 200 years. Yeah, okay, well, Indian law’s got this twist in it. Again, I think part of that is because of the siloization of these doctrines, but we should be saying the same thing. In the Commerce Clause, the states and their people gave to the Union, the plenary power over the states and the people to deal with the Indian tribes. To say that completely, consistently, them being the same Commerce Clause and the same plenary words.
Obviously, the reason that’s so important is because today with this again, siloing of these doctrines, we get plenary power over Indian tribes. Then of course, people tear their hair out over it: “Well, where does that come from? It’s extra constitutional, it’s not justified.” Well, yeah, because it wasn’t the tribes and their people giving to the Union plenary power over the tribes and their people…. People can only give what they have, so… the states and their people can’t give plenary power over the tribes and the people.
Monette on the trust relationship:
This trust idea is best understood by giving it its historical context, and by looking at a necessary bifurcation that occurred through history. We first hear the words guardian/ward relationship in Cherokee Nation v. Georgia. Again, way back, 1831 or something. The court saying that the tribes are not foreign or domestic, they’re States, with a capital S, rather they’re domestic dependent nations… it was talking about that third prong of sovereignty.
There’s the territory, the peoples and the recognition. When the court is giving some life to what this relationship looks like, it’s talking about the recognition, the political recognition. I think it’s appropriate to call that the trust relationship. I think it is only a relationship because in contradiction to the trust responsibility, the only thing at play in the trust relationship was the relationship… That whole discussion was simply about a relationship. When we tuck those together with preemption and plenary in that way, and then think ahead to this distinction between a racial versus a political identity. Well, and we want to conclude with, well, it’s a political identity.
We’re talking about not a racial relationship but a political relationship, well, that’s what was at stake. That’s what was at play in the 1831, in Cherokee Nation v. Georgia, was a political relationship. Yes, trust relationship, but that’s different from a trust responsibility. The trust relationship is that political doctrine, political concept. A trust responsibility is a property-based concept… One political, one property-based, and the political one is the one that helps us best think about the racial versus political distinction.
Monette on bringing together these siloed doctrines in federal Indian law:
Federal Indian law actually hinges on [tribes’] identity, as political entities and not racial entities. If it hinged on a race-based identity, it would invoke strict scrutiny under the Constitution. All these laws that deal with Indians, the Indian Child Welfare Act just being one of them, that is the question… The Indian Gaming Regulatory Act, Indian Civil Rights Act, three or four books of volumes of the United States Code, and Code of Federal Regulations are all arguably, suddenly subjected to much greater scrutiny.
That’s why going through the last things to get to the trust relationship, and understand why that is the third prong of sovereignty at issue, is a way to think about this and being perhaps the most important way to think about it… Well, the feds are going to commandeer the states a bit under the Commerce Clause, because that’s what the states and their people told Congress to do about interstate commerce, about international commerce, and commerce with Indian tribes. This is precisely where the states and their people told Congress, “You do it.”…
I always like to point out that the 10th Amendment in the Constitution where it says, “What is not delegated in this Constitution to the Union, or prohibited by the Constitution to the states, shall be reserved to the states or the people.” In other words, the states and the people are the source of it. They gave some, what they didn’t give, they reserved to themselves. When the court finally had to address a similar matter in the overlap of these sovereigns, two and potentially three even….
A case like Brackeen, if you can take all these otherwise siloized doctrines, and bring them back together and look at the important relationships between them, and run it from the beginning to the end, there’s almost no other way to conclude but that.
For more of Professor Monette’s scholarship, see his profiles on SSRN and the UW Law School Digital Repository.