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We the People
Native Americans and the Supreme Court
Nov 7, 2024
Keith Richotte Jr. is an author and expert on Native American law, while Matthew L.M. Fletcher has written extensively on Indigenous rights. They discuss the complex evolution of Native American law from the Marshall Court to today, addressing the federal government's authority over tribes. They highlight the impact of Justice Scalia’s philosophy and recent positive trends in tribal sovereignty. The conversation also emphasizes the need for integrating Indigenous philosophies into governance and educating justices about Native rights.
58:24
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Quick takeaways
- The doctrine of plenary power has historically granted the federal government extensive authority over Native American tribes, rooted in systemic biases.
- Distinct legal textualism approaches, particularly canary and muskrat textualism, reflect evolving attitudes toward tribal sovereignty and agency in Indian law.
Deep dives
Plenary Power and Its Historical Context
The doctrine of plenary power asserts that the federal government holds limitless authority over Native American tribes, a concept rooted in historical racism and stereotypes. Initially articulated in the 1880s in the case of US v. Kagama, the court struggled to find a constitutional basis for this authority, initially rejecting the Commerce Clause as a justification. However, by the early 21st century, the Supreme Court began to embrace the Commerce Clause as the cornerstone of plenary power, suggesting a significant shift in legal interpretation. This evolution raises critical questions about when and how plenary power became constitutionally grounded, reflecting broader changes in societal attitudes toward Native American rights.
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Discover
highlights
Listen to the best highlights from the podcasts you love and dive into the full episode