Congress' Encroachment on the President's Power in Indian Law and Its Effect on Executive-Order ReservationsSeattle Journal for Social Justice (2013)
AbstractUnlike mainstream constitutional doctrine, Indian law constitutional doctrine has failed to clearly separate Congress’ power from the President’s. At first, the President treated Indian tribes on par with foreign nations. By the 1871 Indian Appropriations Act, Congress took away the President’s power to recognize and to negotiate with Indian tribes. Even so, Presidents made reservations by executive order for fifty more years until Congress blocked the President from issuing new ones. In United States v. Lara, Justice Thomas stressed Indian law doctrine’s logical conflict; Indian nations have sovereignty, but Congress can change that sovereignty. The Indian Commerce Clause grants Congress the power to “regulate Commerce with foreign nations, and the several States, and with the Indian Tribes.” Deeming Indian tribe sovereignty like foreign-nation or domestic-state sovereignty, mainstream constitutional doctrine would return some of the President’s original power and likely have dramatic effects on Indian nations especially regarding executive-order reservations.
- separation of powers,
- executive orders,
- Commerce Clause
Publication DateNovember 1, 2013
Citation InformationMark R. Carter, J.D., Ph.D., Congress' Encroachment on the President's Power in Indian Law and Its Effect on Executive Order Reservations, 11 Seattle J. for Soc. Just., Issue 3, (May 2013 forthcoming), available at http://http://works.bepress.com/mark_r_carter_jd_phd/1.