Congressional Power Over Indians
dlaycock at MAIL.LAW.UTEXAS.EDU
Wed Aug 16 16:48:20 PDT 2000
Judith Royster rests the Indian Civil Rights Act on the
"extra-constitutional" federal power over Indians.
This is the answer I expected after I thought about it a bit. My young
colleague Sarah Cleveland is finishing up an article on the development of
"inherent powers" in the 19th century cases -- over Indians, over
immigration, and over foreign affairs. At the same time that the Court was
interpreting express federal powers narrowly in the name of federalism, it
was creating these "inherent" powers with no base in constitututional text,
and it was generally saying that these inherent powers were "plenary" --
not even subject to express constitutional rights.
It was an amazing performance. Some of the opinions drip with the racial
attitudes of the time. And the doctrines are largely still in place today.
University of Texas Law School
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dlaycock at mail.law.utexas.edu
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