Indian Civil Rights Act

[Leslie Goldstein]

Just for the record, and specifically with respect to cases like Lopez, Printz,
etc.--once upon a time John Marshall called Congress's power over commerce
among the states "plenary" too.  See Gibbons v.Ogden.
Leslie

"Melissa L. Tatum" wrote:

> At 09:19 AM 8/16/00 -0500, you wrote:
>
> >        I'm afraid to ask, but what is the source of Congressional power
> to enact
> >the Indian Civil Rights Act, as described below, after Boerne?  especially
> >in the view of those Boerne enthusiasts who claim (implausibly, because
> >Boerne interprets only section 5 of the 14th Amendment) that RFRA is
> >unconstitutional even as applied to the federal government?
>
>         I'm going to take a stab at answering this, with
> the caveat that my answer is a bit simplistic, but will
> at least provide the general contours.  If anyone one
> wants more detail, let me know.
>
>         ICRA was enacted pursuant to Congress' "plenary
> power" over Indian affairs.  The plenary power doctrine
> was created by the Supreme Court in the late 1800's.  Its
> actual source and legitimacy has been the subject of a
> great deal of debate among Indian law scholars, but basically,
> the reality of federal law is that Congress possesses
> plenary power over Indian affairs; that authority is
> subject to a few limitations, but it is very broad.  Generally,
> the plenary power doctrine is deemed to be rooted in the
> Indian Commerce Clause, although that has been subject
> to some debate.
>
> Melissa L. Tatum
> Assistant Professor
> University of Tulsa College of Law
> melissa-tatum at utulsa.edu