2016 Jotwell: J. Things We Like [276] (2016)
Reclaiming Lone Wolf

handle is hein.journals/jotwell2016 and id is 276 raw text is: 

Reclaiming Lone Wolf?
Review of Michalyn Steele, Plenary Power, Political Questions, and Sovereignty in Indian Tribes, 63 UCLA L.
Rev. 666 (2016).

Bethany Berger

In the concentration camps of the Holocaust, a pink triangle marked gay men's uniforms to indicate why they
had been singled out for imprisonment and death. Beginning in the 1970s, LGBT activists reclaimed the pink
triangle, transforming it into a symbol of pride and a demand for respect. Like the Nazi use of the pink triangle,
the US Supreme Court's 1903 decision in Lone Wof v. Hitchcock represents some of the worst oppression of
tribal nations in the United States. Rejecting a challenge to involuntary allotment of tribal lands, Lone Wolf
declared that the United States had plenary power over Indian tribes, and this power was a political one, not
subject to be controlled by the judicial department of the government. The case was immediately decried as the
Dred Scottfor Indians, but unlike Dred Scott, much of Lone Wolfremains good law.

In her provocative new paper, Plenary Power, Political Questions, and Sovereignty in Indian Tribes, Michalyn
Steele argues for a partial reclaiming of the plenary power and political question doctrines announced in Lone
Wolf and other cases. As Steele notes, the doctrines have been roundly, and rightly criticized as leaving tribes
vulnerable to unchecked political whim. In the limited form Steele proposes, however, the doctrines may be a
useful check to what she calls the heads I win, tails you lose bind tribes face in the courts today.

Steele begins with the observation that the plenary power doctrine appears to be here to stay. Post-Lone Wolf
cases establish that Indian affairs legislation is subject to constitutional review, but the constitutional tests are
often less stringent in the tribal context. In practice, as Steele writes, Congress has had a free hand to legislate
and regulate with regard to Indian affairs. Interpretive rules provided one check on this broad power, as cases
both before and after Lone Wolf established that courts will interpret federal legislation as removing tribal
property or sovereignty rights only if the intent to do so was clear.

Since 1978, however, the Supreme Court has violated the clear congressional intent principle in cases involving
tribal jurisdiction. In a series of decisions, the Court has held that tribes lack all criminal jurisdiction over non-
Indians, and retain civil and regulatory jurisdiction over non-Indians only in narrow circumstances. None of
these decisions are based on express or even implicit statutory prohibitions, but rather on vague, often
inaccurate judicial musings on history and federal policy. All of the decisions, moreover, run counter to
congressional policy, which has, since the mid-1970s, focused on encouraging and protecting tribal self-

This free-ranging judicial intrusion on tribal sovereign authority, Steele argues, should be barred by the political
question doctrine. Steele focuses on three of the factors Baker v. Carr announced would determine whether an
issue is nonjusticiable: (i) judicial manageability of the standards, (ii) textual commitment to a coordinate

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