The first two years of the Trump administration have brought us horror story after horror story about our government: children separated from their families, men and women detained without due process, communities punished because of their faith. These horrors may seem new, but in fact these abuses — and in particular the law that authorizes them — have been part of our constitutional order since the founding of this country.
In many ways, America is just beginning to reckon with slavery and Jim Crow segregation. But at least we have reformed the laws that allowed these abuses. We have overruled the Dred Scott and Plessy v. Ferguson court decisions, banishing the doctrines of overt racism and “separate but equal” from our law, if not from our society. No government would cite these doctrines to justify its actions today.
But we have not yet fully dismantled the legal infrastructure that permitted abuse of Native Americans. On reservations starting in the mid-19th century, the United States established military-run detention camps where the executive branch held limitless power.
In these camps, children were forcibly separated from their families and sent to federally run boarding schools that used violence to “kill the Indian in him, and save the man,” as Capt. Richard Henry Pratt, founder of Carlisle Indian Industrial School, put it in 1892. Native Americans were incarcerated for practicing their faith. Naming ceremonies were forbidden for children, whose hair was cut at the schools, where they were also forced to practice Christianity.
We have not yet reformed the laws that allowed for such abuse of Native Americans. For example, the Dred Scott of federal Indian law, United States v. Rogers (1846), has not been explicitly overruled. Rogers — drafted by the same infamous justice, Roger Taney, who wrote the Dred Scott decision — established the “plenary power doctrine.”
According to this doctrine, the United States could wield power over the “unfortunate race” of Native Americans without constitutional limit. The doctrine prevented the Supreme Court from intervening, even to protect constitutional rights. It was the plenary power doctrine that provided the federal government with the authority to establish detention camps and boarding schools, to engage in family separation and to criminalize religious beliefs.
Some speculate that the Nazis used these detention camps, much admired by Hitler, as a basis for the concentration camps during World War II — and, as recent work by the law professor James Q. Whitman documents, “the single most important figure in the Nazi assimilation of American race law,” Heinrich Krieger, studied the plenary power doctrine and published an article in The George Washington Law Review on federal Indian law.
Beyond the plenary power doctrine, much of our constitutional law, from the treaty power to the war power, was established within the context of westward expansion and Manifest Destiny. The United States determined the reach and meaning of the war power in its very first war under the new Constitution — a war fought against Native people in the Northwest Territory from 1790 to 1795 — and the young nation remained at war with Native American nations for over a hundred years after its birth.
The so-called Indian Wars were wars fought without legal limits, including military commissions, indefinite detention and unbridled violence. As Gen. Andrew Jackson said, long before he became one of President Trump’s heroes, “The laws of war did not apply to conflicts with savages.”
The federal government has been increasingly drawing on these doctrines to justify its actions. The last three administrations have pointed to the Indian Wars as precedent to justify executive action in the war on terrorism, with the Trump administration invoking the plenary power doctrine as justification for family separation, migrant detention camps and religious persecution.
Last summer, in Trump v. Hawaii, the Supreme Court invoked the plenary power doctrine to hold that the Trump administration’s so-called Muslim travel ban did not violate the First Amendment. Rather than applying the strict scrutiny afforded most constitutional rights, the Supreme Court deferred to the executive under the plenary power doctrine and applied rational basis review, a much weaker standard. The rights to religious liberty and freedom of expression were subsumed under a doctrine developed by Justice Taney and used to dispossess Native Americans.
Since its inception, the plenary power doctrine has been expanded beyond Indian Country to justify seemingly limitless power over all kinds of people at the margins of American empire. As in Trump v. Hawaii, the doctrine fuels much of our current immigration law and policy, including executive detention and family separation.
In upholding the travel ban, the Supreme Court tried to erase this past — treating Japanese internment during World War II and Korematsu v. United States, which authorized it, as aberrations. Rather than overturning the plenary power doctrine entirely, the court applied it but at the same time disclaimed the connection between the doctrine and the “morally repugnant order” upheld in Korematsu — “Korematsu,” the opinion declared, “has nothing to do with this case.”
But Japanese internment was just one chapter in a long history of detentions under this doctrine. Two of the 10 Japanese internment camps, the Colorado River and Gila River Relocation Centers, were established on Native American reservations. The man who oversaw Japanese internment as the head of the War Relocation Authority, Dillon Myer, was subsequently appointed to head the Bureau of Indian Affairs. Yet neither the court, the dissenters, nor the amicus briefs in Trump v. Hawaii recognized the origins of the plenary power doctrine and its genesis in the detention and religious persecution of Native Americans.
We are long overdue to confront the abuses of Native Americans and the failure of American colonialism. At the very least, no government should be able to cite the violent detention and oppression of Native Americans as justification for harming other vulnerable populations. The court should overturn the plenary power doctrine; the Indian Wars should serve as precedent for nothing.
Only then can these doctrines take their rightful place beside Dred Scott and Plessy v. Ferguson in the anti-canon of constitutional law.
Maggie Blackhawk (Fond du Lac Band of Lake Superior Ojibwe) is an assistant professor of law at the University of Pennsylvania and the author of Federal Indian Law as Paradigm Within Public Law.