The Worst Trickster Story Ever Told: Native America, the Supreme Court, and the U.S. Constitution

Summary

The worst trickster story ever told, according to Professor Keith Richotte, is the way the United States Government slowly usurped power from Native American nations through the use of a legal doctrine known as plenary power. Plenary power can be defined as the federal government giving itself seemingly limitless authority to legislate and regulate in a particular area, in this case, Native Americans. The policies of allotment, reservations, termination, and relocation were all a part of the federal government’s use of plenary power.  

The first justification for the use of plenary power was in the 1886 Supreme Court case U.S. v. Kagama. This case challenged the legality of the Indian Major Crimes Act, which granted the federal government jurisdiction to prosecute certain crimes committed by Native Americans against Native Americans on Indian land. This would be similar to a law being passed today that grants U.S. courts jurisdiction over criminal activity that took place in Canada with only Canadians involved.  

In 2003, the Duro fix amendment to the Indian Civil Rights Act was passed in an attempt to invalidate the Supreme Court ruling in Duro v. Reina (1990), which held that Native tribes did not have criminal jurisdiction over nonmembers. The Duro fix granted Native American tribes jurisdiction for criminal misdemeanor charges against all Native Americans, not just those of rdefa particular tribe. With this use of plenary power, tribal courts were granted expanded control over all Native Americans.  

The justification in the Kagama decision as well as the Duro fix was the Commerce Clause of the Constitution which gave Congress the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” The Civil Rights Act of 1964 is perhaps the most well-known piece of legislation deriving its authority from the Commerce Clause. Its use was justified in federal Indian policy by the need to keep Native peoples alive in order to conduct trade with them. 

Mescalero Apache Tribe v. Jones (1973) is the first in a series of cases in the mid-20th century where the Supreme Court shifted its dependence on language concerning Native peoples. In the dissenting opinion, Justice William O. Douglas used the same language as that in Kagama, while in McClanahan v. Arizona Tax Commission (1973), decided in the same session, Justice Thurgood Marshall shifted the source of plenary power. While the justification for plenary power supposedly shifted, the sentiments toward Native people and the rationale behind the use of plenary power really did not change.  

Suggested Reading

Richotte, Keith, Jr. The Worst Trickster Story Ever Told: Native America, the Supreme Court, and the U.S. Constitution. Stanford University Press, 2025.