SOURCES OF FEDERAL POWER

The historic relationship to which President Nixon refers has a somewhat confusing background. The federal government has exercised plenary power over Indians for almost 200 years. This power emanates from three sources. First, the Constitution grants to the president (3) and to Congress( 4) what have been construed as broad powers of authority over Indian affairs. Second, the federal courts have applied a theory of guardianship and wardship to the federal government's jurisdiction over Indian affairs. (6) And, finally, federal authority is inherent in the federal government's ownership of the land which Indian tribes occupy.

In Worcester v. Georgia, Chief Justice John Marshall recognized that the aforementioned powers, plus the power of war and peace, "comprehend all that is required for the regulation of our intercourse with the Indians." (7) The treaty power was the traditional means for dealing with Indian tribes from the colonial times until 1871, when recognition of Indian tribes as sovereign nations for this purpose was withdrawn by the Indian Appropriation Act, which provided that "...hereafter, no Indian nation or tribe within the territory of the United States shall be acknowledged or recognized as an independent nation, tribe or power with whom the United States may contract by treaty..."(8) Treaties made before 1871 were not nullified by that act, but remain in force until superseded by Congress.

It is a well-established principle of constitutional law that treaties have no greater legal force or effect than legislative acts of Congress, and may be unilaterally abrogated or superseded by subsequent Congressional legislation. (9) Until so abrogated, however, treaties with Indian tribes are part of the law of the land and are binding on the federal government. In carrying out its treaty obligations, the federal government occupies a trust relationship, which, according to the court in Seminole Nation v. United States, "should be judged by the most exacting fiduciary standards."(10) As part of the law of the land, treaties cannot be annulled in their effect or operation by the acts of state governments. (11)

NOTES:

3) Art. II, Sec. 2, C1. 2: "[The President] shall have power by and with advice and consent of the Senate, to make treaties..."
4) Art. I, Sec. 8, C1. 3: "Congress shall have power...to regulate commerce with foreign nations, and among the several States, and with Indian tribes..."
5) See Cherokee Nation v. Georgia, 30 U.S. 1 (1831); United States v. Kagama, 118 U.S. 375, 383-84 (1886).
6) See comment, the Indian Battle for Self Determination, 58 Cal. L.R. 445 (1970). 7) 31 U.S. 350 (1832).
8) 16 stat. 566, 25 U.S.C. 71.
9) See cases cited in notes 3, 4, and 5, Federal Indian Law, supra, p. 25
10) 316 U.S. 286 (1942).
11) 41 Am. Jur. 2d, 11, p. 840.

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