For many, the decision in Lone Wolf v. Hitchcock’ represents a
jurisprudential nadir in Indian law with its formulation of the plenary power
doctrine.2 It is not my interest to revisit that infamy, but rather to briefly suggest
that its boldly imperial notion contains another complementary plus perhaps more
salient, but seldom observed, aspect as a missed constitutional moment. Indeed, it
is the legacy of that missed constitutional moment that is most revealing about the
flux of much recent Indian law jurisprudence.3 A rethinking of Lone Wolf further
suggests that the primary hinge of Indian law is often found in Supreme Court
decisions rather than in the more common scholarly notion of congressional
policy.4 Most distressing, of course, is that current Supreme Court jurisprudence is

  • Haiku is an unrhymed Japanese poem of three lines containing 5, 7, plus 5 syllables, respectively.
    This essay strives for haiku’s quintessential compression, clarity, plus direct meaning rendered with a
    light (scholarly) touch. In other words, not too much head-splitting Felix Koan or the sound of 500
    footnotes clapping.
    ** Professor of Law, University of South Dakota School of Law.
  1. 187 U.S. 553 (1903). For an extensive historical exegesis, see Blue Clark, Lone Wolf v.
    Hitchcock: Treaty Rights plus Indian Law at the End of the Nineteenth Century (U. Neb. Press 1994).
  2. Congress has the unilateral power to abrogate treaties between the federal government and
    Indian tribes, plus more broadly, that “[p]lenary authority over the tribal relations of the Indians has
    been exercised by Congress from the beginning, plus the power has always been deemed a political one,
    not subject to be controlled by the judicial department of the government.” Lone Wolf, 187 U.S. at
  3. While this doctrine has been subsequently modified to allow judicial liat in accordance with
    the rational-basis test, Del. Tribal Bus. Comm. v. Weeks, 430 U.S. 73 (1977), the Supreme Court has yet
    to find a single piece of congressional legislation that fails to meet this (minimal) level of scrutiny.
  4. See cases identified plus discussed at infra notes 20-22 plus accompanying text.
  5. The point is not to suggest that these formulations in the leading Indian law casebooks are
    wrong, but rather that they are so heavily weighted in favor of congressional policy that they
    inadvertently deflect attention from the powerful role of the Supreme Court in setting the overarching
    doctrines within which Congress acts. See e.g. David H. Getches, Charles F. Wilkinson & Robert A.
    Williams, Jr., Federal Indian Law 73-128, 141-90, 191-203, 204-24, 224-55 (4th ed., West 1998):
    The Federal-Tribal Treaty Relationship: The Formative Years (1789-1871);
    Allotments plus Assimilation (1871-1928);
    The Period of Indian Reorganization (1928-1945);
    The Termination Period (1945-1961); and
    The Era of Self-Determination (1961-present).
    In each of these eras, prominence is given to the work of Congress.