What justifies plenary powers over Native nations, U.S. territories, and overseas colonies? One answer is the text of the Constitution: the Indian Commerce Clause or the Territorial Clause. Another answer is sovereignty under international law. In this Article, I argue that these legalistic explanations overlook a third answer: that political and judicial actors justified plenary powers based on the colonial notion that these so-called dependent peoples were incapable of self-government.
Members of Congress, presidents, federal judges, and territorial governors reconciled republicanism and colonialism in the American empire by constituting Native nations, the territories, and the overseas colonies as dependent peoples. This Article unmasks how the legal framework of colonialism rested on their infantilization, the temporal character of colonial rule, and the pretense that it was for their benefit. Federal rule was justified because they were “wards of the nation,” “in a state of infancy,” or in “political childhood,” waiting to learn how to govern themselves. The Article examines the judicial decisions, political speeches, and academic publications that infantilized these dependent peoples and how tribal and territorial sovereignty was contingent upon an expansive concept of dependency.
The Article is a cautionary tale about redemption through constitutionalism, either judicial constitutionalism (ending plenary powers) or legislative constitutionalism (repurposing plenary powers). Overruling any of the individual cases that legitimized these plenary powers—including United States v. Kagama or the Insular Cases—will not undo colonial dependence or American imperialism. Instead, it will only conceal how the Constitution and the Supreme Court have long been complicit in empire. Constitutional redemption for the benefit of Indigenous peoples and colonized peoples ignores how central dependence and colonialism are to U.S. constitutionalism. Rather than ending or repurposing plenary powers, this Article concludes that only through democratic politics, social movements, and anticolonial solidarities can we undo the dependencies left by colonial rule. The emancipation of dependent peoples will only be possible if democratic decolonization takes precedence over constitutional interpretation.
Sovereignty and Dependence in the American Empire: Native Nations, Territories, and Overseas Colonies,
73 Duke Law Journal
Available at: https://scholarship.law.duke.edu/dlj/vol73/iss5/1