Page:Haaland v. Brackeen.pdf/107

Rh with questions of peace and war plainly involved some sort of sovereign-to-sovereign relationship. See, e.g., Treaty with the Cherokees (1791), 7 Stat. 39. And the early Trade and Intercourse Acts regulated only the criminal conduct of U. S. citizens on Indian lands.

This congruence—between the government’s actions and the Constitution’s enumerated powers—likely reflects the fact that those powers, collectively, responded to the most pressing concerns of the day: that Congress could not enforce its treaties with Indians, police the frontier, or regulate unscrupulous traders—all of which caused violence and raised the specter of war with Indian tribes. As noted, when Congress tried to expand its domain in 1817 to regulate the criminal acts of Indians, one Justice of this Court found it to be a palpable violation of Congress’ limited powers. See Bailey, 24 F. Cas., at 938–940. And, all the while, States continued to regulate matters relating to Indians within their territorial limits. The normal federalist dynamic thus extended to the domain of Indian affairs: The Federal Government was supreme with respect to its enumerated powers, but States retained all residual police powers within their territorial borders. See id., at 938–939; McCulloch, 4 Wheat., at 405. And the Federal Government’s enumerated powers were not unlimited, but confined to their plain meaning and limits.

So where did the idea of a “plenary power” over Indian affairs come from? As it turns out, little more than ipse dixit. The story begins with loose dicta from Cherokee Nation v. Georgia, 5 Pet. 1 (1831). In that case, the Cherokee Nation petitioned this Court for an injunction to prevent Georgia from enforcing state laws in Cherokee territory and from seizing Cherokee lands. Id., at 11. The Tribe asserted