The federal government has been increasingly drawing on these doctrines to justify its actions. The last three administrations have pointed to the Indian Wars as precedent to justify executive action in the war on terrorism, with the Trump administration invoking the plenary power doctrine as justification for family separation, migrant detention camps and religious persecution.

Last summer, in Trump v. Hawaii, the Supreme Court invoked the plenary power doctrine to hold that the Trump administration’s so-called Muslim travel ban did not violate the First Amendment. Rather than applying the strict scrutiny afforded most constitutional rights, the Supreme Court deferred to the executive under the plenary power doctrine and applied rational basis review, a much weaker standard. The rights to religious liberty and freedom of expression were subsumed under a doctrine developed by Justice Taney and used to dispossess Native Americans.

Since its inception, the plenary power doctrine has been expanded beyond Indian Country to justify seemingly limitless power over all kinds of people at the margins of American empire. As in Trump v. Hawaii, the doctrine fuels much of our current immigration law and policy, including executive detention and family separation.

In upholding the travel ban, the Supreme Court tried to erase this past — treating Japanese internment during World War II and Korematsu v. United States, which authorized it, as aberrations. Rather than overturning the plenary power doctrine entirely, the court applied it but at the same time disclaimed the connection between the doctrine and the “morally repugnant order” upheld in Korematsu — “Korematsu,” the opinion declared, “has nothing to do with this case.”

But Japanese internment was just one chapter in a long history of detentions under this doctrine. Two of the 10 Japanese internment camps, the Colorado River and Gila River Relocation Centers, were established on Native American reservations. The man who oversaw Japanese internment as the head of the War Relocation Authority, Dillon Myer, was subsequently appointed to head the Bureau of Indian Affairs. Yet neither the court, the dissenters, nor the amicus briefs in Trump v. Hawaii recognized the origins of the plenary power doctrine and its genesis in the detention and religious persecution of Native Americans.

We are long overdue to confront the abuses of Native Americans and the failure of American colonialism. At the very least, no government should be able to cite the violent detention and oppression of Native Americans as justification for harming other vulnerable populations. The court should overturn the plenary power doctrine; the Indian Wars should serve as precedent for nothing.

Only then can these doctrines take their rightful place beside Dred Scott and Plessy v. Ferguson in the anti-canon of constitutional law.

Maggie Blackhawk (Fond du Lac Band of Lake Superior Ojibwe) is an assistant professor of law at the University of Pennsylvania and the author of “Federal Indian Law as Paradigm Within Public Law.” @MaggieBlackhawk

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