Theoretically, could an executive order be issued that would grant federal recognition to all Indigenous tribes whose recognition was terminated mid-20th century?

8 comments

1. Theoretically, yes, but it may not be enforced or even upheld in court if challenged.

2. I think it would require an act of Congress to do that. I’d have to dig down on the law. Congress has delegated a lot of authority to the executive but I don’t know if they have delegated that specific authority.

   But relations with Indian Tribes is covered in Article 1 Sec 8 and delegated to Congress fundamentally so I think there may be an issue if the executive decided to act unilaterally.

3. Virtually anything can be issued, just like virtually any law can be passed.

   The question is whether it will pass muster under judicial scrutiny.

   Pretty much all executive orders must be issued pursuant to statutory authority. So the President would need to identify a statute that allows him to grant federal recognition to all Indigenous tribes etc. Remember, the Senate is responsible for voting to ratify treaties–the President can’t act unilaterally.

   Treaties used to be the main form of agreement with tribes; the House got annoyed at having to deal with funding relations with tribes that it didn’t have a say in forming, so now statutes passed by both chambers of Congress and signed by the President (in other words, subject to bicameralism and presentment) are our primary way of addressing relations with tribes.

   I happen to think almost our entire history of tribal affairs is horrific and basically all of our judicial caselaw on them should be jettisoned entirely, but that’s a different issue.

   P.S. Fuck John Marshall in particular for *Johnson v. M’Intosh*.

4. We’re way closer to tribes not existing all together than that happening

5. It would be unconstitutional, as relations with Indian nations is the purview of Congress, not the President.

6. Execute order 66.

7. The President is not allowed to make policy, he executes policy made by Congress.

   Of course that hasn’t stopped anyone…..

8. No, the president cannot legislate … the purpose of executive orders is t define how the executive will carry out laws passed by the legislative