Beyond the Indian commerce clause.

• Author: Ablavsky, Gregory
• Position: Introduction through II. Exclusive Federal Power, p. 1012-1052

INTRODUCTION I. A BRIEF HISTORY OF THE INDIAN COMMERCE CLAUSE II. EXCLUSIVE FEDERAL POWER A. The Vagueness of the Indian Commerce Clause's Original Public Meaning 1. Indian and Interstate Commerce 2. The Broad Meaning of Trade with Indians B. Interpreting Silence: The Indian Commerce Clause's Drafting and Adoption History 1. Silence as Consensus: Shortcomings of the Revisionist and Nationalist Accounts 2. Silence as Ambiguity: The Open-Ended Indian Commerce Clause C. Original Understandings of Exclusive Federal Power over Indian Affairs 1. The Constitution as Field Preemption 2. The Argument from State Sovereignty D. Implications III. PLENARY FEDERAL POWER A. The Indian Commerce Clause and Power over Indian Tribes B. Native Sovereignty, United States Sovereignty, and the Law of Nations 1. The United States and the Law of Nations 2. "[T]he Species of Sovereignty which the United States claim over the Indians" 3. Sovereignty and Native Land 4. The Doctrinal Origins of Plenary Power C. Implications CONCLUSION INTRODUCTION

"Federal Indian policy is, to say the least, schizophrenic." (1)

--Justice Clarence Thomas

"You talk of the law of nature and the law of nations, and they are both against you." (2)

--Onitositah (Corn Tassel), Cherokee chief

For over a century, the Supreme Court has interpreted the Constitution to grant the federal government "plenary" power over "Indian Affairs"--the diplomatic, political, military, and commercial relationships between the United States and Native nations. (3) Plenary power, as used by the Court, has two distinct meanings. (4) Sometimes the Court uses the term interchangeably with "exclusive," to describe federal power over Indian affairs to the exclusion of states. But the Court also uses the term to describe the doctrine that the federal government has unchecked authority over Indian tribes, including their internal affairs. The Court has ruled that federal plenary power authorizes the government to take Native land without compensation, (5) for instance, or to expand, contract, or even abolish tribal sovereignty at will. (6)

While gesturing to other constitutional provisions, (7) the Court has largely relied on the Indian Commerce Clause, which grants Congress the authority "[t]o regulate Commerce ... with the Indian Tribes," (8) to justify the federal government's exclusive power against states and plenary power over tribes. "[T]he Indian Commerce Clause makes 'Indian relations ... the exclusive province of federal law,'" (9) the Court opined in Seminole Tribe of Florida v. Florida, precluding the exercise of "virtually all" state authority. (10) As for the extent of federal power over Indian tribes, "the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs," the Court stated in Cotton Petroleum Corp. v. New Mexico. (11)

Both the exclusive and plenary power doctrines rest on unstable foundations. When the Court first enunciated the plenary power doctrine in 1886, it considered, and rejected, the Indian Commerce Clause as the doctrine's source. (12) Since then, many scholars have questioned whether the Clause could be read to grant the federal government unbridled power to regulate tribes' internal affairs. (13) More recently, a revisionist strand of originalist scholarship has challenged the long-received wisdom that the Clause grants the federal government authority to the exclusion of the states, arguing that the Clause's original understanding supports a far narrower scope for federal power and a broader role for the states. (14)

The Court, however, has shied away from reexamining these doctrinal bases for nearly all federal Indian law--until recently. In two recent concurrences, Justice Clarence Thomas has subjected the Court's Indian Commerce Clause jurisprudence to a wide-ranging originalist critique. In United States v. Lara, he questioned whether inherent tribal sovereignty and congressional plenary power can coexist. (15) And in the 2013 Adoptive Couple v. Baby Girl decision, Justice Thomas challenged congressional authority to enact the statute at issue, the Indian Child Welfare Act. (16) Drawing on the revisionist originalist scholarship, Justice Thomas argued that the Indian Commerce Clause provides federal authority only over Indian trade, narrowly defined. (17)

Justice Thomas's critique of the Court's Indian Commerce Clause jurisprudence has radical and largely unexplored implications, (18) and deserves to be taken seriously. (19) Because most federal statutes concerning Indians lack a nexus to Justice Thomas's definition of trade, they would be unlikely to survive the scrutiny he urges. (20) The result would be a wholesale reshaping of the law that has governed Indian affairs for the past century and a half: "an entire Title of the United States Code (25 U.S.C.) would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized," as the Court stated in a challenge to a different federal Indian law statute. (21)

Justice Thomas's provocative claims provide an excellent opportunity to revisit fundamental principles of federal Indian law. Although Justice Thomas's historical analysis is unpersuasive--as this Article will argue--he captures a larger truth. As this Article explores, the history of the Indian Commerce Clause's drafting, ratification, and early interpretation does not support either "exclusive" or "plenary" federal power over Indians. In short, Justice Thomas is right: Indian law's current doctrinal foundation in the Clause is historically untenable.

Responding to Justice Thomas's revisionist critique requires moving beyond the widely accepted premise that federal power over Indian affairs must rise and fall with the Indian Commerce Clause. (22) This preoccupation with the Clause is an anachronism that reflects not the Constitution's eighteenth-century drafting but nineteenth-century doctrinal innovation. To determine the original constitutional Indian affairs power, this Article employs an alternate approach to reconstruct constitutional meaning. This approach uses heterodox methodologies and inclusive conceptions of constitutional actors and sources to challenge older histories centered on the Supreme Court. (23)

Employing this approach helps remedy two flaws that mar accounts of the Indian Commerce Clause specifically and much originalist scholarship generally. (24) The first is the focus on textual history divorced from historical experience. This approach is especially problematic for Indian law, which evolved not from abstract reasoning but from customary and shared practices developed over two centuries of cross-cultural encounter. (25)

The second flaw is reliance on a narrow set of sources, principally the records of the Constitutional Convention and the ratification debates. This approach ignores the construction of constitutional understandings elsewhere--in early federal and state practice, in broader public discussions, or, as this Article emphasizes, in diplomatic negotiations with other sovereigns. The problems posed by this blinkered focus are particularly salient for the Indian Commerce Clause. Substantive discussion of the Clause in the sources usually relied on by originalists is almost nonexistent. (26) This paucity of evidence has led commentators to draw drastically different conclusions based on arguments from silence, or to conjecture about the issues the Constitution's drafters "were alert to," (27) or to mention the Constitution only briefly before leaping forward to cases interpreting the Clause decades later. (28)

A large body of sources, however, documents late eighteenth-century understandings of federal authority over Indian affairs. The topic dominated early federal governance, particularly under the Washington Administration of 1789 to 1797, (29) when the United States entered into major treaties and land purchases with Native nations, fought a lengthy and costly Indian war, and sought to end endemic cycles of frontier violence. (30) These issues implicated the era's pressing questions of western lands, international relations, military affairs, and national finance. Granted expansive discretion by Congress to govern Indian affairs, (31) the executive branch gave concrete meaning to the Constitution's sparse framework through extensive deliberations. These efforts to clarify Natives' constitutional status produced a considerable archive: correspondence and meetings among the President, his cabinet, and state executives; transcripts of treaty negotiations with Native nations; and a constant flow of letters, instructions, and intelligence to and from Indian agents, officials, and informants on the frontier. Using these vibrant discussions, this Article draws on, and extends into earlier periods, recent scholarship, particularly within administrative law, emphasizing the importance of constitutional understandings outside the courts. (32)

These sources reveal a very different story than that told by present-day scholars and judges preoccupied with the Indian Commerce Clause. The most pressing issue for early Americans was federalism: would the states or the national government possess authority over Indian relations? The Washington Administration insisted that the federal government enjoyed exclusive constitutional authority, and many state officials agreed. This claim rested not on the Indian Commerce Clause but on the broad panoply of diplomatic and military powers granted to the national government and denied to the states--a claim similar to the present doctrine of field preemption. Proponents of state power over Indian affairs, meanwhile, argued from inherent state sovereignty; only in the early nineteenth century, this Article will show, did they advance a narrow interpretation of federal power rooted in the Indian Commerce Clause.

The scope of federal power over Native...