Beyond the Indian commerce clause.

Author:Ablavsky, Gregory
Position:III. Plenary Federal Power through Conclusion, with footnotes, p. 1053-1090

As murky as the Indian Commerce Clause's implications for federalism are, the historical problems presented by the doctrine of plenary power--the doctrine that the federal government has complete authority over Indian tribes, including their internal affairs--are still more substantial. The Supreme Court routinely invokes the Clause to justify plenary power, (211) but this assertion does not find support either in text (212) or in any discussion of tribes' constitutional status in the Clause's sparse drafting and adoption history. (213)

This disjuncture between doctrine and evidence has not troubled the Court. (214) But scholars--both Indian law specialists and originalists--have agreed on a narrative at odds with current law. The Constitution's drafters, they argue, understood Native nations as separate sovereigns, with whom relations would be negotiated through diplomacy. (215) A nineteenth-century innovation, plenary power was born of extra-constitutional powers "inherent in sovereignty" as well as historical necessity, as Natives did not assimilate or vanish. (216)

This Part questions both current doctrine and the scholarly counternarrative regarding plenary power and its origins. Part III.A observes that, contrary to most scholarly accounts, the United States initially asserted power over Indians aggressively, but the Constitution and the Washington Administration rejected this approach. Nonetheless, the new federal government did not regard Native nations as fully sovereign. Part III.B explores the Washington Administration's construction of theories of U.S. sovereignty over Native nations, theories grounded in constitutional readings of international law and territoriality. Federal officials believed that the authority they claimed--limits on Natives' international legal personality, including their right to freely alienate land--only modestly restricted Native sovereignty, yet in practice these limitations evolved into the doctrine of plenary power. Part III.C explores the doctrinal implications of this history, suggesting that recovering the United States' original assertions of sovereignty over Native nations might suggest cabining plenary power.

  1. The Indian Commerce Clause and Power over Indian Tribes

    History both complicates and supports critiques of the plenary-power interpretation of the Indian Commerce Clause. Though the Clause says little about power over Natives, it was drafted as the United States was repudiating a failed effort to aggressively assert authority against Native nations, particularly their lands. In this context, the Clause is best read as part of a broader return to diplomatic models for negotiating with Natives as independent polities.

    The frequent assertion that early Americans regarded Indian tribes as separate sovereigns outside U.S. jurisdiction is too simplistic. For one, "tributary" Natives--eastern tribes surrounded by Anglo-American communities--were subject to state law. (217) Likely the "members of the States" under Article IX of the Articles, (218) these Natives were presumably also the "taxed" Indians implied in the Constitution. (219)

    Early American constitutional thinking focused, though, on the western nations who "encircle [d] the Union from Maine to Georgia" (220)--the Creeks, the Cherokees, the Haudenosaunee, and the tribes of the Ohio country, among others. The Revolutionary War profoundly affected these nations. The war, begun partly due to Anglo-Americans' desire for Native land, spread into Indian country, where it became a chaotic contest between Anglo-American settlers and largely British-allied tribes, resulting in a deep-seated hatred of Indians. (221)

    These fruits of war ensured that respect for Natives was not the hallmark of post-Revolutionary Indian policy. During debates over the Articles' drafting, congressional delegate James Wilson had urged, "We have no right over the Indians, whether within or without the real or pretended limits of any Colony." (222) Wilson, however, was ignored. After the war, the states and the federal government insisted that Natives were no longer "free and independent nation[s]" but a "subdued people." (223)

    The claim rested on the 1783 Treaty of Paris, which ended the war with Britain and granted most British territory east of the Mississippi to the United States. (224) The transfer of this vast territory--extending far beyond existing settlement or effective federal and state authority--had dramatic consequences for Natives. Under Anglo-American readings of the treaty, Native nations were not "external." (225) Instead, Native nations within the new borders--even those that had barely interacted with Anglo-Americans--were now ostensibly part of the United States. Expansionist states labeled Indians within their capacious borders (226) as state "[m]embers," prefiguring efforts to subordinate tribes to state jurisdiction. (227) Federal officials demanded that tribes "acknowledge the United States to be the sole and absolute sovereigns of all the territory ceded to them by a treaty of peace, made between them and the King of Great Britain." (228) Moreover, abandoning earlier practices of purchase, both the state and federal governments now claimed Native land by right of conquest; some states took Indian title through ordinary legislation. (229)

    These claims to U.S. authority through conquest were expansive, but they were distinct from later concepts of plenary power. Both the states and the federal government focused almost entirely on obtaining land and had little interest in regulating Indians' internal affairs. (230) Anglo-Americans' principal preoccupation remained delineating sovereignty and authority among themselves, refracting nearly all issues involving Indians through the lens of federalism. (231) Assertions that were ostensibly about Native status--the claims that Indians were state "members," for instance--were actually intended to forestall federal interference in state land grabs. (232) Even treaty language granting Congress the power "to manage all [the Indians'] affairs in such manner as they think proper"--later the subject of doctrinal disagreement--was, in context, an effort to bolster federal authority against states rather than a claim of power over Indian tribes. (233)

    Nonetheless, even Anglo-Americans' more limited claim to Indian lands through conquest was a break with earlier practice and a bold assertion of authority over Indian tribes. It was also an arrogant misinterpretation of reality. As the United States soon discovered, Native nations refused to "submit to be treated as Dependants." (234) Insisting that they were not bound by a treaty between the United States and Britain, (235) Indian leaders turned for support to the neighboring British and Spanish, who were eager to check American expansion. (236) Native nations also constructed a "formidable" confederation that threatened the United States with war. (237) In short, regardless of what Anglo-Americans labeled them, Native nations possessed de facto independence, belying assertions of conquest. (238)

    Many Anglo-Americans recognized this mismatch between the authority the United States claimed and what it could exercise. (239) By the summer of 1787, the disasters of Indian policy under the Articles of Confederation led Congress to abandon its assertions of conquest. (240) Now, instead of employing a "language of superiority and command," a congressional committee urged the more "politic and Just" course of "treat[ing] with the Indians ... on a footing of equality." (241) It also recommended returning to purchasing Indian lands. (242)

    Read against this history, the Constitution arguably reflected a conscious choice to place Natives outside the body politic. Most Indians were not counted for the purposes of congressional representation, a decision at odds with earlier proposals for possible Native representatives in Congress. (243) Including Indian tribes within the Commerce Clause was inconsistent with the claim that they were conquered peoples. Furthermore, the sparse discussions of Natives at the Convention portrayed them as independent if bellicose nations rather than as vassals of the United States. (244)

    It is wrong, then, to assert that the Indian Commerce Clause established federal plenary power, but it is equally wrong to assert that federal power over Indian tribes was unknown when the Constitution was drafted. A better reading of history is that the Constitution obliquely endorsed a significant and simultaneous shift in Anglo-Americans' thought about Natives' status: the repudiation of a theory of Native peoples as conquered in favor of a grudging acknowledgment of Native independence. This recognition had limits, as the following section explores.

  2. Native Sovereignty, United States Sovereignty, and the Law of Nations

    Few words dominate federal Indian law more than the term "sovereignty." Though it is not a Native term, Native nations have adopted it to express deeply felt but oft-denied rights of autonomy, while in doctrine "sovereignty" has become a term of art for adjudicating jurisdictional disputes. (245)

    The central place of sovereignty in Indian law owes much to the Washington Administration. Embracing law and restraint over claims of conquest, the Administration drew on the law of nations to determine Native status. As a result, federal officials framed nearly all issues of Indian affairs, including the question of land title, through the international law concept of sovereignty.

    This focus on the law of nations yielded mixed results for Natives, as this section explores. In many respects, international law provided a more expansive scope for Native autonomy. But the law of nations could be a sword as well as a shield, interpreted by Anglo-Americans to limit as well as protect Native sovereignty. As Part III.B.2 considers, early federal officials used international law to...

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