"What's Missing in the Brackeen Argument: An Indian Affairs Clause"

I was chatting with Prof. Lorianne Updike Toler (Northern Illinois), and she mentioned some thoughts of hers on this subject, based on her recent University of Chicago Law Review article, The Missing Indian Affairs Clause. I encouraged her to write up a blog post, and she kindly passed along the following:

In the November 9th oral argument for Haaland v. Brackeen, which challenges the constitutionality of the Indian Child Welfare Act, Justice Amy Coney Barret's question about the impact of overruling Congress' plenary power over tribes underscores a centuries-old confusion about federal Indian Affairs.

It's not just the Court that is confused. Former Volokh Conspiracy posts on point reveal the deep academic fissures over the historical context of the Indian Commerce Clause. Unknown to the Court and most of academe is the root cause of all the confusion: that the Constitutional Convention initially forgot (and then later intentionally excluded) the Articles of Confederation's Indian Affairs Clause in the Constitution.

As I detail in this University of Chicago Law Review article, Pennsylvanian comparative constitutionalist James Wilson, tasked by the five-member Committee of Detail to draft the Constitution, initially checked off "Indian Affairs" to include as a Congressional power, but then failed to get the power into his final draft. He was not the only one to forget. Although the Convention had commissioned the Committee to include all the Congressional powers in the Articles of Confederation (where Indian Affairs featured), Edmund Randolph also forgot to include the power in his initial sketch of the Constitution. Odd, considering a Cherokee chief had met with him that summer in Philadelphia and he was then directly concerned with settler-tribe disputes on Virginia's frontier as the state's governor. It was John Rutledge, the South Carolinian chair of the committee, who remembered, scrawling the power in the margin of Randolph's sketch. Yet he later forgot this power in combing through Wilson's final draft, and it was reported out of the Committee sans Indian Affairs.

But James Madison remembered. It was he who suggested Indian Affairs be inserted back into the Constitution. This time, the Committee of Detail intentionally excluded the Clause, instead inserting "Tribes" into the Commerce Clause. No one objected. This despite that at least three Convention members had just spent their ten-day break (for the Committee of Detail to meet) fulfilling their congressional duties in New York. There, impending tribal wars in Virginia and Georgia's Creek disputes were discussed. Presumably, the Convention thought Congress' previous powers under the Article's Indian Affairs were addressed by the Indian Commerce Clause and other provisions of the Constitution—such as the power to declare war and peace and the president's shared Treaty Power.

What does this mean for the Constitution? Put simply, Congress has no Indian Affairs power, and therefore no plenary power. Early assertion of this power was justified under the tripartite powers of Indian Commerce, War and Treaty Powers. But Congress halted tribal treaty-making long ago. If it wants to re-assert power over tribes beyond the Commerce Clause, the President needs to begin treating with tribes again.

And what of any residual power? As I propose in my article linked above, the residue reverts to the sovereign tribes. Tribal sovereignty is to tribes what federalism is to the states. Powers not reserved by the Constitution to Congress and the President revert to the tribes.

This would mean that Congress lacked constitutional power to pass ICWA, however well-intentioned. ICWA was adopted in an attempt to prevent Native American erasure by allowing the community to intervene in adoption and foster cases to ensure tribal children are raised in Native American families. ICWA grants the child's tribe exclusive jurisdiction over custody proceedings and other intervention privileges. Further, it establishes placement preferences first in favor of any family members, then the tribe, and then any Native American families regardless of tribal membership.

Unless related to its Indian Commerce power (and heaven forbid if we have arrived at treating adoption of babies and children as commerce), Congress has no power over Native American adoptions. On this basis, ICWA might be unconstitutional wholesale. However, to the extent ICWA respects tribal sovereignty and refers cases to the child's tribe, it may be constitutional under a structural reading of the Constitution: The combined intratextual references to tribes as the constitutional unit of recognition— "tribes" under the Commerce Clause and the presumption that Indians are not taxed under Art I. sec. 2 of the Constitution—together with the parallel analog of federalism vis-à-vis states may permit Congress to proactively proscribe federal and state deference to tribal power. But as Congress has no plenary power over tribes and Native Americans as a people, it cannot specify adoption placement or other preferences. The Court should so rule in Brackeen.