The Indian Commerce Clause: The Natelson/Ablavsky Debate

Professor Greg Ablavsky, perhaps the leading historian of Federal Indian Law, has a short piece up on SSRN replying to a short piece by Professor Rob Natelson, whose work frequently appears on this blog. Since the Supreme Court has a case about some of their debates pending next term, I thought the entire exchange might be of interest to some readers.

In 2007, Natelson published The Original Understanding of the Indian Commerce Clause. The article was repeatedly cited by Justice Clarence Thomas in a subsequent case.

In 2019, Ablavsky filed an amicus brief in the Fifth Circuit Brackeen litigation (now on review at the Supreme Court). The brief argues that Natelson's work "is deeply flawed, marred by inaccurate versions of sources and unsupported assertions directly at odds with explicit Founding–era evidence."

In 2022, Natelson apparently discovered the brief and published a short response, claiming that Ablavsky's brief "has a shyster-like quality:"

(1) It misrepresents my conclusions and then attacks the misrepresented version rather than what I actually wrote.

(2) It wrenches quotations out of context to make them appear to say things they did not.

(3) It seeks to divert attention away from how the ratifiers understood the Constitution during the ratification process and toward how federal congressmen and officials may have understood it after ratification. Of course, self-interested federal officials' subsequent interpretation of their own powers is virtually worthless as evidence of the previous ratification bargain.

Ablavsky now has a response posted on SSRN. Here's the abstract:

Robert Natelson recently responded to a three-paragraph critique of his 2007 law review article that I offered in an amicus brief in the ongoing Brackeen litigation. Though Natelson concedes that critical examination is an integral part of the scholarly process, he claims that my brief was not only unscholarly but "shyster-like."

I disagree. In this reply, I rebut his critiques. I reiterate the key, uncontested point that his original article relied on an inaccurate version of a vital piece of evidence from ratification, Sydney's New York Journal essay. In the correct version, Sydney observed that ratification would "totally surrender into the hands of Congress the management and regulation of the Indian affairs." Natelson's response attempts to explain away this language as a mere slip of Sydney's pen. But in my view this effort to rewrite the historical source's explicit language to agree with Natelson's original hypothesis is unpersuasive.

I then challenge Natelson's claims that I distorted his arguments. As I show, nearly all the critiques that my brief offered drew from near identical arguments in my 2015 Yale Law Journal article that Natelson himself concedes was "generally respectful." Moreover, I argue that each of my characterizations of Natelson's article, while necessarily a summary, accurately reflected his arguments and underscores the substance of our scholarly disagreement.

It is unfortunate that Mr. Natelson took my brief so personally. This case is not about either Mr. Natelson or me. As all parties would agree, the outcome will significantly impact people's lives. I briefly discussed Mr. Natelson's scholarship in the amicus not to denigrate him but because I have spent my academic career researching the history at issue here, and because, in my scholarly assessment, Mr. Natelson's frequently invoked article was flawed and at odds with historical evidence. I am disheartened that this important academic discussion has devolved to ad hominem attacks.

The exchange was also linked last week on The Originalism Blog, where Mike Ramsey added "I'm carefully not taking sides on this one, which readers can judge for themselves."

I agree that the personal turn this debate has taken is unfortunate. In any event, the underlying question—what are the scope of the Indian Commerce Clause and other congressional powers—is an important one, and one that the Supreme Court will likely turn to next year. Natelson has suggested that he will have future work forthcoming on this question; I assume that Ablavsky will file a brief with the Court in due course.

My own tentative hypothesis is that Congress's Article I power to define and publish offenses against the law of nations may also be an important source of Article I power here. And in addition to Ablavsky's and Natelson's work, I also recommend Chris Green's Tribes, Nations, States: Our Three Commerce Powers, which tries to reconcile the evidence of a broad tribal and foreign commerce power with that for a narrower interstate commerce power.

I hope to write more about this as the issue ripens next term.