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The Indian Commerce Clause will be a major issue in the Nov. 9 Supreme Court argument in Brackeen v. Haaland. The questions presented are:
(1) Whether the Indian Child Welfare Act of 1978's placement preferences — which disfavor non-Indian adoptive families in child-placement proceedings involving an "Indian child" and thereby disadvantage those children — discriminate on the basis of race in violation of the U.S. Constitution; and
(2) whether ICWA's placement preferences exceed Congress's Article I authority by invading the arena of child placement — the "virtually exclusive province of the States," as stated in Sosna v. Iowa — and otherwise commandeering state courts and state agencies to carry out a federal child-placement program.
This post examines one aspect of the second question, namely the original meaning of the Indian Commerce Clause.
The Constitution grants Congress the power: "To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." Art. I, sect. 8. The originalist works of two scholars have earned the notice of Justices.
The first such article was Robert Natelson's, The Original Understanding of the Indian Commerce Clause, 85 Denver U.L. Rev. 201 (2007). It was extensively cited in Justice Thomas's concurrence in Adoptive Couple v. Baby Girl, 570 U.S. 637, 658-65 (2013); and in his dissent from denial of certiorari in Upstate Citizens for Equality, Inc v. United States, 140 S.Ct. 2587, 2587-88 (2017).
Responding in part to Natelson's article is Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L.J. 1012 (2015). That article is cited in the Justice Gorsuch's dissent in Oklahoma v. Castro-Huerta, which was joined by Justices Breyer, Sotomayor, and Kagan. 142 S.Ct. 2486, 2506-07 (2022).
Natelson responds in The Original Understanding of the Indian Commerce Clause: An Update, 23 Federalist Soc. Rev. 209 (2022), and in a separate writing, Cite Checking Professor Ablavsky's Beyond the Indian Commerce Clause (2022).
Ablavsky is a law professor at Stanford. Natelson, a retired law professor, is my colleague at the Independence Institute. My own scholarship on Indian history and law has not focused on the Indian Commerce Clause, but rather on issues related to my textbooks Colorado Constitutional Law and History and Firearms Law and the Second Amendment. I have worked with Natelson extensively on amicus briefs and scholarship involving the Interstate Commerce Clause.
Surprisingly, Natelson and Ablavsky agree on the original meaning of the Indian Commerce Clause: it covered some but not all topics on Indian affairs, and it did not displace all state government power over Indians. Natelson argues that the clause should be read the same way today. Ablavsky argues that the clause should now be construed to support a grant of plenary power, and he says that such a reading is consistent with a "holistic" original understanding of the structure of federal government Indian powers, as opposed to the modern Court's "clause bound" approach to constitutional interpretation.
Below, I summarize the scholarship, and add some of my own analysis.
Natelson's view is as follows: As the text shows, there is only one "commerce" power. The power "To regulate Commerce" can be applied to three zones of commerce: "with foreign nations, among the several States, and with the Indian Tribes." The commerce power is the same for all three subjects.
By the common law understanding, the scope of the power to regulate inter-jurisdictional commerce is the Lex Mercatoria ("the Law Merchant"). This is far broader power than simply regulating the exchange of goods and services. According to Natelson, the Lex Mercatoria, and thus the inter-jurisdictional commerce power, includes:
- the law of bankruptcy
- regulation and licensing of merchants, brokers ("factors"), and others involved in trade, including requirements of oaths, bonds, and recordkeeping;
- the regulation of commercial paper—notes, drafts, and the like;
- price controls;
- all aspects of ships and navigation,
- prohibitions on certain forms of trade and of activities associated with trade, including territorial restrictions, both outside and within the legislature's jurisdiction;
- regulations of inventory, such as packing and shipping, marking and labeling—and flat prohibitions on inter-jurisdictional trading of certain goods (contraband);
- financial charges, including but not limited to customs and duties;
- administration of commercial treaties;
- marine insurance;
- incorporation of trading entities;
- certain criminal measures, such as penalties for piracy and unauthorized mercantile activities; and
- the appointment of commissioners (agents) to administer the system.
Of course the particular laws that a legislature might choose to enact under the Lex Mercatoria would differ based on the circumstances. Parliament might regulate English trade with France differently from how Parliament regulated English trade with the English colony of Jamaica. Likewise, Congress might regulate trade with the Cherokee differently from trade with Canada. For example, Congress might choose to prohibit alcohol sales to the Cherokee but not to Canadians. The full scope of the inter-jurisdictional commerce power, however, is always the same. (Presuming that no other constitutional provision was relevant; the Second Amendment did not forbid congressional bans on arms sales to hostile Indian nations, but it does forbid a congressional ban on interstate commerce in arms for American citizens.)
Broad as the foreign/Indian/interstate commerce power is, it is not infinite. It pertains only to trade and to the many incidents of trade. Moreover, it pertains only to certain types of trade: namely, with foreign nations, with Indian tribes, or among the several states. Because bankruptcy was part of the Lex Mercatoria, the Commerce Clause gave Congress the power to create bankruptcy laws for companies engaged in the three enumerated types of commerce. But the Commerce Clause did not grant Congress power to regulate bankruptcies by firms or individuals engaged in commerce only within a single state. The power to regulate even intrastate bankruptcies is granted by a separate enumerated power, "To establish … uniform Laws on the subject of Bankruptcies throughout the United States." Art. I, sect. 8.
The Indian Commerce Clause grants a wide variety of powers to regulate commerce, and no other powers. For noncommercial matters, other parts of the Constitution granted other powers over Indian affairs:
- "To define and punish . . . Offences against the Law of Nations" (art. I, sect. 8);
- "To declare War . . . and make Rules concerning Captures on Land and Water" (art. I, sect. 8);
- "The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States; and nothing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State." (art. IV, sect. 3).
- The President's power "by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." (art. II, sect. 2).
- "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." (art. I, sect. 8).
Some of these original powers have little relevance today. As of 1789, most indigenous people within the boundaries of the United States lived in non-State territories claimed by the United States. Today, most do not, except in U.S. overseas territories, such as American Samoa. Thus, the federal property power is of little relevance.
Title to Indian reservations is held by the relevant tribes. Natelson is skeptical of the claim that Indian Reservations are held in trust by the U.S. government. Although such a claim has been enacted by Congress, no Indian treaty ever recognized tribal reservation land as being held in trust by the U.S. (Natelson, DU, at 207-08). Even if the trust theory were true, most American Indians today do not live on reservations.
The treaty power still exists and it still usable, but has been unused since 1868, in the Hunt Treaty, which provided the Ute Indians in the Colorado Territory with a large reservation. In 1871, a congressional statute provided that future enactments regarding Indian affairs would not be by treaty. 25 U.S.C. sect. 71. The reason was that the U.S. House wanted to have a larger role in Indian relations. Even with the statute, previous treaties remain valid, and Congress has the continuing power to effectuate them by statute, just as with foreign treaties.
Of little relevance today are war powers, since Indian wars ended well over a century ago.
Likewise irrelevant ever since the 1924 is the power to define and punish offenses against "the Law of Nations." Before the 1924 Indian Citizenship Act, some but not all American Indians were U.S. citizens. Today, all are American citizens, so international law powers are not usable against them.
At the same time, the Indian Citizenship Act greatly expanded federal powers over Indians. All the legislative powers that Congress can exercise over American citizens are fully applicable to American Indians.
Natelson is a strict originalist, so he concentrates on materials up to 1790, when the final holdouts North Carolina (1789) and Rhode Island (1790) chose to ratify the Constitution. As he shows, during the colonial period and the early years of independence (1776-1790), there was continuing debate over what levels of government would have power over different aspects of Indian affairs. Initially, the British government in London claimed plenary power, but that proved unworkable. The Crown instead concentrated on diplomatic relations and left most other issues to the colonies. Similarly, the Continental Congress and the Confederation Congress both wrestled with States over control of Indian affairs. The Philadelphia Convention continued the long-standing policy of divided national/state powers on Indian affairs, although not with the exact same wording as in the Articles of Confederation. During the ratification debates, proponents of the Constitution assured skeptics that States would continue to exercise some, but not all, powers over Indian affairs within state borders.
In sum, the original meaning of the Indian Commerce Clause is a broad power to regulate all commerce with Indians, and nothing else. It was not understood as a plenary power over Indian affairs.
Natelson recognizes that some Supreme Court cases, long after 1790, asserted that the Indian Commerce Clause is grant of plenary powers on Indian affairs. He rejects some these assertions as having no basis in original meaning, and others as, when carefully read, being invocations of the treaty power and not of the Indian Commerce Clause.
While disagreeing on some points here and there, professor Ablavsky does not dispute the overall accuracy of Natelson's description of the Indian Commerce Clause as it stood in 1790. He agrees with Natelson that the Indian Commerce Clause was not, originally, understood as a plenary power or as encompassing all Indian affairs.
Instead, he points to a variety of statements by government leaders, most importantly during the George Washington administration, asserting that the federal government has complete power over Indian affairs. He characterizes these statements as being "holistically" based on the sum of all the various Indian powers granted in the Constitution. From this holistic meta-power, Ablavsky writes that President Washington et al. were asserting something like what we today call "field preemption": the totality of federal regulation of Indians is so comprehensive that there is no area of law in which the States may legislate.
Ablavsky acknowledges that the other constitutional clauses that were foundations of his citations from Washington administration officials about total federal power have crumbled. As noted above, the territories clause applies to few if any Indians within the 50 states, and the Indian treaties power is no longer exercised to create new treaties. In Ablavsky's view, the Indian Commerce Clause, being the only pillar still standing, should now be interpreted as embodying the plenary, "field preemption," power that was once asserted during the Washington administration. "As the props that once supported exclusive federal power have been knocked out, only a single slender pillar [the Indian Commerce Clause] remains to support the edifice."
Natelson argues in this context (and all others) that post-ratification actions or works of early federal governments under the Constitution cannot retroactively change the meaning of constitutional clauses as they were understood at the time of ratification. How much weight, if any, to give to post-ratification material is a topic of continuing debate among persons who are generally supportive of originalism.
Ablavsky bolsters his case for post-ratification history by arguing that the Indian Commerce Clause was not very clear, since the Philadelphia Convention spent little time on it. Natelson does not agree, for his history shows a major record of conflict on Indian affairs between the Continental/Confederation Congresses and the States, especially South Carolina. Most importantly, the Convention turned Madison's proposal for a general power over Indian "affairs" into a narrower power over Indian "commerce."
The citecheck of Ablavsky
To me, the greatest weakness of Ablavsky's thesis is that several of his quotes from the years of the Washington administration are not in fact assertions of plenary federal powers over "Indians." As detailed in Natelson's citecheck of the Ablavsky article, full versions of the partial quotes in the Ablavsky article, which Ablvasky characterizes as early "field preemption," were not necessarily about "Indians" in general. These quotes were about a specific tribe that was in a treaty relationship with the United States; and whose treaties promised the treating tribe that the United States government, and not any state, would be the only American government to exercise power over the American relationship with the tribe.
Soon into his presidency, George Washington informed the Governor of Pennsylvania that "the United States . . . possess[es] the only authority of regulating an intercourse with [the Indians], and redressing their grievances.'"
Natelson: The full quote from the letter shows that President Washington was discussing "the Seneca Indians." The Ablavasky quote omits Washington's advice that the Seneca's grievance "should be referred to the Executive of the United States, as possessing the only authority of regulating an intercourse with them, and redressing their grievances."
President Washington was not purporting to assert power that had been granted to Congress by the Indian Commerce Clause. He was carrying out the Jan. 9, 1789, treaty between the United States and the Six Iroquois Nations, including the Seneca. That treaty required the United States to punish Americans who perpetrated crimes against members of the Six Nations. Therefore, under the treaty, the United States, not the State of Pennsylvania, had responsibility to address the Seneca grievances.
When the Virginia legislature supplied Indians with ammunition, it made sure President Washington knew it had acted from exigency alone, "lest in case of silence it might be interpreted into a design of passing the limits of state authority." 167
167 Virginia House of Delegates, Journal of the House of Delegates, of the Commonwealth of Virginia 7-8.
Natelson: The citation has no date or volume number. Natelson and his intern, Jeremy Sallee, found it at the Founders Online website, https://founders.archives.gov/documents/Washington/05-05-02-0228. The Virginia legislature communicated to President Washington on Oct. 30, 1789, that the legislature had given ammunition to the Chickasaw because the Chickasaw were in danger of being attacked by the Creeks.
The Chickasaw had signed a 1786 treaty with the United States. It provided that "the United States in Congress assembled shall have the sole and exclusive right of regulating the trade with the Indians, and managing all their affairs in such manner as they think proper."
Thus, the Virginia legislature was writing to explain its unilateral actions, based on necessity, regarding the Chickasaw (not Indians in general). The exclusive powers of the U.S. government were based on a treaty with the Chickasaw, not the Indian Commerce Clause.
Ablavsky: South Carolina Governor Charles Pinckney wrote a Dec. 14, 1789, letter to President Washington appealing for help against hostile Indians from "the general Government, to whom with great propriety the sole management of India[n] affairs is now committed."
Natelson: Pinckney was writing about "western territory" Indians, who did not reside in South Carolina. The Territories Clause was the main basis of federal power with Indians who did not reside in a State.
Other portions of the citecheck raise additional concerns about the Ablavsky article's accuracy.
Moreover, although the Indian Commerce Clause no longer provided that federal authority was "sole" or "exclusive," as Article IX [of the Articles of Confederation] had, the Constitution eschewed these labels for all of the federal government's enumerated powers, opting instead for broad federal authority through the Supremacy Clause.
Natelson: Incorrect. The Seat of Government clause gives Congress power "To exercise exclusive Legislation in all Cases whatsoever." (art. I, sect. 8). The Constitution gives the House the "sole power of impeachment" and gives the Senate the "sole Power to try impeachments." (art. I, sect. 2 and 3).
[Note: the Articles of Confederation Indian affairs power was limited by express reservations in the Articles about Indians within State boundaries.]
Early American Imprints—the database Natelson employed [in his DU article]—reports only fourteen instances of "commerce with the Indians," one instance of "commerce with Indians," and seven instances of "commerce with the Indian tribes" in all works printed between 1639 and 1800 in what became the United States.
Natelson: The DU article also used the Thomson Gale database Eighteenth Century Collections Online, which has 110 uses of the same phrases. It is more extensive because Early American Imprints omits items that were published in England, which constituted many of the works that circulated in America at the time.
Unlike Yates, other Anti-Federalists accepted paramount federal authority over Indian affairs. 128
128 Justice Thomas's evidence supports this point. Id. at 2570 (citing Brutus, (Letter) X, N.Y. J., Jan. 24, 1788,
Natelson: The Brutus letter says nothing of the sort. It urges that standing armies be forbidden, with certain exceptions, including "garrisons to such posts on the frontiers, as it shall be deemed absolutely necessary to hold, to secure the inhabitants, and facilitate the trade with the Indians."
Washington's Secretary of War, Henry Knox, wrote a letter on April 28, 1792, to federal Indian agent Israel Chapin, stating:
"[T]he United States have, under the constitution, the sole regulation of Indian affairs, in all matters whatsoever"…159
159 Letter from Henry Knox to Israel Chapin, Apr. 28, 1792, in 1 American State Papers: Indian Affairs, supra note 81, at 231, 232.
Knox's instructions to Chapin do not appear at the stated location nor, indeed, anywhere in the volume. We were able to locate a facsimile of the manuscript letter containing the instructions at https://sparc.hamilton.edu/islandora/object/hamLibSparc%3A12353530#page/7/mode/1up. However, the letter does not include the quoted language.
Ablavsky: Cites an Aug. 31, 1792, letter from Secretary of War Knox, to the Governor of Georgia, "in 1 American State Papers: Indian Affairs, supra note 81, at 258, 259."
Natelson: "The cited letter does not appear at the stated location, nor anywhere in the volume."
Ablavsky: Georgia political leaders "insisted that the Treaty of New York's guarantee of Creek title to lands within Georgia, as well as federal commissioners' authority within the state, was unconstitutional" 182. "182. E.g., 2 Annals of Cong. 1793 (1790)."
Natelson: "There is no reference to any such claim on that page…"
Ablavsky: "Not until the final version of the Trade and Intercourse Act in 1834 did the United States assert criminal jurisdiction over Natives."
Natelson: But see, e.g., Article VIII of the 1790 Treaty with the Creeks.
Unlike Natelson, I am not a pure originalist, and I don't have any advice to the Supreme Court about what to do with Brackeen v. Haaland. To the extent that original meaning does matter to the Justices, it does not seem plausible to contend that the original meaning of the Indian Commerce Clause gave Congress the power to regulate noncommercial matters, such as adoptions, involving Indians.