The original meaning of the Indian Commerce Clause

Professor Natelson versus Professor Ablavsky

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 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.

Historical evidence

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.

Ablavsky's view

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.

Ablavsky:

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.

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Ablavsky:

When the Virginia legislature supplied Indians with ammunition, it made sure President Washington knew it had acted from exigency alone, "le[]st 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.

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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.

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Other portions of the citecheck raise additional concerns about the Ablavsky article's accuracy.

Ablavasky:

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.]

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Ablavsky:

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.

Ablavsky:

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."

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Ablavsky:

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.

Natelson:

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.

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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."

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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…"

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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.

Comments

[Rev. Arthur L. Kirkland]

Is this the Rob Natelson who publishes at the Epoch Times?

Ouch.

Very ouch.

So much for this blog's ostensible academic veneer.

[Gandydancer]

Volokh shouldn't take notice of Ablavski's parade of errors and foolishness because it shouldn't pay any attention to this particular error-finder? LOL! Your appeal to bogus authority is easily identified as such. Only a jackass like you could imagine that Natelson's takedown of Ablovski is so easily debunked as by the fact that Natelson has been published on some platform that is, on the evidence provided here, not obviously less reliable than the Yale Law Journal.

[Rev. Arthur L. Kirkland]

Did you check those citations, or are you relying on the report of a fringe academic and Epoch Times columnist?

And if you are referring to that Federalist Society publication as the “platform,” good luck with attempting to establish that the Federalist Society is a mainstream publisher in modern, legitimate academia, let alone the equal of the Yale Law Journal.

(Do you have similar qualms about the quality of scholarship exhibited by the Volokh Conspiracy, and in particular its shambling, oft-discredited, never improved “Today In Supreme Court History?”)

Carry on, clingers. Maybe one of you less inept than gandydancer wants to take a crack at this?

[Gandydancer]

Despite the existence of Google and the fact that you apparently used it to identify Natelson moronic you has provided exactly zero evidence that anything the so-called fringe academic has written about Ablavsky has been debunked by anyone, anywhere.

Kopel, on the other hand, provides links.

Do better if you can, jackass.

[Rev. Arthur L. Kirkland]

One link this account apparently does not provide is to Prof. Ablavsky's 2022 response to Prof. Natelson's objections. You can find a link to it at this godless commie rag.

[David Kopel]

The Ablavsky SSRN is his response to Natelson's criticism of some material in an Ablavsky brief. It does not involve the material I wrote about in the post.

[Gandydancer]

I'd already linked to that post below. As I presume you did I saw it in the list of articles below the thread.

As a response to my criticism of your empty ad hominem attack it really does not suffice.

[Rev. Arthur L. Kirkland]

Former Prof. Natelson's work and reputation do not survive Prof. Ablavsky's demotion of this flaming shitstorm, which another Conspirator had the academic integrity and human decency to mention a couple of days after this unprofessional clustermuck was published.

[The Margrave of Azilia]

When an attorney says he's just a simple country lawyer, guard your wallet.

When a law professor utters the word "holistic," guard your Constitution.

[Bob from Ohio]

Indians are now US citizens, they should have the rights and benefits of citizens, no special rules. In 1789 they might be citizens of "sovereign" entities, its a fiction now. Get rid of the special laws, abolish the reservations, giving the land to its residents.

Then we wouldn't have to discuss how many Indians can fit on the end of a pin like this.

[Brett Bellmore]

Hm, does that mean we can incorporate Canada into the US by passing a law granting all Canadians US citizenship?

At the time the Constitution was written, the Indian tribes were sovereign states with diplomatic status, we made treaties with them just as we did with other countries. Violated those treaties, too, but I'm not sure that distinguished the Indians from other countries, particularly.

I don't think you can extinguish a country, legally, by granting it's citizens dual citizenship in your own country.

[Bob from Ohio]

"does that mean we can incorporate Canada into the US by passing a law granting all Canadians US citizenship?"

Sure. We just need to enforce it.

"I don’t think you can extinguish a country, legally, by granting it’s citizens dual citizenship in your own country."

Congress has the power to utterly abrogate an Indian treaty, the Supreme Court has ruled so time and again. No Tribe is sovereign, Congress has complete plenary power.

Keeping Indians poor and living on reservations in wastelands does not benefit them. Yet that is the status quo and will remain so long as we keep to an obsolete fiction.

[Brett Bellmore]

"Congress has the power to utterly abrogate an Indian treaty, the Supreme Court has ruled so time and again. No Tribe is sovereign, Congress has complete plenary power."

I think you're reading too much into that. The Supreme court basically doesn't enforce treaties against Congressional action, even though the plain language of the Constitution says they should.

[Gandydancer]

Where does the Constitution say that?

[Brett Bellmore]

The Supremacy clause, of course.

I suspect you’re aware that the treaty power has been interpreted by the Supreme court (Reid v Covert) to permit the federal government to exercise power in areas that would ordinarily be outside its constitutional jurisdiction as intruding on the reserved powers of the state. Something a mere statute can’t do. OTOH, it isn’t interpreted as overriding other aspects of the Constitution.

Thus it occupies an intermediate level of priority between the Constitution itself and mere Congressional statutes, and should logically trump the latter. It was supposed to, to assure other countries that we’d actually take our treaty obligations seriously! (In a way the Articles of Confederation government hadn’t…)

Of course, the Supreme court now lets Congress routinely violate treaties. But they let Congress violate a good deal of the Constitution, too, so that’s not shocking.

[Gandydancer]

“The Supreme court basically doesn’t enforce treaties against Congressional action, even though the plain language of the Constitution says they should.”

The Supremacy Clause (“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any thing in the Constitution or Laws of any State to the Contrary notwithstanding.”) plainly does no such thing, and waving at the penumbras of Reid v Covert doesn't change that fact.

[Gandydancer]

…I should have said “alleged penumbras”. I’m not seeing anything in Reid v Covert that even remotely involves treaty supremacy over Congress. Covert was decided by a plurality on the basis of the Bill of Rights. That divided opinion is anyway getting pretty far from ~”plain statements in the Constitution.”

[shawn_dude]

Oh hey... there's this dude in Eastern Europe who agrees with you. He's just finding his version of Canada a bit tougher to convince. They just blew up his pet bridge.

[Rev. Arthur L. Kirkland]

" Indians are now US citizens, they should have the rights and benefits of citizens, no special rules. "

Bob from Ohio does not mean this, because if they are superstitious right-wing bigots Bob from Ohio emphatically wants special rules.

(Dismissing treaties that don't benefit him is the perfect white-Republican-clinger-from-backwater-Ohio move.)

[Martinned]

I actually agree with him. Treaties are agreements between sovereigns. Even interstate compacts are only "compacts", not proper treaties, because US States are not sovereign states in the international law sense. Indian tribes are less sovereign still. Any agreement they may have with the US Federal government may or may not be enforceable as a matter of US (Federal) law, but it is not protected by any body of law that is not under the control of Congress.

[LawTalkingGuy]

i.e. complete the ethnic cleansing that your hero Andrew Jackson tried so hard to finish.

[Bob from Ohio]

"giving the land to its residents"

Some cleansing.

Not sure why you like keeping them poor and isolated.

[LawTalkingGuy]

Yes or no: you would be happy if there was no such thing as native tribes, native culture, or self-identifying native Americans?

[Bob from Ohio]

No

Just like I am perfectly fine with those who are Chinese or Japanese etc. etc. or Swiss or Polish etc. etc. or Zambian or Kenyan etc, etc. or any other "culture", or [people] "self-identifying" [as].

Yes or no: you like keeping Indians poor and isolated

[Flight-ER-Doc]

Seems that commerce has no nexus with child placement....so Congress does NOT have the authority to regulate Indian child placement.

[Squirrelloid]

The more shocking thing here is how poor Ablavsky's citations are. Since I haven't read the original article - are these citations are notable fraction or particularly significant, or just a small number of minor cites in a long work?

[Gandydancer]

It’s perfectly plausible that at least some of the problems are just honest error and not fraud, but the only excuse for not correcting them (or a mea culpa) is if Ablavski is dead. And even then the Yale Law Journal needs to rehabilitate its review process.

[Rev. Arthur L. Kirkland]

Ablavsky -- a respected, mainstream professor from a leading law school -- has demolished Natelson's work and reputation, as Prof. Will Baude was professional enough to note in a later post.

Turns out the fringe wingnut from the Federalist Society and downscale academia was full of shit. Some people may be surprised. I was not.

[Kazinski]

It seems to me that their is authority of Congress to regulate adoptions in tribal court, but not state courts. The constitution is clear that the commerce clause regulates commerce between the US and tribes, not individuals in their capacity as citizens. There is already a fairly well defined delineation between tribal court and state court jurisdiction, and those rules should be applied to adoption too.

But I'm not sure that allows Congress to override tribal law either, but it narrows their scope authority significantly, and puts the question of non-indian adoptions much closer to the discretion of the people who have to make the practical decisions about it's implementation.

[Bubba Jones]

Is the argument that we should grant preference to rich white parents when adopting out Native American children?

Am I the only one who thinks that’s problematic?

[Currentsitguy]

I find it problematic that any racial issues at all are taken into account.

The only issue that is relevant is who is best able to raise and provide for the child?

[shawn_dude]

How isn't this effectively the same as taking tribal children away from the tribe into special boarding schools designed to teach them how to be "good Americans" where that generally means erasing their native American cultural identities and replacing them with whatever the (white) federal government officials decree?

How is this not a form of genocide?

[Gandydancer]

No, that is not remotely the argument. Your strawman is tedious.

[The Margrave of Azilia]

If we *must* have this statute (and I don’t know in depth how it works in practice)…

Commerce Clause sounds like a stretch when discussing adoption…

But Congress can “define and punish…Offences against the Law of Nations.” This should, I think, allow Congress to figure out the law of nations as applicable to the relations between the U. S. and the recognized Indian tribes.

Enforcing, with federal penalties, any encroachment on tribal jurisdiction, seems a plausible enough application of this clause. Maybe Congress can define tribal jurisdiction to include the children of tribal members – even off the reservation? It seems a stretch, but it’s not as Procrustean as stretching the Commerce Clause.

[Gandydancer]

I'm not endorsing this paper, but I did listen to it. And the section on limiting principles notes that "the Supreme Court held in United States v. Furlong that Congress could not punish simple murder as piracy", indicating the existence of some limits on Congress' ability to stretch the "Law of Nations" that might preclude the assertion that applying adoptions laws to tribal members is a violation of anything. Also an objection to stretching Congress' powers so that it could make anything illegal is also mentioned somewhere, though I will have to dig out that reference.
https://www.yalelawjournal.org/article/defining-and-punishing-offenses-under-treaties

[Procyon Mustelid]

I don't thinknthe commerce clause is a stretch. Article 1 Section 9 expressly refers to the "importation of Persons", which seems to me tonsquarely establish that people can be an aeticle of commerce even under a limited definition of commerce. And given the amount of money that can change hands in modern adoption, again, I think adoption qualifies as commerce. So I think any adoption involving people from two States, a State and a Tribe, or a State and a Foreign Country, is solidly within Congress's jurisdiction to regulate.

[ReaderY]

This simply isn’t the relevant federal power. The relevant federal power here addresses Indians as sovereigns, not regulation of commerce.

[ReaderY]

See amendment XIII, which significantly limits the original power to treat people as articles of commerce. An adaption is simply not a sale.

[Gandydancer]

No doubt adoption can be remunerative for some who facilitate it, but the facilitation is not what is being regulated here, nor is the adoptee a chattel sold to the foster parents. People could indeed be chattels, if slaves, but that ended with the 13th A. The “solidity” you imagine is purely imaginary.

[Gandydancer]

Here's an earlier Volokh article on this subject: https://reason.com/volokh/2022/05/17/the-indian-commerce-clause-the-natelson-ablavsky-debate/

[shawn_dude]

This is just native American boarding schools 2.0. Give them to white families to raise outside of native American culture.

[lupdiketoler]

One reason for the current and historic confusion over Congress' plenary power over tribes is that those who first drafted the Constitution (read James Wilson and the Committee of Detail) initially forgot to include the Indian Affairs Clause from the Articles of Confederation. As I painstakingly show in a Chicago Law Review article (88:413), though tribal warfare was ongoing in Virginia and brewing in Georgia, the forgotten clause was not put back into the Constitution. James Madison caught the mistake and "Indians" were re-inserted into the Commerce Clause, an analog to Congress' "Indian trade" power under the Articles, but "affairs" was (this time intentionally) left out.

This they did because all other powers needed to supply "Indian Affairs" as comprehended under the Articles (and which Henry Knox as Secretary of War for Washington continued to seamlessly exercise in the transition from Articles to Constitution) was found via other powers and clauses in the Constitution - the Treaty, Territories, and War Powers-shared between Congress and the President.

Without the full compliment of these powers, and especially without the Treaty Power that was abandoned via an appropriations rider in 1871, Congress and the federal government has no plenary power over tribes.

[Bob from Ohio]

"almost no connection to the culture that gave birth to them"

Shrug, its by choice.

"poor and isolated mostly for other reasons than that they have a reservation"

Have you looked where the reservations are? Not merely rural but the worst parts. Sure, the legacy of losing the Indian Wars but the past is past, its not going to get better with the status quo.

The isolation contributes to the social problems that hurt them. The communal ownership is like all other forms of collectivism, destructive.

[Gandydancer]

"...they would rather be a “people” as such then be suburban consumerists with quaint customs."

You've taken a poll on whether they would like to actually own the land they reside on?

[Currentsitguy]

You speak of Culture as if it were some inviolable sacred cow. It isn't. Cultures change and adapt to the world around them and the places where the people live.

I'm half Polish, my family came over in the 20's. and yes, I do happen to have my grandmother's recipe for pierogi on an index card. It's pretty good. The thing is this isn't Poland and it isn't the 1920's. It's 2022 and this is America. I was raised and live accordingly.

I obviously can't change what happened in the past, but I do know how best to get along and ahead in 21st Century America, and it ain't by clinging to a lost way of life either here or across the ocean.

[JJJSSS]

This is literally the argument that the French National Assembly had over Jews (see Clermont–Tonnerre's "Speech on Religious Minorities and Questionable Professions"). The result, of course, was broad emancipation for Jews, who ultimately didn't integrate in France for another century due to Antisemitic sentiment- and even then, said sentiment continued (see Dreyfus as an example, and then 50 years later the assistance many French gave to the Nazis in actively turning Jews in). Plenty of Jews did assimilate, and in many ways, it's the Antisemitism that has kept many in.

[Gandydancer]

The example you give proves the opposite of what you claim it does. Congress created a putative nexus between the guns it proposed to regulate and the regulation of them, thus admitting that its ability to regulate depended on its ability to do so. How might it do that in this instance?

[Brett Bellmore]

It's worth remembering, for whatever it IS worth, that the chief reason the renewed GFSZ act survives is that it has been preserved from review by avoiding actually using it in any case that might generate a good test case.

I'm pretty sure they REALLY don't want it reviewed after Bruen, too.

[Krayt]

Interstate gun sales are trade. The gun free zones strains that argument, but it's still trade.

Adopting kids is not trade. We do not sell kids. Because a kid uses a pencil box that might be sold across state lines does not mean government gets to regulate adoptions.

[Jmaie]

The Dawes act would like a word…

[Gandydancer]

I have no opinion about your “movements”, but will observe that yours is a remarkably idiotic response to my question, given that Bob’s proposal, which elicited the claim I am questioning, was exactly “abolish[ing] the reservations, giving the land to its residents”.

[Currentsitguy]

Even been to the Park Ridge Reservation of the Lakota Sioux In South Dakota? You wouldn't bee saying what you did If you had been. It is one of the saddest, most horrifyingly depressing places you will ever see. It makes Depression Appalachia look like Beverly Hills in comparison. No one in this country in this century should have to live that way. This isn't the proud Noble Savage clinging to the Old Tribal Ways. It's the Badlands covered in wrecked and decaying trailers, many without running water or electricity. It's mainly populated by women and children because all the men are either in prison or are dead or soon to be from alcoholism.

There is one bright spot, a casino where all the townspeople go to feed what little they have into the slot machines in the hopes of winning enough to buy another bottle.

The "Chief" lives one town over, in Porcupine in a barbed wire surrounded compound patrolled by private security. He's the point man and contact to the BIA. You'd best be on his good side.

I'm sure the community spirit that comes from being one people makes it all worth while.

[Rev. Arthur L. Kirkland]

" I obviously can’t change what happened in the past, but I do know how best to get along and ahead in 21st Century America, and it ain’t by clinging to a lost way of life either here or across the ocean. "

You can preach it, brother, but I doubt the clingers who flock to this blog are in the market for your insights.

[Gandydancer]

And I’m failing to understand your purported inability to comprehend a question in plain English.

Yes, our courts are shit and Congress gets away with all sorts of crap, but Flight-ER-Doc’s statement was about Congress' AUTHORITY, not the ability to get away with UNAUTHORIZED lawlessness.

And I’ve anyway pointed to a flaw in your analogy that it appears you are convinced you can evade, but I won’t let that pass.