"Brackeen's Third Sovereign"

I much appreciated the guest-post by Prof. Lorianne Updike Toler (Northern Illinois) on Brackeen back in November, based on her recent University of Chicago Law Review article, The Missing Indian Affairs Clause; now that Brackeen has been handed down, I thought I'd pass along this follow-up:

Halaand v. Brackeen, which upheld the Indian Child Welfare Act (ICWA) as an appropriate exercise of Congress' plenary power over native tribes, is being hailed as the Term's most important decision to use framing history. Although the decision is but a week old, much has already been written about the history found in Justices Gorsuch and Thomas' concurring and dissenting opinions, including an excellent post on this blog by Josh Blackman here, another by my colleague Evan Bernick on the Originalism Blog here, and my more humble post elsewhere, among others.

I write only to highlight that history provides an answer to whether ICWA is constitutional that no one on the Court considered, perhaps because it is hiding in plain sight: the Framers specifically chose not to grant Congress an Indian Affairs power in the Constitution, but believed any federal power to regulate tribes was covered by the Indian Commerce Clause, Treaty Power, War & Peace Power, Territory, or Spending Clauses. After Congress halted tribal treaty-making in 1871, the Court 's 1886 U.S. v. Kagama decision wrongly filled the power vacuum with Congressional plenary power, which was later associated with the Indian Commerce Clause. Rather than ratify this wrong turn, the Court in Brackeen should have corrected it by recognizing that when the federal government stopped treating with tribes in 1871, the authority to regulate tribes reverted not to the federal government (nor the state governments), but to the tribes themselves.

In his Brackeen concurrence, Justice Gorsuch artfully describes the relationship between federal and tribal governments as "hydraulic" (Gorsuch slip op. 23): "The more the former expands, the more the latter shrinks." Insomuch as power can tilt both ways, so far so good.

But if the Court took a wrong turn at Kagama in giving Congress "free-floating" plenary power over tribes (majority slip opinion at 11 and Gorsuch at 24), so too, did Gorsuch and the Brackeen majority. (Although Justice Thomas recognizes no Congressional plenary power, he, too, fails to identify the correct loci of power in hydraulic tribal relations.)

I would submit that no Brackeen opinion—majority, concurrence, or dissenting—follows where history leads. More, Brackeen is bad for tribes.

ICWA may appear at first blush to be good for tribes. After all, three tribes intervened in Brackeen to support ICWA and it gives tribes the right to intervene in adoptions of tribal members in order to prevent the erasure of tribal peoples. This is a noble goal indeed.

Yet it comes at a heavy cost—expanded Congressional power over tribes. Brackeen is an instance where tribes may have won the battle but lost the war. At the very least, the expansion of Congressional power needed to uphold ICWA lessened tribal power in the hydraulic calculus.

Such calculus underlies the distinction between Gorsuch and Thomas' opinions. Both assume a sovereign power must exist to regulate tribes. They simply disagree on which sovereign—the federal government (Gorsuch, as well as the majority)—or the states (Thomas). Both use my historical research to arrive at their differing outcomes.

Justice Gorsuch relied on my article concerning the lack of Indian Affairs Clause to suggest that ICWA is within Congress's Indian Commerce Clause powers. Justice Thomas relied upon it to show that, in the absence of an Indian Affairs Clause, there is no Congressional plenary power, permitting states to regulate tribes. Although the article might not have been entirely clear here, it in fact suggests just the opposite of Gorsuch, and it concludes differently than Thomas—the Indian Commerce Clause does not allow Congress to give the tribes authority to intervene in state adoptions. Congress could obtain this goal through the Treaty Power, but not through the Indian Commerce Clause. The locus of power to regulate the tribes resides not with the federal or state governments, but in the tribes—the missing third sovereign.

For the history nerds out there, the story goes something like this:

The Constitutional Convention voted to include all of Congress' powers under the Articles of Confederation in the new Constitution, including the Indian Trade and Indian Affairs Clause. Despite a further Committee of Detail vote to include an Indian Affairs Clause, both Virginia Governor Edmund Randolph and then James Wilson forgot to include one in their preliminary drafts of the Constitution, including the Committee of Detail report, the Convention's first official draft Constitution.

James Madison caught the mistake, and proposed adding in an Indian Affairs Clause. This time, the Committee of Detail (whose job it was to produce completed drafts of the Constitution) considered the proposal and rejected it, instead adding "Indian Tribes" to the Commerce Clause—the clear successor to the Articles of Confederation's Indian Trade Clause. Thus the Convention chose to grant Congress power over Indian trade, but not affairs. This in the face of threatened tribal warfare in both Virginia and Georgia. Indeed, a tribal chief from Virginia even visited with Randolph during the summer.

As I posit, the drafters anticipated that the pre-constitutional power over Indian Affairs (as opposed to Indian Trade) would be accomplished through other powers granted in the Constitution—through the power over War & Peace, Territory, and, most importantly, the Article I power to enter into Treaties.

This mix of powers supplied what Indian Affairs once had under the Articles of Confederation until Congress unilaterally passed an appropriations rider in 1871 ceasing all treaty-making with tribes. The constitutionality of Congress' power to annul one of the President's constitutional powers is "sus" (as my pre-teen kids would say). Regardless, this is where things begin to unravel.

Despite the lack of treaty-making (and without dealing with the fact that executive agreements present federalism, states' rights, and textual issues), in 1882, the Supreme Court decided that Congress had plenary power over tribes without tethering the power to one or more clauses in the Constitution in Kagama. Later cases retro-fitted plenary power onto the Indian Commerce Clause.

In Brackeen, though room was made between plenary power and omnipotence, this "misstep" (Gorsuch slip opinion at 31) and its progeny received the Court's blessing. Hydraulic power tilted in favor of the federal government once again, to the detriment of tribes.

Yet the history is pretty clear. No Indian Affairs Clause means no plenary power. ICWA is also not justified as trade or any form of commerce with or among tribes (eg children are not commerce), nor does it qualify as incident to war or peace, regulating federal property (a miniscule amount of tribal lands overlaps with federal territory), or related to spending. The act of "permitting" tribes to intervene in state courts presumes a power to say what tribes can and can't do, and such power must have a juridical hook in the Constitution (Lopez), not be free-floating (Brackeen). Therefore, if the federal government wants to allow tribes to intervene in state adoptions, it must again engage in treaty-making. This would require treating with tribes on an individual basis or writ large. A tribal congress in which all or most tribes acted as signatories could provide a mechanism to interact with federal parties on needed reforms. Until such a time as an ICWA equivalent was agreed to by the Tribes via treaty, tribal courts would manage adoptions of any tribal children or yield that power to state courts.

Although this presents some practical hurdles which are not insignificant, in the long run, this does much more for native tribes and native people by requiring the federal government to interact with them with respect as governmental entities—the missing third sovereign.