Locating the Indian Affairs Power
As I reviewed last time, the Supreme Court has treated the status of Native American tribes and their members as sui generis for purposes of constitutional law. They are “domestic dependent nations” that retain their sovereignty against the states but are subject to the plenary authority of Congress. But does this unique status and power find textual support in the constitution?
I have expressed skepticism that the federal government possesses “extra-constitutional” powers that arise as a matter of inherent sovereignty. In my view, the Tenth Amendment expressly forecloses such a doctrine. So I have gone looking for the textual bases of ostensibly plenary unenumerated federal powers like the immigration power and the foreign affairs power.
I’ve met with partial success, finding that the President’s general executive and treaty powers in Article II and Congress’s authority to regulate commerce with foreign nations may justify most of what we think of as the government’s foreign affairs power. In addition, I reluctantly concluded, based on the Importation Clause, that the foreign commerce power, as originally understood, also grants Congress authority to regulate immigration.
But what I haven’t found is that these powers are “plenary” or even necessarily exclusive. Indeed, once a power is textually located in the constitution, it is constrained by the limitations imposed by that document. That means that judicial review should take on a rigor that it does not currently possess in relation to powers assumed to be plenary and beyond the constitution. Nor are textually grounded powers automatically exclusive, although they are supreme over conflicting state authority.
So what about the Indian affairs power? There is no explicit grant of authority to the federal government to regulate Indian affairs. And indeed, as Professor Updike Toler demonstrates in her article The Missing Indian Affairs Clause, the omission of such a provision by the drafters of the constitutional was apparently intentional.1
Yet last year in Haaland v. Brackeen, Justice Barrett enumerated four bases of federal Indian affairs authority. She first emphasized that the Indian Commerce Clause authorizes Congress to “regulate Commerce … with the Indian Tribes.” She also pointed to the President’s treaty power under Article II. She then argued that the constitution incorporated by implication “preconstitutional powers necessarily inherent in any Federal Government.” Finally she invoked the “trust relationship between the United States and the Indian people.”
I will set aside Justice Barrett’s contention that Indian affairs authority arises from inherent sovereignty, because the invalidity of that proposition is my starting premise and I won’t relitigate it here. In addition, as I discussed last time, Congress ended treaty-making with tribes back in 1871 and today the government does not have any treaty relationship with many if not the majority of tribes. Treaty-making may have supported federal jurisdiction over Indian affairs at the founding when treaties were in fact the main way in which the feds interacted with most tribes. Treaties simply don’t justify Congress’s general legislative authority over tribes today, however.2
In his dissent to Haaland, meanwhile, Justice Thomas took major issue with the argument that “commerce” could possibly include adoption proceedings in state courts involving tribal members and potential tribal members under the Indian Child Welfare Act. He noted that the constitution’s drafters certainly understood “commerce” to be more narrow than “affairs” and noted their explicit choice to use the former and not the latter term.3 He concluded:
As originally understood, the Clause confers a power only over buying and selling, not family law and child custody disputes. Even under our more modern, expansive precedents, the Clause is still limited to only “economic activity” and cannot support the regulation of core domestic matters like family or criminal laws.
I have already argued in the context of immigration that “commerce” was understood more broadly than mere “buying and selling.” Professor Amar also makes the counter-argument that “commerce” as originally understood was broad and even coterminous with “affairs”:
Structurally, the broader reading of “Commerce” in this clause would seem to make better sense of the framers’ general goals by enabling Congress to regulate all interactions (and altercations) with foreign nations and Indian tribes - interactions that, if improperly handled by a single state acting on its own, might lead to needless wars or otherwise compromise the interests of sister states.
Hence, he seems to find no significance in the drafters’ choice to switch from “affairs” to “commerce,” because the meaning was the same and the difference was basically stylistic.
But I can’t quite shake Justice Thomas’s intuition that it’s kinda ick to call adoptions “commerce.”
More specifically, they initially intended to include a general Indian affairs clause but inadvertently forgot to actually put one in the first draft. But, having recognized their omission, opted instead for “commerce” in the subsequent iteration.
And really that only begs the question whether treaty making can expand the legislative scope of Congress, a dicey proposition that I’ll leave for another day.
It’s a nice question of originalist theory whether or to what extent the decision of the drafters to exclude a general Indian affairs clause should be relevant, since the citizens who ratified the constitution were almost certainly unaware of this drafting history. An original intent approach would find this evidence almost dispositive while original meaning would dismiss it as practically irrelevant. I discuss the difference between original intent and meaning here.