Academic journal article The Yale Law Journal

Beyond the Indian Commerce Clause

Academic journal article The Yale Law Journal

Beyond the Indian Commerce Clause

Article excerpt

INTRODUCTION  I. A BRIEF HISTORY OF THE INDIAN COMMERCE CLAUSE  II. EXCLUSIVE FEDERAL POWER    A. The Vagueness of the Indian Commerce Clause's Original Public       Meaning         1. Indian and Interstate Commerce         2. The Broad Meaning of Trade with Indians    B. Interpreting Silence: The Indian Commerce Clause's Drafting and         Adoption History         1. Silence as Consensus: Shortcomings of the Revisionist and            Nationalist Accounts         2. Silence as Ambiguity: The Open-Ended Indian Commerce Clause    C. Original Understandings of Exclusive Federal Power over Indian         Affairs         1. The Constitution as Field Preemption         2. The Argument from State Sovereignty    D. Implications  III. PLENARY FEDERAL POWER    A. The Indian Commerce Clause and Power over Indian Tribes    B. Native Sovereignty, United States Sovereignty, and the Law of       Nations         1. The United States and the Law of Nations         2. "[T]he Species of Sovereignty which the United States claim           over the Indians"         3. Sovereignty and Native Land         4. The Doctrinal Origins of Plenary Power    C. Implications  CONCLUSION 

INTRODUCTION

"Federal Indian policy is, to say the least, schizophrenic." (1)

--Justice Clarence Thomas

"You talk of the law of nature and the law of nations, and they are both against you." (2)

--Onitositah (Corn Tassel), Cherokee chief

For over a century, the Supreme Court has interpreted the Constitution to grant the federal government "plenary" power over "Indian Affairs"--the diplomatic, political, military, and commercial relationships between the United States and Native nations. (3) Plenary power, as used by the Court, has two distinct meanings. (4) Sometimes the Court uses the term interchangeably with "exclusive," to describe federal power over Indian affairs to the exclusion of states. But the Court also uses the term to describe the doctrine that the federal government has unchecked authority over Indian tribes, including their internal affairs. The Court has ruled that federal plenary power authorizes the government to take Native land without compensation, (5) for instance, or to expand, contract, or even abolish tribal sovereignty at will. (6)

While gesturing to other constitutional provisions, (7) the Court has largely relied on the Indian Commerce Clause, which grants Congress the authority "[t]o regulate Commerce ... with the Indian Tribes," (8) to justify the federal government's exclusive power against states and plenary power over tribes. "[T]he Indian Commerce Clause makes 'Indian relations ... the exclusive province of federal law,'" (9) the Court opined in Seminole Tribe of Florida v. Florida, precluding the exercise of "virtually all" state authority. (10) As for the extent of federal power over Indian tribes, "the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs," the Court stated in Cotton Petroleum Corp. v. New Mexico. (11)

Both the exclusive and plenary power doctrines rest on unstable foundations. When the Court first enunciated the plenary power doctrine in 1886, it considered, and rejected, the Indian Commerce Clause as the doctrine's source. (12) Since then, many scholars have questioned whether the Clause could be read to grant the federal government unbridled power to regulate tribes' internal affairs. (13) More recently, a revisionist strand of originalist scholarship has challenged the long-received wisdom that the Clause grants the federal government authority to the exclusion of the states, arguing that the Clause's original understanding supports a far narrower scope for federal power and a broader role for the states. (14)

The Court, however, has shied away from reexamining these doctrinal bases for nearly all federal Indian law--until recently. In two recent concurrences, Justice Clarence Thomas has subjected the Court's Indian Commerce Clause jurisprudence to a wide-ranging originalist critique. …

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