Jack Balkin’s new paper, “Commerce,” (noted here at Legal Theory Blog and of course here), has very interesting commentary on the Indian Commerce Clause.
In short, Prof. Balkin argues that the word “commerce” in the Constitution means more than mere trade or economic activity, but instead should be read to mean all “interaction.” He discusses the Indian Commerce Clause at length as an example of how the Framers and the original interpreters of the Constitution understood “commerce” to mean much more than mere trade or economic activity. Followers of Indian law may recall that this has significant import to Indian affairs, as the Court in United States v. Kagama asserted that the Indian Commerce Clause could not be a source of Congressional authority to enact the Major Crimes Act, a largely discarded view that Justice Thomas attempted to resurrect in his United States v. Lara concurrence.
Of note on pages 30-31, Balkin cites the 1790 Trade and Intercourse Act as evidence of this broader interpretation and understanding, something many others from Bob Clinton and Akhil Amar have done as well:
One of the first things the new government did, for example, was to regulate its interactions with the Indian tribes, through a series of Trade and Intercourse Acts beginning in 1790. The title of these acts was apt: they not only required licenses for trade with Indians, but also punished “any crime upon, or trespass against, the person or property of any peaceable and friendly Indian or Indians.”78 These crimes did not necessarily involve trade or even economic activity; they could involve assault, murder, or rape. Note as well that even if the point of regulating these crimes was because of their likely effects on trade with the Indian tribes, the activities regulated were themselves not economic. And note finally that the 1790 and 1793 Trade and Intercourse Acts could not be justified as legislation designed to enforce treaties; they applied to crimes against Indians, whether or not they had signed treaties with the United States.79
The last sentence is a crucial point, as some conservative original meaning scholars have suggested that the 1790 Act was broader than trade or economic activity because it was intended to implement treaty language, thereby defeating whatever evidence the 1790 Act represented in the original meaning of the commerce clause.
Balkin adds in footnote 78:
Congress wanted to keep the peace with non-belligerent Indian tribes; if Americans attacked Indians or trespassed on their property, this might damage foreign relations. (In fact, the 1796 version, 1 Stat. 469, is specifically entitled “An Act to regulate Trade and Intercourse with the Indian Tribes, and to preserve Peace on the Frontiers.” Congress’s power to regulate “commerce” (i.e., intercourse or interactions) with the Indian tribes is the natural source of the prohibitions in the 1790 Act.
While it is fairly certain that conservative originalists will attack this argument with a great deal of vigor, this work is an important response to Justice Thomas and others that question Congress’s authority in Indian affairs.
Turtle Talk 
Even if the regulation of “commerce with Indian tribes” means more than regulation of purely commercial transactions with Indian tribes, it still does not allow for “plenary” regulations of the tribes’ internal affairs. At most, it may mean regulations of trade and “intercourse” between the Indians and the non-Indians.
So true.
Sorry… Professor Balkin is wrong about this one. First, the broad definition of commerce he posits is contradicted both by the legal usage at the time and by numerous Federalist representations as to the kinds of powers reserved exclusively to the states. There are several articles detailing this evidence now, including two by me.
Second, as I point out in my article on the Indian Commerce Clause, the Hopewell treaties did not limit the federal government’s obligations specifically to the tribes that were signatories. The obligations applied to all “Indians.”
Third: Even if the law were adopted pursuant to the Commerce Clause, legislation adopted after the ratification is over is unreliable evidence of what the ratification understanding was, simply because there no longer were constraints on what one could claim about the scope of federal powers.
Fourth: The Balkin-Amar version of the Commerce Clause would reduce the Ninth and Tenth Amendments to dead letters, which is another reason they simply are not tenable.
Finally: There is a lot of good evidence about what “commerce” meant in the context of Indian commerce — it was essentially about regulating the Indian trade, merchants, etc., and certain well-recognized incidents — including maintaining the peace necessary for that trade to go on. It certainly was not about every sort of interaction, and in light of the volume of evidence on the subject — far more than two post-ratification laws — I find it beyond understanding why anyone would argue that it is.
As any modern historian would tell us, it is folly to speak in absolutes when it comes to historical conclusions.
Balkin cites Kagama for the proposition that “Congress clearly believed that it could reach both economic and noneconomic activity under the Indian Commerce Clause; at the very least it believed that it could regulate non-economic activity in order to protect trade and diplomatic relations that would further trade.”
I think a case that is on all fours with Balkin’s point is United States v. Holliday (1866), where the Supreme Court validated Congress’s power, via the Indian trade and intercourse laws, to punish the sale of liquor to Indians off-reservation. Rejecting a criminal defendant’s argument that enactment of such criminal sanctions was beyond Congress’ constitutional authority, the Court wrote:
“The act in question, although it may partake of some of the qualities of those acts passed by State legislatures, which have been referred to the police powers of the States, is, we think, still more clearly entitled to be called a regulation of commerce. ‘Commerce,’ says Chief Justice Marshall, in the opinion in Gibbons v. Ogden, to which we so often turn with profit when this clause of the Constitution is under consideration, ‘commerce undoubtedly is traffic, but it is something more; it is intercourse.’ The law before us professes to regulate traffic and intercourse with the Indian tribes. It manifestly does both. It relates to buying and selling and exchanging commerce, and it regulates the intercourse between the citizens of the United States and those tribes, which is another branch of commerce, and a very important one.
“If the act under consideration is a regulation of commerce, as it undoubtedly is, does it regulate that kind of commerce which is placed within the control of Congress by the Constitution? The words of that instrument are: ‘Congress shall have the power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes.’ Commerce with foreign nations, without a doubt, means commerce between citizens of the United States and citizens of foreign governments, as individuals. And so commerce with the Indian tribes, means commerce with the individuals composing those tribes. The act before us describes this precise kind of traffic or commerce, and, therefore, comes within the terms of the constitutional provision.”
Holliday, 70 U.S. 407, 416-17 (1866).
Great! if true then we have no unrecognized tribes and what ever land a tribe purchases in fee is under federal superintendency???
Re: Prof. Fletcher’s statement: “As any modern historian would tell us, it is folly to speak in absolutes when it comes to historical conclusions.”
Well, not exactly. If I were to claim that “Queen Elizabeth of England ruled Guatamala from 1603 to 1625,” practically any historian would tell me, in pretty absolute terms, that I was wrong.
The problems with the Amar-Balkin thesis are so great that I think we can say with nearly as much certainty that the thesis is wrong. I listed a number of the problems in my last post, most of which Prof. Balkin’s thesis does not address. for example, he was kind enough to cite one of my articles on the Commerce Power in his paper, but overlooked the fact that my conclusion on the legal meaning of the term was based on every usage of the word in reported English and American cases from 1550 to 1800 and a great many usages in other contemporaneous legal sources as well.
Two additional problems: (1) the Founders’ understanding of “regulating commerce” is a product of British imperial practice and American response during the colonial era, and cannot be read outside the context of that era and (2) it is pretty clear that if any significant number of the Ratifiers understood “commerce” in the Constitution to include all possible definitions of the word, the Constitution never would have been ratified.
That Queen Elizabeth comment is a bit fallacious, isn’t it? So the meaning of “commerce” is as knowable and certain as Queen Elizabeth’s relationship to Guatemala? Hmmm.