Professor Ablavsky is the author of “Beyond the Commerce Clause.” Part I is here.
What Justice Thomas Gets Wrong About Constitutional History: Part 2—Ratification, Natelson, and Territorial Integrity
One interesting aspect about Upstate Citizens is the underlying dispute’s highly ironic origins in upstate New York—ironic because it was largely struggles over New York’s abuses under the Articles and its efforts to dispossess the Haudenosaunee Confederacy in this region that helped prompt Madison and others to centralize federal power over Indian affairs in the first place. Sadly, this constitutional shift was often unavailing, as New York freely violated federal law. Even Haudenosaunees literally waving copies of the Trade and Intercourse Act in front of New York’s agents failed to stop this illegal process.
But New York is also significant in another respect. Thomas correctly notes that the Indian Commerce Clause was “virtually unopposed at the founding,” but there was opposition in New York, from the Anti-Federalist Abraham Yates, Jr, writing pseudonymously as Sydney. Thomas may not know about the full depth of Yates’s opposition, however, because he has relied frequently, and primarily, on a law review article by Robert Natelson. Here’s how Natelson describes Yates’s view (Natelson relies on an older strain of scholarship that attributed “Sydney” to Robert Yates, but newer scholarship attributes it to Abraham, Robert’s uncle; emphasis added).
Robert Yates, a New York Anti-Federalist who had served as a delegate to the federal convention, argued against ratification. He opposed the Indian Commerce Clause in particular, so if there had been any reasonable interpretation of that provision that included plenary authority over Indian affairs, he certainly would have pointed it out. Yet he also equated the Indian commerce power to no more than a power over trade. If New York were to ratify the Constitution, Yates wrote that New York would thereby totally surrender into the hands of Congress the management and regulation of the Indian trade to an improper government, and the traders to be fleeced by iniquitous impositions, operating at one and the same time as a monopoly and a poll tax.
And here is the actual quotation from Sydney (with emphasis added):
It is therefore evident that this state, by adopting the new government, will enervate their legislative rights, and totally surrender into the hands of Congress the management and regulation of the Indian affairs, and expose the Indian trade to an improper government—and the traders to be fleeced by iniquitous impositions, operating at one and the same time as a monopoly and a poll-tax.
One can quibble about whether Sydney here was speaking exclusively of the Indian Commerce Clause—which he cited alongside the Supremacy Clause and the prohibition on state imposts in the immediately preceding paragraph—but the quotation is unambiguous on Yates’s understanding of the Constitution’s implications for Indian affairs. Natelson’s paraphrase significantly and materially changes the meaning of the cited essay: when the original language is restored, it reveals that Yates did point out at least one interpretation that “included plenary authority over Indian affairs,” in fact nearly verbatim. Recovering the correct quotation and the evidence that Natelson omitted compromises Thomas’s argument, drawn solely from silence, that it was “highly implausible that the Founders understood the Indian Commerce Clause” to encompass a significant expansion of federal power.
Finally, I wanted to stress one significant new aspect of Thomas’s dissents that hasn’t appeared in his prior writings on this topic—his emphasis on the IRA as a threat to “States’ territorial integrity,” which he argues that the Founders surely could not have intended. In fact, there was a debate over this question in the early United States. There were proposals at the Constitutional Convention that the federal government guarantee each state’s territory, but they failed, and the guarantee was limited to a republican form of government. When Tennessee sought to become a state in 1796, some in Congress argued that the new state’s borders should be lopped off to exclude Indian country: James Hillhouse suggested drawing the border at the “Indian line,” so as to avoid “incorporating lands within this State to which we had no right.” But the proponents of statehood pointed out the issue was already resolved—“[I]n the act passed this session relative to trade and intercourse with the Indian tribes, the Indian boundary was settled”—and their arguments won the day. In other words, not only did the Founders anticipate the power that Thomas says is implausible, but they used it, enacting a statute that placed around 80% of Tennessee’s territory outside its jurisdiction and criminalizing entry.
Hillhouse and others were nonetheless right to be worried, because claims based on territorial integrity became a potent argument in debates forty years later, over Removal. Then, Tennessee—along with Georgia, Alabama, and Mississippi—disregarded earlier compromises as well as federal law. It is “well established,” Georgia’s courts reasoned, “that where a sovereign state is seized in fee of territory, it has exclusive jurisdiction over that territory.” For his part, President Jackson, pressing for Removal, disclaimed any ability to limit these assertions of sovereignty: “A State can not be dismembered by Congress or restricted in the exercise of her constitutional power.” Thomas’s emphasis on state territorial integrity—like Removal-era claims, unmoored from any plausible interpretation of constitutional text—revives these arguments for the modern era.
Removal also speaks to Justice Thomas’s final concern—his fear that IRA permits an “absurd result” by allowing Congress to entirely displace state authority. Of course, as the Federalists often pointed out during Ratification, all governmental power may be abused, so slippery slope arguments about hypothetical misuses prove little. But this seems an instance where the political “safeguards” of federalism have proven particularly salient; the states, after all, won the Removal struggle despite losing the legal argument by controlling federal power. I encourage Justice Thomas to examine U.S. history to consider which sovereigns—the states or Native nations—have been at greater risk at having their “territorial integrity” compromised by federal overreach.
The Holding: “The States and their respective peoples gave Congress plenary authority OVER THEMSELVES — the States and their peoples– to regulate commerce with the Indian tribes.” Or, “The Commerce Clause gives Congress plenary authority OVER THE STATES to regulate commerce with “the Indian tribes’.” The Commerce Clause does not give Congress authority over the tribes themselves. ‘Power’ is not the same as ‘Authority’. The Holding embodies “government by the governed”. Plenty Power does not.
On the flipside, do Native Nations territorialize? Do they they issue charters of incorporation to cities, municipalities and towns? Do they issue patents to title in property and require the use and registration or recording of deeds? Do they issue patents to pharmaceutical companies operating in their midst? Do they govern property, or do they own it? Will Oneida subdivide these re-acquired parcels and issue patents to title, zone for commerce, and tax the property, commerce, and income over these new properties in its territory? Or do tribes not do these things because that’s the way Afghanistan, Bolivia, Canada, Dominica, Ecuador, Fiji, … Zimbabwe all do it, and heaven forbid tribes be like them?