Fletcher: “Law, Politics, and the Constitution”

Here, on SSRN.

The abstract:

The question whether Congress may create legal classifications based on Indian status under the Fifth Amendment’s Due Process Clause is now reaching a critical point. Critics claim the Constitution allows no room to create race or ancestry based legal classifications. The critics are wrong. 

When it comes to Indian affairs, the Constitution is not colorblind. Textually, I argue, the Indian Commerce Clause and Indians Not Taxed Clause serve as express authorization for Congress to create legal classifications based on Indian race and ancestry, so long as those classifications are not arbitrary, as the Supreme Court stated a century ago in United States v. Sandoval and more recently in Morton v. Mancari. 

Should the Supreme Court reconsider those holdings, I suggest there are significant structural reasons why the judiciary should refrain from applying strict scrutiny review of Congressional legal classifications. The reasons are rooted in the political question doctrine and the institutional incapacity of the judiciary. Who is an Indian is a deeply fraught question to which judges have no special institutional capacity to assess. 

Federal Judge Rules ICWA Unconstitutional in Brackeen v. Zinke

Here is the opinion in Brackeen v. Zinke (N.D. Tex.):

166_DCT Order.pdf

Case page with briefs here.

A federal court has held that ICWA violates the equal protection component of the Fifth Amendment’s Due Process Clause, rejecting the Morton v. Mancari argument and applying strict scrutiny. The court further held that ICWA violated the Tenth Amendment’s prohibition on commandeering state legislative functions. The court more or less summarily rejected the argument that the Indian Commerce Clause authorized Congress to enact ICWA. Finally, the court struck down the ICWA regulations.

Still, there will certainly be an appeal. The case is limited only to the parties involved.

Gregory Ablavsky on the Phrase “With the Indian Tribes” in the Commerce Clause

Gregory Abalvsky has posted “‘With the Indian Tribes’: Race, Citizenship, and Original Constitutional Meanings,” forthcoming in the Stanford Law Review.

Here is the abstract:

Under black-letter law declared in Morton v. Mancari, federal classifications of individuals as “Indian” based on membership in a federally recognized tribe rely on a political, not a racial, distinction, and so are generally subject only to rational-basis review. But the Supreme Court recently questioned this long-standing dichotomy, resulting in renewed challenges arguing that, because tribal membership usually requires Native ancestry, such classifications are race-based.

The term “Indian” appears twice in the original U.S. Constitution. A large and important scholarly literature has developed arguing that this specific constitutional inclusion of “Indian tribes” mitigates equal protection concerns. Missing from these discussions, however, is much consideration of these terms’ meaning at the time of the Constitution’s adoption. Most scholars have concluded that there is a lack of evidence on this point—a “gap” in the historical record.

This Essay uses legal, intellectual, and cultural history to close that “gap” and reconstruct the historical meanings of “tribe” and “Indian” in the late eighteenth century. Rather than a single “original meaning,” it finds duality: Anglo-Americans of the time also alternated between referring to Native communities as “nations,” which connoted equality, and “tribes,” which conveyed Natives’ purported uncivilized status. They also defined “Indians” both in racial terms, as non-white, and in jurisdictional terms, as non-citizens.

These contrasting meanings, I argue, have potentially important doctrinal implications for current debates in Indian law, depending on the interpretive approach applied. Although the term “tribe” had at times derogatory connotations, its use in the Constitution bolsters arguments emphasizing the significance of Native descent and arguably weakens current attacks on Native sovereignty based on invidious legal distinctions among Native communities. Similarly, there is convincing evidence to read “Indian” in the Constitution in political terms, justifying Morton’s dichotomy. But interpreting “Indian” as a “racial” category also provides little solace to Indian law’s critics, since it fundamentally undermines their insistence on a colorblind Constitution.

Gregory Ablavsky Guest Post: What Justice Thomas Gets Wrong About Constitutional History: Part 2—Ratification, Natelson, and Territorial Integrity

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.

Greg Ablavsky Guest Post: What Justice Thomas Gets Wrong About Constitutional History: Part I—the Indian Commerce Clause

SCOTUS denied cert in two cases challenging the constitutionality of Section 5 of the Indian Reorganization Act, the statute that authorizes the Secretary of the Interior to take land into trust for Indian tribes. The petitions are here and here.

Justice Thomas dissented from the denial of certiorari [begins on page 13 of the link]. We asked Greg Ablavsky to comment on that dissent [Part II will be later today]:

What Justice Thomas Gets Wrong About Constitutional History: Part I—the Indian Commerce Clause

Just in time for the end of Native American Heritage Month, Justice Thomas has written a dissent from the Court’s denial of certoriari in Upstate Citizens for Equality v. United States, which challenged Congress’s constitutional power to take land into trust under the Indian Reorganization Act. The dissent picks up a familiar refrain in Thomas’s Indian law jurisprudence, running from Lara through Adoptive Couple through Bryant: the argument that the original understanding of the Constitution does not support Congress’s plenary power over Indian affairs, including, in this instance, the authority to enact the IRA.

I find Justice Thomas’s arguments on this theme as unpersuasive now as I did two years ago, when I published a law review article, Beyond the Indian Commerce Clause, that evaluated the Justice’s historical claims and found them lacking. If you want all the details and evidence, you should see the full article, but, in this two-part post, I’ll try to do two things. First, I want to briefly assess Thomas’s arguments about the text of the Indian Commerce Clause. Then, in the second post, I’ll take up the question of ratification debates, and also a new twist that Thomas added in this dissent that warrants its own investigation.

OK, onto Justice Thomas’s take on the Indian Commerce Clause:
1. “[T]he Clause extends only to ‘regulat[ing] trade with Indian tribes.” There is little evidence to support this rewriting of the Indian Commerce Clause. Though the literal phrase “commerce with the Indian tribes” was comparatively rare in eighteenth-century texts, among its handful of appearances were several times when it meant something other than trade as Thomas narrowly construes it. But there was a term that showed up far more often to describe U.S. relations with Native nations—the capacious term “intercourse,” defined as a meaning of commerce in no less than Samuel Johnson’s Dictionary quoted by Justice Thomas’s in his Adoptive Couple concurrence. I offer a more formal tally in my article, but my highly unscientific count within the database of Founding-era Indian affairs documents I’ve compiled identified 142 such uses of the term “intercourse” between 1783 and 1800. (“Commerce,” by contrast, only gets 51 mentions—many of these referring to the Clause itself).
2. “[A]ssuming that land transactions are ‘Commerce’ within the scope of the Clause.” This doesn’t require much of an assumption, since Attorney General Edmund Randolph specifically said they were in 1791: he described such dealing in Indian lands as “this commerce” in the context of the Clause. Clearly, the First Congress also thought it had the constitutional power to regulate Indian lands when, soon into its first sitting, it enacted the Trade and Intercourse Act, which specifically barred the sale of lands by Indians “to any person or persons, or to any state.”
3. “[B]ecause no exchange takes place, these trust arrangements do not resemble ‘trade with Indians.’” This proposes an odd interpretation in which the explicit transfer of formal title from one sovereign owner to another is a transaction in which “neither money nor property changes hands,” a view that would not fare well on my property exam. But you don’t have to take my word for it: we know, again through the repeated revisions of the Trade and Intercourse Act over the course of the 1790s, that Congress thought it had power to regulate any “purchase, grant, lease, or other conveyance of lands, or of any title or claim thereto, from any Indian, or nation or tribe of Indians, within the bounds of the United States”—language that clearly and unambiguously encompasses land-to-trust transfers under the IRA.
4. “[U]nder the Indian Commerce Clause.” Even if one accepts Thomas’s questionable Commerce Clause interpretations, there is still the possibility that Congress has the authority under other constitutional provisions to enact the IRA. For instance, even Thomas’s favorite citation, Robert Natelson’s article on the Indian Commerce Clause (about which more in the next post) concedes that Congress had the authority to enact Trade and Intercourse Act under the Treaty Power to enforce its treaties. If that’s true, then the federal government’s treaties with the Haudenosaunee, including the Oneidas, that acknowledged and protected their lands would seem an additional constitutional hook.

I could continue, but you may not share my passion for eighteenth-century arcana; if you do, there’s plenty more in the full article. But the brief upshot is that there’s little new, other than Thomas’s odd interpretation of land transactions, in this dissent. Rather, Thomas continues to retread the same arguments, ones that rely less on actual historical evidence than Thomas’s repeated and firm convictions about what the Founders must have thought.

In the succeeding post, I’ll take up a bit of what is new and distinctive in Thomas’s dissent.

Yale Law Journal Article: “Beyond the Indian Commerce Clause”`

Gregory Ablavsky has published “Beyond the Indian Commerce Clause” (PDF) in the Yale Law Journal.

Here is the abstract:

The Supreme Court has described the Indian Commerce Clause as the primary constitutional basis for federal exclusive and plenary power over Indian affairs. Recently, Justice Clarence Thomas, citing current scholarship, has argued that the Clause’s original understanding does not support this authority, with radical implications for current doctrine.

This Article uses unexamined historical sources to question this debate’s fundamental premise. It argues that the Indian Commerce Clause, open-ended when written, was a minor component of eighteenth-century constitutional thought. This Article instead posits alternate sources for federal authority over Indian affairs, drawing particularly on the Washington Administration. Asserting federal power against the states, the Administration embraced a holistic constitutional reading akin to present-day field preemption. With respect to authority over Indians, the Administration, through law-of-nations interpretations, asserted ultimate U.S. sovereignty over tribes, while acknowledging Native autonomy beyond these limitations. Yet these supposedly narrow legal principles ultimately formed the basis for the later elaboration of plenary power over tribes.

On the one hand, this history provides a more solid foundation for doctrinal principles derided as incoherent. On the other hand, it suggests more cabined federal authority over Indians. Ultimately, the Article demonstrates the value of more historically grounded reconstructions of constitutional understandings.

New Paper by Alex Skibine: “Constitutionalism, Federal Common Law, and the Inherent Powers of Indian Tribes”

Alexander Tallchief Skibine has posted his paper, “Constitutionalism, Federal Common Law, and the Inherent Powers of Indian Tribes,” forthcoming in the American Indian Law Review, on SSRN.

Here is the abstract:

In this Article, I argue that because Indian tribes have been incorporated into our constitutional system under a third sphere of sovereignty, the federal common law analysis under which the Court determines the extent of sovereign authority still possessed by Indian tribes is faulty. Instead of using federal common law, the Court should adopt a constitutional or at least quasi constitutional mode of analysis in determining such issues which in this case should be a dormant Indian Commerce Clause analysis. I also argue that the incorporation of tribes into our constitutional order not only has diminished the amount of power Congress has over such tribes but also may have limited the ability of tribes to escape limits the Constitution imposed on any exercise of sovereign authority within the geographical limits of the United States.

Highly recommended.

Justice Harlan’s Multicultural Theory of the Commerce Clause?

Law scholars have recently published the text of Justice John Marshall Harlan’s lectures on constitutional law.

An excerpt, of course related to Indians:

Our relations with the Indians in this country are of a peculiar character. Here is the power given to Congress to regulate commerce with the Indian tribes. The Indian tribes are a peculiar people, and our relations with them are peculiar. We sometimes have made treaties with the Indians, but our making treaties with them does not stand exactly upon the footing of our treaties with foreign nations. We have been in the habit, since the foundation of the government, of making treaties with the Indians, and then when we wanted another treaty, compelled them to make another. If we want a treaty modified, why the chiefs are brought here, and broadcloth clothes put on them, and they are shown all the sights around Washington, and we get out of them such a treaty as we want. They are the wards of the nation, not citizens of the United States. They are dependent upon us. They are mere wards, but the men who framed the Constitution knew what infinite trouble there would be if the subject of our relations with the Indians were not put in Congress, but left with the states.

Therefore, the Congress of the United States may say exactly what may go to the Indians, and what may not. Congress may say that no spirituous liquors may be carried into the Indian nations. Congress may prescribe the rule by which you are to be governed in your trading with them. Congress may say, you shall not trade with this tribe at all, or if you do trade with it, it shall be under certain circumstances, and it was necessary to put it there because no state had exclusive interests or control over the Indians. They were scattered throughout the country, and it would never have done at all, as bad as has been the conduct of the United States towards that dying race, to have left it to the states. The states would have dealt with them in a way that might have shocked humanity, as some of them did, and although they have been fairly well treated in their general control by the United States, it is a race that is disappearing, and probably within the lifetime of some that are now hearing me there will be very few in this country. In a hundred years, you will probably not find one anywhere, so that clause of the Constitution about regulating commerce with the Indian tribes will amount to nothing.

A very robust defense of Congressional plenary power over Indian affairs, along the lines the Court was going in United States v. Kagama. But the next paragraph is interesting:

That is not the only race that is disappearing. I may digress this far, and I only do so for the purpose of indicating the immense reach of this commerce power after awhile. To my mind, to my apprehension, it is as certain as fate that in the course of time there will be nobody on this North American continent but Anglo-Saxons. All other races are steadily going to the wall. They are diminishing every year, and when this country comes to have, as it will before a great many years, two or three hundred million of people, when states that are now sparsely populated become thickly populated, we will then appreciate, or the country will then appreciate more than it does now, the immense importance of the common government of the whole country having power to protect trade between the states and with foreign nations, beyond the power of any state for its selfish purposes to harass it.

Pages 132-33.

Hmmm. So if the non-whites will all die off, then the 300 million people of the United States (virtually all white) will really need the commerce clause and the national power that comes with it. Ok, so what does that say about a nation of 300 million where whites are soon going to be in the minority? Would Justice Harlan say national power is more or less necessary to govern in that circumstance? It seems to me that the national power to regulate Indian affairs remains viable and important so long as there are Indian nations. It turned out that Justice Harlan was wrong, as so many were in the 19th and early 20th centuries, that the vanishing race would vanish.

Interestingly, Justice Harlan appears to regret his dissent in Elk v. Wilkins (or maybe just saying that as a dissenter, he was inherently wrong by virtue of the vote):

Judge, does that include Indians?
No. The case of Elk against Wilkins—I wish I knew the volume—they were considered an exception.488 You will find a very learned opinion there by the majority of the Court. It was the case of an Indian who had left his tribe and came into the state of Nebraska, intending to become a part of that people, and the majority of the Court thought that he could not become a citizen of the United States. That case was apart from this Amendment. They were wards of the nation, and they thought he could not become a citizen of the United States. I had the misfortune to differ from the Court upon that question, and of course I was wrong.

Pages 266-67.

Ralph Rossum on Justice Thomas’ Views of the Three Commerce Clauses

Ralph A. Rossum (author of the definitive legal history of California v. Cabazon Band) has posted his paper, “Clarence Thomas’s Originalist Understanding of the Interstate, Negative, and Indian Commerce Clauses,” on SSRN. It is available in the University of Detroit Mercy Law Review. (Hat tip)

Here is the abstract:

During his twenty years on the Supreme Court, Justice Clarence Thomas has pursued an original understanding approach to constitutional interpretation. He has been unswayed by the claims of precedent — by the gradual build-up of interpretations that, over time, completely distort the original understanding of the constitutional provision in question and lead to muddled decisions and contradictory conclusions. Like too many layers of paint on a delicately crafted piece of furniture, precedent based on precedent — focusing on what the Court said the Constitution means in past cases as opposed to focusing on what the Constitution actually means — hides the constitutional nuance and detail he wants to restore. Thomas is unquestionably the Justice who is most willing to reject this build-up, this excrescence, and to call on his colleagues to join him in scraping away past precedent and getting back to bare wood — to the original understanding of the Constitution.

In what follows, Section I describes Thomas’s originalism and contrasts it with Antonin Scalia’s different kind of originalism. Section II explores Thomas’s originalist understanding of the limits of Congress’s power under the Interstate Commerce Clause. Section III focuses on Thomas’s rejection of the Court’s claim of power to invalidate state laws burdening interstate commerce under the negative Commerce Clause on originalist grounds. Section IV addresses Thomas’s rejection of the view that the Indian Commerce Clause gives the Congress plenary power in Indian country and his call in United States v. Lara for the Court to “examine more critically our tribal sovereignty case law.” Section V concludes.

I think Prof. Rossum is spot on when it comes to the Indian Commerce Clause, especially in terms of his excellent description of how the First Congress passed a whole series of statutes involving Indian affairs culminating in the first Trade and Intercourse Act.

Richard Pomp on the Indian Commerce Clause and State Taxation

Richard Pomp’s incredible opus, “The Unfilled Promise of the Indian Commerce Clause and State Taxation,” has been published in the Tax Lawyer.

Here is the pdf: Richard Pomp Indian Commerce Clause Article