Indian Commerce Clause

Justice Harlan’s Multicultural Theory of the Commerce Clause?

Matthew L.M. Fletcher2 Comments

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

Matthew L.M. Fletcher1 Comment

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

Matthew L.M. Fletcher

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

Excellent New Scholarship: Richard Pomp’s “The Unfulfilled Promise of the Indian Commerce Clause and State Taxation”

Matthew L.M. Fletcher

Richard Pomp has published his mammoth article in the ABA’s “The Tax Lawyer.” A short description of this paper is here. If you are a member of the ABA taxation section, you can get the whole thing here.

An excerpt:

This Article is an expanded version of luncheon remarks delivered at a symposium on the Commerce Clause at Georgetown Law School. A few things became clear after my address on the Indian Commerce Clause and state taxation. Many people at the Conference had only a faint memory that such a clause even existed. To most state tax practitioners and academics, “the Commerce Clause” meant the Interstate Commerce Clause and, perhaps secondarily, the Foreign Commerce Clause, but certainly not the Indian Commerce Clause.

True, a small group of “Indian law” insiders has long existed. These specialists have traditionally serviced tribes endowed with natural resources. More recently, revenue generated across the country from Indian gaming, hotels, restaurants, manufacturing, industrial parks, gas stations, cement factories, timber operations, smokeshops, or sports franchises has created legal work for firms that traditionally did not practice Indian law.

This new group of practitioners has quickly learned what the more experienced firms have long known: the issues raised by the taxation of Indians, the tribes, and those doing business with them are sui generis—and complicated, even by tax standards. To be sure, state tax lawyers are used to multijurisdictional issues. Taxes are levied by sewer, water, school, and transit districts; cities; counties; states; and the national government—tribal taxes would seem to add merely one more level.

Although comforting, this view would be misleading. Indian taxation drags lawyers into areas outside their normal comfort zone. Practitioners need to master treaties between the federal government and the tribes; state enabling acts; numerous Indian-specific statutes and executive orders that often reflect polar swings in Congressional policy; special Indian canons of construction; the unique patchwork pattern of land ownership on reservations; and concepts like “Indian sovereignty” that serve as a ubiquitous, amorphous, and malleable backdrop in many cases. Bread-and-butter issues for state tax lawyers—like apportionment and discrimination—take on new meanings. The Indian tax cases tolerate results that would violate the Interstate Commerce Clause. The formative Supreme Court cases on Indian taxation often reflect the composition of the bench and sympathies (or lack thereof) of individual justices for the Indians. Add to this the difficulty of obtaining up-to-date information on tribal tax codes, and the result is a labyrinth of unpredictability.

While the topic of my conference presentation and hence the subject of this Article is the Indian Commerce Clause and state taxation—and not a treatise on all aspects of state taxation (and nothing on federal taxation)—I would disserve the reader by not straying a bit afield. To cut to the chase, the Court has emasculated and denigrated the Indian Commerce Clause, preventing implementation of the Founders’ vision. Readers would have every right to feel that slogging their way through this lengthy Article was not worth the effort if that were the only message at the end of the journey. And so, with the encouragement of the conference organizers and journal editors, I have interpreted my charge broadly to sketch the contours of other Indian tax doctrines so that the reader will have a feel for the signposts and boundaries. I have focused on a selection of prominent U.S. Supreme Court cases, mostly involving state taxation; many more could have been discussed. My goal is not to be exhaustive (or exhausting), but rather suggestive and illustrative.

Continue reading →

Natelson/Kopel Respond to Balkin on “Commerce”

Matthew L.M. Fletcher

Here.

Of note, here is the part of the response directed toward the Indian Commerce Clause:

The Indian Intercourse Act. Plentiful Founding-Era evidence, including enactments of the Confederation Congress and state legislatures, show that “Commerce with the Indian tribes” referred to mercantile trade with the Indians and certain tightly related activities, such as the licensing of and control over the behavior of merchants.[19]

Balkin enlists the Indian Intercourse Act of 1790 as exemplifying a broad meaning of the Indian Commerce Clause. Because the 1790 act included some criminal provisions (as trade regulations often did), Balkin argues that the meaning of “commerce” extended far beyond trade.

The Indian Intercourse Act was adopted after the Constitution had been ratified, and, like the Sedition Act a few years later, is not necessarily a correct guide to public understanding of the Constitution at the time of ratification. However, if the act had been adopted pursuant to the commerce power, and  before the holdouts of North Carolina and Rhode Island had ratified the Constitution, the act would help the Balkin thesis very little, for the law’s criminal provisions were typical of contemporaneous trade regulation-designed to protect trade by punishing merchants who entered Indian territory without authorization.[20]

In fact, however, the law was an exertion of the treaty power, not the commerce power. It was adopted on the recommendation of President Washington “for extending a trade to [the Indians] agreeably to the treaties of Hopewell.”[21] Several years ago, one of us discussed this background, including an explanation for why the law extended beyond the signatory tribes.[22]

 

Jack Balkin’s “Commerce” Published in Michigan Law Review

Matthew L.M. Fletcher

Here.

Our prior discussion of this article, along with several very interesting comments, is here.

Here is the abstract:

This Article applies the method of text and principle to an important problem in constitutional interpretation: the constitutional legitimacy of the modern regulatory state and its expansive definition of federal commerce power. Some originalists argue that the modern state cannot be justified, while others accept existing precedents as a “pragmatic exception” to originalism. Nonoriginalists, in turn, point to these difficulties as a refutation of originalist premises.

Continue reading →

Jack Balkin on the Indian Commerce Clause

Matthew L.M. Fletcher10 Comments

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. Continue reading →

Federal Court Upholds SORNA Under Indian Commerce Clause

Matthew L.M. Fletcher2 Comments

Here is the opinion in U.S. v. Coho (D. N.M.), in which the court held that SORNA is constitutional as applied to Indians under both the interstate and Indian commerce clauses acting independently — Coho DCT Order

An excerpt:

Indian Commerce Clause. It is well-settled that Congress has exclusive and plenary authority to regulate matters involving Indians and Indian lands pursuant to the Indian Commerce Clause. See, e.g., Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192, 109 S.Ct. 1698, 104 L.Ed.2d 209 (1989) (“[T]he central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs.”); United States v. Lara, 541 U.S. 193, 200, 124 S.Ct. 1628, 158 L.Ed.2d 420 (2004) (“[T]he Constitution grants Congress broad general powers to legislate in respect to Indian tribes, powers that we have consistently described as ‘plenary and exclusive.’ ”). This plenary authority permits Congress to enact even criminal laws regulating the conduct of Indians in Indian territory. United States v. Kagama, 18 U.S. 375, 383-84 (1886). Congress has exercised its exclusive jurisdiction in this area by enacting the Indian Major Crimes Act. That Act stipulates that, with respect to offenses committed in Indian Country, FN4 “any Indian who commits against the person or property of another Indian … a felony under Chapter 109A FN5 … shall be subject to the same laws and penalties as to all other persons committing any of the above offenses, within the exclusive jurisdiction of the United States.” 18 U.S.C. § 1153(a). Coho, an Indian, is charged with aggravated sexual assault against Jane Doe, also an Indian, which occurred on the Navajo reservation in Indian Country. The charge against Coho falls squarely within the terms of 18 U.S.C. § 1153(a), and therefore the United States has exclusive jurisdiction over the underlying crime.

The same power that Congress exercised to enact the Indian Major Crimes Act also allows Congress to enact the civil commitment statute of § 4248 at least as applied to Indians who commit crimes in Indian Country. Congress has a protectorate or trust relationship with Indian tribes and possesses broad power to legislate in the tribes’ best interest. The civil commitment statute clearly lies within Congress’ plenary authority to regulate matters involving Indians and Indian land. While the Fourth Circuit recently struck down the civil commitment provisions of § 4248 as unconstitutional when applied to non-Indian defendants, United States v. Comstock, 551 F.3d 274 (4th Cir.2009), it noted that the law may remain constitutional with respect to “persons within exclusive federal jurisdiction (e.g. residents of the District of Columbia and members of the military).” Id. at 278 n. 4. By virtue of the Indian Commerce Clause, Indians belong in the category of persons over which Congress exercises exclusive jurisdiction. For these reasons, I hold that 18 U.S.C. § 4248 is constitutional under the Indian Commerce Clause with respect to this defendant.

Ann Tweedy on the Constitution, the Marshall Trilogy, and U.S. v. Lara

Matthew L.M. Fletcher

Ann Tweedy has posted “Connecting the Dots Between the Constitution, the Marshall Trilogy, and United States v. Lara: Notes Toward a Blueprint for the Next Legislative Restoration of Tribal Sovereignty” on SSRN. This paper is forthcoming in one my favorite journals, the University of Michigan Journal of Law Reform. Here is the abstract:

This law review article examines: (1) the underpinnings of tribal sovereignty within the American system; (2) the need for restoration based on the Court’s drastic incursions on tribal sovereignty over the past four decades and the grave circumstances, particularly tribal governments’ inability to protect tribal interests on the reservation and unchecked violence in Indian Country, that result from the divestment of tribal sovereignty; (3) the concept of restoration as illuminated by United States v. Lara, and finally (4) some possible approaches to partial restoration.

The article first evaluates the constitutional provisions relating to Indians and the earliest federal Indian law decisions written by Chief Justice Marshall on the premise that these two sources shed light on the upper limits of a potential legislative restoration of tribal sovereignty. Next, the article examines the judicial trend of divestment of tribal sovereignty, focusing particularly on the latest decisions that evidence this trend. The article further examines the negative effects of this divestment in Indian Country, from impeding tribes’ ability to provide governmental services and to protect their unique institutions, to problems of widespread on-reservation violence, particularly against Indian women. The article concludes that the judicial trend of divesting tribal sovereignty combined with these dire effects clearly demonstrate a need for restoration. Finally, the article examines the Lara holding and its implications for the types of restoration that will be upheld by Court, concluding with an examination of options for potential legislative restorations.

This looks like a very interesting paper, and may be the first paper that digests the recent scholarship on the scope of the Indian Commerce Clause from Pommersheim, Natelson, and others.

“Preconstitutional Federal Power” Article

Matthew L.M. Fletcher

My paper on “Preconstitutional Federal Power” has been published by the Tulane Law Review. You can download it here.

Here’s the abstract:

 In two fields of constitutional law, the Supreme Court has acknowledged that the federal government may possess preconstitutional power, or national authority derived not from the Constitution but from the very fact of sovereignty. This Article analyzes the two areas of law – the Foreign Affairs Power and the Indian Affairs Power – and assesses their viability in future cases. The case recognizing a preconstitutional Foreign Affairs Power resting with the Executive branch, United States v. Curtiss-Wright Export Corp., suffers from poor historical reasoning and has little precedential weight in modern foreign affairs cases, but has never been overruled. The Indian Affairs Power case, United States v. Lara, decided in 2004, included no historical reasoning and only offered the theory as dicta. However, the Court raised the theory, perhaps, as a means of placating the textualists on the Court who do not view the Indian Commerce Clause as a viable source of Congressional power in Indian Affairs. This Article offers a best defense for the proposition that Congressional plenary power in Indian Affairs might derive from a preconstitutional source, a defense that includes the original understanding of the Indian Affairs Power and that, unlike the Foreign Affairs Power, did survive the ratification of the Constitution.