Northwestern University Law Review

Adam Crepelle on the Indian Commerce Clause

Matthew L.M. Fletcher

Adam Crepelle has published “Applying the Indian Commerce Clause to Indian Commerce” in the Northwestern University Law Review.

Here is the abstract:

Indian country commerce generates tens of billions of dollars annually and is a constant source of litigation. These disputes typically revolve around jurisdictional conflicts: whether states, tribes, or both possess regulatory authority over the business operating in Indian country, particularly those involving non-Indians. Despite numerous court cases, no clear legal framework has emerged, creating pervasive uncertainty regarding fundamental issues, such as state taxation of tribal transactions and the proper forum for resolving Indian country contract disputes. Interestingly, these commercial cases overlook the Indian Commerce Clause—the constitutional provision designed to address such matters.

This Article argues the Indian Commerce Clause prohibits state regulation of Indian country commerce. The clause’s plain text and original understanding support this interpretation. While the Supreme Court departed from this understanding in the late 19th century, it has never adequately justified this shift. During the 1980s, the United States argued the Indian Commerce Clause bars state taxation of tribal commerce, and the Supreme Court rejected this argument with scant judicial reasoning. Consequently, courts continue to rely on ambiguous, fact-specific tests that undermine tribal sovereignty and economic development.

This Article proposes a revitalized application of the Indian Commerce Clause, advocating for a clear, constitutionally grounded framework. By categorically preempting state intrusion into Indian country commerce, this approach would provide the certainty necessary for tribal economic self-determination to flourish. This Article demonstrates how such a framework would resolve the current jurisdictional chaos, offering specific guidance for its implementation and ultimately promoting a more just and equitable relationship between tribes and states.

“Muskrat Textualism” Now Published in the Northwestern U. Law Review

Matthew L.M. Fletcher

Here.

The asbtract:

The Supreme Court decision McGirt v. Oklahoma, confirming the boundaries of the Creek Reservation in Oklahoma, was a truly rare case in which the Court turned back arguments by federal and state governments in favor of American Indian and tribal interests. For more than a century, Oklahomans had assumed that the reservation had been terminated and acted accordingly. But only Congress can terminate an Indian reservation, and it simply had never done so in the case of the Creek Reservation. Both the majority and dissenting opinions attempted to claim the mantle of textualism, but their respective analyses led to polar opposite outcomes.

Until McGirt, a “faint-hearted” form of textualism had dominated the Court’s federal Indian law jurisprudence. This methodology enables the Court to seek outcomes consistent with the Justices’ views on how Indian law “ought to be.” This Article labels this thinking Canary Textualism, named after the dominant metaphor used for decades to describe Indian law, the miner’s canary—a caged bird used to warn of toxic gases in a mine. Canary textualists treat Indians and tribes as powerless and passive subjects of federal law and policy dictated by Congress and the Supreme Court. Canary Textualism relies on confusion in the doctrinal landscape and fear of tribal powers to justify departures from settled law. The 1978 decision Oliphant v. Suquamish Indian Tribe, in which the Supreme Court stripped Indian tribes of critical law enforcement powers by judicial fiat, is the prototypical Canary Textualism case. Oliphant’s hallmark is the Court’s legal acknowledgment that Indian tribes are dependent on the federal government in light of centuries of precedents that presumed the racial inferiority of Indian people. This allowed the Court to quietly assume that tribal governments are inferior as well.

Scholars long have decried the Court’s Canary Textualism but have rarely offered a better theory. This Article attempts to fill that gap and to provide more certainty in federal Indian law textualist doctrine that will help preclude Canary textualist activism. A far better metaphor than the miner’s canary is that of the muskrat—the hero of the Anishinaabe origin story of the great flood, a lowly, humble animal that nevertheless took courageous and thoughtful action to save creation. Indians and tribes are no longer caged birds. Tribal governments are active participants in reservation governance. They are innovative and forward-thinking. Luckily, the McGirt decision exemplifies a new form of textualism, Muskrat Textualism, that acknowledges and respects tribal actions and advancement. Muskrat textualists accept tribal governments as full partners in the American polity. Muskrat textualists accept the relevant interpretative rules that govern federal Indian law where texts are ambiguous and where texts are absent or not controlling. As a result, Muskrat Textualism is also a superior form of textualism more generally, illustrating the proper role of the judiciary in constitutional law and statutory interpretation and ensuring more predictable and just Indian law adjudication.

This Article argues that McGirt—and its embrace of Muskrat Textualism—is a sea change in federal Indian law, and rightfully so. If that is the case, then cases like Oliphant should be reconsidered and tossed into the dustbin of history.