Rob Natelson (Montana) has posted “The Original Understanding of the Indian Commerce Clause” on SSRN. Here is the abstract:
The United States Congress claims plenary and exclusive power over federal affairs with the Indian tribes, based primarily on the Constitution’s Indian Commerce Clause. This article is the first comprehensive analysis of the original meaning of, and understanding behind, that constitutional provision. The author concludes that, as originally understood, congressional power over the tribes was to be neither plenary nor exclusive.
This paper has been published in the Denver University Law Review.
I’m about halfway through this paper right now. As the abstract indicates, Rob’s conclusion goes against nearly 200 years of settled Indian law, plus flatly contradicts the work of people like Bob Clinton and many others (including, I guess, myself). More later….