Ablavsky on the Indian Commerce Clause

Gregory Ablavsky (Penn - Ph.D. candidate) has posted Beyond the Indian Commerce Clause (Yale Law Journal) on SSRN.  Here's the abstract:

Since the 1970s, the Supreme Court has described the Indian Commerce Clause as the primary constitutional basis for the exercise of federal power over Indian affairs. Modern opinions have interpreted the Clause’s terse authorization for Congress to “regulate Commerce...with the Indian Tribes” to grant the federal government exclusive power against the states to regulate relations with Indians, and plenary power to govern tribes, including their internal affairs. Scholars have shared the Court’s embrace of the Clause but disagreed with its conclusions, using the Clause’s history to question the scope of federal authority both against states and over tribes. In two recent concurrences, Justice Clarence Thomas echoed these claims by arguing that the Clause’s original understanding does not support federal exclusive or plenary power over Indian affairs, with radical implications for current doctrine.

This Article uses previously unexamined historical sources to question the fundamental basis for this debate and highlight the inadequacy of the Indian Commerce Clause as the principal constitutional foundation for the federal Indian affairs power. Indeterminate when written, the Clause was a minor component of constitutional thought until the nineteenth century, when proponents of Indian removal concocted a narrow textualist focus on the Clause to argue for narrow federal authority over Indian affairs.

Moving beyond the Indian Commerce Clause, this Article posits new constitutional sources for federal authority by drawing on the constitutional thought of the Constitution’s drafters and early interpreters, particularly the Washington Administration. To claim federal power over Indian affairs against the states, the Administration embraced a holistic reading of the Constitution akin to present-day field preemption. With respect to authority over Indians, the Administration, through constitutional interpretations of the law of nations, asserted ultimate U.S. sovereignty, displacing Indian tribes as fully independent sovereigns. Beyond these limitations, however, the Administration acknowledged Native autonomy. Yet, despite their supposedly modest scope, the legal principles advanced in this period formed the basis for the later elaboration of plenary power over Indian tribes.

The history revealed in this Article suggests a partial revisiting of current doctrine. On the one hand, it provides a more solid foundation for principles that Justice Thomas and others have derided as “schizophrenic” or incoherent. On the other hand, it suggests more limited federal authority over Indians and greater respect for tribal sovereignty. Ultimately, the Article demonstrates the value of more historically grounded reconstructions of original understandings of the Constitution.