Last week, the Supreme Court delivered its opinion in the Indian Commerce clause case of Haaland v Brackeen. In my Supreme Court Roundup last fall, I predicted this would be the most interesting case of the term, and that will almost certainly be how this case shakes out. What I didn’t predict in that video was that it would be the most important constitutional law landmark decision of the term. Which is a position I grow more certain of everyday.
A few days ago, I covered the QP, primary holding and majority opinion of the Court. In this article, we will be discussing the dissenting opinions issued by Associate Justices Samuel Alito and Clarence Thomas.
Associate Justice Amy Coney Barrett delivered the opinion of the court in this highly anticipated case that challenged the Indian Child Welfare Act of 1973, as facially unconstitutional. Petitioners challenged ICWA as unconstitutional on multiple grounds. They asserted that Congress lacks authority to enact ICWA and that several of ICWA's requirements violate the anti-commandeering principle of the Tenth Amendment. They argued that ICWA employs racial classifications that unlawfully hinder non-Indian families from fostering or adopting Indian children. And they challenged § 1915(c)— the provision that allows tribes to alter the prioritization order—on the ground that it violates the Nondelegation Doctrine and the Amendment XIV Equal Protection Clause.
The Corporate Press and Washington D.C. political class have hailed this case as a laudable protection of Tribal Sovereignty.
It wasn’t.
Any true protection of tribal sovereignty would necessarily result in all residual power reverting to the sovereign tribes. Tribal sovereignty is to tribes what federalism is to the states. Powers not reserved by the Constitution to Congress and the President revert to the tribes.
In fact, nothing could be further from the effects we saw play out. This was a power grab by the federal government that came at the expense of tribal sovereignty and constitutionally limited government.
Last October in my Supreme Court Roundup, I discussed the case of Haaland v Brackeen on the merits and last week I discussed the majority opinion of the Court which, in a 7-2 split decision ruled in favor of a legalistic specter they bafflingly refer to as a “Congressional plenary power over Indian affairs.”
If one side of a case making the argument that Indians have tribal sovereignty and that this tribal sovereignty was upheld by a Congress acting under their plenary power to govern all Indian affairs sounds disjointed and schizophrenic, that’s only because it is disjointed and schizophrenic.
Our Federal “[G]overnment is acknowledged by all to be one of enumerated powers,” having only those powers that the Constitution confers expressly or by necessary implication.
-McCulloch v. Maryland, 4 Wheat. 316, 405 (1819).
The federal government has no general police power to exercise jurisdiction over the health and welfare of the people of the several States. Therefore family and criminal law remain entirely the province the governments of the several States to legislate and act upon for themselves, right?
Not according to the Indian Child Welfare Act. The dissenting Justices in this case took two very different approaches to determine ICWA went beyond Congress’ constitutionally delegated powers. Associate Justice Samuel Alito kept it short and sweet with a discussion of the limits the Tenth Amendment places on the general government and the role of state and federal dual-sovereignty.
Justice Alito’s Dissent
The Court makes a valiant effort to bring coherence to what has been said in past cases about Congress's power in this area, but its attempt falls short. At the end of a lengthy discussion, the majority distills only this nugget: Congress's power over Indian affairs is “plenary” but not “absolute.” . . . But the formulation's pedigree cannot make up for its vacuity. The term “plenary” is defined in one dictionary after another as “absolute.” If we accept these definitions, what the Court says is that absolute ≠ absolute and plenary ≠ plenary, violating one of the most basic laws of logic. Surely we can do better than that.
We need not map the outer bounds of Congress's Indian affairs authority to hold that the challenged provisions of ICWA lie outside it. We need only acknowledge that even so-called plenary powers cannot override foundational constitutional constraints. By attempting to control state judicial proceedings in a field long-recognized to be the virtually exclusive province of the States, ICWA violates the fundamental structure of our constitutional order. . . .
Congress's power in the area of Indian affairs cannot exceed the limits imposed by the “system of dual sovereignty between the States and the Federal Government” established by the Constitution. Gregory v. Ashcroft (1991). “The powers delegated ... to the federal government are few and defined,” while “[t]hose which ... remain in the State governments are numerous and indefinite.” The Federalist No. 45 (J. Madison). The powers retained by the States constitute “‘a residuary and inviolable sovereignty,’” secure against federal intrusion. Printz v. United States (1997) (quoting The Federalist No. 39 (J. Madison)). This structural principle, reinforced in the Tenth Amendment, “confirms that the power of the Federal Government is subject to limits that may, in a given instance, reserve power to the States.” New York,.
Because I would hold that Congress lacked authority to enact the challenged ICWA provisions, I respectfully dissent.
On the other hand, Associate Justice Clarence Thomas used text, history & tradition to interpret the relevant constitutional clauses and doctrines.
Justice Thomas’ Dissent
These cases concern the Federal Government's attempt to regulate child-welfare proceedings in state courts. That should raise alarm bells. Our Federal “[G]overnment is acknowledged by all to be one of enumerated powers,” having only those powers that the Constitution confers expressly or by necessary implication. McCulloch v. Maryland (1819). All other powers (like family or criminal law) generally remain with the States. The Federal Government thus lacks a general police power to regulate state family law.
However, in the Indian Child Welfare Act (ICWA), Congress ignored the normal limits on the Federal Government's power and prescribed rules to regulate state child custody proceedings in one circumstance: when the child involved happens to be an Indian. ICWA often overrides state family law by dictating that state courts place Indian children with Indian caretakers even if doing so is not in the child's best interest.
In the normal course, we would say that the Federal Government has no authority to enact any of this. Yet the majority declines to hold that ICWA is unconstitutional, reasoning that the petitioners before us have not borne their burden of showing how Congress exceeded its powers. This gets things backwards. When Congress has so clearly intruded upon a longstanding domain of exclusive state powers, we must ask not whether a constitutional provision prohibits that intrusion, but whether a constitutional provision authorizes it.
Justice Thomas then takes on the three distinct sources of authority the majority chose to rest their claim on and demonstrates that none of them provide the jurisdictional hook that would be required to justify ICWA as a federally delegated power.
First, the Indian Commerce Clause is about commerce, not children. See Adoptive Couple . Baby Girl (2013) (THOMAS, J., concurring). Second, the Treaty Clause does no work because ICWA is not based on any treaty. Third, the foreign-affairs powers (what the majority terms “structural principles”) inherent in the Federal Government have no application to regulating the domestic child custody proceedings of U. S. citizens living within the jurisdiction of States.
Justice Thomas then turns his attention to the “plenary power” that the petitioners and several Justices assert as true (not to mention the numerous assertions this plenary powers exists among the various amici).
I would go no further. But, as the majority notes, the Court's precedents have repeatedly referred to a “plenary power” that Congress possesses over Indian affairs, as well as a general “trust” relationship with the Indians. I have searched in vain for any constitutional basis for such a plenary power, which appears to have been born of loose language and judicial ipse dixit. And, even taking the Court's precedents as given, there is no reason to extend this “plenary power” to the situation before us today: regulating state court child custody proceedings of U. S. citizens, who may never have even set foot on Indian lands, merely because the child involved happens to be an Indian. . . .
To explain the original understanding of the Constitution's enumerated powers with regard to Indians, I start with our Nation's Founding-era dealings with Indian tribes. Those early interactions underscore that the Constitution conferred specific, enumerated powers on the Federal Government which aimed at specific problems that the Nation faced under the Articles of Confederation. The new Federal Government's actions with respect to Indian tribes are easily explained by those enumerated powers.
Before the Revolution, most of the Thirteen Colonies adopted their own regulations governing Indian trade.
See: Adoptive Couple (THOMAS, J., concurring) and R. Natelson, The Original Understanding of the Indian Commerce Clause, 85 Denver U. L. Rev. 201 (2007)].
These regulations were necessary because colonial traders abused their Indian trading partners, often provoking violent Indian retaliation. Most colonial governments thus imposed licensing systems of some form both to protect Indians and to maintain trading relationships with them.
The Articles of Confederation aimed to meet that need in part by giving Congress “the sole and exclusive right and power of ... regulating the trade and managing all affairs with the Indians.” Art. IX, cl. 4. However, that broad power came with two limitations: First, the Indians could not be “members of any of the states.” And, second, “the legislative right of any state within its own limits [could not] be infringed or violated.” In part because of those limitations, the Articles’ solution proved to be less than ideal. As James Madison would later write, the two limits were “ obscure and contradictory”; the new Nation had “not yet settled” on which Indians were “members” of a State or which state “legislative right[s]” could not be “infringe[d].” The Federalist No. 42. More broadly, the Confederation Congress lacked any robust authority to enforce congressional laws or treaties (in this or any other domain). Under the Articles, Congress entered treaties with various tribes and sought to maintain a mostly peaceful relationship with the Indians—but its authority was undermined at every turn.
Yet the Confederation Congress was almost powerless to stop these abuses. . . . The result was that, by the time of the Constitutional Convention, “the young nation [stood on] the brink of Indian warfare on several fronts.” Ibid. Such a war, feared some Founders, could be destructive to the fledgling Republic.
The Constitution addressed those problems in several ways. First and most plainly, the Constitution made all federal treaties and laws “the supreme Law of the Land,” notwithstanding the laws of any State. Art. VI. It empowered Congress not only to “declare War,” but also to “raise and support Armies,” “provide and maintain a Navy,” and “provide for calling forth the Militia to execute the Laws of the Union.” Art. I, § 8. It enabled Congress to “define and punish ... Offences against the Law of Nations.” And it granted Congress the authority to “make all Laws which shall be necessary and proper” for carrying out any of those powers.
The Constitution also provided one power specific to Indian tribes: the power “[t]o regulate Commerce ... with the Indian Tribes.” § 8, cl. 3. That power, however, came very late in the drafting process and was narrower than initially proposed. See L. Toler, The Missing Indian Affairs Clause, 88 U. Chi. L. Rev. 413 (2021).
At two separate points, James Madison and John Rutledge proposed a power to “‘regulate affairs with the Indians,’ ” a provision that would have mirrored the Articles. Neither proposal received much debate, and both were rejected. Instead, the Convention opted to include Indian tribes in a provision that had initially been drafted to include only power to “‘regulate commerce with foreign nations, and among the several States.’” The Convention thus expanded the Commerce Clause to the form we know today, empowering Congress to “‘regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.’ ” Id., at 466.
After the Constitution's ratification, the new Federal Government exercised its enumerated powers with regard to Indian tribes. The Constitution's text and the foregoing history point to a set of discrete, enumerated powers applicable to Indian tribes—just as in any other context. Although our cases have at times suggested a broader power with respect to Indians, there is no evidence for such a free-floating authority anywhere in the text or original understanding of the Constitution. To the contrary, all of the Government's early acts with respect to Indians are easily explicable under our normal understanding of the Constitution's enumerated powers.
Moreover, the Founders deliberately chose to enumerate one power specific to Indian tribes: the power to regulate “Commerce” with tribes. Because the Constitution contains one Indian-specific power, there is simply no reason to think that there is some sort of free-floating, unlimited power over all things related to Indians. That is common sense: expressio unius est exclusio alterius.
Accordingly, here as elsewhere, the Federal Government can exercise only its constitutionally enumerated powers. Because each of those powers contains its own inherent limits, none of them can support an additional unbounded power over all Indian-related matters. Indeed, the history of the plenary power doctrine in Indian law shows that, from its inception, it has been a power in search of a constitutional basis—and the majority opinion shows that this is still the case.
As the majority notes, some of the candidates that this Court has suggested as the source of the “plenary power” are the Treaty Clause, the Commerce Clause, and “principles inherent in the Constitution's structure.” But each of those powers has clear, inherent limits, and not one suggests any sort of unlimited power over Indian affairs—much less a power to regulate U. S. citizens outside of Indian lands merely because those individuals happen to be Indians. I will discuss each in turn.
First, and most obviously, the Treaty Clause confers only the power to “make Treaties”; the Supremacy Clause then makes those treaties the supreme law of the land. Art. II, § 2, cl. 2; Art. VI. Even under our most expansive Treaty Clause precedents, this power is still limited to actual treaties. See Bond v. United States (2014); Missouri v. Holland (1920). It does not confer a free-floating power over matters that might involve a party to a treaty.
Second, the Commerce Clause confers only the authority “[t]o regulate Commerce ... with the Indian Tribes.” Art. I, § 8, cl. 3 (emphasis added). “At the time the original Constitution was ratified, ‘commerce’ consisted of selling, buying, and bartering, as well as transporting for these purposes.” United States v. Lopez (1995) (THOMAS, J., concurring). And even under our most expansive Commerce Clause precedents, the Clause permits Congress to regulate only “economic activity” like producing materials that will be sold or exchanged as a matter of commerce. See Lopez; Gonzales v. Raich (2005).
Third, the “structural principles” that the majority points to are only the foreign-affairs powers that the Constitution provides more generally. But that authority is a foreign, not domestic, affairs power. It comprehends external relations, like matters of war, peace, and diplomacy—not internal affairs like adoption proceedings. The Court made that point explicit in Curtiss-Wright: The “power over external affairs [is] in origin and essential character different from that over internal affairs.”
The Constitution confers enumerated powers on the Federal Government. Not one of them supports ICWA. Nor does precedent. To the contrary, this Court has never upheld a federal statute that regulates the noncommercial activities of a U. S. citizen residing on lands under the sole jurisdiction of States merely because he happens to be an Indian. But that is exactly what ICWA does: It regulates child custody proceedings, brought in state courts, for those who need never have set foot on Indian lands. It is not about tribal lands or tribal governments, commerce, treaties, or federal property. It therefore fails equally under the Court's precedents as it fails under the plain text and original meaning of the Constitution.
Selective Originalism
While this case is already being described as the most important case this term by many scholars, and while I entirely agree, I believe they completely miss the real significance of the case. People are talking about its importance in the way it protected tribal sovereignty, which I have already demonstrated simply isn’t true.
The other reason people give for its importance is its use of constitutional historical framing, but I would argue the Court’s turn to history is selective and non-integral to the outcome. It is non-integral because the controlling majority authored by Justice Barrett relies neither on Constitutional text or historical framing, but almost entirely on case precedent. Largely from United States v. Kagama, 118 U.S. 375 (1886) and United States v. Lara, 541 U.S. 193 (2004).
Where the historical framing is found is in the concurrence by Justice Gorsuch and the dissent by Justice Thomas.
What makes this all so important & interesting (at least to me) is that Justice Thomas and Justice Gorsuch both use PRECISELY the same scholarship as the base of their historical framing and legal construction. Yet they don’t simply reach differing conclusions, they reach diametrically opposed, contradictory and mutual exclusive conclusions.
But where this really takes on a uniquely intriguing twist is that Lorianne Updike Toler, the author of that scholarship they both relied on, The Missing Indian Affairs Clause [see: Updike Toler, Lorianne, The Missing Indian Affairs Clause (August 25, 2020). 88 University of Chicago Law Review, 413 (2020)] has since come out and declared both Justices have misinterpreted and misapplied her work.
This is why, in an upcoming article we will be discussing Toler’s research and subsequent law review article. It is such a fascinating chapter of American constitutional history, its well worth discussing, purely for its own sake.
But I will additionally be using this research to help shed light on how it is that the two most principled Originalists on the Court could reach such contradictory opinions about such a foundational aspect of constitutional law.
In the meantime, I am going to link to the Gorsuch and Thomas concurrence and dissent. As well as the article by Lorraine Toler and additionally Rob Natelson’s Original Understanding of the Indian Commerce Clause- Which Justice Thomas also heavily relied on, while Gorsuch didn’t even so much as mention Natelson’s research, for reasons we will discuss in my upcoming article.
Now, we are talking about roughly 180 pages of reading to do and I realize many people don’t have the time to read all that, or struggle with translating legalese into conversational English. And if that is the case, my summary and discussion of that will no doubt be brilliant, empirically true and objectively fair in its analysis.
But for those who take the time to read these materials for themselves before reading someone else’s summary of them, it is very much a worthwhile endeavor.
Cartago Delenda Est.
“Constitutional Sleight Of Hand: An explicit history of implied powers” Now Available on Amazon