Indian Commerce Clause in the Supreme Court

Among the cases decided during final week of the Supreme Court term was Adoptive Couple v. Baby Girl (Scotusblog summary here.) Justice Alito’s opinion for a 5-4 majority begins:

This case is about a little girl (Baby Girl) who is classified as an Indian because she is 1.2% (3/256) Cherokee. Because Baby Girl is classified in this way, the South Carolina Supreme Court held that certain provisions of the federal Indian Child Welfare Act of 1978 required her to be taken, at the age of 27 months, from the only parents she had ever known and handed over to her biological father, who had attempted to relinquish his parental rights and who had no prior contact with the child. The provisions of the federal statute at issue here do not demand this result.

The majority opinion is about statutory interpretation. Justice Thomas joined the majority opinion, and also wrote a concurrence. His concurrence explained that the doctrine of constitutional avoidance was the reason that he joined the majority on statutory interpretation, thus finding that South Carolina’s adoption laws had not been preempted by the Indian Child Welfare Act. As Justice Thomas’s concurrence points out, the Constitution grants Congress the power “To regulate Commerce…with the Indian tribes.” Some persons have over-read the Indian Commerce Clause as a grant to Congress of plenary authority over anything involving Indians. Justice Thomas points out the error: the Indian Commerce Clause is about commercial relations with tribes. It is a not a grant of plenary congressional power over every Indian anywhere in the United States. Thus, Congress has no constitutional power to displace state adoption laws simply because a child has a drop of Indian blood.

Cited 9 times in the Thomas opinion is The Original Understanding of the Indian Commerce Clause, written by my Independence Institute colleague (and retired U. Mont. Law Prof.) Rob Natelson, for the Denver University Law Review. The article concludes:

The Indian Commerce Clause was adopted to grant Congress power to regulate Indian trade between people under state or federal jurisdiction and the tribes, whether or not under state or federal jurisdiction. Within its sphere, the Clause provided Congress with authority to override state laws. It did not otherwise abolish or alter the pre-existing state commercial and police power over Indians within state borders. It did not grant to Congress a police power over the Indians, nor a general power to otherwise intervene in tribal affairs.

Other provisions in the Constitution granted the federal government considerable competence in the field of Indian affairs. The Article IV Territories and Property Clause conferred on Congress significant power over Indians residing in a federal territory or on federal land within state boundaries. Under the Treaty Power, agencies of the federal government could exercise authority over a tribe if the tribe so agreed. By treaty, states could be entirely or partially divested of their jurisdiction over a tribe. The treaty mechanism protected tribes from arbitrary assumption of federal power, for a tribe had to agree to a treaty. The treaty mechanism also protected the states from inappropriate divesting of their authority, for two-thirds of their delegates in the United States Senate had to concur. Finally, the results of textual and historical analysis militate overwhelmingly against the federal government having any “inherent sovereign power” over Indians or their tribes.

Kudos to Justice Thomas for again bringing attention to original understanding, and to Rob Natelson for providing solid research and analysis on the the original understanding.


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