Following up on this post on originalism and Indian law, here is some important recent scholarship in the field by John Dossett (Lewis & Clark):
Indian Country and the Territory Clause: Washington's Promise at the Framing (68 Am. U. L. Rev. 205 (2018)); abstract:
This article explores the Territory Clause, Article IV, Section 3 as a source of power for federal laws in “Indian country,” as defined at 18 U.S.C §1151. In contrast to plenary power doctrine, the Territory Clause offers a textual source of authority to regulate matters unrelated to commerce, such as criminal jurisdiction in Indian country. Intended to constitutionalize the Northwest Ordinance of 1787, the Territory Clause provides a principled rather than plenary basis for Congressional initiatives in Indian policy; a constitutional source of authority tempered by the duty of “utmost good faith.” This renewed understanding of the Territory Clause makes certain the source of federal authority in Indian country, and provides a stronger interpretive lens for matters of tribal sovereignty, land rights, taxation, and criminal justice.
and:
Tribal Nations and Congress’s Power to Define Offences against the Law of Nations (Montana Law Review, forthcoming); abstract:
This Article advances the Offences Clause as an additional, and important, source of federal authority in Indian affairs, particularly for the Indian Child Welfare Act (ICWA). The Constitution grants to Congress the power to define and punish "offences against the law of nations," in Art. I, Sec. 8, Cl. 10. Although the Offences Clause does not specifically reference Indian Nations, there is considerable evidence that it was intended for use in regulating the relationships with tribal nations as well as foreign governments. Much like the Treaty Clause and the Territory Clause, the Framers wrote the Offences Clause broadly to include foreign powers and tribal nations within the same scope of federal authority.
The Offenses Clause provides enumerated authority for the regulation of important matters between sovereigns, such as the citizenship and custody of children. In this way, it addresses claims that ICWA exceeds Congressional authority, such as those brought by the State of Texas in current litigation. Instead, the ICWA is an exercise of the well-established authority of Congress to pass laws under its enumerated powers and involves little more than an application of the Supremacy Clause's provision that federal law "shall be the supreme Law of the Land," enforceable in every state.
Posted at 6:24 AM