Richard Pomp (University of Connecticut – School of Law) has posted The Unfulfilled Promise of the Indian Commerce Clause and State Taxation (Tax Lawyer, Vol. 63, No. 4, 2010) on SSRN. Here is an excerpt:
The Constitution gives Congress the right to “regulate Commerce . . . with the Indian tribes.” Has the Indian Commerce Clause achieved its purpose? Have the Courts interpreted the Clause consistent with Congressional intent? I argue that the answer is, disappointingly, “no.”
The Supreme Court has emasculated and denigrated the Indian Commerce Clause, preventing implementation of the Founders’ vision. The Court has refused to use the Clause as a shield against state taxation.
Chief Justice John Marshall had the opportunity in 1832 in Worcester v. Georgia to shape the Clause into a powerful doctrine. As a ratifier, he was privy to the debates over the Clause. Instead of making the Indian Commerce Clause the centerpiece of his opinion, he used the case as a platform for an eloquent and courageous defense of Indian sovereignty — a thumb in President Jackson’s eye who had initiated the Removal Act of 1830 — just two years before Worcester.
Despite the long discussion in Worcester describing and defending the pre- and extra-constitutional sovereignty doctrine — immunizing the Cherokees from Georgia’s laws — Chief Justice Marshall was apparently worried about resting the opinion on that ground. The jurisdictional constraints on the Court imposed by the Judiciary Act of 1789 required that the case be grounded in the Constitution itself. He needed narrower grounds than the grandiose and sweeping pre- and extra-constitutional concept of Indian sovereignty, especially in a case involving penal laws. It was not enough that the laws of Georgia violated the sovereignty of the Cherokees, he had to show that they were repugnant to the “constitution, laws, and treaties of the United States.”
Posted at 6:10 AM