[Ed.: For this guest post we welcome back Evan Bernick, Assistant Professor of Law and Northern Illinois University College of Law.]
The Supreme Court has upheld the constitutionality of the Indian Child Welfare Act of 1978. ICWA is a monumentally important piece of legislation, demanded and overwhelmingly supported by Native Nations and people as a bulwark against the unjustified state removal of Native children from their homes. The final vote count in Haaland v. Brackeen was 7-2, with Justice Amy Comey Barrett writing for the majority.
What should originalists think about this? At oral argument in Haaland v. Brackeen, discussion focused on the so-called “plenary power” of Congress over Indian tribes as a possible source of Article I authority to enact ICWA. Justice Thomas has previously criticized the plenary power doctrine on originalist grounds, and he reiterated this criticism in a lengthy dissent. The majority left the doctrine in place, grounding it in several textual sources and emphasizing that it was “not unbounded.” Justice Barrett’s opinion for the Court relies almost entirely on precedent; unlike Justice Gorsuch’s concurrence, it doesn’t respond to Thomas’s challenge.
In short, Brackeen is good. Given scores of Supreme Court decisions that have profoundly distorted the Founding-era relationship between tribal nations, the federal government, and the states to the detriment of Native Nations and people, even those with doubts about plenary power’s consistency with original meaning (among whom I include myself) should applaud it.
Two points at the outset. First, this is not the originalist case for ICWA, nor should it be taken to imply that the constitutionality of ICWA depends upon plenary power. Justice Gorsuch’s originalist concurrence persuasively argues (citing Chris Green and my NIU colleague Lorianne Updike Toler) that it does not. Indian law scholars have contended that some form of plenary power is historically justified as an incident of sovereignty; that, plenary power aside, ICWA fits comfortably within federal authority under the Founding-era law of nations and territoriality to regulate “intercourse” with tribal nations (to include social, cultural, political, and diplomatic affairs); that the original meaning of the Indian Commerce Clause empowers Congress to regulate the latter intercourse—not merely trade (as Justice Thomas, drawing upon the scholarship of Robert Natelson, has claimed); and that even a narrow, trade-centered understanding of commerce can underwrite ICWA.
Second, the historical and doctrinal account that I’m about to provide is contestable. So, what follows is an if-then argument: If my account of the history and doctrine is substantially accurate, then ICWA was correctly upheld even if it is beyond Congress’s powers, as measured against original meaning. If it isn’t accurate, it’s still worth asking whether a second-best originalist argument like this could work, given the right set of historical and doctrinal facts.
Here goes. Congress and the states today exercise power over tribal nations that the original meaning of the Constitution neither delegates nor reserves to them. At the Founding Indian tribes were regarded and textually recognized as sovereign entities that were separate from the United States, from the states, and from foreign nations. If we’re ranking sovereigns, they stand above the states and alongside “foreign Nations.” Read the Commerce Clause—as it can regulate commerce “with foreign nations,” Congress can regulate commerce “with the Indian tribes. ” Unlike the states, tribal nations are not subject to the Supremacy Clause. Their treaties with the United States are part of the “supreme law of the land.”
Founding-era law recognized tribal sovereignty. The cases from which the so-called “Indian canon” of interpretation originated involved the interpretation of treaties; the tribe-favoring constructions that the Court placed on their language was nothing more or less than an application of a generally accepted interpretive principle which presumed that nations did not lightly part with their sovereignty.
To be sure, tribes were sovereigns of a particular kind—“domestic dependent nations,” as Chief Justice John Marshall put it in Cherokee Nation v. Georgia. “They acknowledge themselves in their treaties to be under the protection of the United States; they admit that the United States shall have the sole and exclusive right of regulating the trade with them, and managing all their affairs as they think proper.” Their relationship with the United States was not treated in what Marshall elsewhere called “the courts of the conqueror” as a relationship between equals. In Worcester v. Georgia, Marshall analogized tribes to tributary and feudatory states, drawing upon Emmerich de Vattel’s Law of Nations for the proposition that the latter “do not thereby cease to be sovereign and independent states, so long as self-government and sovereign and independent authority are left in the administration of the state.”
We should not romanticize the Founding-era relationships between the United States and tribal nations. Nor we should imagine that it is one to which Native people “consented” to in any way that would morally legitimate a Constitution that they overwhelmingly rejected. There is, however, a world of difference between the sovereignty acknowledged by Marshall and what the Court started saying about tribes in the late-nineteenth century when it endorsed the constitutionality of efforts to eradicate them.
At the height of the United States’s colonial ambitions, its highest Court greenlit the subjugation of Indigenous people through doctrines of plenary power that rested on the premise that uncivilized people did not have any sovereignty worthy of respect. Decision after decision twisted Marshall’s language of dependent sovereignty to deny that tribal nations were really sovereigns at all. Thus, in Kagama v. United States, the Court proclaimed that “[t]hey were, and always have been, regarded as having a semi-independent position when they preserved their tribal relations; not as States, not as nations, not as possessed of the full attributes of sovereignty” and upheld congressional power to impose substantive criminal law on reservations. It located this power not in any particular constitutional text but in “ownership of the country … and the right of exclusive sovereignty which must exist in the National Government, and can be found nowhere else.” No constitutional text was necessary; plenary power inhered in sovereignty itself, and it could justify dispensing entirely with a century of treaty-making in favor of legislating for tribes that held no seats in Congress.
This power was wielded for decades in ways that inflicted profound and lasting harm on Native Nations and people. The harms were individual, cultural, and constitutional-structural. They were caused by policies and programs that were designed to annihilate tribal cultures by dispossessing tribes of lands and resources, prohibiting tribal ceremonies, and sending Indian children to compulsory boarding schools. Many states followed suit during what Matthew Fletcher and Wenona Singel call the Coercive Period, removing Indian children from their reservation homes to “save” them from reservation life. By the 1970s the extent of federal and state power over reservation government, Indian life, and Indian child welfare was far beyond the bounds of any reasonable interpretation of the Constitution’s original strictures, and the effects of that control were devastating.
The Indian Child Welfare Act was Congress’s response. Pressed by Native advocates, Congress sought to restore tribal sovereignty by targeting one of the most pressing threats to its continued existence: The separation of Native children from their families through state custody proceedings. It did so by guaranteeing notice and rights to counsel in these proceedings, as well as heightened burdens of proof; placement preferences that favor extended family, other members of the child’s tribe, and other Indian families (in that order); and an absolute right on the part of the child’s tribe to intervene in the proceedings.
My submission is that if the above is substantially right, an originalist judge ought not have voted against the constitutionality of ICWA. Not even if (1) plenary power is bunk and (2) ICWA exceeds the scope of Congress’s original Article I powers. Instead, they should have considered whether their decision would bring the balance of power between Native Nations, the federal government, and the states closer to or further from the balance established by original meaning. Doing so requires thinking about past and possible future decisions that might implicate that power balance. For instance, holding ICWA unconstitutional might have been less concerning if the Court had showed signs of being committed to a consistent project of bolstering tribal sovereignty through decisions making it difficult for Congress or the states to attack it. Say, reconsidering the constitutionality of Congress’s 1871 ban on treating with tribes and questioning whether states have any constitutionally reserved powers over them. That might be first-best originalism—Justice Gorsuch certainly seems to think so.
First-best originalism seems unlikely. Not that the Court can’t be convinced to rule in favor of tribal sovereignty—it can. But, consistently? Consider: In 2020 a 5-4 majority in McGirt v. Oklahoma secured one of the greatest victories for tribal sovereignty in the Court’s history, holding that some 3 million acres in Oklahoma (including most of Tulsa) were part of the Muscogee (Creek) Nation reservation. But just two years later, a 5-4 majority held in Oklahoma v. Castro-Huerta that states have inherent criminal jurisdiction over crimes committed by non-Indians against Indians in Indian Country. Citing no Founding-era authorities, Justice Kavanaugh’s opinion for the Court announces that tribes are “part of the State, not separate from the State”; that “a State has jurisdiction over all of its territory, including Indian country”; and accordingly, Congress must expressly preempt the state’s criminal jurisdiction—just as it must expressly preempt any exercise of reserved state power. Otherwise, states and the federal government hold that jurisdiction concurrently.
As Justice Gorsuch details in a dissent that deserves to become canonical, Castro-Huerta was foundationally erroneous. “Tribes are not private organizations within state boundaries. Their reservations are not glorified private campgrounds. Tribes are sovereigns. And the preemption rule applicable to them is exactly the opposite of the normal rule.” Far from presuming in favor of state criminal jurisdiction over tribes, the Court ought to have presumed (as a first-best matter, perhaps conclusively) against it. Although Gorsuch’s narrative of consistent Supreme Court support of tribal sovereignty is somewhat dubious, his account of the constitutional balance of power is clearly nearer the Founding-era mark than the majority’s. But five Justices didn’t see it that way.
Back to ICWA. In the wake of Castro-Huerta, a decision holding ICWA unconstitutional would have taken us further from the original Constitution. Originalists should celebrate the outcome, even if they are persuaded by Justice Thomas’s dissent that plenary power ought not be a thing. The state of Indian law may not be ideal from an originalist standpoint, but it is second best given the reasonably available alternatives.
Posted at 6:10 AM