At Balkinization, Lorianne Updike Toler (Northern Illinois): Brackeen’s Missteps & The Need for Neutral History. On the Constitution's original design of power relating to the tribes:
As I detail here (and as relied upon by Justices Gorsuch and Thomas in their opinions (see slip opinion for Gorsuch at 34 & 36 and Thomas at 9)), the Constitutional Convention intentionally chose not to include an Indian Affairs Clause as it was found in the Articles of Confederation. Instead, they included some form of the Article of Confederation’s Indian Trade Clause by expanding the Commerce Clause. Without an Indian Affairs Clause, the Constitution does not provide Congress with plenary power over tribes, but instead allows interaction and regulation through the Indian Commerce Clause, Treaty Clause, and War and Peace Powers, among other enumerated powers.
Once Congress stopped treating with tribes in 1871, as Justice Gorsuch puts it, the Court made a “doctrinal misstep” in U.S. v. Kagama (1885) (slip opinion at 31). There, the Court upheld the Indian Major Crimes Act on the basis of a free-floating Congressional plenary power, later attached to the Indian Commerce Clause.
If the Brackeen Court had embraced this history, it perhaps would have provided sufficient justification to correct this doctrinal misstep and recognize that Congress does not have plenary power over tribes and must instead once again recognize their sovereignty by treating with them. This would mean that if the tribes did indeed want something like ICWA, they could agree to it by treaty either collectively as a Tribal Congress or tribe by tribe.
I agree as to the original meaning, and I would further emphasize that (1) the framers likely thought most interaction with the tribes would come through treatymaking, and (2) the treatymaking power, unlike Congress' legislative power, isn't limited by subject matter, so the federal government — but not Congress — had something close to plenary power over tribal relations. (The view that the original treatymaking power isn't limited by subject matter is contested; I defend it in this article: Missouri v. Holland and Historical Textualism.) So, as Professor Toler says, under the original meaning the federal government could have established the adoption system at issue in Brackeen by treaty rather than by statute.
I'm less sure what this means for originalist adjudication in modern times. Congress abolished the practice of making treaties with the tribes in 1871, presumably relying on the assumption that it had plenary power to legislate in the area. The Supreme Court (wrongly, from an originalist perspective) confirmed that approach in U.S. v. Kagama. That's been the system we've had for 150 years. I assume it would be extraordinarily difficult and disruptive to return tribal relations to a largely treaty-based approach. While originalist adjudication's relationship to non-originalist precedent is still being worked out, this seems a reasonable candidate for following precedent and leaving Congress with plenary power in the area.
RELATED: For earlier originalist-oriented posts on Brackeen, see here from Rob Natelson, here from Josh Blackman, here from Will Foster, and here from Evan Bernick.
Posted at 6:10 AM