Clarence Thomas on the Indian Commerce Clause

Tip off to Turtle Talk for bringing this to my attention.

Salvatori Professor of American Constitutionalism, Ralph A. Rossum, has authored a fascinating piece about Justice Clarence Thomas and his originalist view of the Indian Commerce Clause.  I highly recommend it.

First, some background.  The Indian Commerce Clause (covered here) is a subset of the full Commerce Clause that resides at Article I, section 8, clause 3 of the US Constitution:

To regulate Commerce with foreign Nations, and among the several States, and
with the Indian Tribes;

More well known is the Commerce Clause’s use in regulating economic activity among the states, the Indian Commerce Clause has been interpreted as a means through which Congress has the plenary power to legislate exclusively in Indian affairs, a power which no other branch of government (or inferior legislatures, unless it’s a PL-280 jurisdiction) may possess.

Next, let’s turn to Justice Thomas.  Quoting from Rossum’s article directly, here’s this:

Concurring in the judgment [of United States v. Lara], [Justice] Thomas declared, ‘I cannot agree that the Indian Commerce Clause ‘provides Congress with plenary power to legislate in the field of Indian Affairs.’  He found [the Supreme Court's decision], based on decades of relevant precedent, ‘implausible,’ ‘troubling,’ and ‘very strained,” and, wishing to restore the original understanding of the Indian Commerce Clause, he indicated that he ‘would be willing to revisit the question.’

Direct opposite of what I just said, right?  Rossum moves on to say that Thomas’ originalist view is incorrect and presents evidence of the early documents surrounding the Indian Commerce Clause, concluding that the true originalist view is exactly what the decades of precedent said it was.

Beginning with the Articles of Confederation and working his way through the Northwest Ordinance, the Federalist Papers (specifically, #42), and early legislative acts by the First Congress, Professor Rossum shows that when Congress sought to legislate with Indians, it did so “predicated on the assumption that the federal government has plenary power over Indian tribes.”  Rossum, at p. 815.

Rossum next brings together Justice Thomas’ narrow view of interpreting law towards Native Americans with Thomas’ refusal to apply judicial canons of statutory construction that, by default, should always favor the Indians, given their “dependent domestic nation” status.  Thomas routinely ignores these canons, but Rossum doesn’t exactly explain why, except to say that Thomas is focused more on maintaining the federalist structure of our government rather than acknowledge the significance of Native American identity within that federalist structure.  See Rossum, at p. 821.  This leads Thomas to view statutes and treaties narrowly, which explains his disastrous Carcieri v. Salazar opinion wherein he construed the text of the Indian Reorganization Act so narrowly that he effectively gutted it of its power.

Rossum repeatedly tells us that Thomas has a narrow view of interpreting Indian statutes and treaty, but does not call Thomas narrow-minded.  In fact, in the article’s conclusion, Rossum tries to save Thomas from scorn by basically stating that he slowly learns from his mistakes as he “has always and faithfully pursued an originalist understanding [of the Indian Commerce Clause].”  Rossum at p. 826.  But Thomas is very much a slow learner.

I don’t see how an educated and intelligent man of Thomas’ caliber cannot see how the case law, beginning with the Marshall trilogy, and the volumes of scholarship that has been produced on it, has done nothing but cast Indians in an inferior, subordinate, and infantilized role that has stymied their development as full, respected citizens of the United States.  Furthermore, the racist overtones that linger on today in Indian Law jurisprudence cannot but help to remind people like Clarence Thomas — an African American — that we anxiously await our Brown v. Board of Education.  Indian law is still vexed by tiny little splinters of Indian law’s own versions of Plessy v. Ferguson and Dred Scot v. Sanford.  Perhaps if Thomas is still learning to adopt a true originalist stance then maybe he will one day accept the canons of judicial construction that are supposed to favor Indian tribes.  I won’t be holding my breath though.

In the meantime, Rossum’s article is highly thought-provoking and I encourage you to read it.

http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2085080

 

So, What if We Gave the Land Back to the Indians?

It’s fun to pretend sometimes.  Which is why this post should not be taken seriously as you would my other posts.  I didn’t really do any research, I just pulled stuff off the top of my head without any real fact-checking because, you know, this was supposed to be a “fun” mental exercise.

Okay, so there’s this thing called the United Nations Declarations on the Rights of Indigenous Peoples that, depending upon whom you ask, is either a really great, symbolic step in the right direction; or just a useless piece of paper that won’t change anything in Indian Country.  In reality, it’s probably a little bit of both. A cursory glance at the document essentially reveals a wish-list of how governments should view their indigenous inhabitants and how they should be treated.  I like the Obama Administration for putting it in play, but it’s up to the federal and state government agencies, our tribes, and our judiciary to really make anything out of it.  Recently, a UN expert (official title: Special Rapporteur on the rights of indigenous peoples) named James Anaya made an announcement about the nature of Native American relations in America, which was later construed to have said that the United States should give the Indians their land back.  (See here, here, here and here.)  Specifically, the Black Hills wherein sits Mt. Rushmore.  Only this gesture will begin true healing between the United States and Indian tribes.  Maybe, maybe not. But this is where my imagination takes flight, what if Anaya actually did say that?  And what if it was just more than the Black Hills?

[EDIT: Of course, Anaya didn't actually say any of that.  But like I said, this is a "pretend" exercise.]

Now, that’s interesting.  The ENTIRE breadth of the United States, or just trust lands currently held by federally recognized tribes?  For simplicity’s sake, I’ll go with the later.  Given the convoluted state of Indian law in this country, turning the lands over to the Indians will make things a helluva lot complicated real fast.  Check this out:

1. As stated in other posts, the United States holds title to all Indian land as stated in the Marshall Trilogy cases.  These cases, which declared Indian tribes to be “dependent domestic nations” whose survival was the United States’ responsibility, were construed from a shaky reading of the Indian Commerce Clause.  If the United States ceded all federally held trust land to the Indians in fee simple, those Indians communities would then have private ownership of that land and would be free to do what they want with it, without any federal or state oversight.  This is because the United States would have essentially overruled the Marshall Trilogy, turning these “dependent domestic nations” into “independent domestic nations.”
2. This would suck for the hundreds of federally unrecognized tribes who are, and have been, trying to gain federal recognition status.  The Office of Federal Acknowledgment, as an arm of the Bureau of Indian Affairs, is tasked with overseeing unrecognized tribes’ recognition efforts, and would see their mission of guiding tribes through the process turned upside down.  Now, instead of determining which Indian tribes are eligible to receive federal recognition, the OFA will be considering which pieces of American soil will eventually be conceded to those tribes and converted into foreign soil.  I don’t believe Congress’s delegation of its legislative powers included these duties in the OFA’s job description.  In the meantime, the OFA would essentially have no purpose and would halt all further recognition efforts.
3. It would also confuse things as to the Indian reservations that straddle State borders, such as the Navajo Nation.  Can you imagine how mad New Mexico would be if it found out that the federal government gave away large portions of its own land (without its permission) and turned it into a pocket of international jurisdiction?  You can almost see the “State’s Rights” people turning red.  And what about tribes whose lands share borders between the United States and Mexico?  Complications.
4. Indian tribes will no longer be considered US soil.  Anyone wishing to enter, exit, visit, traverse, work, live, conduct business, enter into contracts, get married, have children, or do any activity that requires crossing US/Tribal boundaries will require visas, passports, or some other system.  Non-Indian employees working at casinos on tribal lands are now officially exempt from ALL federal wage and safety requirements, so good bye FMLA, OSHA, FLSA, etc.  How will criminal jurisdiction pan out?  If I rob a bank in Fresno and kill a bunch of people, then all I need to do is run for the nearest Indian rez.  International soil!  Of course, if there’s extradition agreements between the tribe and the United States, then I lose.  There’s other complications too, like the application of the Major Crimes Act and Indian Country Crimes Act for when crime is committed on Indian Country.  If you thought scam emails coming from Russia and Nigeria were annoying, then expect more from tribal lands.  Can’t enforce American copyright laws on Indian Country when the movie studios and record companies discover file sharing websites being run from reservation servers.  For Non-Indians committing crimes in Indian Country: expect arrest and trial according to tribal law; no 8th Amendment protection from cruel and unusual punishment, no 7th Amendment right to trial by jury, let alone a speedy trial or right to competent counsel under the 6th Amendment.  So, be careful next time you get rowdy at an Indian Casino on tribal land.  You no longer have Miranda rights.  (But that blade cuts both ways: any hope of the disenrolled getting some due process under the US Constitution would be gone.)
5. All federal and state Indian laws would effectively be repealed and inapplicable to Indian Country because the United States can’t legislate on non-US soil.  However, Indians may still be considered American citizens under the Indian Citizenship Act…unless they revoke their citizenship.  How the Indian Civil Rights Act, Indian Child Welfare Act, NAGPRA, Major Crimes Act, and portions of the National Environmental Protection Act and National Historic Preservation Act are going to be construed is now open for debate.
6. All state and federal case law construing those statutes are probably going to be either abrogated or vastly changed in their application.
7. Assuming Indians possess only tribal citizenship and not American, claims involving Indians will then fall under the Alien Tort Claims Act, allowing a federal district court to have subject matter jurisdiction over claims involving foreign citizens.

 Are there holes in my logic?  Probably.  Like I said, this was just a mental exercise.  It’s completely useless as to how things would actually happen.  In conclusion, I appreciate Anaya’s work and his efforts.  The UN Declaration is an important document.  And true healing between Native Americans and the United States is long overdue.  As to what ultimate solution Anaya recommends, I would prefer a solution that incorporates the strengthening of tribal sovereignty and ensuring that the United States can provide a meaningful remedy to inter-tribal affairs when violations of US law is committed would be a far more lasting gesture of reconciliation between the two parties.  Simply handing over the land deed from the United States to Indian tribes is overly simplistic.  Like it or not, the United States owns the geographic expanse within its borders and Indians have a unique, although subordinate, status within those borders.  But that does not mean the United States can continue to neglect Native Americans like some unwanted child.  The greatest accord between Indian Country and the United States is one of complete, equal, and mutual respect.  Without it, even giving the land back will not bring the two sovereigns any close together.  It would only build resentment.  But that’s just one guy’s opinion.