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.