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Excerpted From: Lorianne Updike Toler, The Missing Indian Affairs Clause, 88 University of Chicago Law Review 413 (March 2021) (378 Footnotes) (Full Document)

LorianneUpdikeTolerBilly Jo Lara, a Turtle Mountain Native American, struck a federal officer on the Spirit Lake Reservation. He was then tried, in succession, before the Spirit Lake Tribal Court and the Federal District Court for the District of North Dakota. Having already served ninety days in prison for his tribal conviction, Lara claimed double jeopardy before the federal tribunal, triggering two questions: (1) whether the tribal conviction was issued by a separate sovereign (thus precluding the double jeopardy claim), and (2) whether Congress had the power to adjust tribal sovereignty as it had in 1991, permitting one tribe (Spirit Lake) jurisdiction over a member of another tribe (Turtle Mountain).

Upon arrival at the Supreme Court, United States v. Lara required the Court to address the largest controversy in Native American law: the tension between tribal sovereignty and congressional plenary power over tribes. Justice Stephen Breyer, writing for the Court, summarily concluded that the tribes are sovereign, resting on Congress's acceptance of Chief Justice John Marshall's designation of the tribes as “domestic dependent nations.” Justice Breyer then turned to the more convoluted history of congressional plenary power over tribes. He recognized that plenary power had traditionally derived from the combined weight of the Indian Commerce Clause and the treaty power. In elaborating on the grants of both constitutional provisions, Justice Breyer rested on previous Court decisions in affirming that the “central function of the Indian Commerce Clause ... is to provide Congress with plenary power to legislate in the field of Indian affairs.” The treaty power, on the other hand, “does not literally authorize Congress to act legislatively, for it is an Article II power authorizing the President, not Congress, 'to make Treaties.”’ However, “treaties made pursuant to that power can authorize Congress to deal with matters with which otherwise Congress could not deal.”

Yet the treaty power was no longer doing the textual work for Indian affairs: as Justice Breyer admitted, “in 1871 Congress ended the practice of entering into treaties with the Indian tribes.” No matter, however, as “this Court has explicitly stated that the statute in no way affected Congress' plenary powers to legislate on problems of Indians.” Additionally, as Indian affairs “were more an aspect of military and foreign policy than a subject of domestic or municipal law” during the nation's first century, “Congress' legislative authority would rest in part, not upon affirmative grants of the Constitution, but upon the Constitution's adoption of preconstitutional powers necessarily inherent in any Federal Government, namely, powers that this Court has described as necessary concomitants of nationality.” Thus, with the evisceration of the president's power to treat with the tribes, the plenary power to regulate Indian affairs was lodged in the Indian Commerce Clause and in “necessary,” “preconstitutional” powers that had some origin in foreign and military policy.

Although concurring in the judgment, Justice Clarence Thomas castigated the majority for “utterly” failing to find any enumerated power justifying Congress's plenary power to alter tribal sovereignty. With regard to the treaty power, he thought it “the one mechanism that the Constitution clearly provides for the Federal Government to interact with sovereigns other than the States” and thus regarded the congressional act abrogating tribal treaty-making with alarm. With regard to the Indian Commerce Clause, Justice Thomas was adamant that it did not provide plenary power over Indian affairs, and noted that the Court in United States v. Kagama had held such a construction of the Clause to be “very strained.” Elsewhere, Justice Thomas has regarded assertions of Congress's plenary power as “inconsistent” with Indian Commerce Clause history. For the Founders, Indian commerce was Indian trade, and was further limited to tribes, not persons.

Justices Breyer and Thomas's debate in Lara not only encapsulates the tensions between tribal sovereignty and congressional plenary power, but also the array of scholarly opinions on point. While all modern scholars accept tribal sovereignty as a given, there is much disagreement over the origins of plenary power. Taking his cue from Justice Breyer, one scholar on the far left preaches Indian affairs as a “preconstitutional” federal power; whatever power the Indian Commerce Clause excludes is imbibed into the Constitution by “necessity.” Another pragmatist approach relies on international law and notions of “inherent sovereignty” that are outside of but not inconsistent with the Constitution to supply needed federal power over tribal affairs. A more moderate position draws on both pragmatist approaches and adds to them the totality of the Constitution's discrete texts as grounded in the Washington administration's accommodation in asserting general federal power to treat with and prospectively legislate concerning Natives. Yet another scholar looks carefully at the same textual sources before determining that no general power over Native Americans exists, but that each tribe requires individual treatment. Liberal originalists conclude that the Indian Commerce Clause may be read broadly to embrace all Indian affairs, while most conservative originalists follow Justice Thomas's line that “commerce” is synonymous with “trade,” and that any expansive powers over Indian affairs are illegitimate. Each theory claims historical legitimacy, but none has been able to explain why the Indian Affairs Clause from the Articles of Confederation failed to appear in the Constitution.

Whatever their disagreement over federal power as it touches Natives, all scholars and Indian affairs historians can agree with Justice Thomas when, in addressing the inherent inconsistencies between tribal sovereignty and congressional plenary power, he concluded: “Federal Indian policy is, to say the least, schizophrenic. And this confusion continues to infuse federal Indian law and our cases.” Commenting on the tension, Professor Philip Frickey decried the entire genre as “rooted in conflicting principles that leave the field in a morass of doctrinal and normative incoherence” and thus anomalous. Similarly, Professor Steven McSloy called the field “chaotic” and “confused,” and Professor Joseph Singer noted that the area of law is known for its “[c]onflicting lines of precedent and conflicting philosophies.” In this unique area of the law, the disharmony between sovereignty and plenary power is perpetuated by an unexplained textual shrinkage between the Articles of Confederation and Constitution that seems to suggest that the Framers made a mistake in drafting the Constitution.

In fact, the Framers did make a mistake, at least initially. This Article examines the drafting history of the Constitution and suggests a startling explanation for the omission of an Indian Affairs Clause: at its heart, an innocent but consequential scrivener's error that was later made intentional. The Committee of Detail, tasked by the Constitutional Convention with producing a working draft of the Constitution, seems to have accidentally omitted an Indian Affairs Clause in preparing the first working draft of the Constitution. Not only was inclusion of a congressional power over Indian affairs compelled by its long prehistory and a unanimous vote by the Convention, but John Rutledge as Committee chair recorded a committee vote directing James Wilson to include it. The evidence indicates that Wilson meant to comply with the command: not only was he personally motivated to comply, but he placed a check mark next to the Clause. However, he simply failed to include the power in his final draft.

When James Madison caught the mistake, this time the Committee of Detail partially fixed the omission by inserting “Indians” into the Commerce Clause at the last moment, but intentionally omitted the Indian Affairs Clause, likely to expedite the text without controversy through the Convention. The error went unnoticed by the vast majority of the Convention, state ratifying conventions, and the public at large. It was later corrected by President George Washington and his administration via a multiclause approach to the Constitution that centered on executive treaty-making power. Nearly a century later, once tribal treaty-making was terminated by statute, the Supreme Court turned to other means of justifying a noncommercial Indian affairs plenary power.

This history raises serious questions for constitutional theory and federal Indian law policy. If the omission of the Indian affairs power was intentional, how does that impact the relationship between tribes and the federal government? Does congressional plenary power survive? How will the missing clause impact other Commerce Clause provisions? Does a congressional power over Indian affairs equate to plenary power? What will it mean for tribal-state relations, and treaty powers generally? If “Indian affairs” is intentionally missing from the Constitution, is the approach adopted in Lara adequate? These questions will require new tools, new methods, and new theory. The purpose of this Article is to raise these questions and address whether congressional plenary power survives what became an intentional omission of the Indian Affairs Clause, leaving further scholarship to propose comprehensive solutions for the remainder.

Here, based on the assumption that matching constitutional text to powers in practice is optimal, this Article proposes that, without an Indian Affairs Clause, congressional plenary power over tribes is dealt a mighty if not mortal blow. Instead, to enable the federal government to address Indian affairs, this Article proposes the reinitiation of tribal treaty-making. This proposal takes its cue from President Washington: interpret the Constitution holistically as written, treating with Natives on noncommercial matters via the executive's treaty power. Such a proposal is supported by the text, history, and structure of the Constitution, the recent trends in federal Indian law precedent, and many prudential reasons--including, most importantly, respect for tribal sovereignty and Native dignity.

In the three substantive sections that follow, this Article will first summarize the scholarly debate regarding congressional plenary power over tribes and the different strains of pre- and postenactment history upon which they rely. Second, it will carefully comb through Committee of Detail, Constitutional Convention, and ratification records to reconstruct the history of the missing clause. Finally, it will discuss the significance of the missing clause and propose the reinitiation of tribal treaty-making, outlining the various reasons for doing so.

[. . .]

Indian affairs was initially intended for constitutional inclusion. As a long-held power of the British and the Confederation, the Constitutional Convention unanimously mandated the incorporation of Indian affairs with other congressional powers under the Articles of Confederation, and John Rutledge, acting as Committee of Detail chair and likely by their consensus if not vote, directed James Wilson to include it in the Committee's reported draft. Duty bound and personally motivated to defend his own Native-acquired land through federal channels, James Wilson clearly meant to include the clause and even checked it off as if he had. And yet, it appears nowhere in his final draft of the Constitution, perhaps because it was lost along with the missing portion of Wilson's first full draft. The Committee missed Wilson's mistake, and reported their draft out of Committee without any mention of Indians--commerce, affairs, or otherwise. Madison caught the mistake, but his proposal was tabled and only discussed back in the Committee of Detail, which restored only the power over Indian trade. The Committee inserted “Indians” into the Commerce Clause but failed to restore power over Indian affairs, this time intentionally. This change was adopted by the Convention and sent to the states as part of the Constitution for ratification, where the omission was overlooked. The Constitution is thus missing an Indian Affairs Clause.

Although over two centuries of confusion have ensued, the missing clause might redound to the benefit of the tribes. Such an omission is novel in constitutional theory and raises new and important questions that implicate theoretical creativity and experimentation. The omission of the clause was intentional, broadly speaking, and therefore meaningful: without an Indian Affairs Clause, constitutional authority for congressional plenary power collapses. The preconstitutional external Indian affairs power is therefore split between the executive and Congress via their respective enumerated powers touching tribes under the Constitution, with the residual internal affairs powers reverting to the tribes. The limit on Indian affairs power requires the resuscitation of tribal treaty-making, which will restore constitutional separation of powers, continue recent legal trends toward self-determination, overturn a hundred and fifty years of colonialism, and capture the present moment of creative disruption in racial relations by bequeathing to the tribes their own Brown v. Board of Education crowning achievement for tribal sovereignty.

Olin Searle Fellow, Yale Law School's Information Society Project.

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