The federal government has stretched virtually every clause of the Constitution far beyond its meaning, creating more and more power for itself. This is true of the constitutional provisions relating to Native American affairs as well. 

People often overlook federal powers relating to Native American nations. While the Constitution provides that Congress has the authority to regulate interstate commerce via the Commerce Clause, there is also a section known as the “Indian Commerce Clause.”

Article I, Section 8, Clause 3 reads:  

“[The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes…”

When the Constitution was drafted, the Tribes still retained direct control over their lands. In the ensuing years, the U.S. government forced them off their land and onto reservations, later granting tribal members U.S. citizenship.

So how does this clause apply to federal-tribal relations today?

Robert G. Natelson’s The Original Understanding Of The Indian Commerce Clause: An Update seeks to answer that question regarding the federal Indian Child Welfare Act of 1978 (ICWA), which authorizes federal removal of American Indian children despite local jurisdiction and state courts. The Supreme Court is expected to take up four cases challenging this law next month.

Natelson argues that the law is unconstitutional:

“The ICWA was not the product of a treaty nor does it implement a treaty. It is not a regulation of federal land. It is not an exercise of diplomatic or war powers or a feature of the law of nations.”

He notes that unlike other popularly-debated and clarified constitutional provisions, “there [has] been little worthwhile scholarship on the original meaning of the Indian Commerce Clause.”

While other legal experts adopt a malleable “living, breathing” interpretation of the Constitution, Natelson takes a hard-lined originalist position:

“First, the Constitution is a legal document—’the supreme Law of the Land.’ Its framers drafted it, and its advocates explained it, with standard Anglo-American methods of documentary interpretation in mind. By way of illustration, both Alexander Hamilton’s and James Madison’s writings in The Federalist refer repeatedly to standard rules of documentary construction. Adhering to those rules is necessary to preserve the integrity of the document.”

Natelson goes on to explain why the notion of a living-breathing constitution is nonsensical.

If judges and public officials can craft and apply unanticipated interpretive methods to the Constitution—thereby effectively changing its meaning—then they, and not the Constitution, are the “supreme Law of the Land.” Second, although some have claimed that originalism is a new creed, in fact it antedates the Constitution itself. Well before the 18th century, the lodestar of most documentary interpretation had become the “intent of the makers.” When applied to the Constitution, the “intent of the makers” was the understanding of the ratifiers.”

So what did the ratifiers intend with this clause?

Natelson compares the clause with similar provisions in the Articles of Confederation, which had also allocated authority regarding Indian affairs. However, he writes that the “finished Constitution did give federal officers and entities more authority over Indian relations than the Confederation Congress had enjoyed, but unlike the Articles, the Constitution divided that authority.”

He writes further:

“The states reserved police power over Indians within their boundaries on matters not duly preempted. The Constitution made this clear by dropping the Articles’ (of Confederation) word “all” from its grants of federal power over Indian affairs, and it confirmed the reservation by the Ninth and Tenth Amendments. State exercise of police power over Natives was and remains controversial, but the states had exercised it before the Constitution and, despite occasional complaints from federal officials, continued to do so afterward.”

The issue is that within the context of the Constitution’s ratification, Indian tribes were treated in a similar manner as foreign governments, in which the president with the consent of the Senate could sign treaties. But the fact that nearly all Native Americans are now U.S. and state citizens, with the privileges pertaining thereto, has rendered the law of nations irrelevant, Natelson writes.

As a result, the Indian Commerce Clause is the only federal Indian affairs power in active and significant use. Yet advocates for congressional power over Indian affairs press their case as if these changes had not occurred. They commonly assert that the Indian Commerce Clause, although constitutionally but one component of the federal Indian affairs power, now grants all of it: that Congress, acting alone, may exercise all the authority the Constitution vests explicitly in other entities.”

Yet, the ICWA doesn’t concern state or federal territory. It relates to Indian reservations, which are considered sovereign territories operating under ongoing treaties with the federal government. Does the Indian Commerce Clause give Congress authority to regulate what occurs within those territories?

Natelson writes if that had been the intent, the Founders would have written the clause to say “The Congress shall have Power to regulate Commerce with foreign Nations and among the several States and also to regulate Affairs with the Indian Tribes.”

But, he notes, they didn’t do that.

“Instead, they employed exactly the same appearance of the same phrase (“regulate Commerce”) to refer to all three groups.”

Although some on the opposite side of the debate may point to Congressional laws passed in the 1790s that seem to regulate those affairs, Natelson counters that “the members of Congress who adopted them were not necessarily either framers or ratifiers, and their incentives—to interpret their own powers expansively—were quite different.”

One of the most compelling pieces of evidence Natelson provides are lists presented by advocates for the Constitution during ratification debates of activities the government lacked the power to regulate.

Among those activities the feds had no say in? 

Family law.

“The sponsors’ representations of constitutional meaning to the ratifying public are reliable evidence of that meaning,” Natelson writes. “The lists tell us that, in the absence of a treaty to the contrary, family law is not within the purview of the federal government, but of the states. Although the federal government could have negotiated treaties with the tribes embodying the terms of the ICWA, it never has. Congress has no power to impose those terms unilaterally.”

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