David Kopel on Justice Thomas (and Rob Natelson) on the Indian Commerce Clause (Updated)
At Volokh Conspiracy, David Kopel notes that in last week's decision in Adoptive Couple v. Baby Girl (a statutory interpretation case), Justice Thomas concurred on constitutional avoidance grounds, The question was whether federal Indian law preempted state adoption law; in Thomas' view, Congress lacked power to regulate the adoption at issue because the Indian Commerce Clause (the only plausible source of federal power) does not give Congress plenary power over anyone who happens to be part Indian.
Kopel adds that Justice Thomas' opinion relies heavily on Rob Natelson's article The Original Understanding of the Indian Commerce Clause (Denver Law Review, 2007). (Thomas also cites my former colleague Saikrishna Prakash's 2004 Cornell Law Review article Against Tribal Fungibility).
RELATED: At Prawfsblawg, Will Baude thinks Justice Thomas had a pretty good month last month. But he is a little skeptical of Thomas' Adoptive Parents concurrence, and points to this post by Jacob Levy expressing even greater skepticism:
Thomas' concurrence in Adoptive Couple vs Baby Girl is shocking. He manages to concoct a story whereby the Constitution granted Congress *less* power relative to the states than the Articles had when it came to Indian affairs. He claims that the Indian Commerce Clause only applies to tribes in the unorganized west, outside state boundaries altogether. This is very nearly backwards. Madison very deliberately *removed* the restriction in the Articles limiting Congressional authority to "Indians, not members of any of the States."
MY THOUGHTS on this: I'm not sure Professor Levy is reading Thomas right. Off the top of my head, I can't see anything in the Constitution's text that would limit Congress' Indian Commerce power to tribes beyond state boundaries. Nor is it obvious why that limit would be assumed -- at the time, some of the tribes within state boundaries were extremely powerful, and relations with them seemed to call for a national approach. But I don't read Thomas as imposing that limit; all he says is that Congress' power is only to "regulate trade with Indian tribes — that is, Indians who had not been incorporated into the body-politic of any State", which (I would think) could include Indians living in tribes either within or outside a state.
In any event, surely Thomas is right in the particular case: the text seems clearly not to grant Congress plenary powers over Indian affairs -- only powers over "commerce" (in parallel with the power over interstate commerce), which however one looks at it would not seem to include adoptions. Congress' limited power over Indian affairs is, of course, entirely plausible since it was assumed (correctly) that post-ratification relations with Indian tribes would be mostly handled by treaty.
(Further note: Justice Scalia dissented without addressing Congress' power).
UPDATE: Jacob Levy, in an update on his blog, points out in response that Thomas does say, later in his opinion, "The ratifiers almost certainly understood the Clause to confer a relatively modest power on Congress — namely, the power to regulate trade with Indian tribes living beyond state borders." So it may be more likely that I am misreading the sentence I quoted above.
After a further re-read, though, I think the concurrence is ambiguous on this point. Thomas provides quite a bit of textual and contextual evidence that Congress' power over Indian affairs (a) is not plenary, being limited to "commerce"; and (b) does not extend to Indians not living in tribal areas, being limited to commerce with "tribes" rather than commerce "with Indians." All that sounds fine to me (contra Professor Levy, it's not obvious to me that the power conveyed to Congress in the Constitution can't be less than the power conveyed in the Articles of Confederation). But I don't see any support in the concurrence for its claim that the ratifiers understood Congress' power to exist only beyond state boundaries. As far as I can tell, the only evidence (such as it is) offered is that essentially no one in the ratifying debates objected to the power granted to Congress. So to the extent that's what the concurrence is saying, I agree with Professor Levy that it's not well founded.
Professor Levy also recommends this article by Gregory Ablavsky (University of Pennsylvania Law School): The Savage Constitution (Duke Law Journal, forthcoming).