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Aaron Gordon: Justice Thomas and Indian Law
Michael Ramsey

Aaron Gordon (Yale University, Law School, Students) has posted Justice Thomas and Indian Law (58 pages) on SSRN.  Here is the abstract:

Supreme Court Justice Clarence Thomas is an exceptional jurist in a variety of ways. With the exception of his late colleague Antonin Scalia, perhaps no other figure is more associated with originalism than Justice Thomas. Today, Thomas is the Court’s most senior justice, its only African-American member, as well as its only southerner. He writes more opinions per term than any other justice, often presenting provocative critiques of existing law and suggesting reconsideration of long-settled precedent. Justice Thomas’s jurisprudence in the area of Indian Law has been no less bold. He has repeatedly expressed doubts about the constitutional validity of the plenary-power doctrine, the rule of law holding that Congress has plenary legislative authority over in all matters related to the Indian tribes. Justice Thomas also vigorously takes the position that Indian tribal sovereign immunity from private or state lawsuits is baseless and deserves no federal judicial recognition. By contrast, Thomas has long been a steadfast believer in state sovereign immunity, firmly supporting the extension of this principle beyond the literal language of the Constitution, and even joining opinions in two landmark state-sovereign-immunity cases that invoked the doctrine as basis for prohibiting an Indian tribe from suing a state. In addition, Justice Thomas has indicated strong support for the Court’s jurisprudence holding that Indian tribes, as a result of their dependent status, have been implicitly divested of some of their sovereign power over nonmembers of the tribe.

Here, I intend to evaluate Justice Thomas’s jurisprudence in the area of Indian law. Like Justice Thomas, I adhere to the originalist method of interpretation. I aim to offer the most comprehensive possible overview of relevant historical evidence — including some sources that, so far as I am aware, have been overlooked in prior scholarship. First, when it comes to the plenary power doctrine, I agree with Thomas that this rule of law is at odds with constitutional original meaning, although I think that Thomas has argued for what seems to be an overcorrection in the direction of constraining federal power over tribes. Next, I argue that Justice Thomas is mistaken in his belief that tribal immunity lacks legal or historical foundation, though I agree with him that tribal immunity at least has a narrow “immovable-property” exception. In addition, I argue that Thomas has extended the principle of implicit divestiture of tribal sovereign power beyond what is warranted under an originalist reading of the Constitution. I then call attention to an arguably underexplored justification for narrowing state sovereign immunity to allow suits against states by Indian tribes, a theory that may call into question Justice Thomas’s past votes to disallow such suits. Finally, I conclude by briefly discussing some public-policy implications of my arguments; as well as by arguing for retention of tribal sovereign immunity, and abandonment of the plenary-power and implicit-divestiture doctrines, principles I think are more rooted in the racist and assimilationist ideology of Manifest Destiny than they are in our constitutional framework.

(Aaron Gordon is also the author of the recently posted and very timely article Nondelegation).