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05/11/2022

Gregory Ablavsky versus Rob Natelson on the Indian Commerce Clause
Michael Ramsey

Gregory Ablavsky (Stanford Law School) has posted A Reply to Mr. Natelson’s 'Preliminary Response to Prof. Ablavsky’s ‘Indian Commerce Clause’ Attack' (6 pages) on SSRN.  Here is the abstract: 

Robert Natelson recently responded to a three-paragraph critique of his 2007 law review article that I offered in an amicus brief in the ongoing Brackeen litigation. Though Natelson concedes that critical examination is an integral part of the scholarly process, he claims that my brief was not only unscholarly but "shyster-like."

I disagree. In this reply, I rebut his critiques. I reiterate the key, uncontested point that his original article relied on an inaccurate version of a vital piece of evidence from ratification, Sydney's New York Journal essay. In the correct version, Sydney observed that ratification would "totally surrender into the hands of Congress the management and regulation of the Indian affairs." Natelson's response attempts to explain away this language as a mere slip of Sydney's pen. But in my view this effort to rewrite the historical source's explicit language to agree with Natelson's original hypothesis is unpersuasive.

I then challenge Natelson's claims that I distorted his arguments. As I show, nearly all the critiques that my brief offered drew from near identical arguments in my 2015 Yale Law Journal article that Natelson himself concedes was "generally respectful." Moreover, I argue that each of my characterizations of Natelson's article, while necessarily a summary, accurately reflected his arguments and underscores the substance of our scholarly disagreement.

It is unfortunate that Mr. Natelson took my brief so personally. This case is not about either Mr. Natelson or me. As all parties would agree, the outcome will significantly impact people's lives. I briefly discussed Mr. Natelson's scholarship in the amicus not to denigrate him but because I have spent my academic career researching the history at issue here, and because, in my scholarly assessment, Mr. Natelson's frequently invoked article was flawed and at odds with historical evidence. I am disheartened that this important academic discussion has devolved to ad hominem attacks.

And here is Professor Natelson's essay from last month, to which Professor Ablavsky is responding: A Preliminary Response to Prof. Ablavsky’s “Indian Commerce Clause” Attack.  From the introduction:

This year the Supreme Court will hear consolidated cases involving the scope of Congress’s authority to “regulate Commerce . . . with the Indian Tribes”—the Indian Commerce Clause.  One of the cases comes from the U.S. Court of Appeals for the Fifth Circuit, which held that the clause gives Congress almost unlimited power.

In 2007, I did a research study on the Indian Commerce Clause. Its conclusions were outlined in an article entitled, The Original Understanding of the Indian Commerce Clause, which was published the following year. I concluded that the Constitution created a different regime for addressing “Indian Affairs” than had existed under the Articles of Confederation. (“Indian affairs” was the Founding-Era term for all relations with the Indians.)

Under the Articles, the entire Indian affairs power was given to the Confederation’s single central branch—the Confederation Congress—subject to two broad exceptions in favor of the states. There were efforts during the Constitutional Convention to grant the new federal Congress wide “Indian affairs” authority as well. Instead, however, the Convention decided on a “separation of powers”’ approach ...

Claims that the Indian Commerce Clause gives Congress unlimited and/or exclusive Indian affairs authority are wrong. Such claims are inconsistent with the Constitution’s separation of powers approach.

...

In 2019, [Professor Ablavsky] filed a “friend of the court” brief with the court of appeals that included a slashing attack on my scholarship, my scholarly standards, and (at least inferentially) on my honesty.

...

Three different approaches in Ablavsky’s brief lead me to say it has a shyster-like quality:

(1) It misrepresents my conclusions and then attacks the misrepresented version rather than what I actually wrote.

(2) It wrenches quotations out of context to make them appear to say things they did not.

(3) It seeks to divert attention away from how the ratifiers understood the Constitution during the ratification process and toward how federal congressmen and officials may have understood it after ratification. Of course, self-interested federal officials’ subsequent interpretation of their own powers is virtually worthless as evidence of the previous ratification bargain. ...

I'm carefully not taking sides on this one, which readers can judge for themselves.