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More from Rob Natelson on the Indian Commerce Clause
Michael Ramsey

Recently published, in the Federalist Society Review, Robert Natelson: The Original Understanding of the Indian Commerce Clause: An Update.  From the introduction (footnotes omitted):

Since 2019, the Supreme Court has issued four major decisions on Indian tribal sovereignty law issues. Perhaps this is a belated response to Justice Clarence Thomas’s call for clarifying a body of jurisprudence long plagued by doctrinal confusion. That confusion may be the reason for the fractured votes in all four recent cases: Three were decided by 5-4 margins, and one on a vote of 3-2-4.

The Court has agreed to consider four more cases, now consolidated, in the October 2022 term. They test the constitutionality of the federal Indian Child Welfare Act of 1978 (ICWA). This statute purports to govern the removal and out-of-home placement of American Indian children, to override state jurisdiction, and to dictate procedures to state courts.

There is fierce controversy among child advocates over the merits of the ICWA. The pending cases, however, all focus on constitutional issues alone. They raise questions of Fifth Amendment equal protection and due process, delegation of legislative power, and federal commandeering of state officials. However, their most fundamental question is whether Congress’s enumerated powers include authority to intervene in child placement decisions at all—even though family law is “an area that has long been regarded as a virtually exclusive province of the States.”

In one of the ICWA’s recitals, Congress identifies the Indian Commerce Clause as its principal constitutional justification.[The ICWA further recites that the Indian Commerce Clause and unspecified “other constitutional authority grants Congress plenary power over all Indian affairs.”

For reasons explained in this article, this recital is erroneous: The Constitution did not give Congress authority to enact the Indian Child Welfare Act.

Related, from the same author, at the Independence Institute: A Further Response to Prof. Ablavsky on the Indian Commerce Clause.  From the introduction:

An earlier post provided a preliminary response to a law professor named Gregory Ablavsky, who claimed in a legal brief that my 2007 article The Original Understanding of the Indian Commerce Clause was defective scholarship. My preliminary response explained that his criticisms were not based primarily on what I had written, but on his own misrepresentations of what I’d written.

I added that a further response would come after I finished a larger project—an article entitled, The Original Understanding of the Indian Commerce Clause: An Update. The article now has been published and is available here [ed.: see above].

In preparing the Update, my research assistant, Jeremy Sallee, and I examined writings published since I researched my 2007 article. One was Professor Ablavsky’s Beyond the Indian Commerce Clause, published in Yale Law Journal in 2015. We examined some of his footnotes and sources because we wanted to know if his sources might affect our own conclusions.

Unfortunately, we discovered that Beyond the Indian Commerce Clause contained a disturbing number of inaccurate, non-existent, and misleading citations, as well as deceptively-edited quotations. I have prepared a partial list called Cite Checking Professor Ablavsky’s “Beyond the Indian Commerce Clause.” You can read it here (pdf). More on that below.

For an earlier exchange between Professor Natelson and Professor Ablavsky, see here: Gregory Ablavsky versus Rob Natelson on the Indian Commerce Clause.  Professor Ablavsky is of course welcome to respond on this blog.