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10/20/2022

Jeremy Rabkin: Commerce with the Indian Tribes
Michael Ramsey

Jeremy Rabkin (George Mason University School of Law) has posted Commerce with the Indian Tribes: Original Meanings, Current Implications (Indiana Law Review, forthcoming 2023) (46 pages) on SSRN.  Here is the abstract:

The Supreme Court’s 2022 ruling in Oklahoma v. Castro-Huerta defies much current precedent and practice, as four dissenters protested. But neither side grappled with the Constitution’s original meaning. Both text and early practice confirm that the federal power to regulate “commerce with the Indian tribes” was a different, more constrained power than the power to regulate “commerce among the states.” But as Nineteenth Century courts recognized, federal Indian law could also draw on powers inherent in national sovereignty – a wider but not unbounded source of authority and one which necessarily excluded interference from states. Even if tribal reservations are now seen as no more independent than states, they have good claims to protection under constitutional safeguards for the free flow of commerce – rather than being treated as colonial dependents of state governments. In contrast to the conformist and assimilationist policies imposed by federal authority in the decades after the Civil War, today’s America should be more receptive to the Constitution’s original view on Indian tribes – as separate nations within the larger American nation.

This clause is getting a bit of attention -- see here and here on the debate between Robert Natelson and Gregory Ablavsky, and also here from David Kopel.

Off the top of my head, I don't see any reason to think that in terms of powers the Indian Commerce Clause means any more (or less) than the interstate commerce clause or the foreign commerce clause -- they are, actually, all part of the same clause.  Of course, other parts of the Constitution also may grant federal powers and limit state powers in managing affairs with the native tribes.  (But contra Professor Rabkin I don't think the late-nineteenth century Court's idea of inherent powers of sovereignty is a good place for an originalist to look.)