Missing History in Federal Anti-Indian Law: "Indian Affairs" and the "Indian Commerce Clause"

Professor Lorianne Updike Toler calls out the Supreme Court's "doctrinal missteps" in the Brackeen v. Haaland ICWA decision

IN THIS POST: Historical clarity and strong argumentation are both needed to overturn the US claim of a right of domination over Indigenous peoples.

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On June 19, 2023, days after the Supreme Court decision in Brackeen v. Haaland, the Indian Child Welfare Act case, Professor Lorianne Updike Toler criticized the Court’s “doctrinal misstep” in deciding the case.

Updike Toler said the “misstep” was the court’s repeated insistence that the US has ‘plenary power over Indians’.

She said the court failed to recognize…

… that Congress does not have plenary power over tribes and must instead once again recognize their sovereignty by treating with them.

She also said:

…if the tribes did indeed want something like ICWA, they could agree to it by treaty either collectively as a Tribal Congress or tribe by tribe.

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I made a similar argument in my own critique: “Cutting Through the US Claim of a Right of Domination over Indigenous People: An Analysis of Haaland v. Brackeen”.

I said that the ‘plenary power’ doctrine is a claim of a right of domination over Indigenous peoples, and that:

If the doctrine of domination were revoked and Indigenous nations acknowledged as the free and independent nations they rightfully are, questions of adoption would be handled exactly as they are for all other “intercountry adoptions” under the 1993 Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption.

Professor Updike Toler laid a major part of the blame for the ‘misstep’ on the fact that:

The parties [in Brackeen] did not provide a theory the Court could “work with” in upending plenary power and … defer to tribal sovereignty.

She said the missing legal theory is tied to a missing legal history: namely,

The Constitution does not provide Congress with plenary power over tribes, but instead allows interaction and regulation through the Indian Commerce Clause, Treaty Clause, and War and Peace Powers….

Updike Toler said, “a theory solidly grounded in history is available”; but it has yet to be squarely presented to the court. She called for “a new genre of historical amicus briefs … filed in favor of neither party”, and only to illuminate the historical record.

Whether a “neutral” history is possible is an intriguing question. Updike Toler says, “Neutral history may sound like an oxymoron.”

Nevertheless, she pointed to her experiments with developing historical amicus briefs and said:

Such [a] history [aims to] reveal historical gaps, discrepancies, or unworkable puzzles, rather than only presenting sources favoring one party or the other’s self-interested aims.

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In my view, no amount of history by itself will be sufficient to correct the “missteps” of federal anti-Indian law. It will take powerful arguments on behalf of Indigenous sovereignty to open the way for a correction of the law.

As I point out in my book, Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples:

An entrenched doctrine is hard to dislodge. The difficulty is epic when the doctrine was created at the foundation of the field and has been used for decades and centuries.

I am aware that it is one thing to criticize legal doctrine in a book and another to challenge it in court.

In fact, in a chapter titled “Revoking Christian Discovery Doctrine”, I explain the special difficulties of litigation that aims to change federal anti-Indian law:

Challenges to federal anti-Indian law depend on the willingness of litigants and lawyers to shoulder a complex and even hazardous burden. Criticism of the doctrine of Christian discovery constitutes a kind of lèse majesté: an affront to the pretension of U.S. sovereignty.

In 2006, Richard B. Collins and Karla D. Miller asked “why there were few tribal lawsuits” to enforce their rights. Their answer included demoralization resulting from colonial domination and racial hostility, and the inordinate complexity of federal anti-Indian law. They nevertheless emphasized the “obvious importance” of defending Native rights, saying that failure to litigate has “negative consequences for those whose rights lie dormant.”

In 2012, Professor Walter Echo-Hawk called for a “focused national legal movement” in federal anti-Indian law. He called it the “mother of all campaigns”… Echo-Hawk noted that the twentieth-century challenge of the National Association for the Advancement of Colored People (NAACP) to “separate but equal” doctrine required years of advance discussion. …

[In fact], not all Black leaders were interested in the challenge because they “feared that demands for integration might anger white state officials and lead them to cut back already meager funding for existing black schools.”

Echo-Hawk pointed out a similar hesitancy to rock the boat among “scholars . . . concerned about the colonial stigma of the foundational principles in federal Indian law . . . who remain cautious about departing from them for fear of unraveling the fabric of that body of law.” …

As with the Black civil rights struggle, it will take more than an array of single challenges to overturn the doctrine of Christian discovery. It will require lawyers and litigants to take a strategic approach, coordinating the efforts of many people—and Peoples.

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The history Updike Toler calls for would present an amicus brief on the so-called “Indian Commerce Clause” in the US Constitution [Article I, Section 8, Clause 3]. That clause plays an outsize role in federal anti-Indian law.

Hundreds of court decisions and thousands of law review articles have been written about the clause; untold blood has been spilled in the enforcement of the claim of US power supposedly derived from the clause:

[Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . .

Professor Updike Toler presented her research in “The Missing Indian Affairs Clause”. That is material for another post.