Who's Afraid of Clarence Thomas?

Thomas’ critique is an opportunity to exploit lines of fracture in federal anti-Indian law doctrines that try to justify US domination of Original Peoples.

Mar 13, 2024

IN THIS POST:

My very first Substack post was about the 2023 Haaland v. Brackeen Indian Child Welfare Act (ICWA) case: “Cutting Through the US Claim of a Right of Domination over Indigenous People: An Analysis of Haaland v. Brackeen”.

I dissected the decision in minute detail and will not repeat that here.

This post focuses on Haaland as an example of the US Supreme Court effort to “constitutionalize” federal anti-Indian law domination, as if that would legitimize it.

Article 1, Section 2, Clause 3 excludes “Indians not taxed” from the census count that is used to apportion “Representatives and direct Taxes” (This is the same clause that contains the infamous “three fifths” ratio that says three fifths of a state’s slave population will count towards its apportionment.)
Article 1, Section 8, Clause 3 says Congress “shall have power to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes….”
The 14th Amendment, Section 2 repeats the “Indians not taxed” phrase (and eliminates the “three fifths” ratio in apportioning representatives).

Of the three mentions, federal anti-Indian law uses the so-called “Indian Commerce Clause” to argue that the Constitution supports US “plenary power” over Original Peoples.

The Indian Commerce Clause itself is straightforward. It says Congress “shall have power to regulate Commerce with…the Indian tribes”.

What could be more clear? It’s hard to misunderstand such simple language:

“to regulate commerce”
“with the Indian tribes”

But federal anti-Indian law makes the puzzling claim that the Indian Commerce Clause says the US Congress has “power to regulate Indian tribes”.

Haaland v. Brackeen demonstrates this puzzling claim.

The Haaland decision opened with an explicit claim of US “plenary power” overOriginal Peoples. It said:

In a long line of cases, we have characterized Congress’s power to legislate with respect to the Indian tribes as “plenary and exclusive.”

The court tried to avoid the nasty odor around “plenary power”, by saying it is not “free-floating” and is “moored” to the Constitution.

Let’s look at how Haaland explained that the US claim of “plenary power over Indians” is “moored to the Constitution”:

The first “moor” cited in Haaland was the Indian Commerce Clause, interpreted away from its literal text:

The Indian Commerce Clause authorizes Congress “[t]o regulate Commerce ... with the Indian Tribes.” …
We have interpreted the Indian Commerce Clause to reach not only trade, but certain “Indian affairs” too.
We have explained that virtually all authority over Indian commerce and Indian tribes lies with the Federal Government.

The court added three more “moors”, but each one is as puzzling as the court’s mis-reading of the Indian Commerce Clause.

It said a second “moor” of “plenary power” was the Treaty Clause — Article II, Section 2: “The President shall have Power, by and with the Advice and Consent of the Senate to make Treaties, provided two thirds of the Senators present concur.”

But the court said this couldn’t apply in Haaland, because “Congress did not … enact ICWA pursuant to the Treaty Clause power”.

The court said a third “moor” of “plenary power” was outside any specific Constitutional provision. It was the “principles inherent in the Constitution’s structure”… “preconstitutional powers …necessary concomitants of nationality.”

Explaining this, Haaland cited a 1936 case, United States v. Curtiss-Wright, that said:

The power to acquire territory by discovery and occupation…[is] inherently inseparable from the conception of nationality. …[It is] not in the provisions of the Constitution, but in the law of nations.

This preconstitutional “law of nations” dates back to the colonizer claim of “ownership” by “Christian discovery”:

As Chief Justice Marshall put it in Johnson v. McIntosh (1823):

…It was necessary… to establish a principle, which all [colonial powers] should acknowledge as the law…
This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made….

Finally, Haaland said a fourth “moor” of “plenary power” was “the trust relationship between the United States and the Indian people”. The court added, “The contours of this ‘special relationship’ are undefined.”

In fact, as I explained in my July 2, 2023, Substack post, NAVAJO - TREATY - WATER: THE UNTRUSTWORTHY ‘TRUST DOCTRINE’ OF FEDERAL ANTI-INDIAN LAW, the court has clearly defined the “trust relationship” as “a sovereign function subject to the plenary authority of Congress.” [US v. Jicarilla Apache Nation (2011)]

So Haaland went in a circle by citing “trust relationship” as a “moor” of “plenary power”!

To summarize Haaland’s four “mooring points” for “Congressional plenary power over Indians”:

The “Indian Commerce Clause” is a bald misreading of the Constitutional text.
The “treaty” clause is irrelevant.
The “preconstitutional powers” are a relic of “Christian Discovery”.
The “trust” argument is circular.
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Justice Thomas’ dissent in Haaland, point by point:

“I have searched in vain for any constitutional basis for … a plenary power [over Indian tribes].
“The history of the plenary power doctrine in Indian law shows that, from its inception, it has been a power in search of a constitutional basis—and the majority opinion shows that this is still the case.
“[Regarding] the power to regulate ‘Commerce’ with tribes: Because the Constitution contains one Indian-specific power, there is simply no reason to think that there is some sort of free-floating, unlimited power over all things related to Indians.
“The Treaty Clause confers only the power to ‘make Treaties’…. It does not confer a free-floating power over matters that might involve a party to a treaty.
“The ‘structural principles’ that the majority points to are … the foreign-affairs powers…. like matters of war, peace, and diplomacy….
“So where did the idea of a ‘plenary power’ over Indian affairs come from? As it turns out, little more than ipse dixit. The story begins with loose dicta from Cherokee Nation v. Georgia (1831)… [where Chief Justice John] Marshall …characterized [‘Indian tribes’] as …’domestic dependent nations’ whose ‘relation to the United States resembles that of a ward to his guardian.’ …At bottom, Cherokee Nation’s loose dicta cannot support a broader power over Indian affairs.
“This Court has increasingly gestured to … a plenary power, usually in the context of regulating a tribal government or tribal lands, while conspicuously failing to ground the power in any constitutional text and cautioning that the power is not absolute.
“The majority’s opinion today continues in that vein… lurch[ing] from one constitutional hook to another, not quite hanging the idea of a plenary power on any of them, while insisting that the plenary power is not absolute.”

Thomas’ Haaland dissent inspired fear in commentators who think federal anti-Indian law is good for Original Peoples.

One representative example is a 2023 New Republic essay by staff writer Matt Ford, titled, “Clarence Thomas Wants to Demolish Indian Law”. Ford said:

Justice Clarence Thomas … thinks that the court should “clarify” some of its most important Indian law and tribal sovereignty rulings—meaning that he thinks they should be overturned. Doing so would upend two centuries of federal-tribal relations and fundamentally reshape Native Americans’ place in the American constitutional order.

Ford clearly does not understand that “two centuries of federal-tribal relations” have developed as a system of domination based on a US claim of “ownership of the country by discovery”.

Ford is not aware that the ground of Original Peoples’ sovereignty exists apart from rather than in “the American constitutional order”.

As Justice Scalia admitted in Blatchford v. Native Village of Noatak (1991), Original Peoples are not in the “constitutional order”:

It would be absurd to suggest that the tribes surrendered immunity in a convention [the Constitution] to which they were not even parties.

Professor M. Alexander Pearl, holder of the Chickasaw Nation Endowed Chair in Native American Law at the University of Oklahoma, is not afraid of Thomas.

In fact, in “Originalism and Indians”, Pearl says many scholars recognize the coherence and significance of Thomas’ critique:

Justice Thomas's skepticism of congressional plenary power over Indian affairs is not a radical position among scholars, tribal leaders, or other jurists. Indeed, the growing majority view [is] that the precedent creating it is plainly wrong….
Justice Thomas, consistent with many in the academy, the Bar, and Indian country, believes that "the Federal Government cannot simultaneously claim power to regulate virtually every aspect of the tribes through ordinary domestic legislation and also maintain that the tribes possess anything resembling 'sovereignty.'"
Robert Clinton has argued that "There is no acceptable, historically-derived, textual constitutional explanation for the exercise of any federal authority over Indian tribes without their consent manifested through treaty.... Consequently, neither Congress nor the federal courts legitimately can unilaterally adopt binding legal principles for the tribes without their consent."

Professor Lorianne Updike Toler puts it this way in “The Missing Indian Affairs Clause”, an important and detailed history of the drafting of the “Indian Commerce Clause”:

In the stead of congressional plenary power, this Article recommends the reinitiation of tribal treaty-making as a fix for the missing clause. Re-treating with tribes is consistent with the Constitution’s text, history, structure, and precedent. The time is ripe for …overturning one and a half centuries of colonialism and restoring beleaguered tribal sovereignty.

I borrowed the title of this post from Edward Albee’s play, “Who’s Afraid of Virginia Woolf”.

I adapted Albee’s title for two reasons. To help you understand why, here is what Professor Oliver Tearle says about the play:

The play is “an absurdist allegory for America”. The names of the two leads, George and Martha, take us back to the founding of the United States.
Albee’s original title was “Exorcism’” which he ended up using as the title for the final act of the play.

I apply Tearle’s comments as follows:

Vilification and fear of Justice Thomas is part of the absurdist drama of American politics, in which sound bites and the “red - blue” spectrum dominate “news”. This promotes ad hominem arguments, encourages stereotypes, and prevents serious discussion of philosophical and legal issues.
Federal anti-Indian law — based on claims of domination from the founding of the US — should be exorcised from US jurisprudence.

In arguing for the exorcism of domination, I engage with ideas even if presented by people with whom I have disagreements. I do not fear discussion.

The value of this philosophical approach should be obvious.

There are observers and participants in federal anti-Indian law today whose scholarly and legal efforts are devoted not to eliminate US colonial domination, but to “mitigate” it, as if domination can be sweetened.

The efforts of these observers and participants echo the fears of those in mid-20th century who were terrified when Thurgood Marshall [later Justice Thurgood Marshall] attacked the “separate but equal” race doctrine. They argued that Marshall should focus on making racial segregation “equal” rather than ending it. To do otherwise, they feared, would anger the racists. Luckily, Marshall persisted. Segregation was ended, not “mitigated” by “equality”.

This is not the first time I have discussed Justice Thomas’ critique of “plenary power”.

My 2022 book, Federal Anti-Indian Law: The Legal Entrapment of Indigenous Peoples, has a section titled “Legal Schizophrenia” — borrowing from Thomas’ statement in US v. Lara (2004) that “Federal Indian policy is, to say the least, schizophrenic.”

Thomas was criticizing the majority ruling in Lara, which said:

The “central function of the Indian Commerce Clause,” we have said, “is to provide Congress with plenary power to legislate in the field of Indian affairs.”

In United States v. Bryant (2016), Thomas said US law…

“… remain[s] bedeviled by amorphous and ahistorical assumptions about the scope of tribal sovereignty . . . and the fiction that Congress possesses plenary power over Indian affairs.”

Thomas added that if these assumptions and fiction remain, US law…

“ …will continue to be based on the paternalistic theory that Congress must assume all-encompassing control over the ‘remnants of a race’ for its own good.”

For my part, I engage with Thomas in order to bring the debate about US “plenary power” domination and claim of “ownership of the country” into the open.

Then we all might learn something about two centuries of federal-tribal relations and open the way to fundamentally reshape Original Peoples’ and nations’ independent relation to the American constitutional order.

In short, Thomas’ critique is an opportunity to exploit lines of fracture in federal anti-Indian law doctrines that try to justify US domination of Original Peoples.

Fear not.