Beyond the Indian Commerce Clause
abstract. The Supreme Court has described the Indian Commerce Clause as the primary constitutional basis for federal exclusive and plenary power over Indian affairs. Recently, Justice Clarence Thomas, citing current scholarship, has argued that the Clause’s original understanding does not support this authority, with radical implications for current doctrine.
This Article uses unexamined historical sources to question this debate’s fundamental premise. It argues that the Indian Commerce Clause, open-ended when written, was a minor component of eighteenth-century constitutional thought. This Article instead posits alternate sources for federal authority over Indian affairs, drawing particularly on the Washington Administration. Asserting federal power against the states, the Administration embraced a holistic constitutional reading akin to present-day field preemption. With respect to authority over Indians, the Administration, through law-of-nations interpretations, asserted ultimate U.S. sovereignty over tribes, while acknowledging Native autonomy beyond these limitations. Yet these supposedly narrow legal principles ultimately formed the basis for the later elaboration of plenary power over tribes.
On the one hand, this history provides a more solid foundation for doctrinal principles derided as incoherent. On the other hand, it suggests more cabined federal authority over Indians. Ultimately, the Article demonstrates the value of more historically grounded reconstructions of constitutional understandings.
author. Sharswood Fellow in Law and History, University of Pennsylvania Law School; Doctoral Candidate in History, University of Pennsylvania. Special thanks to Akhil Amar, Bethany Berger, Stephen Burbank, Kristen Carpenter, Stephanie Corrigan, Matthew Fletcher, Sarah Barringer Gordon, Daniel Hulsebosch, Sonia Katyal, Sophia Lee, Serena Mayeri, Gerard Magliocca, Dave Pozen, Robert Reinstein, Dan Richter, Angela Riley, Theodore Ruger, Judith Resnik, Justin Simard, Alexander Tallchief Skibine, Catherine Struve, Karen Tani, and the members of the Penn Law Legal History Writer’s Bloc(k) for feedback on the work in progress. I benefitted from comments on versions presented at the Society for Historians of the Early American Republic, the University of Maryland School of Law Legal Theory Workshop, the American Society for Legal History, and the Newberry Library Symposium on Comparative Early Modern Legal History.
“Federal Indian policy is, to say the least, schizophrenic.”1
—Justice Clarence Thomas
“You talk of the law of nature and the law of nations, and they are both against you.”2
—Onitositah (Corn Tassel), Cherokee chief
For over a century, the Supreme Court has interpreted the Constitution to grant the federal government “plenary” power over “Indian Affairs”—the diplomatic, political, military, and commercial relationships between the United States and Native nations.3 Plenary power, as used by the Court, has two distinct meanings.4 Sometimes the Court uses the term interchangeably with “exclusive,” to describe federal power over Indian affairs to the exclusion of states. But the Court also uses the term to describe the doctrine that the federal government has unchecked authority over Indian tribes, including their internal affairs. The Court has ruled that federal plenary power authorizes the government to take Native land without compensation,5 for instance, or to expand, contract, or even abolish tribal sovereignty at will.6
While gesturing to other constitutional provisions,7 the Court has largely relied on the Indian Commerce Clause, which grants Congress the authority “[t]o regulate Commerce . . . with the Indian Tribes,”8 to justify the federal government’s exclusive power against states and plenary power over tribes. “[T]he Indian Commerce Clause makes ‘Indian relations . . . the exclusive province of federal law,’”9 the Court opined in Seminole Tribe of Florida v. Florida, precluding the exercise of “virtually all” state authority.10 As for the extent of federal power over Indian tribes, “the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs,” the Court stated in Cotton Petroleum Corp. v. New Mexico.11
Both the exclusive and plenary power doctrines rest on unstable foundations. When the Court first enunciated the plenary power doctrine in 1886, it considered, and rejected, the Indian Commerce Clause as the doctrine’s source.12 Since then, many scholars have questioned whether the Clause could be read to grant the federal government unbridled power to regulate tribes’ internal affairs.13 More recently, a revisionist strand of originalist scholarship has challenged the long-received wisdom that the Clause grants the federal government authority to the exclusion of the states, arguing that the Clause’s original understanding supports a far narrower scope for federal power and a broader role for the states.14
The Court, however, has shied away from reexamining these doctrinal bases for nearly all federal Indian law—until recently. In two recent concurrences, Justice Clarence Thomas has subjected the Court’s Indian Commerce Clause jurisprudence to a wide-ranging originalist critique. In United States v. Lara, he questioned whether inherent tribal sovereignty and congressional plenary power can coexist.15 And in the 2013 Adoptive Couple v. Baby Girl decision, Justice Thomas challenged congressional authority to enact the statute at issue, the Indian Child Welfare Act.16 Drawing on the revisionist originalist scholarship, Justice Thomas argued that the Indian Commerce Clause provides federal authority only over Indian trade, narrowly defined.17
Justice Thomas’s critique of the Court’s Indian Commerce Clause jurisprudence has radical and largely unexplored implications,18 and deserves to be taken seriously.19 Because most federal statutes concerning Indians lack a nexus to Justice Thomas’s definition of trade, they would be unlikely to survive the scrutiny he urges.20 The result would be a wholesale reshaping of the law that has governed Indian affairs for the past century and a half: “an entire Title of the United States Code (25 U.S.C.) would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized,” as the Court stated in a challenge to a different federal Indian law statute.21
Justice Thomas’s provocative claims provide an excellent opportunity to revisit fundamental principles of federal Indian law. Although Justice Thomas’s historical analysis is unpersuasive—as this Article will argue—he captures a larger truth. As this Article explores, the history of the Indian Commerce Clause’s drafting, ratification, and early interpretation does not support either “exclusive” or “plenary” federal power over Indians. In short, Justice Thomas is right: Indian law’s current doctrinal foundation in the Clause is historically untenable.
Responding to Justice Thomas’s revisionist critique requires moving beyond the widely accepted premise that federal power over Indian affairs must rise and fall with the Indian Commerce Clause.22 This preoccupation with the Clause is an anachronism that reflects not the Constitution’s eighteenth-century drafting but nineteenth-century doctrinal innovation. To determine the original constitutional Indian affairs power, this Article employs an alternate approach to reconstruct constitutional meaning. This approach uses heterodox methodologies and inclusive conceptions of constitutional actors and sources to challenge older histories centered on the Supreme Court.23
Employing this approach helps remedy two flaws that mar accounts of the Indian Commerce Clause specifically and much originalist scholarship generally.24 The first is the focus on textual history divorced from historical experience. This approach is especially problematic for Indian law, which evolved not from abstract reasoning but from customary and shared practices developed over two centuries of cross-cultural encounter.25
The second flaw is reliance on a narrow set of sources, principally the records of the Constitutional Convention and the ratification debates. This approach ignores the construction of constitutional understandings elsewhere—in early federal and state practice, in broader public discussions, or, as this Article emphasizes, in diplomatic negotiations with other sovereigns. The problems posed by this blinkered focus are particularly salient for the Indian Commerce Clause. Substantive discussion of the Clause in the sources usually relied on by originalists is almost nonexistent.26 This paucity of evidence has led commentators to draw drastically different conclusions based on arguments from silence, or to conjecture about the issues the Constitution’s drafters “were alert to,”27 or to mention the Constitution only briefly before leaping forward to cases interpreting the Clause decades later.28
A large body of sources, however, documents late eighteenth-century understandings of federal authority over Indian affairs. The topic dominated early federal governance, particularly under the Washington Administration of 1789 to 1797,29 when the United States entered into major treaties and land purchases with Native nations, fought a lengthy and costly Indian war, and sought to end endemic cycles of frontier violence.30 These issues implicated the era’s pressing questions of western lands, international relations, military affairs, and national finance. Granted expansive discretion by Congress to govern Indian affairs,31 the executive branch gave concrete meaning to the Constitution’s sparse framework through extensive deliberations. These efforts to clarify Natives’ constitutional status produced a considerable archive: correspondence and meetings among the President, his cabinet, and state executives; transcripts of treaty negotiations with Native nations; and a constant flow of letters, instructions, and intelligence to and from Indian agents, officials, and informants on the frontier. Using these vibrant discussions, this Article draws on, and extends into earlier periods, recent scholarship, particularly within administrative law, emphasizing the importance of constitutional understandings outside the courts.32
These sources reveal a very different story than that told by present-day scholars and judges preoccupied with the Indian Commerce Clause. The most pressing issue for early Americans was federalism: would the states or the national government possess authority over Indian relations? The Washington Administration insisted that the federal government enjoyed exclusive constitutional authority, and many state officials agreed. This claim rested not on the Indian Commerce Clause but on the broad panoply of diplomatic and military powers granted to the national government and denied to the states—a claim similar to the present doctrine of field preemption. Proponents of state power over Indian affairs, meanwhile, argued from inherent state sovereignty; only in the early nineteenth century, this Article will show, did they advance a narrow interpretation of federal power rooted in the Indian Commerce Clause.
The scope of federal power over Native nations presented a different set of questions. The diplomatic and military powers claimed by the federal government against the states did not imply that Natives were under U.S. jurisdiction; as in foreign relations, the question was which sovereign had the authority to negotiate, or fight, with Indians. But the Washington Administration nonetheless did not consider Native nations fully independent polities. Instead, it argued that the law of nations granted the United States, as territorial sovereign, limited authority over Natives—primarily the power to restrict Native international legal personality and, relatedly, to limit Native land sales. Building on recent scholarship underscoring the centrality of the Constitution’s international law context,33 this Article suggests that the Washington Administration understood both these restrictions and Native autonomy as constitutional issues. Though the United States did not initially claim plenary power over Natives, the doctrine crafted by the Administration provided the intellectual antecedents for later, more aggressive assertions of authority.
Early Americans thus espoused legal theories similar to, but importantly distinct from, modern Indian law doctrines of exclusive and plenary federal power. These interpretations proved influential and durable, profoundly shaping the Supreme Court’s foundational decisions of the 1820s and ’30s. In key respects, the Administration’s views represent the forgotten origins of federal Indian law.
These historical precedents also provide a more solid foundation for the basic concepts of current federal Indian law and suggest that recent denunciations of Indian law as “incoherent” and “schizophrenic” stem from a failure to understand its history. But there are also important points of divergence between early understandings of Indian law and current doctrine. The legal positions of early Americans suggested a more limited role for states and a more modest scope of federal power over Indian nations than present law provides; these positions also suggest that the Court’s doctrinal conclusions based on Native dependency, particularly limitations on tribal jurisdiction, are unsupported by early constitutional history.34
This Article proceeds in three parts. Part I provides a brief history of the drafting and ratification of the Indian Commerce Clause. Part II considers competing arguments over whether the Indian Commerce Clause supports broad federal power over Indian affairs exclusive of state authority. This Part first argues that the Clause itself is open-ended on this question, then moves beyond the Clause to argue that many early actors located supreme federal authority in Indian affairs in a holistic interpretation of the Constitution. Others disagreed and sought to cabin federal authority, but their arguments were based primarily on inherent state sovereignty. Part III turns to federal plenary power over Indian tribes. Rather than locating this power in the Indian Commerce Clause, early federal officials claimed—based on the law of nations and territoriality—limited sovereignty over Natives. These arguments laid the groundwork for the doctrine of plenary power, but they also acknowledged considerable Native autonomy. The Article concludes by exploring the consequences of this account for current doctrine and Indian law scholarship.
I. a brief history of the indian commerce clause
The Indian Commerce Clause originated with Article IX of the Articles of Confederation.35 A compromise resulting from a vigorous debate over state authority,36 Article IX granted Congress the “sole and exclusive right and power of . . . regulating the trade and managing all affairs with the Indians.”37 It also imposed two important qualifications. First, the national government could only exercise authority over Indians who were “not members of any of the States.”38 Second, “the legislative right of any State, within its own limits,” could not be “infringed or violated.”39 These restrictions became a source of tension as the states and the national government vied for authority in negotiations with the Creeks, Cherokees, Six Nations of the Haudenosaunee (Iroquois), and other Native nations.
These controversies raged as the Constitutional Convention met in June 1787,40 but no substantive discussion of Indian affairs occurred until August 18. On that day, James Madison proposed granting Congress the power to “regulate affairs with the Indians as well within as without the limits of the U[nited] States”—a clear effort to abrogate Article IX’s limitations.41 The Committee of Detail proposed an alternative. It had previously drafted a clause giving Congress the authority “[t]o regulate commerce with foreign nations, and among the several States.”42 It now suggested adding “and with Indians, within the Limits of any State, not subject to the laws thereof”43 to this clause, partially preserving Article IX’s protection of state authority. Near the end of the Convention, the Committee on Postponed Parts instead eliminated all qualifiers and proposed adding only “and with the Indian tribes” to the end of the Commerce Clause.44 The Convention accepted this provision unaltered in the final constitutional draft.45 The final language granted Congress “Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”46
The ratification debates that followed ignored the Indian Commerce Clause. The only sustained discussion appeared in Federalist No. 42, where James Madison praised the change from Article IX, observing that the elimination of the earlier qualifiers resolved earlier contentions over the division of authority.47 The only other recorded mention of the Clause in the debates came in a tract by Anti-Federalist Abraham Yates, Jr., who attacked the Clause along with other provisions that he claimed granted the federal government an improper supremacy over Indian affairs.48
The relative neglect of the Clause continued after ratification. The primary statutes governing Indian affairs until the 1830s were the Trade and Intercourse Act of 179049 and its successors.50 These laws regulated Indian trade, banned state and private land purchases from Indians, and they extended federal criminal jurisdiction over non-Indians in Indian country. But these statutes were only ambiguously and partially exercises of the federal Indian commerce power.51 The Supreme Court did not discuss the Indian Commerce Clause until 1824,52 and it did not examine the Clause’s implications for Indian affairs until Cherokee Nation v. Georgia in 1831.53
Unlike the robust debates around Article IX, then, the Indian Commerce Clause provoked little discussion either at the Convention or afterward. These traditional sources of original constitutional understanding give modern scholars very little clear evidence to ground present-day doctrine, a challenge addressed in the next Part.
II. exclusive federal power
Received wisdom in both doctrine and scholarship has long held that the federal government enjoys exclusive power over Indian affairs, displacing state authority.54 Though the argument has a textual hook in the Indian Commerce Clause, this conventional wisdom—which I will call the nationalist account—ultimately rests on precedent and practice.
Recent revisionist scholarship has challenged the conventional view, relying on textual arguments that “commerce” in the Indian Commerce Clause refers only to matters concerning trade. Though some of this scholarship has argued for expanded tribal autonomy,55 other scholars have claimed that this argument supports expanded state authority over Indian affairs, a view that Justice Thomas adopted in his Adoptive Couple concurrence.
This Part argues that both the revisionist and nationalist accounts are inadequate, and it contends that the Clause’s meaning was open-ended when drafted: the terms “commerce” and “trade” had distinctive meanings in the Indian context that encompassed a broad range of interactions with Indians. But examining the Indian Commerce Clause in isolation is a mistake. During and after ratification, proponents of a stronger federal government located exclusive power over Indian affairs by adopting a holistic interpretation of the Constitution and its provisions on federal power; in contrast, opponents argued from inherent state sovereignty rather than relying on the text of the Indian Commerce Clause. Textualist arguments based on a narrow interpretation of commerce did not gain ascendance until a generation later, when these arguments were judicially rejected and lay quiescent until revived by current revisionist scholars and judges.
A. The Vagueness of the Indian Commerce Clause’s Original Public Meaning
Much of the revisionist scholarship on the Indian Commerce Clause has adopted the approach of the New Originalism: it asks what the “original public meaning” of the Clause was to a well-informed reader when adopted.56 Justice Thomas argues that the answer is clear. He relies on earlier Commerce Clause jurisprudence to argue that, in the eighteenth century, commerce consisted of “selling, buying, and bartering, as well as transporting for these purposes.”57 He then turns to the specific issue in Adoptive Couple. “[T]he term ‘commerce with Indian tribes’ was invariably used during the time of the founding to mean ‘trade with Indians,’” he argues, citing the scholarship of Professor Robert Natelson.58 The federal government thus lacks the power to regulate “noneconomic activity such as adoption of [Indian] children.”59
This section questions both premises of this argument. First, it challenges the assumption that commerce had identical meanings in the Interstate and Indian Commerce Clauses. Second, it argues that commerce with the Indians did not always denote trade, and, when it did, trade with the Indians had a broader historical meaning than either Justice Thomas or Natelson acknowledges. “Commerce” as used in the Indian Commerce Clause is therefore, in New Originalist parlance, a “vague” term, which cannot alone resolve the Clause’s proper interpretation.60
1. Indian and Interstate Commerce
Recent scholarly interest in the Indian Commerce Clause is in part a spill-over from the heated debates over the Interstate Commerce Clause. Proponents of expansive federal commerce power have long cited early federal Indian policy to claim a broad meaning for “commerce.”61 In Adoptive Couple v. Baby Girl, Justice Thomas takes the reverse approach: he references the narrow definition of “commerce” he advanced in United States v. Lopez to contend for a similarly constrained meaning of commerce with Indian tribes.62
Both positions start from the assumption of what Saikrishna Prakash calls “intrasentence uniformity”: commerce must mean the same thing in the Foreign, Interstate, and Indian Commerce Clauses, which is why the interpretation of one clause can illuminate another.63 Prakash defends this presumption in part with history: “nothing,” he claims, “in the Commerce Clause’s text or original understanding actually suggests that the Founders understood ‘regulate commerce’ as having multiple meanings.”64
Yet evidence suggests that Indian “commerce” did mean something different in 1787 and 1788 than foreign or interstate commerce.65 When the Clause was drafted, the power Madison had proposed over “Indian affairs” was tacked on, late, to a clause already encompassing interstate and foreign commerce.66 The Convention thus devised the power over interstate and foreign “commerce” before anyone thought about including Indians.67 And unlike the Interstate and Foreign Commerce Clauses, the Indian Commerce Clause had an explicit predecessor in the Articles of Confederation.68 Unlike the other Clauses, then, the delegates framed all proposed modifications of the power over Indian affairs against the earlier authority granted in the Articles.
Ratification debates continued this pattern. Of hundreds of discussions of commerce, only a handful considered trade with the Indians. The vast majority concerned overseas commerce with foreign nations, occasionally including interstate commerce.69 One ratification discussion even seemed to exclude Indian trade from the concept of “commerce.”70 The only two mentions of the Indian Commerce Clause discussed the Clause’s implications for “Indian affairs” alone, contrasting the Clause’s grant of authority with the earlier authority under the Articles.71 In short, no one during ratification interpreted the Indian Commerce Clause to shed light on the Interstate and Foreign Commerce Clauses, or vice versa.
There is also evidence that at least one “Founder” understood commerce to have distinct meanings in the three Clauses. During the 1791 national bank controversy, Attorney General Edmund Randolph—the Convention delegate who wrote the Commerce Clause’s first draft72—offered his opinion on the bank’s constitutionality.73 He divided the Commerce Clause into its three parts, each with a corresponding series of powers.74 “[W]ith respect to foreign nations,” the Clause encompassed duties, custom house regulations, and embargoes.75 For the states, it permitted establishing the “forms” of interstate commercial intercourse.76 And for the tribes, Randolph identified four powers under the Indian Commerce Clause: “1. to prohibit the Indians from coming into, or trading within, the United States. 2. to admit them with or without restrictions. 3. to prohibit citizens of the United States from trading with them; or 4. to permit with or without restrictions.”77 Each of Randolph’s constructions related to trade, but with different inflections: the Indian commerce powers were more expansive and more concerned with government regulation than were the customs-focused understandings of the Interstate and Foreign Commerce Clauses.
There was good reason for Randolph’s differentiation: trade with Indians had a different meaning and valence than other forms of trade, as the subsequent section explores. Commerce with Indian tribes must be interpreted on its own terms rather than in the shadow of heated debates over the Interstate Commerce Clause.78
2. The Broad Meaning of Trade with Indians
Drawing on Natelson’s scholarship, Justice Thomas asserts that commerce with Indian tribes meant only “trade with Indians” at the time of the Constitution’s drafting.79 There are two problems with this argument. First, commerce with Indians did not exclusively mean trade. Second, trade with Indians was an expansive category that encompassed more than the narrowly economic transactions Justice Thomas envisions.
“Commerce” was a term only occasionally applied to Indian affairs. The phrases “commerce with the Indians” or “commerce with Indians” appeared in only a handful of eighteenth-century American publications.80 Considerably more significant were the terms “intercourse” and “trade.” The two terms captioned Congress’s first law addressing Indian affairs, the Trade and Intercourse Act.81 “Intercourse” was the era’s predominant diplomatic and legal term of art to describe relations between Natives and white settlers.82 Several of the (few) discussions of “commerce” with Indians in the eighteenth century reflect a similar meaning. They speak, for instance, of “commerce” as the exchange of religious ideas among tribes,83 or sexual intercourse with Indian women,84 thus using the term to encompass interaction broadly defined with and among Native nations.85
Both “commerce” and “intercourse,” though, were dwarfed by eighteenth-century occurrences of the term “trade” to describe relations with Natives. Justice Thomas presumes that the meaning of Indian “trade” requires no further examination, assuming trade encompassed only “economic” activity. History suggests otherwise.
When placed alongside “with the Indians,” “trade” took on a different character. Although it still referred to buying, selling, trading, exchanging, and gifting items, these were not primarily commercial transactions. Instead, “trade” was a form of diplomacy and politics, “the defining feature of Native-colonial relations.”86 Though all forms of trade were freighted with diverse meanings, trade with the Indians was understood almost solely through this political and diplomatic lens, especially by the political elite.87 As George Washington stated, “[T]he trade of the Indians is a main mean of their political management.”88 American officials insisted that trade with Indian tribes was “the most essential means of Securing their Friendship.”89 Those officials fretted that the goods of Spanish and British traders would turn Indians into pawns of the nation’s opponents.90 Such was the “power and influence of trade” among the Indians, they believed, that it could start and stop wars.91 “Friendship and trade without end” was stamped on the medals that the government distributed to Indian chiefs to secure them to the federal interest.92 Trade was so central to federal diplomacy with Indian nations that, in 1796, Congress created a series of federally run trading posts to provide Natives with goods at cost.93 Never intended to run a profit, these so-called “factories” required constant subsidies.94
Because of this political and diplomatic understanding, the Indian trade encompassed the exchange of an extraordinary range of items. Most obvious is land. Negotiating land cessions, central to federal Indian policy, often hinged on making Natives dependent on trade goods, for which tribes ultimately paid in territory.95 But Indians and colonists also bought, sold, and exchanged people: through the negotiated return of captives96 and through the Indian slave trade—a “Commerce with the Indians” in which Anglo-Americans purchased Natives captured in wars.97 By the 1780s, the trade in Indian slaves, though largely a legal relic in long-settled colonies,98 persisted on the frontier, alongside the sale of European children captured by Indians.99 In this way, pace Justice Thomas, trade with Indians encompassed “noneconomic activity such as adoption of children,”100 as Natives and Anglo-Americans adopted children they had captured or purchased.101 Trade even included rituals around seemingly non-economic crimes like murder: common Native practice, embraced by early federal officials, required compensation by “covering the grave” through the payment of goods to victims.102
The point is not that late eighteenth-century slavery is analogous to present-day voluntary adoptions, or that the modern criminal justice system is the same as diplomatic payments for murder. Instead, recognizing the past’s discontinuity with the present expands the meaning of terms like “trade” in ways that textual searches alone elide. “Trade with the Indians” encompassed a rich constellation of exchanges, including buying and selling people and lives.
Defining “commerce with the Indian tribes” as trade thus helps little in construing the Indian Commerce Clause’s scope. Even if we accept the questionable proposition that “commerce with Indians” meant only selling, buying, and bartering, in Indian country these were never straightforwardly economic activities. Rather, as Justice Thomas’s own examples establish,103 these activities were understood through the lens of cross-cultural diplomacy. This does not mean that “trade” included all relations with Indians,104 but neither was its meaning so cramped as to preclude all applications now deemed “noncommercial.” In short, the “original public meaning” of Indian commerce cannot alone provide a clear basis for cabining federal authority over Indian affairs.105
B. Interpreting Silence: The Indian Commerce Clause’s Drafting and Adoption History
To bolster their textual arguments, both revisionists—proposing a narrow scope for the Indian Commerce Clause—and nationalists—advancing a more expansive interpretation—have relied on the Clause’s drafting and adoption history. The problem confronting both sets of scholars is that the Clause’s history is sparse: a series of unexplained textual changes, coupled with two mentions in the ratification debates, one a sentence long.106 Both revisionists and nationalists have reached their conclusions based on the implications of silence. This section challenges both revisionist and nationalist claims, arguing that silence on the Indian Commerce Clause implied neither narrow nor exclusive federal power; instead, it suggested the Clause’s open-endedness. The Clause’s drafting history thus provides no basis to resolve its contested scope.
1. Silence as Consensus: Shortcomings of the Revisionist and Nationalist Accounts
Justice Thomas, drawing again from Natelson, offers a historical account for a “limited construction of the Indian Commerce Clause.”107 He reads the Clause’s drafting history in light of Article IX’s solicitude for states’ legislative rights: “[t]his concern for state power reemerged during the drafting of the Constitution,” he contends, arguing that the rejection of Madison’s proposal in favor of a “far narrower” version that “echoed the Articles of Confederation” demonstrated an intention to limit federal power.108
Omitted from this account are the six years between the Articles and the Constitution, a period when states’ assertions of authority against the federal government undermined national Indian policy and spawned costly wars.109 Briefly told, expansionist states such as New York, North Carolina, and Georgia seized on the Articles’ ambiguous language to assert sole jurisdiction over Natives and their lands and to challenge federal treaties.110 This interference horrified nationalists. James Madison feared that states’ interpretation of Article IX would “destroy the authority of Congress altogether.”111 The congressional Committee on Southern Indians argued that states’ self-interested interpretations would render federal power over Indian affairs a “mere nullity” and would make Article IX an “absurdity in theory as well as in practice.”112 By 1787, nationalist predictions that state interference would lead to expensive wars were vindicated by looming hostilities against powerful Native confederacies.113
Though Natelson claims these struggles were “a back-and-forth affair,” with “no clear trend in the direction of either local or central control,” they reflect more than disagreement.114 The Articles’ structure empowered a determined minority to block national action, and the federal government was dependent on state cooperation. Thus, though centralized federal authority over Indian affairs enjoyed widespread support,115 challenges to state authority succumbed to the Articles’ byzantine procedures,116 while Madison and others despaired that the national government was too weak to enforce what they regarded as the correct interpretation of Article IX.117
Events at the Constitutional Convention must be read against this background. As I have argued elsewhere, the most significant constitutional reforms for Indian affairs stemmed from structural changes that increased federal power rather than from the Indian Commerce Clause itself.118 But the Clause’s evolution hardly suggests solicitude for “state power.”119 Justice Thomas emphasizes the rejection of the amendment proposed by Madison that would have granted federal authority both “within” and “without” the states.120 Justice Thomas instead draws attention to the amendment proposed by the Committee of Detail that would have barred federal authority over Indians subject to state laws.121 But the Convention rejected both proposals, an outcome that conceded more to Madison and proponents of federal authority than to its opponents. Unlike Article IX, nothing in the final draft of the Indian Commerce Clause guaranteed state authority, nor did its phrasing bar federal authority within state borders—the difficulty Madison’s initial proposal had sought to remedy. Moreover, although the Indian Commerce Clause no longer provided that federal authority was “sole” or “exclusive,” as Article IX had, the Constitution eschewed these labels for all of the federal government’s enumerated powers, opting instead for broad federal authority through the Supremacy Clause.122 In short, the ultimate adoption of federal power over Indian commerce without any qualifiers endorsed Madison’s position more than it protected state authority.
Madison certainly read the Indian Commerce Clause that way, claiming victory in Federalist No. 42, where he stressed that the Clause “is very properly unfettered from two limitations in the Articles of Confederation, which render the provision obscure and contradictory.”123 The only other explicit mention of the Clause during ratification was a single line in Anti-Federalist Abraham Yates, Jr.’s broader denunciation of national Indian policy.124 Yates, a defender of New York’s prerogatives, argued that in conjunction with other constitutional provisions, the adoption of the Clause would “totally surrender into the hands of Congress the management and regulation of the Indian affairs, and expose the Indian trade to an improper government.”125
Justice Thomas argues that more important than these discussions was what was not said. The “nearly nonexistent” opposition to the Indian Commerce Clause, he argues, demonstrates that “[t]he ratifiers almost certainly understood the Clause to confer a relatively modest power on Congress—namely, the power to regulate trade with Indian tribes living beyond state borders.”126 But “silence” here is not as “revealing” as Justice Thomas suggests.127 Unlike Yates, other Anti-Federalists accepted paramount federal authority over Indian affairs.128 Article IX had already established the abstract principle of federal supremacy over Indian commerce; in this context, removing the Article’s qualifiers looked more like the clarification of an ambiguous provision than a radical new departure. Perhaps for this reason, the ratification debate over Indian affairs focused on the Constitution’s other provisions—particularly the Treaty and War Powers—as Justice Thomas’s own citations establish.129 Silence, in short, cannot be read to demonstrate a narrow scope for federal power.
But this same silence also cannot be read as conclusive evidence of an intent to enshrine broad federal power, as others have interpreted it.130 Robert Clinton, this position’s most thorough proponent, argues that the conflicts under the Articles of Confederation produced a consensus in favor of exclusive national control.131 Dismissing the textual change from “Affairs” to “Commerce” as stylistic,132 Clinton follows Madison in arguing that the omission of provisions protecting state authority codified federal supremacy, a shift that “required and consumed little debate.”133 The lack of discussion of the Clause thus reflected widespread agreement.134
Though more compelling, this consensus-based account has gaps of its own. It is difficult to see how an agreement so universal could emerge so quickly from contentious struggles for authority under the Articles. These controversies seemingly convinced many, including many critics of the Constitution, that federal supremacy over Indian affairs was necessary. But Yates spoke for a significant unpersuaded minority, and many of these strong critics of a national Indian affairs power were also delegates at the Convention.135 Furthermore, if such a consensus existed, it proved remarkably fleeting: under the new Constitution, expansionist states continued to defy federal authority.136 These parallels between pre- and post-ratification history make it implausible to interpret the silence over the Indian Commerce Clause as universal acquiescence to federal supremacy.
2. Silence as Ambiguity: The Open-Ended Indian Commerce Clause
What, then, to make of the Indian Commerce Clause and its drafting? The problem seems to be the assumption, shared by both sides in this interpretive debate, that the meaning of the Indian Commerce Clause was “clear” when drafted and ratified.137 Because the Clause’s unenlightening text was shaped, unrecorded, behind committee doors, clarity is elusive.
There is a compelling case, though, that the Clause was open-ended when drafted. Nearly all the enumerated powers were late additions and occasioned little of the heated discussion that surrounded issues of representation or the structure of the national government.138 The Indian Commerce Clause in particular was an afterthought, its earliest versions literally scrawled in the margins of constitutional drafts.139 This lack of attention likely reflected two considerations. First, the Articles of Confederation had already granted the national government considerable power over Indian affairs, even if that authority’s scope was contested. The Indian Commerce Clause was therefore akin to other provisions from Article IX that were transposed into Article I, Section 8, of the Constitution without debate—the power to create post offices, to coin money, to fix weights and measures.140 Second, because treaties with Native nations had caused the primary struggles between states and the national government under the Articles, the Indian Commerce Clause was less important than changes bolstering federal treaty power.
Indeed, the final phrasing of the Indian Commerce Clause likely made it particularly uncontroversial, because the Convention rejected all qualifiers endorsing either the nationalist or the state sovereignty position. Though Madison stressed the removal of Article IX’s qualifying language,141 opponents of federal power could read the Clause to modify existing arrangements very little, since the Clause said nothing explicitly barring concurrent state authority. Contrary to the claim that the Convention’s silence on the Clause reflected a consensus in favor of a single “clear” meaning, then, the Clause’s open-endedness may best explain the lack of debate at the Convention. The resulting language allowed both proponents and critics of federal authority to claim victory.142
Present-day interpreters of the Indian Commerce Clause have thus stumbled onto what seems to have been the Clause’s actual “original understanding”: dueling interpretations that each construed the Clause to endorse their own position. The two sides were not equal; when the Clause was read in the context of the entire Constitution, the nationalists had the more compelling argument.143 And they ultimately prevailed, at least in formal law.144 Yet those embracing state authority offered a strong counterargument—particularly when the Clause was read in isolation—and long shaped events on the ground.145 The key point is that both arguments were defensible interpretations of the Clause and its history.146 The only thing that the Clause explicitly did was grant some version of the Indian affairs authority outlined in Article IX of the Articles of Confederation to the new federal government. Neither the Clause’s terse language nor its drafting history clearly defined the scope of that authority.
C. Original Understandings of Exclusive Federal Power over Indian Affairs
To understand the Constitution’s implications for federal authority over Indian affairs, we must look beyond the Indian Commerce Clause. The 1780s and ’90s witnessed a vibrant debate over federalism and relations with Indians. Yet little of this discussion turned on the Clause, and little of it occurred in court. The debate was over the new nation’s structure, in which the Washington Administration and state executives played outsized roles.
This Part reconstructs these executive constitutional discussions. Part II.C.1 argues that many early Americans, particularly those in the Washington Administration, subscribed to a vision of federal supremacy similar to present-day field preemption. But this view was not universally accepted. Part II.C.2 traces the constitutional claims of advocates for state authority over Indian affairs. Originally, their arguments hinged on inherent state sovereignty, particularly territorial sovereignty, rather than text. Not until the early nineteenth century did textualist arguments gain ascendance, when proposed narrow readings of the Indian Commerce Clause failed to become doctrine but succeeded in reshaping subsequent discussions of federal Indian affairs power.
1. The Constitution as Field Preemption
In relation to Indian affairs, early Americans seem to have read the Constitution differently from present-day lawyers and judges. Instead of adopting the present clause-bound approach,147 most of those who drafted and interpreted the Constitution wrote of authority over Indian affairs as an interrelated, coherent bundle of powers.
This idea came from experience. In August 1787, as the Convention was meeting, the Continental Congress’s committee on southern Indian affairs noted that “managing Affairs with the Indians, had been long understood and pretty well ascertained in this country.”148 Encompassing authority over war and peace, purchasing lands, fixing borders, and preventing illegal settlement, these “indivisible” powers, earlier exercised by the Crown, had passed “entire to the Union,” the committee insisted.149 Under this well-established regime, “[t]he laws of the State can have no effect upon a tribe of Indians or their lands within the limits of the state so long as that tribe is independent.”150
Though contested, this conception of national authority as a bundle of powers was the dominant strand of thinking among the political elite. As I have elaborated elsewhere, Indian affairs influenced the Constitution well beyond the Commerce or Treaty Clauses; they affected the Supremacy Clause, the Guarantee Clause, Article III jurisdiction, restrictions on the states, and military powers.151 Most observers understood federal authority over Indian affairs as emerging from the interplay of all of these clauses.
Ratification underscored this understanding of federal power. Recall Anti-Federalist Abraham Yates, Jr.’s insistence that the Constitution granted Congress supremacy over Indian affairs.152 To support this contention, Yates cited—alongside the Indian Commerce Clause—the Supremacy Clause, the federal government’s new “legislative, executive and judicial powers,” and the bar on state tariffs without federal consent.153 While few were as explicit as Yates, most concerns over Indian affairs during ratification similarly turned on an array of provisions: the Supremacy Clause, particularly its inclusion of treaties already “made” under the Articles; the federal judicial power to enforce Indian treaties; the federal military establishment; and the national power of taxation.154 It was in these contexts, for instance, that most of the essays of The Federalist discussed Indians.155
Confirming Yates’s fears, the Washington Administration quickly sought to ensure “that the state-governments be prohibited from intermeddling with the Indian tribes, to the utmost limit of the constitution.”156 That limit, the Administration insisted, granted it considerable latitude. Soon into his presidency, George Washington informed the Governor of Pennsylvania that “the United States . . . possess[es] the only authority of regulating an intercourse with [the Indians], and redressing their grievances.”157
Washington entrusted that authority to Secretary of War Henry Knox, whose department administered Indian affairs.158 Knox was an ardent proponent of national authority. Frustrated by state interference under the Articles, he read the Constitution as a grant of expansive authority. “[T]he United States have, under the constitution, the sole regulation of Indian affairs, in all matters whatsoever,” he instructed a federal Indian agent.159 By granting this authority over Indian affairs, the Constitution and federal laws “entirely preclude all interference, either of individuals, or of States,” Knox wrote another official.160 He voiced similar sentiments to recalcitrant state governors.161 Yet Knox was only the most vociferous member of an administration committed to federal supremacy over Indian relations: even Secretary of State Thomas Jefferson and Attorney General Edmund Randolph, usually solicitous of state concerns, insisted on federal preeminence in Indian matters.162
The Administration also agreed on the source of federal power over Indian affairs: the interplay of the national government’s diplomatic, military, and commercial authority. As Knox wrote:
[A]s indian Wars almost invariably arise in consequence of disputes relative to boundaries, or trade, and as the right of declaring War, making treaties, and regulating commerce, are vested in the United States it is highly proper they should have the sole direction of all measures for the consequences of which they are responsible.163
Jefferson voiced similar arguments. “[The] paragraphs of the Constitution, declaring that the general government shall have, and that the particular ones shall not have, the rights of war and treaty, are so explicit that no commentary can explain them further, nor can any explain them away,” he insisted, rebuffing Georgia’s effort to sell Indian-owned land.164
The Washington Administration’s adoption of a position aggrandizing its authority is, perhaps, unsurprising. More unexpected is the agreement of state officials. Shortly after ratification, South Carolina Governor Charles Pinckney appealed to Washington for assistance from “the general Government, to whom with great propriety the sole management of India[n] affairs is now committed.”165 Georgia’s legislature made a similar concession when it rejected the Governor’s call for negotiations with the Creeks. “With the organization of the foederal government,” the legislature wrote, “the power of making war and peace—raising and supporting armies—providing for the common defence and general welfare of the United States—entering into Treaties—and regulating commerce with the Indian tribes was vested in Congress.”166 When the Virginia legislature supplied Indians with ammunition, it made sure President Washington knew it had acted from exigency alone, “lest in case of silence it might be interpreted into a design of passing the limits of state authority.”167
This holistic reading of the Constitution makes the Indian Trade and Intercourse Act of 1790 more intelligible. One of Congress’s first acts, the law established a licensing scheme for Indian traders, barred treaty-making with tribes without federal approval, and extended state laws over whites traveling into Indian country.168 Subsequent revisions added still more provisions.169 Proponents of an expansive federal commerce power have cited the law’s breadth, particularly its criminal provisions, as evidence of the broad meaning of commerce, while opponents have argued that other constitutional authority supported the law.170 But searching for a single source of constitutional authority asks the wrong question. The law codified a hodgepodge of federal powers, some intended to protect the federal treaty power, others related to trade. Rather than adopting a clause-bound approach, the executive officials who drafted the law, and the congressmen who enacted it with little debate, seemingly shared the view that Congress’s “Indian affairs” power emerged from aggregate constitutional provisions.171
Both during and after ratification, then, much of the nation’s political elite shared an interpretation of Indian relations in which the Indian Commerce Clause played a minor role. Rather than relying on the Clause in isolation, members of this elite class argued that the Constitution prohibited the exercise of state authority by granting the federal government the core Indian affairs powers in multiple provisions, and by barring the states from entering treaties or declaring war. In short, they understood federal supremacy against states as roughly analogous to present-day concepts of field preemption: that is, the federal government constitutionally occupied the “field” of Indian affairs so completely as to preclude all state authority.
This executive constitutional understanding from the 1790s shaped the Supreme Court’s earliest pronouncements on Indian law decades after ratification. In 1832, in Worcester v. Georgia, Chief Justice Marshall endorsed federal supremacy over Indian affairs against Georgia’s attempt to assert jurisdiction over the Cherokee Nation.172 He traced the contentious history of Article IX of the Articles of Confederation before noting that the Court need not resolve the provision’s ambiguities.173 “The correct exposition of this article is rendered unnecessary by the adoption of our existing constitution,” he wrote. “That instrument confers on congress the powers of war and peace; of making treaties, and of regulating commerce with foreign nations, and among the several states, and with the Indian tribes. These powers comprehend all that is required for the regulation of our intercourse with the Indians.”174
Chief Justice Marshall’s endorsement of the preemptive interpretation of federal authority echoed Henry Knox’s views from forty years earlier. Yet the Chief Justice placed greater emphasis on the Indian Commerce Clause than earlier thinkers, who all but ignored the provision. As this shift reflected, the earlier strain of constitutional thought persisted, yet the jurisprudential landscape had changed—thanks largely to federal supremacy’s opponents.
2. The Argument from State Sovereignty
The embrace of federal supremacy over Indian affairs was not universal, and heated debates persisted after ratification. But like proponents of federal authority, expansionist states advanced arguments based on constitutional structure, not the Indian Commerce Clause. Only later did textual arguments rooted in the Clause emerge.
Following ratification, advocates for state authority over Indian affairs adopted different tactics to resist federal supremacy. New York simply ignored the restrictions on its authority. Throughout the 1790s, the state successfully badgered Natives to enter into a series of dubious land transactions, openly flouting the Constitution and the Trade and Intercourse Act.175 Georgia’s approach reflected a more fully articulated theory of state authority. Georgia’s resistance began soon after ratification, when the first federal treaty ratified under the Constitution, the 1790 Treaty of New York with the Creek nation, invalidated two earlier cessions that Georgia claimed the Creeks had made to the state.176 Georgians were outraged. State newspapers denounced the treaty.177 Federal grand jury presentments attacked the treaty three times, decrying federal involvement “as the greatest grievance the State of Georgia (as a member of the Union) can lay under.”178 State militia threatened to kill all Indians despite the treaty’s promise of federal protection.179 “[T]he Executive officers of the Federal Government wished that the Indians might destroy the whole State of Georgia,” raged one militia leader.180 “Congress are a set of rascals, and the Secretary of War an enemy to his country”; the militia leader wished “he [c]ould drown them in the sea.”181
Throughout the 1790s, Georgia’s leaders fashioned a constitutional argument from this populist rage. They did not challenge the federal right to enter Indian treaties, but they insisted that the Treaty of New York’s guarantee of Creek title to lands within Georgia, as well as federal commissioners’ authority within the state, was unconstitutional.182 They invoked various provisions to ground these objections. Georgia Congressman James Jackson argued that the protection of Creek land “controverted the plainest principles of the Constitution, particularly those parts which secured to every citizen the rights of property”; he similarly claimed that Article IV, Section 3—which promised that nothing in the Constitution would prejudice state territorial claims—guaranteed state territory.183 Others insisted that Indian cessions to the federal government for trading posts within Georgia’s boundaries violated the Enclave Clause, which required state consent for “needful buildings” within state borders.184 Georgian representatives even denounced licenses required to attend federal treaty negotiations with Natives, declaring, “We know of no power on earth, competent to hinder a citizen of Georgia . . . from exercising the locomotive faculty, within the limits of the State, in the most liberal extent.”185 In 1795, Georgia defied the Treaty of New York by selling its western territory, including federally guaranteed Creek land, to land companies.186 Stressing that the Constitution enshrined the Treaty of Paris, barred ex post factolaws, and guaranteed state territory, the legislature insisted that “Georgia . . . is in full possession, and in the full exercise of the jurisdiction and territorial right” over its territory, and therefore “the right of disposing thereof, is, and are [sic] hereby declared to be in the State of Georgia only.”187
Federal officials found such assertions “extravagant and absurd,”188 and Georgians’ promiscuous interpretations suggest that they were grasping after arguments to bolster self-interested claims. Yet Georgians’ sense of grievance was sincere. The Georgians were straining to constitutionalize the sanctity of state sovereignty and authority over state territory—which is why Georgians bemoaned the “honor” and “dignity” of their state being “insulted” when federal officials challenged state jurisdiction.189
Georgians were the most extreme proponents of state territorial sovereignty, but others held similar views. “[I]f the State territorial Right is not Sovereign & Supreme, & exclusively so,” Patrick Henry observed, denouncing the Treaty of New York, “it must follow that some other Power does possess that exclusive Sovereignty: and every Title not derived from that other Power must be defective.”190 Even the Governor of Pennsylvania—generally supportive of federal authority over Indian affairs—rejected a federal appeal to limit settlement in western Pennsylvania. “The Constitutional supremacy of the Laws of the Union will not be disputed,” he wrote President Washington, “but may it not be Asked . . . what power there is to pass a Law which cou’d controul the Commonwealth in the legitimate exercise of her Territorial jurisdiction?”191
In their arguments against federal authority, state advocates rarely mentioned the Indian Commerce Clause.192 This was partly because early struggles over federalism centered on Indian treaties. But silence on the Indian Commerce Clause owed more to the fact that states’ assertions of territorial sovereignty were fundamentally structural, not textual. Even as states cited constitutional snippets, the argument for state authority ultimately rested on an understanding of federalism that privileged states’ sovereignty within their borders. This argument perpetuated pre-constitutional debates over the appropriate division of authority and reflected the unsettled nature of federalism in the early Republic.193
The backward-looking nature of states’ arguments, however, blunted their effectiveness. The Georgians’ attempts to shoehorn their views on state sovereignty into the Constitution fit imperfectly with the constitutional text. The Constitution, under any reasonable interpretation, granted the federal government considerable power over Indian affairs, and absolute state territorial sovereignty was inconsistent with a national government founded in the people and able to act directly, rather than through the states. When Georgians insisted that they had not been represented at the Treaty of New York,194 for instance, federal officials observed that Georgia’s Senators had been present when the treaty was debated.195 Though the Senators had voted against it, the Constitution made the treaty supreme law nonetheless.
Confronted with these limitations, states asserting control over Indian affairs in derogation of federal authority shifted their contentions. By the early nineteenth century, states, though still arguing from territorial sovereignty, also began to insist that the Indian Commerce Clause, interpreted to relate to trade alone, was the sole basis of federal authority—a move consistent with the rise of a Supreme Court jurisprudence focused on discrete constitutional clauses.196 In 1814, a federal Indian agent complained of “[t]he policy of Governor Mitchell [of Georgia], claiming and exercising an interference in the management of Indian affairs, allowing the General Government the regulation of their commerce only.”197 This Indian Commerce Clause-based interpretation coincided with the rise, beginning in the 1810s and culminating in the 1830s, of aggressive state assertions of sovereignty over Native nations.198 State demands that Natives be removed westward gave new salience to questions about the respective scope of federal and state authority over Indian affairs. To resolve these issues, the New York, Alabama, Georgia, and Tennessee Supreme Courts all embraced the narrow focus on the Indian Commerce Clause, sweeping all non-commercial Indian affairs, and even “internal” Indian commerce, within state jurisdiction.199 This restrictive reading also prevailed in a federal circuit decision invalidating the Trade and Intercourse Act’s criminal jurisdiction provision.200 This rewritten constitutional jurisprudence, based on a clause-bound interpretation of the Constitution, provided states with their most powerful counterargument to the Washington Administration’s nationalist vision. It also served, in one scholar’s words, as a “legal ideology of removal,” intended to forestall interference in state efforts to dispossess Natives within their borders.201
In the end, proponents of state authority lost the doctrinal struggle: in 1832, when the Supreme Court ruled on the federalism issues raised by removal in Worcester v. Georgia, Chief Justice Marshall enshrined federal supremacy over Indian affairs.202 This impeded states little, as they removed Natives, the Court’s holding notwithstanding.203 But beyond this policy victory, advocates for state sovereignty arguably won the jurisprudential battle over the methods of constitutional interpretation, too. Their assertion that the Indian Commerce Clause was the only basis for federal power over Indian affairs had little relationship to constitutional understandings during and after ratification. But as treaty-making declined, Indian warfare moved westward into federal territories, and Natives had largely been dispossessed of their lands, the older sources of constitutional authority over Indian affairs faded in importance, and the narrow focus on the Indian Commerce Clause prevailed. The Clause was transformed from a minor component of a broad Indian affairs power resting on multiple provisions into the most important and often sole source of national authority over Natives.
As the history underscores, the revisionists are right: despite the Supreme Court’s assertions, the Indian Commerce Clause alone cannot justify exclusive federal power over Indian affairs. The revisionists err, though, when they project their textualism onto the historical silence surrounding the Indian Commerce Clause. The interpretation with the best claim to be the original understanding of the federal Indian affairs power was based on a structural interpretation of the Constitution; it read multiple provisions in tandem to preclude state authority over Indian affairs. Textualist interpretations focused on the Indian Commerce Clause were a later innovation derived from a results-oriented effort to reinterpret the Constitution to cabin federal authority. The current inconsistency between the federal government’s broad and exclusive authority and the Indian Commerce Clause is thus manufactured. As the props that once supported exclusive federal power have been knocked out, only a single slender pillar survives to support the edifice.
In certain respects, the “original understanding” of exclusive federal power over Indian affairs provides more robust support for current law. Both Congress and the Court at least gesture toward “other constitutional authority”—before reverting to the Indian Commerce Clause—to support exclusive federal authority over Indian affairs.204 But as Justice Thomas points out, these half-hearted and vague invocations are “not illuminating.”205 This constitutional defense need not be so thin and unpersuasive. Many constitutional provisions intended to preclude state involvement in Indian affairs, particularly restrictions on state treaty-making and war powers,206 go unmentioned in the Court’s decisions.207 More substantially, as long as the Court constructs its arguments within the clause-bound framework concocted by federal power’s opponents, its case law will rest on an unpersuasive repetition of precedent—a weak response to the revisionists’ seeming intellectual courage to question hoary doctrines.
But this history also suggests revisiting current law. Adherence to the early understanding of federal power would limit states more than current doctrine does, since the Court currently favors conflict rather than field preemption in analyzing Indian affairs.208 There are policy reasons why strict adherence to state exclusion from Indian country may prove too constraining in the present, as some states and tribes seek to cooperate rather than contend for authority.209 But the background principle that motivated federal constitutional supremacy over Indian affairs—the concern that states’ attempts to assert jurisdiction over Native nations were legally dubious and would lead to conflict—has been vindicated by American history, and it deserves more robust consideration than recent cases have afforded.
Finally, though Indian law is often regarded as sui generis, there is convincing evidence that the Washington Administration’s holistic approach to the constitutional law of Indian affairs also extended to other fields of law. Other scholars have found a similar conception in early constitutional thinking about foreign affairs, for instance.210 Recovering the original understanding of Indian affairs suggests that many inquiries about the Constitution’s historical meaning start with unhelpful and ahistorical presumptions. Strict adherence to textualism and fixation on enumerated powers may sometimes obscure rather than illuminate original understandings of the Constitution.
III. plenary federal power
As murky as the Indian Commerce Clause’s implications for federalism are, the historical problems presented by the doctrine of plenary power—the doctrine that the federal government has complete authority over Indian tribes, including their internal affairs—are still more substantial. The Supreme Court routinely invokes the Clause to justify plenary power,211 but this assertion does not find support either in text212 or in any discussion of tribes’ constitutional status in the Clause’s sparse drafting and adoption history.213
This disjuncture between doctrine and evidence has not troubled the Court.214 But scholars—both Indian law specialists and originalists—have agreed on a narrative at odds with current law. The Constitution’s drafters, they argue, understood Native nations as separate sovereigns, with whom relations would be negotiated through diplomacy.215 A nineteenth-century innovation, plenary power was born of extra-constitutional powers “inherent in sovereignty” as well as historical necessity, as Natives did not assimilate or vanish216
This Part questions both current doctrine and the scholarly counternarrative regarding plenary power and its origins. Part III.A observes that, contrary tomost scholarly accounts, the United States initially asserted power over Indians aggressively, but the Constitution and the Washington Administration rejected this approach. Nonetheless, the new federal government did not regard Native nations as fully sovereign. Part III.B explores the Washington Administration’s construction of theories of U.S. sovereignty over Native nations, theories grounded in constitutional readings of international law and territoriality. Federal officials believed that the authority they claimed—limits on Natives’ international legal personality, including their right to freely alienate land—only modestly restricted Native sovereignty, yet in practice these limitations evolved into the doctrine of plenary power. Part III.C explores the doctrinal implications of this history, suggesting that recovering the United States’ original assertions of sovereignty over Native nations might suggest cabining plenary power.
A. The Indian Commerce Clause and Power over Indian Tribes
History both complicates and supports critiques of the plenary-power interpretation of the Indian Commerce Clause. Though the Clause says little about power over Natives, it was drafted as the United States was repudiating a failed effort to aggressively assert authority against Native nations, particularly their lands. In this context, the Clause is best read as part of a broader return to diplomatic models for negotiating with Natives as independent polities.
The frequent assertion that early Americans regarded Indian tribes as separate sovereigns outside U.S. jurisdiction is too simplistic. For one, “tributary” Natives—eastern tribes surrounded by Anglo-American communities—were subject to state law.217 Likely the “members of the States” under Article IX of the Articles,218 these Natives were presumably also the “taxed” Indians implied in the Constitution.219
Early American constitutional thinking focused, though, on the western nations who “encircle[d] the Union from Maine to Georgia”220—the Creeks, the Cherokees, the Haudenosaunee, and the tribes of the Ohio country, among others. The Revolutionary War profoundly affected these nations. The war, begun partly due to Anglo-Americans’ desire for Native land, spread into Indian country, where it became a chaotic contest between Anglo-American settlers and largely British-allied tribes, resulting in a deep-seated hatred of Indians.221
These fruits of war ensured that respect for Natives was not the hallmark of post-Revolutionary Indian policy. During debates over the Articles’ drafting, congressional delegate James Wilson had urged, “We have no right over the Indians, whether within or without the real or pretended limits of any Colony.”222 Wilson, however, was ignored. After the war, the states and the federal government insisted that Natives were no longer “free and independent nation[s]” but a “subdued people.”223
The claim rested on the 1783 Treaty of Paris, which ended the war with Britain and granted most British territory east of the Mississippi to the United States.224 The transfer of this vast territory—extending far beyond existing settlement or effective federal and state authority—had dramatic consequences for Natives. Under Anglo-American readings of the treaty, Native nations were not “external.”225 Instead, Native nations within the new borders—even those that had barely interacted with Anglo-Americans—were now ostensibly part of the United States. Expansionist states labeled Indians within their capacious borders226 as state “[m]embers,” prefiguring efforts to subordinate tribes to state jurisdiction.227 Federal officials demanded that tribes “acknowledge the United States to be the sole and absolute sovereigns of all the territory ceded to them by a treaty of peace, made between them and the King of Great Britain.”228 Moreover, abandoning earlier practices of purchase, both the state and federal governments now claimed Native land by right of conquest; some states took Indian title through ordinary legislation.229
These claims to U.S. authority through conquest were expansive, but they were distinct from later concepts of plenary power. Both the states and the federal government focused almost entirely on obtaining land and had little interest in regulating Indians’ internal affairs.230 Anglo-Americans’ principal preoccupation remained delineating sovereignty and authority among themselves, refracting nearly all issues involving Indians through the lens of federalism.231 Assertions that were ostensibly about Native status—the claims that Indians were state “members,” for instance—were actually intended to forestall federal interference in state land grabs.232 Even treaty language granting Congress the power “to manage all [the Indians’] affairs in such manner as they think proper”—later the subject of doctrinal disagreement—was, in context, an effort to bolster federal authority against states rather than a claim of power over Indian tribes.233
Nonetheless, even Anglo-Americans’ more limited claim to Indian lands through conquest was a break with earlier practice and a bold assertion of authority over Indian tribes. It was also an arrogant misinterpretation of reality. As the United States soon discovered, Native nations refused to “submit to be treated as Dependants.”234 Insisting that they were not bound by a treaty between the United States and Britain,235 Indian leaders turned for support to the neighboring British and Spanish, who were eager to check American expansion.236 Native nations also constructed a “formidable” confederation that threatened the United States with war.237 In short, regardless of what Anglo-Americans labeled them, Native nations possessed de facto independence, belying assertions of conquest.238
Many Anglo-Americans recognized this mismatch between the authority the United States claimed and what it could exercise.239 By the summer of 1787, the disasters of Indian policy under the Articles of Confederation led Congress to abandon its assertions of conquest.240Now, instead of employing a “language of superiority and command,” a congressional committee urged the more “politic and Just” course of “treat[ing] with the Indians . . . on a footing of equality.”241 It also recommended returning to purchasing Indian lands.242
Read against this history, the Constitution arguably reflected a conscious choice to place Natives outside the body politic. Most Indians were not counted for the purposes of congressional representation, a decision at odds with earlier proposals for possible Native representatives in Congress.243 Including Indian tribes within the Commerce Clause was inconsistent with the claim that they were conquered peoples. Furthermore, the sparse discussions of Natives at the Convention portrayed them as independent if bellicose nations rather than as vassals of the United States.244
It is wrong, then, to assert that the Indian Commerce Clause established federal plenary power, but it is equally wrong to assert that federal power over Indian tribes was unknown when the Constitution was drafted. A better reading of history is that the Constitution obliquely endorsed a significant and simultaneous shift in Anglo-Americans’ thought about Natives’ status: the repudiation of a theory of Native peoples as conquered in favor of a grudging acknowledgment of Native independence. This recognition had limits, as the following section explores.
B. Native Sovereignty, United States Sovereignty, and the Law of Nations
Few words dominate federal Indian law more than the term “sovereignty.” Though it is not a Native term, Native nations have adopted it to express deeply felt but oft-denied rights of autonomy, while in doctrine “sovereignty” has become a term of art for adjudicating jurisdictional disputes.245
The central place of sovereignty in Indian law owes much to the Washington Administration. Embracing law and restraint over claims of conquest, the Administration drew on the law of nations to determine Native status. As a result, federal officials framed nearly all issues of Indian affairs, including the question of land title, through the international law concept of sovereignty.
This focus on the law of nations yielded mixed results for Natives, as this section explores. In many respects, international law provided a more expansive scope for Native autonomy. But the law of nations could be a sword as well as a shield, interpreted by Anglo-Americans to limit as well as protect Native sovereignty. As Part III.B.2 considers, early federal officials used international law to claim territorial sovereignty over Natives and the corresponding right to serve as their sole “protectors” within the borders of the United States. Part III.B.3 traces federal international-law arguments that the United States was the sole legal purchaser of Native lands. In both instances, Anglo-Americans asserted that the restrictions placed on Native sovereignty and independence were minor. Natives, however, disagreed, and their assessment proved more accurate: as Part III.B.4 argues, these early constraints became the roots of plenary power.
1. The United States and the Law of Nations
The renewed salience of the law of nations and sovereignty in the post-revolutionary United States stemmed from several sources. First, the American Revolution made sovereignty central to late eighteenth-century thought about nationhood.246 Sovereignty questions were at the heart of the constitutional debates about the imperial crisis that culminated in the Revolution,247 and the Declaration of Independence represented a bold assertion of self-sovereignty.248 But the Revolution also underscored that sovereignty depended on recognition by the community of nations, leading to deep-seated concern among Anglo-American elites over the United States’ status in international law.249
Second, the late eighteenth century was a moment of transition in international law. In the 1780s and ‘90s, the law of nations remained an amalgam of older ideas about natural rights and newer concepts of positive law derived from treaties and national customs.250 These sources gave the law of nations a universalism that it would later lose; the interpretations of the era’s foremost thinkers granted non-European nations international-law rights that they could invoke against European colonizers.251 Federal officials shared this universalist conception. They routinely spoke of the “law of nations” and customary international law as applying to their relationships with Natives.252 There was little doubt to early Americans that international law governed both the United States and Indian nations as well as their relations.
Finally, the law of nations became increasingly prominent due to the United States’ situation in the early 1790s. Anglo-Americans viewed Native nations as proxies in the struggle for the borderlands with the British in Canada and the Spanish in Florida and Louisiana.253 Federal officials feared, with some justification, that the British and Spanish supported Native nations as buffers against U.S. expansion; several times in the early 1790s, this issue became so heated that both Americans and Europeans spoke of possible war.254 These disputes forced American officials—particularly Secretary of State Thomas Jefferson—to articulate legal theories of Native status that European diplomats would acknowledge, further encouraging federal officials to frame these questions using cosmopolitan international-law discourse.255
There was widespread agreement, then, that the law of nations should govern relations between the United States and Natives. It was less clear what the content of that law would be. The members of the Washington Administration were well versed in the writings of the European publicists, particularly the works of the influential eighteenth-century international lawyer Emil de Vattel.256 But the fundamental texts of the eighteenth-century law of nations, though universalist in aspiration, were Eurocentric in content; they said little about Native peoples.257 The Administration thus faced the challenge of translating international law principles from Europe to the American borderlands. Its efforts to do so had lasting consequences for Natives, as the following sections explore.
2. “[T]he Species of Sovereignty which the United States claim over the Indians”
The Washington Administration’s emphasis on the law of nations yielded a more expansive view of Native sovereignty than the United States had conceded under the Articles. Knox insisted that “Indians possess the natural rights of man,”258 obligating the United States to treat them with “justice and humanity.”259 He also urged repudiating earlier practice under the Articles: “independent nations and tribes of indians,” he wrote Washington, “ought to be considered as foreign nations, not as the subjects of any particular state.”260 Thomas Jefferson went further. In his view, “the Indians had . . . full, undivided and independant sovereignty as long as they chose to keep it and that this might be for ever.”261 One draft of a Jefferson letter to American diplomats overseas disclaimed power over Indians, “for we pretend to none over a nation of independent government.”262
The Administration’s practice largely followed these principles, as it replaced claims of conquest with diplomacy. The Administration emphasized treaties with Native nations, the provisions of which largely disclaimed authority over Natives or their self-governance.263 Indian country, the Attorney General recognized, lay outside the scope of federal legislative jurisdiction.264 The successive Trade and Intercourse Acts asserted personal jurisdiction only over citizens of the United States who ventured into Indian country;265 one scholar has described the laws as entrenching a system of legal pluralism that acknowledged the persistence of Native jurisdiction.266
Yet Jefferson’s claim that Indians possessed full sovereignty under this new legal order was disingenuous. The Washington Administration had repudiated earlier practice by acknowledging aspects of Natives’ independence, yet it did not consider tribes to be fully external nations. Rather, these nations still existed, as Knox, Washington, and others often wrote, “within the limits of the United States”—that is, within the borders set by the Treaty of Paris.267 According to these officials, this inclusion meant that the United States now possessed “territorial title”—what we would now call territorial sovereignty—over Indian country.268 This insistence on territory reflected the era’s intellectual currents. Enshrined in the writing of the influential eighteenth-century international lawyer Emil de Vattel, the concept of uniform sovereignty over a national territory with defined borders paralleled the rise of the nation-state and the repudiation of imperial models in which authority radiated from center to periphery.269 The logic of territoriality meant that Native sovereignty and U.S. sovereignty coexisted within the same space. The implications were significant, for this shared sovereignty suggested that Natives did not possess sovereignty equivalent to that of the United States or Spain or Britain: Euro-American nations could not possess sovereignty over the same territory. Territoriality established Native sovereignty as subordinate to the sovereignty of the United States.
Exactly how U.S. sovereignty limited Native sovereignty was a subject of considerable discussion, arising first in 1782 during negotiations over the Treaty of Paris.270 With their territorial interests at stake, the Spanish insisted that “neither Spain nor the United States has any rights of sovereignty over the Indians.”271 They pressed John Jay, the American envoy, as to how Anglo-Americans could claim “territories which manifestly belong to free and independent nations of Indians.”272 Jay replied that these “were points to be discussed and settled between us and them; that we claimed the right of preemption with respect to them, and the sovereignty with respect of all other nations.”273
Jay’s views were ignored under the Articles, but the Washington Administration, especially Secretary of State Jefferson, elaborated them into a law of nations doctrine that the Administration enunciated in border negotiations with the British and Spanish. The core of this doctrine was that, due to their inclusion within the United States, Native nations were not free to negotiate or associate with other Euro-American nations. In Jefferson’s words, it was
an established principle of public law among the white nations of America that while the Indians included within their limits retain all other natl. rights no other white nation can become their patrons, protectors or Mediators, nor in any shape intermeddle between them and those within whose limits they are.274
Or, as one of Jefferson’s British interlocutors observed, the Americans did “not regard the Indians living on their respective frontiers or within their respective territory, as possessing that sort of independent sovereignty which would entitle them to a claim on the intervention of a third power in terminating any dispute in which they might be involved.”275 Jefferson forcefully announced the same position to the Spanish during tense negotiations over Spanish patronage of the Creeks and other southern Indian nations.276
The sole power and duty to protect Native nations was thus the “Species of Sovereignty which the United States claim over the Indians within their boundaries in exclusion of every other Sovereign,” as Knox’s successor Timothy Pickering described it.277 As for the source of this sovereignty, Jefferson stated repeatedly that it was based on “the usages established among the white nations, with respect to indians living within their several limits”278—“a kind of Jus gentium for America,” he termed it, using the era’s Latinate term for international law.279 Echoing the principle articulated by Vattel that states were legally barred from interfering in other states’ internal affairs,280 Jefferson insisted on this norm to Britain and Spain; he regarded it as a restriction on European states’ actions within U.S. boundaries, rather than a limitation on Native sovereigns.281
Yet Anglo-Americans tried to get Indians to acknowledge this principle as well. Since independence, federal negotiators had included language in treaties that tribes placed themselves “under the protection of the United States of America, and of no other sovereign whosoever.”282 But although many tribes signed these treaties, others strongly resisted. The Creeks, for instance, “most positive[ly] refus[ed] to acknowledge the Creek Nation to be within the limits, or under the Protection of the United States,” seeking to maintain their alliance with the Spanish.283 Natives rejected suggestions that authority could be claimed over them without their consent. “You well know that no sovereignty was ceded to you at the peace of 1763 [between the Creeks and the British], except such lands as was purchased by his Majesty’s subjects by solemn treaty,” Creek leader John Galphin informed encroaching Georgians.284 “We actually see our whole country laid out into districts, without considering us to have any kind of claim or right, which nature has bestowed on us, and of which oppression or prejudice alone can attempt to rob us.”285 Yet such protestations were, as a matter of law, in vain, for Native assent was not necessary to claim sovereignty; only the customs of “white nations” constituted the law of nations.286
This international law grounding may suggest that the U.S. assertion of sovereignty over Indian nations was a claim to pre- or extra-constitutional power, as the Court proposed in dictain Lara,287 and as Fletcher has further elaborated.288 This is true if “constitutional” authority requires an unambiguous grounding in explicit constitutional text. But Jefferson, Knox, and other officials would likely not have shared this cramped meaning of constitutionalism, for several reasons. First, as scholars have recently emphasized, international law norms deeply shaped the U.S. Constitution, even beyond empowering Congress to punish offenses against the “Law of Nations”289: the document’s purpose was in part to create a sovereign capable of complying with international law’s requirements.290 Second, it would be misleading to characterize the concepts of territorial sovereignty underlying claims to authority over Native nations as extra-constitutional. The Constitution established this sovereignty both in an abstract sense and through specific provisions: the elevation of the Treaty of Paris and all other treaties to “the supreme Law of the Land”;291 congressional power to admit new states;292 guarantees of state and federal land claims;293 and perhaps most significantly, the Property Clause, granting the “Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States.”294 Therefore, although concepts of territoriality and the law of nations predated the Constitution, the document became the touchstone for their meaning, scope, and expression in the post-ratification United States.
In short, the Washington Administration acknowledged considerable Native autonomy but did not recognize Native nations as the United States’ equals in the community of nations. Instead, the Washington Administration claimed, by dint of the law of nations, ultimate sovereignty over the territory of the United States, and it insisted that this sovereignty limited Native power to ally with foreign nations. Anglo-Americans believed this to be a modest limitation, but, from the Native perspective, the “protection” of the United States doubtless looked less like a guardian’s solicitude than a demand for subordination.295
3. Sovereignty and Native Land
Nowhere was the Washington Administration’s shift from earlier Indian policy clearer than in its approach to Native lands. As a considerable body of scholarship has recognized, Indian land ownership was a hotly contested question in early American law.296 Yet the Washington Administration repeatedly emphasized the sanctity of Native title. To an extent that previous work has failed to appreciate, the restrictions the Administration claimed over Native land tenure—most notably its power as sole purchaser—stemmed from an application of the same principles of sovereignty and international law with which the Administration approached Native autonomy.297
Self-interest colored all interpretations of Indian land ownership in early America. Some speculators, having purchased Native land in questionable transactions, argued that Natives enjoyed absolute title.298 More common was the insistence that Indians had only a tenuous claim to their lands, formalized in the assertion that the Treaty of Paris had ceded all Indian title to the United States. The Indians and their British allies assumed that “[the Americans’] intention was to exterminate the Indians and take the lands.”299
Yet in its waning days, the Continental Congress repudiated this approach, declaring in the Northwest Ordinance that the Indians’ “lands and property shall never be taken from them without their consent.”300 Knox and other Washington Administration members endorsed this robust understanding of Indian land ownership. Knox wrote Washington:
The Indians being the prior occupants possess the right of the Soil—It cannot be taken from them unless by their free consent, or by the right of Conquest in case of a just War—To dispossess them on any other principle would be a gross violation of the fundamental Laws of Nature and of that destributive justice which is the glory of a nation.301
The Administration sought to put into practice what it preached. “You will make it clearly understood,” Knox instructed a commissioner to the Indians, “that we want not a foot of their land, and that it is theirs, and theirs only; that they have the right to sell, and the right to refuse to sell, and that the United States will guaranty to them their said just right.”302
Federal commissioners followed Knox’s directions and walked back earlier bluster. “We . . . frankly tell you, that we . . . put an erroneous construction on that part of our treaty [of Paris] with the King [granting western lands],” they informed members of the Northwest Indian Confederacy. “As [the King] had not purchased the country of you, of course he could not give it away; he only relinquished to the United States his claim to it.”303 The commissioners then repudiated the theory of conquest: “Brothers: We now concede this great point. We, by the express authority of the President of the United States, acknowledge the property, or right of soil, of the great country above described, to be in the Indian nations, so long as they desire to occupy the same.”304
Yet, as in the case of sovereignty, this defense of Native title came with an important qualification. Although the Washington Administration regarded Indian nations as the rightful owners of the land, they did not believe that Indian title was equivalent to fee simple absolute. In particular, Natives could not freely alienate their land. Jefferson articulated the Administration’s position when pointedly asked by the British, “What did I understand to be our right [as Americans] in the Indian soil?”305 Jefferson responded: “[A] right of preemption of their lands, that is to say the sole and exclusive right of purchasing from them whenever they should be willing to sell.”306
Preemption—the legal principle granting the government the sole authority to purchase Native lands—had a lengthy history in North America. Throughout the seventeenth and eighteenth centuries, colonies had enacted laws and constitutional provisions restricting private purchases of Indian land.307 British reforms after the Seven Years’ War reserved the right of preemption to the crown alone,308 a legacy Congress had claimed, with mixed success, under the Articles.309 To federal officials, preemption was one of the foundations of the new national government’s Indian policy.310 Federal officials insisted that the Constitution granted the right of extinguishing Indian title to the federal government alone,311 and the first Trade and Intercourse Act barred the purchase of Indian lands except at a public treaty held under federal authority.312 The Senate rejected one of the first Indian treaties negotiated under the Constitution for inadequately protecting federal preemption rights.313
The Washington Administration understood preemption in two ways. The first was federalist: as enshrined in the Trade and Intercourse Act, preemption was a sword against land-hungry states.314 The second was international: preemption, by barring foreign purchases of Native lands, was a corollary of the restriction on Native sovereignty placing Indian nations within the United States under U.S. protection alone. In fact, to many federal officials, preemption was a restriction that applied to Europeans, not Indians; it was a prohibition that fell on “individual[s] of [other] nation[s]” who wished to purchase Native land rather than on the Indian sellers.315 “I consider our right of preemption of the Indian lands, not as amounting to any dominion, or jurisdiction, or paramountship whatever,” Jefferson remarked, “but merely in the nature of a remainder after the extinguishment of a present right, which gave us no present right whatever but of preventing other nations from taking possession and so defeating our expectancy.”316
This international focus explains federal officials’ accounts of preemption’s origins. The Supreme Court, and much Indian law scholarship, has labeled European assertions of control over Native lands as the “doctrine of discovery,” under which “fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign—first the discovering European nation and later the original States and the United States.”317 Many scholars have ascribed the plenary power’s origins to this doctrine.318 But, as historians have come to recognize, this account of Anglo-Americans’ historical land claims was largely a fiction contrived by John Marshall.319 Rights based on discovery was one of multiple doctrines that operated to justify British possession of North America,320 yet discovery’s legal status was dubious, rejected by the era’s leading authorities on international law and easily mocked.321 In both international law and American practice respecting Native lands, purchase and possession played a far greater role than discovery and conquest.322
The Washington Administration’s assertion of a preemptive right in Native lands, then, implied different conclusions, and relied on different sources, from the Supreme Court’s later holding in Johnson v. M’Intosh that Indians possessed a right of occupancyonly.323 Unlike Chief Justice Marshall, the Administration disclaimed any notion that it possessed fee title to Native lands. Federal officials were also uninterested in the abstract search for origins that preoccupied Marshall.324 They instead grounded their preemptive right to Native lands as they did their argument restricting Native rights to ally with foreign powers—in treaties and customary international law. Jefferson described “the right of pre-emption” as “a principle of the law of nations, fundamental with respect to America.”325
Negotiations with the Northwest Indian Confederacy provide the clearest account of the administration’s understanding of preemption’s origins. Endeavoring to explain preemption to Native envoys, the commissioners began their account with prerevolutionary British practice. The King, they explained, possessed a claim to Native territory, “founded on a right acquired by treaty, with other white nations, to exclude them from purchasing, or settling, in any part of your country.”326 Under this principle, “the King alone had a right to purchase of the Indian nations, any of the lands between the great lakes, the Ohio, and the Mississippi.”327 Having established the basis for the British claim, they continued:
[I]t is this right which the King granted to the United States . . . , by the treaty of peace, . . . they alone have now the right of purchasing; so that, now, neither the King, nor any of his people, have any right to interfere with the United States, in respect to any part of those lands.328
Therefore, the commissioners emphasized, the United States disclaimed all ownership of Native lands: “We only claim . . . the general right granted by the King, as above stated, and which is well known to the English and Americans, and called the right of pre-emption, or the right of purchasing of the Indian nations disposed to sell their lands, to the exclusion of all other white people whatever.”329
In the eyes of federal officials, then, preemption was separate from the question of Native land ownership. It was a problem of sovereignty—as much European as Native—and its status as binding law rested on the positive law of nations, particularly treaty law. Moreover, conceiving of preemption as a restriction on purchasers, not sellers, solved the problem of origins, since the European nations had bargained away their rights to buy Indian lands through formal treaties and enacted laws barring their subjects from purchasing Native territory.330
Natives did not agree with the federal officials’ construction. “You have talked . . . a great deal about pre-emption, and your exclusive right to purchase Indian lands, as ceded to you by the King, at the treaty of peace,” the Native leaders replied to the federal commissioners’ attempt to justify the concept of preemption.331 The Natives quickly pointed out the flaw in the officials’ international law argument: the absence of Native consent. “We never made any agreement with the King, nor with any other nation, that we would give to either the exclusive right of purchasing our lands,” they replied.332
If the white people, as you say, made a treaty that none of them but the King should purchase of us, and that he has given that right to the United States, it is an affair which concerns you and him, and not us: we have never parted with such a power.333
For their part, the Natives declared to the commissioners, “[W]e consider ourselves free to make any bargain or cession of lands, whenever and to whomsoever we please.”334
Native resistance to preemption puzzled federal officials, who thought they were doing Native peoples a great favor by protecting their land rights. But Natives understood the stakes: as modern scholarship has underscored, preemption was a powerful tool in dispossessing Native peoples, forestalling Native property innovations that preserved their independence.335 Giving the federal government sole power to purchase Indian lands made it increasingly easy to describe Natives as federal “tenant[s],” as Edmund Randolph did, prefiguring the later concept that Natives only occupied, rather than owned, their lands.336 The Indians’ self-imagined benefactors again constructed law that would eventually undermine Native independence.
4. The Doctrinal Origins of Plenary Power
As previous sections have underscored, federal officials understood the sovereignty they claimed over Native nations as modest. They saw no contradiction in acknowledging Native sovereignty while asserting that ultimate sovereignty lay, for certain purposes, with the United States. Yet these purportedly narrow restrictions sapped Native power and provided the seeds for the doctrine of plenary power. There is a clear intellectual lineage from these early assertions to the Court’s claims of absolute authority over Nativesa century later.
The context of sovereignty in the late eighteenth century clarifies how early Americans could regard Natives as simultaneously sovereign and subordinate. The American Revolution began as a constitutional struggle over sovereignty, as many Anglo-Americans rejected the Blackstonian position that the King-in-Parliament possessed supreme authority within the British Empire.337 American proposals to divide power led the British to accuse colonists of embracing the “solecism” of “imperium in imperio”;338 the British insisted that there could be only one sovereign within a polity.
The new nation grappled with refuting this fundamental principle of eighteenth-century political thought. One solution was that sovereignty derived from the people at large.339 More concretely, the valorization of federalism itself provided the solution. The new ideology, derived partly from the law of nations,340 celebrated multiple and overlapping sources of authority that early Americans described as “divided sovereignty.”341
Given this profusion of ideas, the concept that Native nations possessed extensive sovereignty within the sovereignty of the United States was not alien. In fact, Native nations’ position within the United States was conceived similarly to federalism. The restrictions imposed on tribal sovereignty resembled state limitations under the Constitution, which barred states from engaging in diplomacy or splitting their territory without federal consent.342 A similar presumption concerning enumerated powers also seemed to apply: both states and tribes were free to exercise sovereign powers not granted to the United States.343
Constitutionally, of course, states and tribes were not the same. But the key difference was not the text of the Constitution, which addressed both state and tribal sovereignty only obliquely.344 Rather, the central contrast lay in consent, as the Supreme Court would later recognize.345 Through ratification, state citizens had, at least formally, ceded portions of state sovereignty to the United States. Native nations never consented to their inclusion within the United States.346 Nor could their customs evince acquiescence to the law of nations. U.S. claims to sovereignty over tribes—purportedly based on international law—rested ultimately on imposition, not acceptance.
Natives understood this flaw in American logic. As we have seen, Native leaders rejected the limitations thrust upon them; they had not yielded any authority, regardless of what Euro-American empires had agreed. Far from conceding U.S. sovereignty over them or their lands, Native leaders insisted that Native nations were the United States’ equals in the community of nations. “We are of the same opinion with the people of the United States,” the Mohawk leader Joseph Brandt informed a federal commissioner.347 “[Y]ou consider yourselves as independent people; we, as the original inhabitants of this country, and sovereigns of the soil, look upon ourselves as equally independent, and free as any other nation or nations.”348
Native nations’ resistance stemmed from more than concern over their dignity as equal sovereigns. Native power in this period stemmed from the ability to engage in diplomacy with Euro-American nations, something the U.S. formulation of sovereignty denied. As they had for over a century, tribes exploited their strategically important location perched between competing empires to protect their autonomy.349 This so-called playoff system—called the “great ruling principle of modern Indian politics” by contemporaries350—thrust Indian affairs into the center of American diplomacy, as Native nations used tacit British and Spanish support to check U.S. expansionism.351 Native power also came from Indians’ acknowledged ownership of most land in the United States.352 As long as Natives held title, the expectations of land speculators, settlers, and state and federal governments anxious for income could not be realized.353
The legal principles espoused by the United States therefore struck at the fundamental sources of Native power. The waning of Native autonomy rested on inequalities—military, demographic, diplomatic—but it was also a “conquest by law,”354 as Anglo-Americans sought to quash Natives’ ability to play empires against each other and to drive down the price of Native lands through monopsony.
The watershed moment for Native peoples in the trans-Appalachian West came when the United States triumphed over a British-supported coalition of Indian nations during the War of 1812. This was a legal as well as a military victory. Rejecting British efforts to write Native independence into the peace treaty,355 the United States enshrined the principle that American Indian nations were lesser sovereigns solely under U.S. protection.356 Under the postwar legal framework, “the Indians possessed ‘a qualified sovereignty only’ [while] ‘supreme sovereignty’ belonged to the United States.”357
Native nations’ position within the United States had shifted significantly, therefore, by 1831, when the Supreme Court sought to clarify Natives’ constitutional status in Cherokee Nation v. Georgia.358 The Court splintered over whether the Cherokee Nation was a “foreign nation” for purposes of Article III jurisdiction: Justices Baldwin and Johnson argued against Native sovereignty,359 while Justice Thompson, joined by Justice Story, insisted that Indian tribes were separate, sovereign entities.360 All argued from historical practice—further demonstrating the tensions within early Indian law.
Chief Justice Marshall split the difference. He conceded that the Cherokee Nation constituted a separate state and had been so regarded by the United States.361 “[Y]et,” Justice Marshall continued, “it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations.”362 Their territory, he observed, “is admitted to compose a part of the United States . . . . [T]hey are considered as within the jurisdictional limits of the United States.”363 Moreover, he explained:
They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connexion with them, would be considered by all as an invasion of our territory, and an act of hostility.364
Chief Justice Marshall’s ensuing declaration that Indian tribes were “domestic dependent nations” therefore owed much to earlier thinking about Native sovereignty.365 Like earlier federal officials, he interpreted U.S. claims to territorial sovereignty, including the authority to control Native land sales and alliances, to make Native nations less than fully sovereign members of the international community—hence “domestic.” But Justice Marshall put a new valence on this status. Knox, Jefferson, and others had not interpreted the restrictions on Native sovereignty to imply subordination; they had in fact stressed Natives’ continued independence. Justice Marshall emphasized Native dependence, casting Indian tribes as wards of their U.S. guardian, reliant on their “great father,” the President, for protection.366 Justice Marshall’s patronizing description, questionable in the 1830s, was even less apt applied to the powerful Native nations of the 1790s. The shifting balance of power gave a new inflection and a broader reach to the “species of sovereignty” the United States claimed over tribes.367
Cherokee Nation also extended the reach of the Washington Administration’s principles. Jefferson, Justice Marshall, and others constructed Native nations’ constitutional status by expanding international-law principles to North American practices. Their formulation of Native quasi-sovereignty, in turn, became the foundation for a new generation of international-law scholarship seeking to clarify indigenous peoples’ legal status in colonial law.368 Through Justice Marshall, early American legal thought on Natives transmuted into the nineteenth-century international law of empire.
A half century after Cherokee Nation, the Court decided United States v. Kagama,369 where it enunciated congressional plenary power over Indians. Though the tone and content of the two decisions are strikingly different, key core principles persisted. In Kagama, the Court considered, and rejected, the Indian Commerce Clause as the source of federal plenary power.370 That power existed, the Court reasoned, because “these Indians are within the geographical limits of the United States.”371 “The soil and the people within these limits are under the political control of the Government of the United States, or of the States of the Union,” the Court expounded.372 “There exist within the broad domain of sovereignty but these two.”373 But the Court did not rest congressional authority on territorial sovereignty alone. “These Indian tribes are the wards of the nation,” it reasoned, discussing Cherokee Nation.374 “From their very weakness and helplessness . . . there arises the duty of protection, and with it the power.”375
Kagama’s endorsement of plenary power both fulfilled and repudiated original understandings of Natives’ constitutional status. Continuity rather than innovation characterized the Court’s reasoning, which relied on the same principles—territorial sovereignty and the United States as protector—earlier advanced to justify American claims to authority over Native nations. Yet the Court’s decision employed these tenets to claim a far more sweeping authority than previously asserted. Moving far beyond the earlier era’s limited restrictions on Native sovereignty, the Court’s bolder position claimed that Congress could interfere with internal tribal affairs at will. Moreover, the Court’s reading of protection reversed the concept’s earlier meaning. Crafted to prevent Native alliances and forestall warfare, the principle of sole federal protection of Indians originally stemmed from Native power, not weakness. But the Kagama Court transformed this principle to argue that Indian incapacity justified federal power. Finally, Kagama radically reworked the sources of federal power over Native nations. In place of the international law principles that undergirded earlier claims, the Court substituted the inherent prerogatives of sovereignty common in late nineteenth-century jurisprudence.376
Over the course of a century, then, the sovereignty that the United States claimed over Native nations grew ever greater, culminating in the doctrine of plenary power. This trajectory owed much to the United States’ military and diplomatic conquest of the continent—a conquest that made Native sovereignty seem a legal artifice rather than the palpable fact it had been when the Constitution was drafted.377 It stemmed, too, from the rise of a racialist paradigm that denigrated Native peoples and their claims to nationhood.378 Nineteenth-century international law reflected this transformation: shedding its earlier universalism, it became more positivist and more imperialist, crafting hierarchies among nations and requiring “civilization” as a precondition for sovereignty.379
But there is an internalist story for the development of plenary power as well—that is, one grounded in the evolution of legal discourse itself. In this account, the first federal leaders’ narrow claims of sovereignty over Native nations became the doctrinal tools for ever more aggressive assertions of federal authority to regulate Indians. This result was not what the doctrines’ creators had intended, but neither was it unforeseeable: as Native resistance underscored, earlier and more limited federal claims of authority over Native nations rested on principles of dominance that could, and did, expand. Through this process, Jefferson’s insistence that the United States did not possess “any dominion, or jurisdiction, or paramountship whatever” over Indians transformed into an assertion of complete and unfettered power.380
Little has changed in plenary power doctrine in the century since Kagama was decided, except that as the racialized rhetoric and theories of unenumerated federal powers employed in Kagama fell out of favor in the late twentieth century, the Court dragged in the Indian Commerce Clause post hoc to sanitize the doctrine.381 The history presented here suggests a more accurate account of plenary power’s sources, one less reliant on an implausible reading of the Indian Commerce Clause. This perspective also clarifies how “two largely incompatible and doubtful assumptions,” in Justice Thomas’s words—federal plenary power and inherent tribal sovereignty—came to coexist in federal Indian law.382 “In my view,” Justice Thomas wrote, “the tribes either are or are not separate sovereigns, and our federal Indian law cases untenably hold both positions simultaneously.”383 But this “untenabl[e]” approach reflects how early federal officials thought about Native sovereignty: from the beginning, American policymakers conceived of Native nations as separate, but lesser, sovereigns. The incompatibility that Justice Thomas identifies stems not from the doctrine itself, but from the attempt to reinterpret this historical legacy into present-day jurisprudential categories. Though the Court has used Indian law’s “confusion” to impose coherence at Natives’ expense,384 the original understandings of Natives’ status suggest consistency rather than contradiction.
Recovering the early constitutional history of Natives also helps to resolve a central tension in Indian law scholarship as to whether the “Founders” perpetuated domination over Native peoples or enshrined Native nations as independent sovereigns. The answer is both. Though the Constitution’s drafters and early interpreters regarded most tribes as separate sovereigns largely outside U.S. authority, and many used federal power to protect Native rights, in the end the legal order they constructed was imposed on Native nations without their consent—indeed, over their vigorous objection. As Natives pointed out, early Americans’ construction of the community of nations did not acknowledge Native nations as the United States’ equals. The “Founders” thereby placed the United States on the ideological road to the doctrine of plenary power and the denial of Native sovereignty.
The history presented in this Article thus questions a now commonplace scholarly assertion—that powers derived from sovereignty are a late nineteenth-century gloss inconsistent with the Constitution’s original understanding.385 This declension model is, in part, an effort to maintain a “pure” Constitution, untainted by later unpalatable applications.386 This Article suggests that constitutional law’s subsequent nationalism, racism, and imperialism were all present at the creation.
Nonetheless, the authority that the United States originally claimed over Indian tribes was importantly different from later, more aggressive invocations of federal power. It was not plenary; it acknowledged tribal sovereignty and restricted the authority of the United States to the regulation of Natives’ international alliances and land sales. Furthermore, this authority’s origins in the law of nations suggested substantial checks based on treaty and customary law. These aspects of original understandings bolster present-day calls for limits on federal power over Natives as well as arguments that evolving international-law norms should govern federal Indian law.387 Unbridled, unchecked federal power over Indians has not always been with us.
More broadly, the history presented here suggests a different approach to the question of Native sovereignty in Supreme Court jurisprudence. The privileged position of Chief Justice Marshall’s decisions in Indian law’s constitutional history has led some Justices to conclude that tribal sovereignty is the Court’s creation, thereby justifying the Court’s aggressive crafting of doctrine construing the scope of tribal sovereignty.388 Recognizing the centrality of the executive in the historical decision to acknowledge and protect tribal sovereignty, however, points toward a more modest judicial role in the present, with greater deference to the political branches.389
History also suggests a constructive comparison between tribal and state sovereignty. The Constitution does not enshrine Native sovereignty, but unlike the Articles of Confederation,390 it contains no textual provision explicitly codifying state sovereignty either.391 Instead, the constellation of legal thought labeled “Our Federalism” rests largely on a structural reading of the Constitution and its values, even as support for state sovereignty—like protection for tribal sovereignty—has waxed and waned.392 As this Article has shown, the Constitution’s drafters and early interpreters thought about Natives’ status in a similar way—as the product of deep questions of constitutional order such as territorial jurisdiction and international law.
The point is not that tribes and states are constitutionally equivalent, though the analogy has yielded important insights.393 Rather, I make the more modest claim that the Court should be more attentive to the parallels in history and values than it has been. As sovereigns, states possess what the Court has termed “dignity”;394 they also enjoy the Court’s embrace of jurisdictional pluralism recognizing the benefits of state divergence from national norms. But the Supreme Court has never referred to the dignity of a tribal sovereign in a majority opinion,395 and it views Native nations’ nonconformity with skepticism.396
The doctrinal consequences of these contrasting narratives are apparent. The Court has recently and repeatedly defended state sovereignty based not on constitutional text but “in light of [the Constitution’s] history and structure.”397 For Indian tribes, this argument is reversed: any “exercise of tribal power beyond what is necessary to protect tribal self-government or to control internal relations is inconsistent with the dependent status of the tribes and cannot survive without express congressional delegation.”398 Under this implicit divestiture doctrine, the Court has concocted all manner of restrictions on Native sovereignty,399 grounded not in text but in problematic readings of history.400
The basis for this divergent treatment of state and tribal sovereignty seems to be tribes’ status as “dependent” sovereigns.401 Setting aside the question of why states’ explicit surrender of some sovereignty does not make them similarly “dependent,”402 the Court’s interpretation of Native nations’ dependency is historically unsound. Chief Justice Marshall’s classification of Indian tribes was not an open-ended invitation to craft restrictions on Native authority but a judicial endorsement of the Washington Administration’s interpretation of Natives as unequal but sovereign nations. In light of that history, a better reading of Marshall’s holding would be that like states, Native nations possess “residuary and inviolable sovereignty” outside the restrictions claimed by the United States.403
Delineating the precise bounds of that sovereignty has proven, and will likely prove, as elusive as it has in the federalism context. But a helpful starting point would be to move away from claims that tribes are sovereigns by historical accident, existing only at the caprice of the national government.404 The recognition of Native sovereignty in early American law reflected the reality of Native nations’ independence and power, but it was also the product of considered deliberation and experimentation that mirrored the era’s intellectual ferment around federalism. The Washington Administration determined that acknowledging Native sovereignty was not merely more expedient; it was also, as the Administration repeatedly pointed out, more just.405
“Constitutional” is a word with many meanings in American law. Its most familiar doctrinal use is to describe limits on the federal government that may not be altered absent amendment. Despite the Court’s efforts, sovereignty—both state and tribal—has fit poorly, and unpredictably, into this frame.406 Though the history presented here supports expanded Native autonomy, arguably too much has changed for the Court to enshrine as doctrine the Washington Administration’s understanding of Native status, any more than the Court can now reconstruct the federalism of the 1790s. But the term “constitutional” plays another role for the Court: it determines which claims about the past will receive acknowledgment and legal recognition in the present.407 This Article suggests that, like the Court’s endorsement of the diminished yet enduring sovereignty of the states, tribal sovereignty warrants respect on the basis of the Constitution’s original “history and structure.”408 In this sense, Native sovereignty is, and should remain, constitutional.
When we look beyond the Indian Commerce Clause—a minor and open-ended part of constitutional thinking about Indian affairs—the Constitution’s “original understanding” becomes clearer. Under the Washington Administration, exclusive federal power was understood to derive from the entire Constitution, while the limited sovereignty that the United States claimed over Native nations stemmed from the law of nations. Yet subsequently, even as the federal government asserted more power over Natives, the basis for federal authority narrowed to the single constitutional provision that explicitly mentioned Indians. The mismatch between the Clause’s text and the federal government’s sweeping power has led to calls to revisit federal Indian law, often at tribes’ expense. These claims rest on inaccurate history. Indian law is not incoherent; it is the product of constitutional thought that has been forgotten.
Consistent is not the same as correct. From the perspective of Native peoples, federal Indian law remains doctrine imposed by a non-Native legal system—the self-proclaimed “Courts of the conqueror”409—on Native nations unwillingly and forcefully incorporated into the United States. A better grasp of the Constitution’s “original understanding” cannot solve this ongoing challenge of Indian law’s imperial origins.410 The late eighteenth century was an important watershed in the waning of Native autonomy, and early federal officials laid the groundwork for later claims of unbridled power over Native nations. For this reason, some have argued for abandoning Anglo-American law altogether and turning to indigenous legal concepts to redeem Indian law.411
But these deep questions about federal Indian law do not preclude also improving current doctrine by revisiting first principles.412 History can help here. The 1780s and ‘90s are central to understanding Indian law not because constitutional meaning was fixed at that moment, but because the process of creating the “United States” occurred in dialogue with other nations, including Native nations. In short, wrestling with the sovereignty and nationhood of the United States also required grappling with that of Native nations; the answers proposed for both sets of questions proved long-standing and influential.
Late eighteenth-century views warrant continued attention on another basis, as well. Current law lacks the acute consciousness, widespread among the era’s legal elite, that the treatment of Native peoples was an essential component of the national character. The “Founders” felt this way not because they were moral exemplars, but because they lived in a world where relations with Native peoples could not be shunted aside as a minor administrative matter, and because their near-millenarian understanding of the United States’ role blended with a sharp sense of international scrutiny and judgment. They thus resolved to treat Natives based on “laws founded in justice and humanity.”413 From the perspective of Native peoples, and in the judgment of history, these efforts failed. Yet in the process, notwithstanding their commitment to American empire and racialist disdain for Indians, early American leaders defied popular prejudice and crafted doctrine that granted considerable space for Native autonomy, a tradition that federal Indian law in its finer moments continues to uphold.
Yet it was not early American officials alone who shaped the constitutional law of Indian affairs. Native voices rarely appear in Indian law, based on the presumption that they did not craft the law that applied to them. But as this Article has suggested,414 the grudging acknowledgment of Native autonomy in early American law stemmed from tribes’ refusal to concede the subordinate status that Anglo-Americans assigned to them. Though Chief Justice Marshall later cast Natives as legal naïfs,415 Native leaders proved as adept as Anglo-Americans at using the resources of international law to assert themselves as “free and independent” nations.416 These arguments often failed in the face of unequal power, but they forced the United States to grapple with deep questions of justice in Indian policy. Ultimately, Natives were subject to a history and a doctrine not of their choosing, yet they were, and remain, constitutional actors in their own right.