Abstract

http://ssrn.com/abstract=2479614
 


 



Beyond the Indian Commerce Clause


Gregory Ablavsky


University of Pennsylvania Law School

August 12, 2014

124 Yale L.J. 1012 (2015)

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.

Number of Pages in PDF File: 79

Keywords: Indian Commerce Clause, Federal Indian Law, Legal History, Constitutional Law, Property Law, Law of Nations

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Date posted: August 14, 2014 ; Last revised: January 24, 2015

Suggested Citation

Ablavsky, Gregory, Beyond the Indian Commerce Clause (August 12, 2014). 124 Yale L.J. 1012 (2015). Available at SSRN: http://ssrn.com/abstract=2479614

Contact Information

Gregory Ablavsky (Contact Author)
University of Pennsylvania Law School ( email )
3501 Sansom Street
Philadelphia, PA 19104
United States
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