Who's In and Who's Out: Congressional Power Over Individuals Under the Indian Commerce Clause

Abstract

For over two hundred years, Congress has enjoyed plenary power over Indian affairs under the Indian Commerce Clause. This Clause has allowed preferential treatment for Native Americans to bypass strict scrutiny despite the evolution of modern race law. But late last year, the Bureau of Indian Affairs published new regulations requiring courts to follow a strict set of procedures to ensure that Native American children will be placed with tribe-affiliated families.

This sparked immediate backlash. Adoption agencies argue that the BIA’s new regulations impose undue burdens on Native American children because of their race. This litigation has profound implications for the continued existence of modern Indian law, which rests on the assumption that government regulations affecting Native Americans is a “political” — not “racial” — classification. So far, current scholarship has failed to foresee or respond to these equality-based attacks.

This note proposes a new response, and a new interpretation of Congress’s powers under the Indian Commerce Clause. It focuses on the word “Indian” in Article I to argue that the Constitution contains a latent ambiguity highlighted by the BIA’s rulemaking. It proposes that the term “Indian” refers to an individual’s political, social, and cultural connections rather than their ethnic heritage. This novel interpretation accords with historical practice, the evolution of judicial precedent, and an intra-textual analysis of the Constitution. The effect of this interpretation is to recognize a previously unarticulated constitutional limit on Congress’s power to regulate individual Native Americans, granting the ultimate recognition of tribal citizenship to the eligible individual.

Keywords: Indian, Native American, Indian Commerce Clause, constitutional law, autonomy, first amendment, freedom of association, Bureau of Indian Affairs, history