A Reply to Mr. Natelson’s 'Preliminary Response to Prof. Ablavsky’s ‘Indian Commerce Clause’ Attack'

Abstract

Robert Natelson recently responded to a three-paragraph critique of his 2007 law review article that I offered in an amicus brief in the ongoing Brackeen litigation. Though Natelson concedes that critical examination is an integral part of the scholarly process, he claims that my brief was not only unscholarly but "shyster-like."

I disagree. In this reply, I rebut his critiques. I reiterate the key, uncontested point that his original article relied on an inaccurate version of a vital piece of evidence from ratification, Sydney's New York Journal essay. In the correct version, Sydney observed that ratification would "totally surrender into the hands of Congress the management and regulation of the Indian affairs." Natelson's response attempts to explain away this language as a mere slip of Sydney's pen. But in my view this effort to rewrite the historical source's explicit language to agree with Natelson's original hypothesis is unpersuasive.

I then challenge Natelson's claims that I distorted his arguments. As I show, nearly all the critiques that my brief offered drew from near identical arguments in my 2015 Yale Law Journal article that Natelson himself concedes was "generally respectful." Moreover, I argue that each of my characterizations of Natelson's article, while necessarily a summary, accurately reflected his arguments and underscores the substance of our scholarly disagreement.

It is unfortunate that Mr. Natelson took my brief so personally. This case is not about either Mr. Natelson or me. As all parties would agree, the outcome will significantly impact people's lives. I briefly discussed Mr. Natelson's scholarship in the amicus not to denigrate him but because I have spent my academic career researching the history at issue here, and because, in my scholarly assessment, Mr. Natelson's frequently invoked article was flawed and at odds with historical evidence. I am disheartened that this important academic discussion has devolved to ad hominem attacks.

Keywords: Brackeen, Robert Natelson, Indian Commerce Clause, Indian Affairs