Beyond the Indian Commerce Clause: Robert Natelson's Problematic 'Cite Check'
40 Pages Posted: 18 Oct 2022
Date Written: October 10, 2022
As part of an ongoing and often heated academic disagreement, Robert Natelson recently purported to “cite check” my 2015 Yale Law Journal article Beyond the Indian Commerce Clause. He claims that the article had a “disturbing number of inaccurate, non-existent, and misleading citations, as well as deceptively-edited quotations,” and suggested that the article was likely published only to placate a faculty member or due to left-wing bias.
Given Mr. Natelson’s earlier ad hominem attacks, no one could mistake him for a good faith critic of my work. However, because of the stakes of this dispute, which takes place in the shadow of the upcoming Brackeen v. Haaland case at the Supreme Court, I have taken the time to respond thoroughly to each of his concerns about my article. I group his critiques into three categories:
1) Plain Error: Every single one of the sources Mr. Natelson claimed was “non-existent” is readily available online and confirms my original citation. Unaided by me, my law student research assistants were able to find them in mere moments. I’m honestly quite surprised that a scholar would risk their reputation by making such obvious and easily proven errors in levying serious charges against another scholar.
2) Misleading Use of Context: Mr. Natelson repeatedly argues that the full context of quotations vindicates his position and rules my interpretations not only invalid but deceptive. He does this by writing limiting principles into the plain text of sources that do not contain them, expressing certainty on what the sources really meant even in the face of silence. At best, he has floated possible alternate explanations that I find highly implausible given the evidence. But, though I think my interpretations stronger, I cannot “prove” Mr. Natelson’s view wrong any more than Mr. Natelson can “prove” my view wrong: no responsible historian would assert such certainty in the face of a silent source. The only claim here that I think can be deemed objectively wrong is Mr. Natelson’s claim to definitive authority and knowledge.
3) Asserting Interpretive Disagreements Are Factual Errors: Many of the critiques that Mr. Natelson makes are actually interpretive disagreements that he claims are factual errors. Mr. Natelson is free to dispute my views, which he clearly does. But the idea that I committed scholarly misconduct by offering my interpretations in my own article is laughable. This standard of “cite-checking” decrees as sound scholarship only the interpretations that Mr. Natelson deems correct—a standard ultimately subversive of scholarship itself.
I have not repaid Mr. Natelson’s article with the attention that he has lavished on mine. However, in the course of researching this response, I asked my RAs to examine his evidence from Eighteenth-Century Collections Online that the phrase “commerce with Indians” and its analogs “almost invariably meant ‘trade with the Indians’ and nothing more.” Without any involvement by me, my RAs disagreed with this assessment. They concluded that the phrase only clearly meant trade in a little more than half (58%) of the instances that Mr. Natelson relied on.
Suggested Citation: Suggested Citation