Commerce with the Indian Tribes: Original Meanings, Current Implications

46 Pages Posted: 17 Oct 2022

See all articles by Jeremy Rabkin

Jeremy Rabkin

George Mason University School of Law

Date Written: October 14, 2022

Abstract

The Supreme Court’s 2022 ruling in Oklahoma v. Castro-Huerta defies much current precedent and practice, as four dissenters protested. But neither side grappled with the Constitution’s original meaning. Both text and early practice confirm that the federal power to regulate “commerce with the Indian tribes” was a different, more constrained power than the power to regulate “commerce among the states.” But as Nineteenth Century courts recognized, federal Indian law could also draw on powers inherent in national sovereignty – a wider but not unbounded source of authority and one which necessarily excluded interference from states. Even if tribal reservations are now seen as no more independent than states, they have good claims to protection under constitutional safeguards for the free flow of commerce – rather than being treated as colonial dependents of state governments. In contrast to the conformist and assimilationist policies imposed by federal authority in the decades after the Civil War, today’s America should be more receptive to the Constitution’s original view on Indian tribes – as separate nations within the larger American nation.

Keywords: Tribal Law, Law & Economics, Constitutional Law

JEL Classification: K30, K1, K10

Suggested Citation

Rabkin, Jeremy, Commerce with the Indian Tribes: Original Meanings, Current Implications (October 14, 2022). Law & Economics Center at George Mason University Scalia Law School Research Paper Series No. 22-026, George Mason Law & Economics Research Paper No. 22-39, Indiana Law Review, Forthcoming 2023, Available at SSRN: https://ssrn.com/abstract=4248405

Jeremy Rabkin (Contact Author)

George Mason University School of Law ( email )

3301 Fairfax Dr
Arlington, VA 22201
United States

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