In my remarks about Haaland v. Brackeen at Cato Monday, I feel I gave short shrift to the question Prof. Christopher Green asked regarding Justice Gorsuch’s view that the Indian Commerce Clause gives Congress greater powers than does the Interstate or Foreign Commerce Clause, and I want to address it more fully.
I discussed the alleged “plenary power,” which the majority stitched together from the penumbras and emanations of the Treaty, Commerce, and other powers, and which Gorsuch rightly rejects. But I also rejected Gorsuch’s view that the Commerce Clause itself can encompass child welfare matters with respect to Indians when it obviously doesn’t encompass that with respect to states. I said that there are not three Commerce Clauses; there is just one: “to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” Yet Gorsuch, relying in part on Prof. Green’s article in the Pennsylvania State Law Review, wrote in his concurrence that these three powers are substantively different.
Gorsuch’s argument goes like this: “as nouns, ‘States’ and ‘Indian Tribes’ are not alike—and they were not alike at the founding. ‘States’ generally referred then, as it does today, to a collection of territorial entities. Not so ‘Tribes.’ That term necessarily referred to collections of individuals.” And “[b]ecause Tribes are collections of people,” the Commerce Clause “endows Congress with the ‘authority to regulate commerce with Native Americans’ as individuals,” in ways that are somehow different from its regulations of commerce with foreign nations and states. He reinforces this by reference to the prepositions in the Clause: “the term ‘with’ [as opposed to ‘among’] suggests that Congress has the authority to manage ‘all interactions or affairs…with the Indian [T]ribes’ and foreign sovereigns—wherever those interactions or affairs may occur.”
It seems to me that Prof. Green makes a narrower point. He argues that
[b]oth “Nations” and “Tribes” consist of people, rather than territory.... Nations and tribes consist of individual people. Those individuals’ commerce with American citizens is “commerce with” those nations and tribes... “Nations” and “Tribes” refer to people: individual non-citizens.... Territory is [not a definitional limit with respect to] tribes, then. The governmental interpretations of “nation,” “state,” and “tribe,” moreover, make no sense in the historical context of the commerce powers. The point of the commerce powers was to establish federal power to stop trade wars among the states, or to wage trade wars with other countries. But power to regulate trade by state, tribal, or foreign governments would mean little if those powers could not somehow also deal with individuals’ commerce. This then leaves only one plausible meaning for “the Indian Tribes”: tribal members.
In my answer to Green’s question at Cato, I referred to this as a zeugma argument: it seeks to prove that the word “commerce” changes its meaning depending on the object to which it’s applied. I still think that Gorsuch is attempting this zeugmatic reading of “commerce,” because he’s attempting to show that what would not count as the kind of commerce Congress can regulate is different in the three different categories. But Green’s argument is more careful.
He seems to making the more modest point that what counts as a regulation of commerce must take context into account. This makes sense, of course—and note that there are sentences in the Constitution that have a similar kind of distributive structure, in which it’s obvious that there are different dimensions given to a word as a result.
One obvious example is the Fourth Amendment: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated….” Here, the concept “right to be secure” is being distributed among persons, houses, papers, and effects. You can’t unreasonably search a house and you can’t unreasonably search a person. Obviously the search of a person is going to be different from the search of a house: you’re going to put someone up against a wall or a car and frisk him, whereas in a house you’re going to open doors and cabinets, etc.
But in this instance, the concept of an “unreasonable search” is not being expanded or altered. Instead, the sentence is just manifesting a single concept, the concrete instances which depend on the context. Searching a house will include opening drawers; if people had drawers, as Salvador Dali’s people do, then searching those would be identical to searching those in a house.
That seems to be Green’s position. His argument isn’t really about the meaning of commerce, but about what entity, being engaged in commerce, falls within that regulatory power. While commerce would still mean buying and selling goods and services and transporting or making things for that purpose, the context might change how Congress would regulate that, depending on who’s doing it.
Now, there’s a paradox that we have to keep in mind here that is pervasive in the Commerce Clause realm: since “commerce” just means an indefinitely large group of individual transactions, any regulation of commerce will necessarily mean regulating individual transactions, none of which are themselves “interstate” or “foreign” or “tribal” commerce. This is just the Fallacy of the Beard, or the De Minimis Problem, which is always present in all Commerce Clause cases and is most famously manifested in Wickard v. Filburn. Any regulation of commerce is going to consist of a regulation of individual transactions, any one of which will have a negligible effect on interstate (or foreign or tribal) commerce—but that cannot justify exempting such transactions from the regulation, because that would render the Commerce power ineffectual. Thus there can’t be a “De Minimis” exception to the power to regulate interstate commerce—yet, at the same time, there must also be some limit, because the interstate commerce power does not give Congress power to regulate every individual transaction. It only allows Congress to regulate interstate (or foreign or tribal) commerce, and that means it cannot regulate intrastate, or domestic, or non-tribal commerce. Congress cannot regulate every transaction anywhere, no matter how minor, just because it might, in the aggregate, affect the national economy.
Green’s argument that “tribes” consist of people, and therefore that the federal power to regulate commerce with tribes must mean the federal power to regulate commerce with people seems like just this kind of problem. He seems to reject the idea that the word “tribes” refers necessarily to bodies politic or corporate (“Federal power was plainly meant to extend further than buying and selling by foreign, tribal, or state governments,” he writes) but then he leaps—I think without justification—to the opposite extreme, saying that all transactions involving Indians are subject to regulation under this power. Whatever the Supreme Court may have said in the 1860s, it’s hard to square that with either Originalism or with the principles of legal limits on federal power.
I think Green undervalues what the word “Tribes” means in the Commerce Clause. No doubt the founders were hazy on what exactly a tribe was, within the catalogue of bodies politic as they understood them—I doubt anyone at the time really got it, and I doubt anyone today really gets it. It’s kind of like a family, it’s kind of like a race, it’s kind of like a nation-state, etc., and Native tribes were notoriously loose in their structure, compared to the more authoritarian nation-state familiar to Anglo-American law. But the framers were perfectly well aware of bodies politic that didn’t have geographic limits; they would naturally have classified the Indian tribes as being analogous to the tribes of Israel in the Old Testament—which were political entities lacking a geographic home. But they were nonetheless collective entities, not merely groups of individuals.
Jefferson, in Notes on Virginia (who divides Native “nations” into “tribes,” and these into families or clans, and writes that “[the Natives’] government is a kind of patriarchal confederacy”) admired them precisely because of their rather loose political structure (as he understood it): “the principles of their society forbidding all compulsion, they are to be led to duty and to enterprise by personal influence and persuasion,” he wrote. “When any matter is proposed in the national council, it is common for the chiefs of the several tribes to consult thereon apart with their counsellors, and when they have agreed, to deliver the opinion of the tribe at the national council.”
Whatever the merits of Jefferson’s description, it’s evidence that the founding generation viewed “tribes” as bodies politic or corporate, and it is relations between these and the people of the United States that the Commerce Clause contemplates.
If we needed any confirmation of that, it’s in the fact that the Constitution’s own text distinguishes between “the Indian tribes” and “Indians.” To emphasize: the Constitution itself distinguishes between “Indian tribes” and individual “Indians,” because it requires that congressional apportionment be based on a census that “exclude[s] Indians not taxed.” (Who are these? They’re Indians who are not citizens: the phrase is synonymous with what the Articles of Confederation called “Indians, not members of any of the states.”) Here, Indians are viewed as individuals. This language shows that when the Constitution means Native individuals, it uses the word “Indians.” And it does not use that word in the Commerce Clause. That, in turn, means the word “tribes” must refer to bodies politic or corporate, as contradistinguished (to borrow a phrase) from the individuals of which they consist.
This is precisely the reasoning by which Chief Justice Marshall held that “necessary” in the Necessary and Power Clause does not mean absolutely necessary.
It’s just not true that “the individual-members interpretation of the tribal commerce power [is] the only plausible one,” except in the trivial (because ubiquitous) sense that all regulations of commerce are necessarily regulations of particular individuals engaged in particular transactions. The Constitution could have said just “commerce with Indians not taxed,” or just “commerce with Indians.” It doesn’t say that. It says commerce with the tribes. It does not say, and cannot be made to say, that “Congress has power to regulate relationships of whatever sort, between any individuals, at least one of whom is an Indian.”
And that latter thing is what Justice Gorsuch attempts in his Brackeen concurrence. Green appears to be making a relatively modest point about the scope of the Commerce Clause (one, incidentally, which has implications more interesting vis-à-vis the states than vis-à-vis tribes, because it suggests a currently unrecognized limit on federal power to regulate commerce “among the several states”). But Gorsuch uses this to make a truly zeugmatic argument: that commerce means trade when it’s used with respect to states, and means “affairs” with respect to Indians. If Green doesn’t change the meaning of the word “commerce,” Gorsuch clearly does: contending that while Congress can’t regulate things other than buying, selling, transporting, etc., when it comes to states, it can regulate things outside that category when it comes to Indians.
It's true, again, that any regulation of commerce with the tribes, no less than among the states, will necessarily mean controlling individuals, for the obvious reason that all collectives—nations, states, and tribes—are made up of individuals. But just as “interstate commerce consists of individual transactions, therefore all individual transactions are subject to the interstate commerce power” is a non sequitur, so it’s also a non sequitur to say that because tribes consist of individuals, the power to regulate commence with the tribes means the power to regulate all relationships between Indians and non-Indian Americans. That’s the leap Gorsuch makes: “Because tribes are collections of people, the Indian Commerce Clause endows Congress with the authority to regulate commerce with Native Americans as individuals,” he writes—concluding that Congress can regulate “how non-Indians…engage with Indians.” But that’s a deepity. What’s true about it is obvious, and what seems original or interesting about it isn’t true.
Finally, as I’ve said before, I don’t think any of this makes much difference as far as ICWA is concerned. For one thing, my position has always been that ICWA falls outside the Commerce Clause for the same reason that domestic violence fell outside the Commerce Clause in Morrison: it’s just categorically not “commerce,” because child abuse, foster care, adoption, etc., are not economic matters, at least absent some special circumstances (which might, indeed, fall within the Commerce power). And even when using its commerce power, Congress must still operate within limits, such as the anti-commandeering rule, which ICWA transgresses.
Most importantly, the founders’ understanding of the nature of tribal relations must be superseded by constitutional protections accorded to all American citizens, and the 1924 act moved Indians out of the category of foreigners and into the category of citizens. The Commerce power is, of course, subject to the Constitution’s prohibition on race- or national origin-based discrimination and other constitutional boundaries. I think it’s pretty obvious that Congress cannot (as Hamilton put it) vary the laws of descent within a state, or dictate to states how to apply their own child protection statutes, even when acting under Interstate or Foreign Commerce powers, and nothing about the (obvious and trivial) fact that tribes are made up of individuals changes that fact when it comes to the portion of the Clause addressed to “commerce…with the Indian tribes.”
* Update 10/4/23: A friend writes to point out that I’m probably wrong in identifying the poetic device here as a zeugma; it’s probably rather a syllepsis. I regret the harm my words may have caused.
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