On November 27, 2017 the Supreme Court denied certiorari (review) of a lower court decision in Upstate Citizens for Equality v. United States. Justice Clarence Thomas issued a dissenting opinion in which he argued that his colleagues should have taken the case. Justice Thomas twice cited (i.e., explicitly relied on) Rob’s 2008 research article on the Indian Commerce Clause.
These two citations mark the 18th and 19th times since 2013 that Supreme Court justices have cited Rob’s articles. (The citations appeared in 6 different cases.) Besides Justice Thomas, Rob’s articles have been relied on by the late Antonin Scalia and by Chief Justice Roberts.
The Constitution’s Indian Commerce Clause reads “The Congress shall have Power . . . to regulate Commerce . . . with the Indian tribes.” Congress, with the support of the courts, claims those words give Congress “plenary” (unlimited) authority to govern Indian affairs without participation by the states—and even without participation by the President-and-Senate acting under the Treaty Power.
Justice Thomas has long doubted that this is the correct reading of the Indian Commerce Clause, and Rob’s research, published in the 2008 article, showed convincingly that Justice Thomas was right to be skeptical. The article was entitled The Original Understanding of the Indian Commerce Clause, and it is available here.
In the Upstate Citizens case, the Secretary of the Interior, acting under a congressional statute supposedly authorized by the Indian Commerce Clause, seized jurisdiction over 13,000 acres in central New York State. The effect was to largely muscle out state and local authorities and to damage private citizens. Suing to overturn this action were citizens, a civic organization, and a local government.
The plaintiffs lost in the lower tribunals. The U.S. Court of Appeals also cited Rob’s article, but deemed itself bound by case precedent to uphold the government’s action. It was the latter decision the U.S. Supreme Court declined to review.
The result in Upstate Citizens suggests that even with the addition of Justices Alito and Gorsuch, Justice Thomas remains the only consistent originalist on the court.
Do the Feds Belong in Indian Adoption Law? (Together with another Natelson citation in the Supreme Court and an acknowledgment of Lisa Morris)
(Note: This is the second of several short commentaries on recent Supreme Court decisions.)
There is little more heart-rending than the sorrow of a child.
The sorrow of a child—and of her adoptive parents—created one of the Supreme Court’s more compelling cases this term. I was happy to be cited extensively in one of the opinions. And, much more importantly, happy that the Court acted to minimize the sorrow of the child and of her adoptive parents.
In 1978, Congress passed the Indian Child Welfare Act (ICWA). By this measure, Congress invaded yet another area traditionally governed by the several states: adoption and relinquishment of parental rights.
The ICWA had a worthy purpose: to prevent tribes from being decimated by the wholesale adoption of Indian children by non-Indian families. However, the ICWA has at least two serious flaws. First, it can lead to sorrow and injustice. Second, outside the regulation of military personnel, the Constitution gives Congress no authority to meddle in adoptions or parental rights—even those involving Native Americans.
According to the statement of facts by the Court, the unusually-named case of Adoptive Parents v. Baby Girl involved a father who (a) had disclaimed his parental rights, (b) showed no interest in supporting his child, and (c) facilitated an adoption. But after the child already had spent two years with, as the Court averred, “the only parents she had ever known,” he decided he wanted her back.
The case arose in South Carolina and that state’s law did not allow him to break up the adoptive family this way. So he relied on the ICWA on the grounds that, through his parentage, his child was part Cherokee. Precisely 3/256, or 1.2% Cherokee.
The Cherokee tribe apparently grants membership to people with tiny amounts of Cherokee lineage. This, the biological father argued, granted him a special preference under the ICWA.
The lower courts agreed with him, and took the child from her adopted parents. But the Supreme Court reversed.
In a decision written by Justice Alito, the Court examined the language of the ICWA closely. For technical reasons, it ruled that the statute did not, in fact, entitle the biological father to the preference he claimed.
But there also was a more fundamental constitutional issue at stake: What enumerated power gives Congress authority to pass the ICWA in the first place?
Justice Thomas wrote separately to explain that he was construing the statute narrowly because otherwise the Court might have to rule the ICWA unconstitutional. (Courts generally try to resolve cases so as to avoid constitutional issues.) Justice Thomas cited extensively from my own 2007 study of federal power over Indian tribes.
Federal power over Indians has several constitutional sources. The two of greatest importance are the Treaty Clause and the Indian Commerce Clause. Under the Treaty Clause (Article II, Section 2, Clause 2), the federal government may enter a treaty with a tribe that deals with adoption law governing that tribe. But no treaty was involved in the Baby Girl case. In fact, the federal government stopped making treaties with tribes 150 years ago.
The Indian Commerce Clause (part of the larger Commerce Clause, Article I, Section 8, Clause 3) states that “Congress shall have Power . . . to regulate Commerce . . . with the Indian tribes.” Some commentators, and indeed the Supreme Court itself, have claimed that this sparse language gives Congress “plenary” (total) power over Indians.
My own investigation found this claim to be baseless. The Indian Commerce Clause was designed give Congress little more than authority to regulate commercial trade between U.S. citizens and tribes.
In fact, the historical evidence is overwhelming: Adoptions are certainly outside the scope of the Indian Commerce Clause. That’s what my article on the Indian Commerce Clause documented, and Justice Thomas cited my findings at some length.
You can read the Supreme Court opinions, concurrence, and dissents here and my article on the Indian Commerce Clause here. My article includes citations to previous writers of all views.
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An Acknowledgment: My investigation into the Indian Commerce Clause was objective. However, my initial interest stemmed partly from friendship with Lisa Morris, who like me was involved in Montana civic life for many years. Lisa is the widow of a full-blooded tribal member. She has devoted much of her life to correcting injustices and other harm inflicted by dysfunctional federal Indian policy.
She is an exceptional, and exceptionally courageous, individual.
The Constitution was created in a special legal environment. The Founders were raised with a particular educational canon. They also had certain common experiences. During the 19th century, important details about those matters began to slip away. Constitutional law forgot them.
In other words, information crucial to understanding 18th century words was lost during the 19th century. I call this phenomenon “The Great Forgetting.”
I stress that the mistakes from the Great Forgetting were mostly innocent, well-intentioned errors by people who lacked the interpretive tools needed to recreate the Constitution’s true meaning. The Great Forgetting mistakes were not comparable to the willful distortions of the Constitution rampant in the 20th and 21st centuries.
Still, the Great Forgetting’s consequences for constitutional thought were enormous. Popular misconceptions about the Constitution arose that in some instances remain influential. People think some ideas were the Founders’, when in fact those ideas were invented after all or most of the Founders had gone.
The leaders who wrote the Constitution and led the fight for ratification were born and raised in the British Empire. Most were lawyers trained in English jurisprudence and legal vocabulary. When Alexander Hamilton and James Wilson argued a case or wrote a document (like the Constitution), they used mostly English court decisions and British books. Even leading non-lawyers like James Madison and George Washington were well grounded in English legal concepts.
When the Founders assigned constitutional meaning they also were influenced by the history of Europe. They were particularly immersed in the heritage of ancient Greece and Rome, which formed the backbone of their education. They further considered the history of the British America, which they and their forefathers had lived through.
In the 19th century, however, Americans quite naturally decided that they wanted to be Americans. They did not want to be merely children of Britannia. Noah Webster wrote a purely American dictionary. James Kent and Joseph Story produced American legal treatises. Mercy Otis Warren and George Bancroft wrote histories from a strongly American point of view.
As the individual Founders died out, their personal memories were lost. They left many documents recording their memories, but often those documents were inaccessible. For example, James Madison’s notes of the Constitutional Convention were not published until after his death in 1836. Even when critical materials were available at places like Harvard and Columbia, they might be unavailable in Missouri, Ohio, or at the Supreme Court in Washington, D.C.
Consider just a few popular misconceptions and how the Great Forgetting made them possible:
* In the early 19th century, the idea arose that the Commerce Clause granted to Congress exclusive (rather than merely concurrent with the states) jurisdiction over interstate commerce. As I pointed out in Part II(C) of an article on the Commerce Clause as it pertains to Indian tribes, Madison’s convention notes disprove that idea. But those notes were not yet published. The footprints of this misconception can be traced today in the Supreme Court’s Dormant Commerce Clause and Indian Commerce Clause cases.
* Political actors in the 19th century promoted the claim that an Article V “convention for proposing amendments” is an”constitutional convention” that cannot be limited. No Founder would have believed that, because within the lifetime of Benjamin Franklin, there had been nearly 20 inter-colonial or interstate conventions confined to limited subjects. The claim of unlimitability survived because the Founders’ vast convention experience had been forgotten.
* Throughout the 19th century, many argued that Congress had no power to issue paper money, or at least no power to make paper legal tender. The records of the Constitutional Convention are ambiguous on the subject, but the ratification records and other contemporaneous documents are clear: Congress has both powers. However, in the 19th century the full ratification records were no longer readily available. As a result, the Supreme Court struggled for years over a question that should have been answered easily.
* In 1823, a Supreme Court justice writing a trial-level opinion without his fellow justices added some unnecessary musings about what he thought the Privileges and Immunities Clause of Article IV might mean. His language was not well considered: Not only were there internal inconsistencies, but the language showed unfamiliarity with the background of the Clause. Yet this passage became the basis for continuing misconceptions among commentators and judges who had never learned what “privilege” or “immunity” had meant in 18th century law.
We are fortunate today in that the Internet enables us to reconstruct 18th century meanings. But technology is not enough. We must beware of the results of the Great Forgetting. And we must equip ourselves with the history and language skills necessary to recreate the message the Founders intended to give us.