The Indian Commerce Clause

The Congress shall have Power . . . To regulate Commerce . . . with the Indian Tribes. . . .

—Timothy Sandefur

Introduction

The Constitution gives Congress power to “regulate commerce” with foreign nations, among the states, and with “the Indian tribes.” The fact that this clause consists of a single unbroken sentence suggests that Congress’s power to “regulate commerce” is the same—and thus subject to the same constitutional limits—with respect to all three types of entities. The Framers’ primary concern was to restrict state authority and vest a single, central entity with the power of legislating with respect to Indian commerce so as to avoid multifarious, potentially conflicting policies. Just as America would speak with one voice when dealing with foreign nations, the Indian Commerce Clause would ensure that commerce with Indians was regulated by a single federal government.

In the years after the Civil War, Congress grew uncomfortable with viewing tribes as sovereign entities and began to treat them instead as conquered aliens and captive wards with federal officials serving as their teachers, overseers, and guardians. This history gave rise to the so-called plenary power doctrine, which purportedly gives Congress absolute authority over Indians. This power cannot be squared with the original meaning of the Indian Commerce Clause.

History Before 1787

The Articles of Confederation granted Congress a broad power over Indians. The legislature had the power to “regulat[e] the trade and manag[e] all affairs with the Indians [who were] not members of any of the states.”¹ However, this central power was limited: Some Indians were members of states, and the Articles ensured that the “legislative right of any state” over such Indian affairs “within its own limits, [would] be not infringed or violated.” As a result, the states could assert the power to regulate Indian affairs within their borders.²

Under the Articles, state governments’ hostility toward tribes often precipitated violent clashes. In Federalist No. 3, John Jay observed that “[n]ot a single Indian war has yet been occasioned by aggressions of the present [Confederation] government.” However, “there are several instances of Indian hostilities having been provoked by the improper conduct of individual States, who . . . have given occasion to the slaughter of many innocent inhabitants.” Centralizing the authority to regulate Indian commerce would prevent these dangers.

The Constitutional Convention

On May 29, 1787, South Carolina’s Charles Pinckney proposed that the Convention give Congress “exclusive power . . . of regulating Indian affairs.”³ This proposal tracked the language used in the Articles of Confederation. What happened next is something of a mystery. A Committee of Detail draft in the handwriting of Edmund Randolph of Virginia granted Congress many powers to which John Rutledge of South Carolina had added “Indian Affairs” in a marginal note.⁴ Another Committee of Detail draft in the handwriting of James Wilson provided that the legislature had the power “of regulating Indian Affairs.”⁵ Yet the Committee of Detail’s report, presented on August 6, included no power over Indian affairs.

Professor Lorianne Updike Toler contends that the Committee of Detail “seems to have accidentally omitted an Indian Affairs Clause in preparing the first working draft of the Constitution.”⁶ She writes that Wilson meant to comply with Rutledge’s note and even “placed a check mark next to the Clause” but that Wilson “simply failed to include the power in his final draft.”⁷ As Justice Neil Gorsuch put it, “[t]he framers considered a general Indian Affairs Clause but left it on the cutting-room floor.”⁸

The Convention did address Congress’s powers over Indians in another provision. A draft of Article I, Section 7 granted Congress the power “[t]o regulate commerce with foreign nations, and among the several States.”⁹ On August 16, this provision was approved without debate.¹⁰ On August 18, James Madison referred to the Committee of Detail a list of powers for Congress that included the power “[t]o regulate affairs with the Indians as well within as without the limits of the U. States.”¹¹ Toler suggests that Madison was attempting “to correct the Committee of Detail’s oversight.”¹² Madison also omitted the language in the Articles that allowed the states to regulate Indians that were “members of states.”

Madison’s proposal was rejected, and on August 22, the Committee of Detail instead proposed that Section 7 be amended to include “and with Indians, within the Limits of any State, not subject to the laws thereof.”¹³ This language would have preserved the ability of states to regulate Indian tribes. This proposal was not adopted.

On September 4, the Committee of Eleven proposed a simpler method: adding the “and with the Indian tribes” to the foreign and interstate commerce clauses.¹⁴ That proposal was approved without debate.¹⁵ The draft referred to the Committee of Style therefore granted Congress the power “[t]o regulate commerce with foreign nations, and among the several States; and with the Indian tribes.”¹⁶ The Committee of Style changed the semicolon to a comma but made no further changes.¹⁷

In the end, where the Articles of Confederation had provided a “free-floating Indian-affairs power,” the Constitution included only a “bundle of federal authorities” relating to Congress’s power to regulate commerce.¹⁸ Thus the central question: What constitutes “commerce”?

The Ratification Debates

The Indian Commerce Clause was discussed sparingly during the ratification debates. In Federalist Nos. 40 and 42, Madison used the phrase “trade with the Indians” to characterize Congress’s power. Robert Yates, an opponent of the Constitution writing as “Sydney,” warned that the “new government, will enervate their legislative rights, and totally surrender into the hands of Congress the management and regulation of the Indian trade to an improper government.”¹⁹ There is no evidence that the ratifiers discussed the significance of the shift from “Indian affairs” in the Articles of Confederation to “commerce” in the Constitution.²⁰ However, the Constitution’s meaning does not depend on the views of any individual framers; as Madison himself observed, its meaning depends on the ratifiers’ understanding.²¹

The Plenary Power Doctrine

In a “long line of cases,” the U.S. Supreme Court has “characterized Congress’s power to legislate with respect to the Indian tribes as ‘plenary and exclusive.’”²² Plenary means absolute and unlimited. The origin of this doctrine traces back to United States v. Kagama (1886), even though the word “plenary” does not actually appear in the decision.²³ Kagama, moreover, expressly acknowledged that such a power could not be derived from the Indian Commerce Clause. Justice Samuel Miller even called it “a very strained construction of [the] clause.”²⁴ Nevertheless, Kagama held that “the soil and the people” living on reservations were “under the political control of the Government of the United States” because the tribes were effectively a conquered people whose continued existence now rested on the mercy and charity of the conqueror.²⁵ Kagama cited Chief Justice John Marshall’s decision in Worcester v. Georgia (1832), which characterized the tribes as “wards of the nation.”²⁶ Kagama concluded that “[f]rom their very weakness and helplessness . . . there arises the duty of protection, and with it the power.”²⁷

Indian law scholar N. Bruce Duthu has explained that Kagama’s “plenary” theory “gave Congress a blank check to legislate” and “turned a blind eye and a deaf ear to constitutional principles and tradition that viewed federal power as a limited authority that operates lawfully and legitimately only within the safe harbor of enumerated constitutional provisions.”²⁸ Moreover, the historical basis of this ward-like relationship is dubious. Justice Clarence Thomas has been “unable to locate any evidence that the Founders thought of the Federal Government as having a generalized guardianship-type relationship with the Indian tribes,” as that relationship “at times involved warfare, not trust.”²⁹

Since Kagama, the “plenary power” theory has sowed confusion, partly because the Court has also said this “plenary” power “is not absolute.”³⁰ That confusion became especially prominent in Haaland v. Brackeen (2023), in which Justice Amy Coney Barrett’s majority opinion insisted that “plenary” power is “not absolute” but that its limits are “undefined.”³¹ In dissent, Justice Samuel Alito condemned this self-contradictory phrasing for “violating one of the most basic laws of logic.”³²

One manifestation of the plenary power was the Indian Reorganization Act of 1934, which expanded federal authority over tribes in unprecedented ways. Congress radically reorganized internal tribal politics by inducing tribes to establish formal governments complete with chiefs even where, as with the Navajo, this was contrary to their tradition. The tribes were also induced to write constitutions that were subject to the approval of the Secretary of the Interior. This requirement subordinated tribal self-government to federal control at the most fundamental level.

Original Meaning of “Commerce . . . with the Indian Tribes”

In Brackeen, Justices Gorsuch and Thomas disagreed about the original meaning of “Commerce . . . with the Indian Tribes.” First, Thomas contrasted the language used in the Articles of Confederation with the language used in the Constitution. “[W]hatever the precise contours of a freestanding ‘Indian Affairs’ Clause might have been,” he wrote, “the Founders’ specific rejection of such a power shows that there is no basis to stretch the Commerce Clause beyond its normal limits.”³³ Gorsuch, however, defined commerce broadly, contending that the word gives Congress “the authority to manage ‘all interactions or affairs . . . with the Indian [T]ribes’ and foreign sovereigns—wherever those interactions or affairs may occur.”³⁴

Second, Thomas wrote that “Commerce” must “naturally” have the “same meaning” with respect to interstate commerce, Indian commerce, and foreign commerce.³⁵ Thus, if “commerce” means “all interactions or affairs,” Congress could control all interactions with foreign nations or among states—something that is plainly not true. Gorsuch countered that “Indian commerce was considered ‘a special subject with a definite content,’ quite ‘distinct and specialized’ from other sorts of ‘commerce.’”³⁶ Indian commerce therefore has “a broader meaning than simple economic exchange.”³⁷ Thomas responded that equating “commerce” with “intercourse” was based on “a few, fairly isolated references to ‘commerce’ outside the context of trade, usually in the context of sexual encounters.”³⁸

Even though Justices Gorsuch and Thomas reached diametrically opposed conclusions in Brackeen, they agreed on the more fundamental issue that the “plenary” power theory is inconsistent with the Constitution’s text and principles. In short, the “plenary” power is stitched together from what Thomas called a “smorgasbord” of constitutional provisions, none of which actually gives Congress the breadth of power that the “plenary” theory claims.³⁹

Open Questions

• If the Supreme Court were to reconsider the plenary power doctrine, how would the relationship between the Indian tribes and the federal government be changed? What other models might replace the current structure?
• What significance does the Indian Citizenship Act of 1924 have on the “plenary power,” given (1) that this power was first articulated at a time when Indians were not citizens and (2) that Congress certainly does not have “plenary” power over citizens?
• If “commerce” means something more comprehensive with respect to Indians than it does with respect to states and foreign nations, what consequences does that have for other clauses in the Constitution? The Fourth Amendment, for example, refers to the right of the people to be “secure in their persons, houses, papers, and effects.” Does “security” mean something different in each of those instances? Congress also has power to regulate the “land and naval forces.” Is its regulatory power broader in one case than in another?
• If Congress has both a “plenary power” and a “trust” obligation to preserve the existence of tribes, could it pass a statute specifying that tribal members may not marry outside of the tribe, abandon their tribal citizenship, or write or speak to others encouraging them to do these things?

1. Articles of Confederation, art. IX, § 4 (emphasis added). ↩︎
2. Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L.J. 1012, 1021–22 (2015). ↩︎
3. 3 Farrand’s 595, 607. ↩︎
4. 2 Farrand’s 137, 143. ↩︎
5. Id. at 157, 159. ↩︎
6. Lorianne Updike Toler, The Missing Indian Affairs Clause, 88 U. Chi. L. Rev. 413, 419 (2021). ↩︎
7. Id. ↩︎
8. Haaland v. Brackeen, 599 U.S. 255, 318–19 (2023) (Gorsuch, J., concurring) (citing Toler, supra at 444–76). ↩︎
9. 2 Farrand’s 177, 181. ↩︎
10. Id. at 308. ↩︎
11. Id. at 324–25. ↩︎
12. Toler, supra at 464. ↩︎
13. 2 Farrand’s 366, 367. ↩︎
14. Id. at 493, 497. ↩︎
15. Id. at 495, 499. ↩︎
16. Id. at 565, 569. ↩︎
17. Id. at 595, 655. ↩︎
18. Brackeen, 599 U.S. at 319 (Gorsuch, J., concurring) (quoting Worcester v. Georgia, 315 U.S. 515, 559 (1832)). ↩︎
19. Storing 6.9.10. ↩︎
20. Toler, supra at 419. ↩︎
21. Letter to Thomas Jefferson, April 4, 1796, in The Writings of James Madison, ed. Gaillard Hunt, Vol. VI (New York: G.P. Putnam’s Sons, 1906), p. 272, https://perma.cc/3THM-8VEH. ↩︎
22. Brackeen, 599 U.S. at 273 (2023) (quoting United States v. Lara, 541 U.S. 193, 200 (2004)). ↩︎
23. 118 U.S. 375 (1886). ↩︎
24. Id. at 378 ↩︎
25. Id. at 379. ↩︎
26. Id. at 382. ↩︎
27. Id. at 384. ↩︎
28. N. Bruce Duthu, American Indians and the Law 169 (2009). ↩︎
29. Brackeen, 599 U.S. at 358 (Thomas, J., dissenting). ↩︎
30. Delaware Tribal Business Committee v. Weeks, 430 U.S. 73, 84 (1977) (quoting United States v. Alcea Band of Tillamooks, 329 U.S. 40, 54 (1946) (plurality opinion)). ↩︎
31. Brackeen, 599 U.S. at 275–76. ↩︎
32. Id. at 374 (Alito, J., dissenting). ↩︎
33. Id. at 354–55 (Thomas, J., dissenting). ↩︎
34. Id. at 321 (Gorsuch, J., concurring) (quoting Jack Balkin, Commerce, 109 Mich. L. Rev. 1, 23 (2010)). ↩︎
35. Id. at 352 (Thomas, J., dissenting) (citing Sai Prakash, Our Three Commerce Clauses and the Presumption of Intrasentence Uniformity, 55 Ark. L. Rev. 1149, 1161–62 (2003)). ↩︎
36. Id. at 320 (Gorsuch, J., concurring) (quoting A. Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 Minn. L. Rev. 432, 467–68 (1941)). ↩︎
37. Id. at 320 (Gorsuch, J., concurring) (citing Ablavsky, supra at 1013). ↩︎
38. Id. at 355 n.10 (Thomas, J., dissenting). ↩︎
39. Id. at 335 (Thomas, J., dissenting). ↩︎