Category Archives: Constitution

Amy Coney Barrett’s Constitutionalism is a Fraud

            Supreme Court nominee Amy Coney Barrett argues that the Constitution and its amendments ought to be interpreted in the manner its creators intended. Originalism, the name for the legal theory to which she subscribes, has its adherents who believe that they can intuit the farmers’ intent from the close reading of the nation’s charter documents and the context in which they were written. But originalism has always been a problematic and ahistorical approach to legal interpretation, because so much of the meaning of the Constitution was contested, ambiguous, and unclear at the time it was written.

            This point is amply borne out by the Indian affairs clause of the United States Constitution.  Article I, Section 8 contains a list of powers that “we the people” bestowed upon the legislative branch of the government. Among those is the right to “regulate commerce…with the Indian tribes.”

            But what does “commerce” mean?

            The first federal Congress, in an attempt to add some flesh to these bare bones, enacted in the summer of 1790 the first of a number of “Trade and Intercourse” acts. These laws asserted federal control over non-native Americans and attempted to regulate their conduct when they engaged in commerce with Indian nations. Traders who wanted to engage in the Indian trade needed a license from a federal agent and so on. But there is nothing in the sparse language of the Constitution, or the subsequent legislation defining that language, that gave to the people of the United States power over the internal workings of Indigenous Nations. Yet, over many decades, the United States has seized control over more and more aspects of life in Native American communities, finding justification for this “plenary authority” in Article I, Section 8. “Commerce” now means pretty much everything and anything.

            Judge Barrett has said nothing about Indian affairs during her relatively short legal career, and it never came up in the questions she avoided answering during her hearing before the Senate Judiciary Committee.  But Judge Barrett has made clear her immense respect for Justice Antonin Scalia. During his tenure on the court, tribal interests prevailed only a fifth of the time. Scalia wrote five majority opinions on the subject, all of which were defeats for Native American interests. Yet in each of these cases, the language of the Constitution provided no clear guidance.

            Scalia’s closest intellectual partner on the Court had been Justice Clarence Thomas, who has said very provocative things about the Indian Affairs clause. In 2004 Justice Thomas upheld the constitutionality of a law that allowed Indian tribes to prosecute non-member Indians, but he was troubled by the Court’s arguments. 

            Thomas could not accept the Court’s assertion “that the Constitution grants Congress plenary power to calibrate the ‘metes and bounds of tribal sovereignty.’” He could not “locate such congressional authority in the Treaty Clause. . . or the Indian Commerce Clause.” A decade later, in Adoptive Couple v. Baby Girl (2013), Thomas again considered the constitutional basis for plenary power, this time in a case involving the 1978 Indian Child Welfare Act.  “Although the Court has said,” he wrote, “that the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs,” neither the text nor the original understandings of the Clause “supports Congress’ claim to ‘plenary’ power.”  The contested adoption proceedings at the heart of the Baby Girl case involved neither commerce nor tribes, and Thomas believed that “there is simply no basis for Congress’ assertion of authority over such proceedings.”

            In 2016, in the case of US v. Bryant, Thomas once again wrote that Congress’s “purported plenary power over Indian tribes,” rests on shaky foundations.  “No enumerated power–not Congress’ power to ‘regulate commerce…with Indian tribes,’ not the Senate’s role in approving treaties, nor anything else, gives Congress such sweeping authority.” And in a 2017 dissent in a case involving the Secretary of the Interior’s decision to take 13,000 acres of Oneida land in New York into trust, Thomas again criticized the Court’s Indian Commerce Clause rulings.  Allowing the federal government to take land within a state into trust on behalf of an Indian tribe, Thomas argued, could not be supported by any language in the Constitution, and it would have shocked the “Founding Fathers” to “find such a power lurking in a clause they understood to give Congress the limited authority to ‘regulate trade with Indian tribes living beyond state boundaries.”

            Justice Thomas defined “commerce” narrowly. If Congress had no acceptable justification for its claim to plenary power, Thomas believed that power must exist in some other entity.  For Thomas, it seemed to be with the states.

            What does “commerce” mean, and what did it mean in 1787, when the Constitution was ratified, or in 1789 when it went into effect? It is difficult to say. Various “Founders” disagreed and changed their opinions over time. Justice Thomas has pointed out that the Court’s Indian Commerce Clause rulings are built on a fiction, that they stand without justification in the Constitution’s language. Plenary power may rest on nothing more than brute force. No principle, no historical document, can justify it.  Many of Justice Thomas’s colleagues disagree. They argue that Article I, Section 8 does indeed grant to the federal government “plenary power” over Indian affairs.  The Founders used the word “Commerce.”  They provide little support for those who see in the Constitution what can best be understood as an extralegal, and extra-Constitutional, extension of federal authority over Indian affairs. 

            Judge Coney Barrett’s commitment to discerning an original meaning to the Constitution conveniently ignores all the gray areas, those realms of law and constitutional interpretation where the matters under consideration have been contested ever since the document first was written, debated, and ratified.  Originalism is a scoundrel’s argument. It will be used by the new Supreme Court majority to injure women, people of color, and our friends and family in the LGBTQ community. We could talk about abortion, or the right to marriage, or the very practice of judicial review itself, the Constitution does not always speak clearly to us.  Originalism, a most tendentious way of deducing its meaning, is a flawed approach that has been used as a lever to prop up the power of the federal state to do, in the end, as much or as little as it wants.

Don’t Call Me A Taxpayer

You have heard it before. I am not sure how long political leaders have been doing it, but it has increasingly come to bother me.  A representative in Congress, asked about this or another issue, will make reference to “the American Taxpayer,” as in, “we can’t waste the taxpayers’ money,” or the “American taxpayers did not send us to Congress” for whatever thing it is that representative opposed.

            I find myself bringing this up in my classes. I am teaching my department’s course on the American Revolution right now, and of course, taxation played a huge role in the breakdown of the imperial relationship between Great Britain and its American colonies.  Those English subjects in America conceived of taxation as an act of the people, which is why they believed that tax bills could only originate among their chosen representatives.  The entire body politic could not gather in one place, so they chose representatives to voice and protect their interests.  Only those chosen representatives could bestow the people’s property upon the government.  Any appropriation of the people’s property without the consent of their chosen representatives was, in essence, theft.

            The revolutionary generation believed that the purpose of government was to pursue the good of the whole, a concept they identified with the word “Commonwealth.”  In order to secure the common wealth, citizens needed to exercise virtue, which meant the capacity to sacrifice one’s own private interest for the good of the whole.  In order to act in a manner that was virtuous, citizens needed to be independent, subject to the control of no one else. Citizens also needed to be active, alert, and informed, for the founding generation believed that a supine and ignorant citizenry made fit tools for tyrants.

            That was a much more robust conception of citizenship than so many of our political leaders embrace today.  We are, in the view of too many of them, mere taxpayers.  We pay our money to the government and, in their view, we ought to expect something in return.  It is a transactional relationship. More than we let on, a large number of political leaders run government like a business, in that they view us as customers.  Too few of us complain about that.

            Because this is an interpretation that I suspect would horrify not only the founders but many writers on politics, government, and justice over several thousand years in the western tradition. In our constitutional system, we are the government. We formed a more perfect union, and as sovereign people, placed power in the hands of state and federal governments.  Speaking of Americans as “taxpayers” diminishes the importance of courageous and informed citizenship, something that is obviously in too short supply these days.

            Citizenship is not always easy.  It is not supposed to be.  Plato expected the men most suited to lead to be reviled by the people. Cicero warned that government service came with insults and the possibility of injury.  But, still, the obligation to serve remained.  “Both alone and with many, we will unceasingly seek to quicken the sense of public duty.”  Thus reads the Oath of the Athenian City State, etched into the walls of Maxwell Hall at Syracuse University, where I went to Graduate School.  Citizens must carry the obligation to “transmit this city not only less, but greater, better, and more beautiful than it was transmitted to us.” Considerably more is asked of us than merely paying taxes.  The city, its government, are ours.  Our political leaders are happier when we are passive, when we do not question them, when we do not hold them to account.  They want us to pay our bills and be quiet.  Maybe it has always been that way. Our leaders, for instance, seldom make themselves available to the press or people. They seldom appear in venues where they can be asked an unfriendly or critical question. The leading networks no longer investigate, because it is cheaper and easier to bring on pundits to debate each other. They seldom have the opportunity to hold our leaders to account and when they do they all too often fumble.

            So, Citizens, it is on us.  We have to engage. We have to stay informed and active because we are the government.  We need to engage actively, critically, energetically, in pursuit of the common good.  Doing so requires information and courage.  Those who participate in public life, or who speak truth to power, will be shouted at and reviled.  They will take their lumps.  But doing so is the obligation of a citizen.

            Now, perhaps, more than ever.  Corporate power in our political system increases every day. Campaigns and candidates are awash in dark money. Those who challenge the President are shouted down, as he engages in grift and graft to a degree unprecedented in American history. Sixty-two million Americans voted for a petty and small-minded bigot to become arguably the most powerful person on earth, and if we do not do our job, he may well be reelected.

            We are not mere taxpayers.  We are, and must be, citizens.  We must engage in the pursuit of the common good.  We are not consumers of government services.  WE ARE THE GOVERNMENT.  We must let our leaders know, through petition, appeal and, if necessary, protest, that it was “the people” who as sovereigns bestowed the powers they exercise on our behalf.  If we fail, that common good will become ever more elusive.

Why I’m Worried About What Clarence Thomas Might Be Doing Right Now in Carpenter v. Murphy.

I have listened to the first two episodes of Rebecca Nagle‘s This Land podcast. If you are interested in Native American history, you should too. Nagle tells the story of Patrick Murphy, convicted by the State of Oklahoma for the gruesome murder of George Jacobs back in August of 1999. An Oklahoma court sentenced Murphy to death.

Both the murderer and his victim were members of the Muscogee Creek Nation. In a last ditch appeal designed to save his life, Murphy’s talented lawyer argued, among other things, that Congress had never explicitly disestablished the Muscogee Creek reservation and, as a result, that the murder took place in “Indian Country,” on Indian land. Because of the precise nature of this crime–one Native American taking the life of another Native American from the same community on that community’s land–and where it took place, the crime falls under the provisions of the federal Major Crimes Act. Oklahoma’s prosecution, conviction, and sentencing of Murphy was invalid because he can only be tried under law in a federal court.

This was the basis of Murphy’s final appeal, and the federal circuit court agreed. The Supreme Court issued a writ of certiorari and heard arguments in the case late last November. Nagle listened to the arguments before the Court. Like many who watch and listen to the Supremes, Nagle attempted to discern from the justices’ questions how they might rule. Justice Gorsuch recused himself: he had heard the case when he served on the federal circuit. Only four votes are needed to overturn Murphy’s conviction.

Patrick Murphy committed a brutal murder. Nobody disputes that. If his conviction is overturned, surely the federal government will prosecute him and surely he will spend the rest of his life behind bars. But the case is far larger than Murphy, and overturning his conviction will have enormous consequences for the state of Oklahoma and the Indian nations whose lands lie within its boundaries. If the Court agrees that Congress never explicitly disestablished the reservation, then nearly 40% of present-day Oklahoma remains Indian Country, with the state powerless to prosecute major crimes committed by one Indian on another. There is much at stake.

Nagle is most worried about Justice Ruth Bader Ginsburg. Nagle is absolutely correct to point out that Ginsburg, despite her celebrity and her liberal bona fides on a host of issues, is no friend to native peoples. It is a point I made on this blog some time ago in response to all the lionizing of the “Notorious RBG.” Nagle mentions Ginsburg’s devastating ruling in the Sherrill decision.

Nagle said nothing about Justice Clarence Thomas, who rarely speaks from the bench. But the Murphy case seems like the sort of case Thomas has been waiting for, and that worries me greatly. Thomas could produce an opinion that lays waste to the entire foundation of American Indian law. Here is what I think might happen:

First, Thomas believes that much of the Court’s jurisprudence on Native American question lacks constitutional grounding. Indeed, Thomas on more than one occasion has questioned the constitutionality of the “Plenary Power” doctrine. That doctrine, which emerged in a series of cases over the course of the nineteenth century, holds that Congress derives from the “Indian Commerce Clause” (Article 1, Section 8) the power to act unilaterally in all areas of American Indian policy and diplomacy. Congress can basically do what it wants.

Thomas was uncomfortable with this. In the 2004 case of US v. Lara, Thomas said that he was troubled by the “premises and logic of our tribal sovereignty cases.”

Thomas felt that the court had not attempted to remove the important tensions between two assumptions that struck him as contradictory.  “First, Congress (rather than some other part of the Federal Government) can regulate virtually every aspect of the tribes without rendering tribal sovereignty a nullity.” It did so, however, at the same time that it maintained that “the Indian tribes retain inherent sovereignty to enforce their criminal laws against their own members.”

Thomas could not accept the Court’s assertion “that the Constitution grants Congress plenary power to calibrate the ‘metes and bounds of tribal sovereignty.’” He had read the Constitution, of course, and in it, he wrote, “I cannot locate such congressional authority in the Treaty Clause. . . or the Indian Commerce Clause,” which gave to Congress in Article I, Section 8, the right to regulate “commerce” with the Indian tribes. The phrase–“commerce”–had been defined too broadly.

Furthermore, Thomas questioned the constitutionality of the 1871 enactment through which Congress put an end to treaty-making, because “the making of treaties, after all, is the one mechanism that the Constitution clearly provides for the Federal Government to interact with sovereigns other than the States.”

Thomas reviewed the Lara reasoning, and that used by the Court in its antecedents: Oiliphant, US v. Wheeler (1978), and Duro.  He was skeptical.  In his conclusion, Thomas wrote,

The Court should admit that it has failed in its quest to find a source of congressional power to adjust tribal sovereignty. Such an acknowledgment might allow the Court to argue the logically antecedent question whether Congress (as opposed to the President) has that power.  A cogent answer would serve as the foundation for the analysis of sovereignty issues posed by this case. We might find that the Federal Government cannot regulate the tribes through ordinary domestic legislation and simultaneously maintain that the tribes are sovereigns in any meaningful sense.

In Adoptive Couple v. Baby Girl (2013), Thomas again considered the constitutional basis for plenary power, this time in a case involving the 1978 Indian Child Welfare Act.  “Although the Court has said,” he wrote, “that the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs,” neither the text nor the original understandings of the Clause “supports Congress’ claim to ‘plenary’ power.”  The contested adoption proceedings at the heart of the Baby Girl case involved neither commerce nor tribes, and Thomas believed that “there is simply no basis for Congress’ assertion of authority over such proceedings.”

Three years later, in the case of US v. Bryant, Thomas once again returned to these questions. Congress’s “purported plenary power over Indian tribes,” he wrote, rests on shaky foundations.  “No enumerated power–not Congress’ power to ‘regulate commerce…with Indian tribes,’ not the Senate’s role in approving treaties, nor anything else, gives Congress such sweeping authority.”  Thomas found the origins of this claim to power in the 1886 Kagama decision, which upheld the constitutionality of the previous year’s Major Crimes Act.  Native American weakness, in that case, justified the extension of federal power.  The government’s power, the Kagama court wrote, “over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection… It must exist in that government, because it has never existed anywhere else.” That seemed like a claim to power that was not supported by the Constitution and it was time, in Thomas’s view, to review these decisions.

And in an 2017 dissent in a case involving the Secretary of the Interior’s decision to take 13,000 acres of Oneida land in New York into trust, Thomas again criticized the Court’s Indian Commerce Clause rulings.  Allowing the federal government to take land within a state into trust on behalf of an Indian tribe, Thomas argued, could not be supported by any language in the Constitution, and it would have shocked the “Founding Fathers” to “find such a power lurking in a clause they understood to give Congress the limited authority to ‘regulate trade with Indian tribes living beyond state boundaries.”

If Congress had no legitimate constitutional authority to legislate for Indians (in this case, the legislation in question was the 1934 Indian Reorganization Act), and no acceptable justification for its claim to plenary power, Thomas believed that power must exist in some other entity.  For Thomas, it seemed to be with the states, a power reserved to them by the Constitution.   And that logic, if acted upon, would be toxic and destructive.  Leaving Indian tribes at the mercy of state governments would eliminate the nation-to-nation relationship between the United States and native nations, and produce a full negation of American Indian tribal sovereignty.

Thomas, in a manner entirely consistent with his earlier rulings, could rule against Murphy. He could argue that the Major Crimes Act is unconstitutional, because there is no justification for this extension of federal control over native nations in the sparse language of the Constitution. There is a lot of legal scholarship out there on the Supreme Court’s rulings on the scope or limits of the Indian Commerce Clause, and I have by no means read it all.  Matthew L. M. Fletcher, who Nagle interviews at length in This Land, and Gregory Ablavsky, have both written about the Indian Commerce clause, and they both flatly reject Thomas’s conclusions.  They believe that his interpretation of the Indian Commerce Clause is too narrow, too literal, and that Congress did have the power to enact protective pieces of legislation like the Indian Reorganization Act, or the Indian Child Welfare Act, or to take Indian lands within a state into trust.  There is a long thread of decisions they argue, where Congress protected Native nations from the encroaching power of the several states.  They have a point, I suppose.

I have only sampled some this scholarship, and I have a lot more to read.  But I am not sure Ablavsky, for instance, is absolutely right.  And what if Thomas is right?  At least in part?  A little bit? Thomas could spell out his beliefs fully in the Murphy case.

In other words, what if the Constitution does not give Congress plenary power over Indian affairs?  Article I, Section 8 of the Constitution says that “Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes.”  Ablavsky notes that the Founding Fathers used the word “intercourse” far more often than they did the word “commerce,” and that this word has a wider range of meanings.  There is a lot of truth to that.  The first federal Congress, in order to flesh out the sparse language of the Constitution, enacted in the summer of 1790 the first of a series of “Indian Trade and Intercourse Acts.”  But look at the legislation.  The Indian Trade and Intercourse Act regulated those instances where native peoples and newcomers came into contact by limiting the actions of non-Indians: Americans could not trade with Indians without a license, for instance, and purchases of Indian land could be effected only by the national government.  In the Indian Trade and Intercourse Act, one could argue that Congress asserted no power to regulate the internal affairs of any native nation.

Maybe plenary power is a lie, a fiction, or a fraud.  Maybe Thomas is right, in that the Court, over many years, has just sort of made stuff up to suit its purposes.

I have many friends who spend a great deal of time decrying the so-called “Doctrine of Discovery,” the notion that somehow the Europeans’ discovery of America gave them title to land on this continent.  Many of them are calling for a repeal of the doctrine, and for its repudiation by the churches who originally espoused it.   Is the notion of “plenary power” any less a fiction?  Can it be justified in any way from the sparse language in the Constitution which, Justice Thomas has asserted consistently throughout his career (whatever you think of him), truly matters?  Justice Thomas has pointed out that the Court’s Indian Commerce Clause rulings are built on a fiction, that they stand without justification in the Constitution’s language. 

Perhaps, rather than placing that power in the hands of state governments, as Justice Thomas seems to suggest, it more accurately could be asserted that the Constitution recognized native nations as separate polities, over which it exercised no control and no authority, save for an authority superior to the states to regulate interactions between these native nations and the American people.  Congress, rather than the states, could regulate commerce and intercourse by regulating the activities of American citizens, but it could claim no power to do anything within and over native nations themselves, because no such power is stated in the Constitution.  If the Doctrine of Discovery is a racist sham, as its critics assert, then perhaps the Congressional plenary power doctrine is a falsehood, too, a misinterpretation of framers’ intent and a complete fiction that the United States ought to address if it wants honor its endorsement several years ago of the UNDRIP.  And if it is a fiction, we are left with one conclusion about the federal government’s claim to exercise absolute authority in the realm of Indian affairs:  that its claim to plenary power rests on nothing more, at the end of the day, than brute force.  Colonialism is alive and well.

We won’t get that far in Murphy. But what I do fear is that Thomas could hold that the entire plenary power doctrine is unconstitutional, that under the 10th Amendment, ” powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” And that could be catastrophic for native nations.

Clarence Thomas is Right. And Wrong. Mostly Wrong. But, Still…..

I tell my students to give Justice Clarence Thomas a chance. It is a difficult thing to do, because to me so many of his views are so loathsome. For my students, it is a bit different.  If they have heard anything about him at all, it’s that Justice Thomas is the quiet one, and not in the George Harrison sort of way, but in the “I got nothing to say” sort of way.  They know he is one of the most conservative justices on the Court. Though their knowledge about him is vague and imprecise, I have seen students roll their eyes when I mention his name.

“You don’t get to do that,” I tell my students.  We are historians, scholars, practitioners of an academic discipline.  We do not get to call names or roll our eyes.  Just as I am bothered by those on the right who dismiss the sort of work I do as “politically correct,” and who illegitimately avoid arguments that make them uncomfortable, we must not reject an argument because we have heard things about the person making the argument. We must take seriously the ideas and beliefs of those with whom, politically or ideologically, we might be predisposed to disagree, even when it is difficult to do so.  We consider their arguments.  Then we respond.

And Justice Thomas has said some interesting things about the Supreme Court’s long and tangled history with native nations.  One need not accept everything he says to recognize that Justice Thomas has raised some troubling and provocative questions.

For example, there is his concurring opinion in the 2004 case of US v. Lara. The Lara case, which I have students in my Indian law class read, tested the constitutionality of congressional legislation that offered a remedy–the so-called “Duro Fix–for problems raised in an earlier case called Duro v. Reina (1990).

In 1978, in the Oliphant decision, the Court had held that Indian tribes lacked the ability to prosecute non-Indians who committed crimes on tribal land, because the exercise of this power was somehow inconsistent with their status as “domestic dependent nations.” (The Court never clearly explained why).  Duro extended that prohibition to non-member Indians, who in the Court’s view stood in relation to tribal governments in exactly the same position as a non-Indian.  Both decisions delivered significant blows to a native nation’s ability to preserve law and order on its own lands.

Recognizing that Duro created a significant problem, Congress reacted and gave tribes the power to prosecute non-member Indians, and in Lara Justice Thomas concurred in an opinion recognizing the constitutionality of the legislation.  Still, Thomas was troubled by the “premises and logic of our tribal sovereignty cases.”

Thomas felt that the court had not attempted to remove the important tensions between two assumptions that struck him as contradictory.  “First, Congress (rather than some other part of the Federal Government) can regulate virtually every aspect of the tribes without rendering tribal sovereignty a nullity.” It did so, however, at the same time that it maintained that “the Indian tribes retain inherent sovereignty to enforce their criminal laws against their own members.”

Thomas could not accept the Court’s assertion “that the Constitution grants Congress plenary power to calibrate the ‘metes and bounds of tribal sovereignty.'” He had read the Constitution, of course, and in it, he wrote, “I cannot locate such congressional authority in the Treaty Clause. . . or the Indian Commerce Clause,” which gave to Congress in Article I, Section 8, the right to regulate “commerce” with the Indian tribes.

Furthermore, Thomas questioned the constitutionality of the 1871 enactment through which Congress put an end to treaty-making, because “the making of treaties, after all, is the one mechanism that the Constitution clearly provides for the Federal Government to interact with sovereigns other than the States.”

Thomas reviewed the Lara reasoning, and that used by the Court in its antecedents: Oiliphant, US v. Wheeler (1978), and Duro.  He was skeptical.  In his conclusion, Thomas wrote,

The Court should admit that it has failed in its quest to find a source of congressional power to adjust tribal sovereignty. Such an acknowledgment might allow the Court to argue the logically antecedent question whether Congress (as opposed to the President) has that power.  A cogent answer would serve as the foundation for the analysis of sovereignty issues posed by this case. We might find that the Federal Government cannot regulate the tribes through ordinary domestic legislation and simultaneously maintain that the tribes are sovereigns in any meaningful sense.

In Adoptive Couple v. Baby Girl (2013), Thomas again considered the constitutional basis for plenary power, this time in a case involving the 1978 Indian Child Welfare Act.  “Although the Court has said,” he wrote, “that the central function of the Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian affairs,” neither the text nor the original understandings of the Clause “supports Congress’ claim to ‘plenary’ power.”  The contested adoption proceedings at the heart of the Baby Girl case involved neither commerce nor tribes, and Thomas believed that “there is simply no basis for Congress’ assertion of authority over such proceedings.”

Three years later, in the case of US v. Bryant, Thomas once again returned to these questions. Congress’s “purported plenary power over Indian tribes,” he wrote, rests on shaky foundations.  “No enumerated power–not Congress’ power to ‘regulate commerce…with Indian tribes,’ not the Senate’s role in approving treaties, nor anything else, gives Congress such sweeping authority.”  Thomas found the origins of this claim to power in the 1886 Kagama decision, which upheld the constitutionality of the previous year’s Major Crimes Act.  Native American weakness, in that case, justified the extension of federal power.  The government’s power, the Kagama court wrote, “over these remnants of a race once powerful, now weak and diminished in numbers, is necessary to their protection… It must exist in that government, because it has never existed anywhere else.” That seemed like a claim to power that was not supported by the Constitution and it was time, in Thomas’s view, to review these decisions.

And in an 2017 dissent in a case involving the Secretary of the Interior’s decision to take 13,000 acres of Oneida land in New York into trust, Thomas again criticized the Court’s Indian Commerce Clause rulings.  Allowing the federal government to take land within a state into trust on behalf of an Indian tribe, Thomas argued, could not be supported by any language in the Constitution, and it would have shocked the “Founding Fathers” to “find such a power lurking in a clause they understood to give Congress the limited authority to ‘regulate trade with Indian tribes living beyond state boundaries.”

If Congress had no legitimate constitutional authority to legislate for Indians (in this case, the legislation in question was the 1934 Indian Reorganization Act), and no acceptable justification for its claim to plenary power, Thomas believed that power must exist in some other entity.  For Thomas, it seemed to be with the states, a power reserved to them by the Constitution.   And that logic, if acted upon, would be toxic and destructive.  Leaving Indian tribes at the mercy of state governments would eliminate the nation-to-nation relationship between the United States and native nations, and produce a full negation of American Indian tribal sovereignty. One could write a history of Indians in the United States focusing on the attempt of state governments to extend their authority into Indian country.

 

 

There is a lot of legal scholarship out there on the Supreme Court’s rulings on the scope or limits of the Indian Commerce Clause, and I have by no means read it all.  Matthew L. M. Fletcher and Gregory Ablavsky have both written recently about the Indian Commerce clause, and they both flatly reject Thomas’s conclusions.  They believe that his interpretation of the Indian Commerce Clause is too narrow, too literal, and that Congress did have the power to enact protective pieces of legislation like the Indian Reorganization Act, or the Indian Child Welfare Act, or to take Indian lands within a state into trust.  There is a long thread of decisions they argue, where Congress protected Native nations from the encroaching power of the several states.  They have a point, I suppose.

I have only sampled some this scholarship, and I have a lot more to read.  But I am not sure Ablavsky, for instance, is absolutely right.  And what if Thomas is right?  At least in part?  A little bit?

In other words, what if the Constitution does not give Congress plenary power over Indian affairs?  Article I, Section 8 of the Constitution says that “Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes.”  Ablavsky notes that the Founding Fathers used the word “intercourse” far more often than they did the word “commerce,” and that this word has a wider range of meanings.  There is a lot of truth to that.  The first federal Congress, in order to flesh out the sparse language of the Constitution, enacted in the summer of 1790 the first of a series of “Indian Trade and Intercourse Acts.”  But look at the legislation.  The Indian Trade and Intercourse Act regulated those instances where native peoples and newcomers came into contact by limiting the actions of non-Indians: Americans could not trade with Indians without a license, for instance, and purchases of Indian land could be effected only by the national government.  In the Indian Trade and Intercourse Act, Congress asserted no power to regulate the internal affairs of any native nation.

Maybe plenary power is a lie, a fiction, or a fraud.  Maybe Thomas is right, in that the Court, over many years, has just sort of made stuff up to suit its purposes.

I have many friends who spend a great deal of time decrying the so-called “Doctrine of Discovery,” the notion that somehow the Europeans’ discovery of America gave them title to land on this continent.  Many of them are calling for a repeal of the doctrine, and for its repudiation by the churches who originally espoused it.   Is the notion of “plenary power” any less a fiction?  Can it be justified in any way from the sparse language in the Constitution which, Justice Thomas has asserted consistently throughout his career (whatever you think of him), truly matters?  Justice Thomas has pointed out that the Court’s Indian Commerce Clause rulings are built on a fiction, that they stand without justification in the Constitution’s language.  Perhaps, rather than placing that power in the hands of state governments, as Justice Thomas seems to suggest, it more accurately could be asserted that the Constitution recognized native nations as separate polities, over which it exercised no control and no authority, save for an authority superior to the states to regulate interactions between these native nations and the American people.  Congress, rather than the states, could regulate commerce and intercourse by regulating the activities of American citizens, but it could claim no power to do anything within and over native nations themselves, because no such power is stated in the Constitution.  If the Doctrine of Discovery is a racist sham, as its critics assert, then perhaps the Congressional plenary power doctrine is a falsehood, too, a misinterpretation of framers’ intent and a complete fiction that the United States ought to address if it wants honor its endorsement several years ago of the UNDRIP.  And if it is a fiction, we are left with one conclusion about the federal government’s claim to exercise absolute authority in the realm of Indian affairs:  that its claim to plenary power rests on nothing more, at the end of the day, than brute force.  Colonialism is alive and well.

Some Thoughts on the Declaration, and Why I Don’t Celebrate Much on Independence Day

The other day I appeared on “Connections,” a news radio show which airs on WXXI in Rochester, New York, an NPR-affiliate.  I participated in a panel discussion about how the Declaration of Independence is taught in classrooms and how much Americans know about this important document.

The precipitating event that spurred this discussion was the decision by NPR to tweet out on Independence Day the entire Declaration, 140 characters at a time.  Some of NPR’s Twitter followers applauded this decision, but a group of Donald Trump supporters saw something subversive at work.   Unaware of what they were reading, and in some sense living up to negative stereotypes about Trump voters, they accused NPR of tweeting out Anti-Trump propaganda.  The national media picked up on the story, concluding that large numbers of Americans know little about the founding of their country.

I spent the Fourth of July with my family camping in the Adirondacks.  There were plenty of American flags flying from trailers and boats in the campground, and a noticeably large number of campers wearing T-shirts containing passages from the familiar opening lines of the Declaration.  We stuck to ourselves, and stayed away from the Fireworks display in Saranac Lake, about 15 miles away.  We just were not feeling it this year.  We took a too-long canoe journey, and went to the beach, and avoided powerboat exhaust, so I never had an opportunity to speak to any of the people wearing these shirts.  It is not difficult to imagine that they saw in the Declaration’s language something of great significance.  But what?  And what did those words mean to them?

To a great extent, these were the issues that we discussed on “Connections.” The Declaration of Independence, many Americans very clearly believe, is important and a source of this country’s highest ideals.  Liberals and conservatives share an appreciation of its importance, even if they disagree about the extent to which the United States has lived up to those ideals.  But very clearly, Americans also know little about the document itself, the indictments it contains against the conduct of the king that American patriots felt justified rebellion, and the specific context from which it emerged.  Much of what they think they know is either wrong or extraordinarily simplistic.

And that really bothers me.  Even my fellow panelists, with whom I agreed about mostly everything, saw the Declaration as a source of American ideals, as a celebration of equality and freedom.  One, agreeing with a caller, saw the Declaration as the source of American ideals, and the Constitution as the source of American law. It is a line I have heard before. During the discussion, I brought up some of the insights raised by Pauline Maier in her wonderful book on the Declaration, but I really wish I said more.  We were pressed for time. I really wished that I had mentioned Frederick Douglass’s famous speech, given in Rochester in 1852, asking “What to the American Slave is the Fourth of July?”

One of my fellow panelists, for instance, pointed out that “we” came to America for freedom.   Of course there were many people already here when those freedom-seeking colonists came stumbling ashore, and by a three-to-one margin, between 1630 and 1780, the movement of peoples across the Atlantic to English America was much more black than white.  The vast majority of people who crossed the Atlantic came as bond servants or slaves.  And, from the English perspective, these colonies existed to serve the crown.  This factor alone, which I described in my first book, is important to remember.  Colonial promoters wanted to profit from their overseas enterprise, they wanted to secure a foothold on American shores, and spread what they believed was the one and only true religion.

The Declaration, furthermore, contains in its indictments of the Crown a number of “ideals” that when examined more closely, reveal some of the darkness that lay at the heart of the founding.  The committee that drafted the Declaration, for instance, denounced the Quebec Act, a piece of legislation usually treated as one of the so-called “Intolerable Acts” but that may, in fact, have helped Quebec avoid the blood-stained history of Northern Ireland.  That the rebellious colonists opposed the Quebec Act makes quite clear that one of the American republic’s founding ideals was Anti-Catholicism. Similarly, the colonists condemned George III for messing around with immigration and naturalization.  One of my fellow panelists likened this to Donald Trump’s attempt to ban Muslim immigrants from a handful of countries.  But if one thinks of Warren Hofstra’s great article that appeared in the Journal of American History in 1998, the Empire saw strategic immigration as a way to bolster frontier defense.  Thus when Jefferson wrote in the Declaration that the King “has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands” they were complaining in part about limits on their efforts to discriminate against outsiders coming to the colonies and the crown’s efforts to keep colonists off of Indian lands.

Most Americans, I suspect, poorly understand that the Declaration came after fifteen months of war, and that without the violence of the Revolution, the document itself would have become just another forgotten manifesto from a failed revolt.  They fail to recognize that many politically literate Englishmen would have found little in the Declaration’s memorable preamble with which they might disagree, and that what we see  as a glorious statement of American ideals, after all, was influenced by the English political writing Jefferson and others had been drinking in for a generation.  (Though they would not have accepted the notion that the “usurpations” and “injuries” inflicted on the colonists by the king justified armed rebellion against the duly constituted authorities of the imperial state.) They seem unfamiliar with the notion that the Constitution of 1787, rather than serving as the successful culmination of the Revolution, was a deeply flawed document that may, in the view of some historians, have served as a conservative counter to the radicalism of the American Revolution. Woody Holton’s excellent work will make that point abundantly clear.  The biggest flaw in that document, its protection of the institution of slavery and southern control of the union, required a war that killed more than 600,000 Americans, lasted five years, and has left a legacy with which we still struggle. That is more than a mere hiccup in a story of American progress. The birth of the American nation can be neither understood nor explained without reference to the enslavement of Africans and the dispossession of native peoples.  These Americans might be surprised that Great Britain abolished slavery well before the United States.

I have written on this blog in the past about Americans’ lack of civic knowledge.  But the point was made abundantly clear with the evidence presented by the show’s talented host Evan Dawson that immigrants to the United States do considerably better on the citizenship exam than do native-born American citizens–and some of those citizenship questions are stunningly simple.

“1. Name ONE American Indian tribe in the United States.

a. Slavs

b. Celts

c. Cherokee

d. Zawa Chemi.”

SMH, as the kids say.  What is clear is that we can and must do much, much, better in teaching this nation’s history, and that we must push back against the homogenizing forces in American education (those on the right who denounce a rich depiction of American history with the intellectually-bankrupt epithet “politically correct” or those who emphasize STEM to the detriment of everything else, to state legislatures that slash school budgets and attempt to micro-manage talented teachers).  There is, clearly, so much at stake.  An ill-informed public, not willing or able to exercise its critical citizenship, will make a fit tool for tyrants.  Frederick Douglass long ago saw in the commemoration of Independence Day evidence of America’s considerable hypocrisy. The nation had not lived up to its ideals, he claimed.  As recent events have demonstrated–the continued killing of peoples of color by police officers, grinding and increasing inequality, a government attuned to the interests of the most wealthy among us and tone-deaf to the growing numbers at the bottom–we have a long, long, way to go.

The Loving Decision and the Concealed History of Virginia’s Native Peoples

Yesterday was the anniversary of the Pulse nightclub massacre that took place a year ago in Orlando, the largest mass shooting in recent US History.  It was also the fiftieth anniversary of the Supreme Court’s decision in Loving v. Virginia, the case which struck down laws that prohibited marriage across the color line.

You may have seen the beautifully quiet and restrained telling of this story in last year’s Oscar-nominated film that starred Ruth Negga as Mildred Loving and Joel Edgerton as her devoted husband Richard.  The film avoided grandiose speeches, courtroom melodrama, and focused instead on the struggle of a couple, white and black, to hold things together in the Jim Crow south.

There was more to the story, however, for Mildred Loving always claimed that she was Native American, a descendant of Virginia’s native peoples.  This story is told in Sally Jacobs’  piece that appeared on WGBH. You might find Jacobs’ story useful in your classes.

[UPDATE: And you might find it useful for more than just the story.  Arica Coleman, mentioned below, wrote a fantastic book on this subject, and she has accused Jacobs of plagiarizing her work.  You should read Coleman’s criticism here and in the comments section which follows Jacobs’ piece.  Professor Coleman presents a powerful case, and we need to hear Jacobs’ response. MLO]

Mark Loving, Mildred’s grandson, contacted the Virginia Department of Historical Resources because he objected to the description of his grandmother on a state historical marker as “a woman of African-American and Virginia Indian descent.” So said Jacobs in her piece for WGBH. Mark Loving objected to the suggestion that Mildred Loving was anything other than a Native American woman.  “I know during those time that there were only two colors,” he said in an interview from last November, “but she was Native American.  Both her parents were Native American.  Mildred herself insisted in 2004 that she had no black relatives, according to Arica Coleman, who interviewed her for the fantastic book she wrote on mixed-race marriage.

Race is never simple, and Virginia’s history is a messy one.  In 1924, for instance, the Virginia legislature passed its “Racial Integrity Act” which defined white people as having “no trace whatever of any blood other than Caucasian.” The act included the so-called “Pocahontas exception,” stating that “persons who have one-sixteenth or less of the blood of the American Indian and have no other non-Caucasic blood shall be deemed white persons.”  Many Virginians, blissfully unaware that some of Pocahontas’s descendants had sired children with slaves, attempted to tie themselves firmly to Virginia’s romantic past by claiming descent from Pocahontas. Their interests had to be protected. Anyone who was not white, under the provisions of the law, was “colored.”

I take some time with laws like these in my classes in order to explain to them how nonsensical and ridiculous all of this is at a fundamental level.  Race is a construction, an invented category. The blood that flowed through one’s veins did nothing to effect culture and belief and values and behavior.  Still, Virginians enforced the Racial Integrity Act with a vengeance, and the Commonwealth’s first registrar of the Bureau of Vital Statistics, Walter Ashby Plecker, was a true believer.  “Let us turn a deaf ear,” he wrote revealingly in 1925, “to those who would interpret Christian brotherhood as racial equality.”  Virginia Indians, he believed, were not real Indians: they had been mongrelized, mixed with peoples of African descent, and as such he ordered his employees to alter the birth certificates of Indian children.  This was erasure, an attempt at extermination carried out with pens and paper. The certificates now would read “colored.”  Plecker claimed that he had science on his side—the same “eugenics” that later fueled the Nazi holocaust—but he admitted to close friends that he routinely changed racial designations from Indian to colored without any evidence.

Plecker’s racist crusade made it difficult for many native peoples in Virginia to prove that they were Indians.  The vital records upon which such a designation relied, after all, had been altered.  Native peoples in Virginia asserted a third racial identity in a biracial society.  They did not attend black schools because they felt no necessity to accept Plecker’s logic.  Many wanted access to the better facilities available to white Virginians.  Some of those who could pass as white did so, but many of Wahunsonacock’s descendants struggled in the face of this racist legal code.

During the Second World War, Commissioner of Indian Affairs John Collier complained about Plecker’s strict enforcement of Virginia’s racist legal code but Plecker was convinced that thousands of “mulattoes” in Virginia “are striving to pass over into the white race by the Indian route.” Plecker determined to keep the races pure, and the lines between them distinct.  When a draft board in Richmond ordered three Rappahannock men to report to an induction station for African American soldiers in Maryland, they refused. Authorities in Virginia prosecuted the men and sentenced them to six months in prison.  The government allowed Chickahominy soldiers to serve in white units only after the tribe demonstrated its own racism toward African Americans:  Chickahominies who married black people faced expulsion from the community; they tried to keep African American farmers away from the reservation, and prohibited black doctors and preachers from visiting their communities.  Most of the Virginia Indians who served did so in white units, but not without an enormous struggle.

There were solid historical reasons for Mildred Loving’s family to claim to be Indians.  But people on the margins intermarried throughout the South.  They always did, and racial identity could be fluid on the marchlands of the empires and the colonial state.

As Jacobs shows, in Virginia, along Passing Road, where the Lovings lived and loved, there is today debate about Mildred Loving’s identity.  Who she is still is debated.  In an attempt to navigate these troubled waters, Jacobs reported, “the state of Virginia rewrote its highway marker to describe the Lovings simply as an interracial couple and removed all mention of her being either African-American or Native-American. But that didn’t quell the controversy.”

In the face of local opposition, the state last week moved the location of the highway marker away from a roadside several miles from the Lovings’ gravesite. It’s now to be near the former Virginia Court of Appeals in Richmond, where the Loving case was once heard, over an hour’s drive away. Despite the controversy, Virginia Governor Terry McAuliffe is set on Monday to dedicate the marker, which has been in storage for over a year.

That some of your students likely will have some familiarity with the recent film version of the Lovings’ story, and the recent salutary discussion across the country of how love must trump hatred, bigotry and racism, it might be useful to discuss this important case in Native American history classes.  And if not the Lovings’ story, there are similar cases throughout the American South, and throughout Native America.