Excerpted From: Jeremy Rabkin, Commerce with the Indian Tribes: Original Meanings, Current Implications, 56 Indiana Law Review 279 (2023) (258 Footnotes) (Full Document)


JeremyRabkinDissenters denounced the Supreme Court's decision in Oklahoma v. Castro-Huerta for disregarding established precedent. In most of the controversial decisions delivered in the spring of 2022, the conservative majority discounted established precedents in the name of restoring or respecting the Constitution's original meaning. In Castro-Huerta, the majority did not make that claim. But nor did the four dissenters, speaking through Justice Gorsuch, rely on the Constitution's original meaning.

The case considered whether Oklahoma could prosecute a crime committed by a non-Indian against an Indian victim, on territory recognized by treaty as reserved for Indians. A bare majority of the Court found the answer to be yes, reasoning that even Indian reservations are part of the surrounding state. The dissenters insisted that the Court's precedents of recent decades required, at minimum, a far more cautious or qualified response to this question. Whatever else it decided, Castro-Huerta seems to demonstrate that the Court is not very interested in recovering the Constitution's original meaning as it applies to America's original peoples.

One reason for this lack of interest may be that emphatic precedents seem to claim that Congress has “plenary power” to regulate matters involving Indian tribes. If Congress can do anything in this field, it might seem of no great moment whether it shares some of that power with state governments. In more technical terms, Castro-Huerta seemed to rely on a preemption analysis, which assumes Congress can assert federal authority as it chooses: if Congress has not legislated, it may be inferred that it has authorized state laws to fill resulting gaps.

There may be another, equally important explanation for the Court's unusual indifference to claims about original meaning in relation to Indian law. It is that, while a great deal of valuable scholarship has explored the historical context of the Constitution's provisions on Indian tribes, few scholars have made much effort to extrapolate from the historical record to conclusions about what the Constitution should mean in our time.

This Article argues that the original meaning has many direct applications to current questions on the status of Indian tribal authority within reservations. Part I below argues that Indian tribes must be seen as having claims to an independent political existence--as early Supreme Court rulings recognized. Part II argues that federal power over Indian tribes was understood as a means of excluding outside interference with tribes, by foreign nations but also by U.S. states. Part III argues that federal power to regulate Indian tribes was not seen as “plenary” in the nineteenth century but understood to reach beyond regulation of commerce only for claims of national sovereignty. These were, in turn, understood to have inherent limits. Part IV argues that tribal territories have at least as much claim as states to be free from restrictions on the flow of commerce into and out of their jurisdictions. Part V argues that the special provisions for state criminal jurisdiction on tribal lands, even if (arguably) defensible in the name of preserving order, cannot justify the Court's readiness to extend state taxing and regulatory claims on tribal lands. Part VI concludes with observations on the way tribal claims to autonomy reflect wider concerns which the Constitution was designed to safeguard. These concerns are more resonant today than in the late nineteenth and early twentieth centuries when federal policy sought to coerce Indian assimilation to mainstream American culture.

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Contemporary appeals to the Constitution's original meaning are often driven by fear that judges will otherwise spin out new rights from their own imagination. But “originalism” also reflects a background assumption that the original Constitution offers good guidance, because it rests on sensible premises, reasonably balanced. Honoring tribal claims is not more anachronistic than upholding limits on federal authority (and state authority) in other ways. It is a more emblematic or resonant instance of a more general constitutional vision. A Constitution that creates space for tribal self-government is a Constitution acknowledging that the central government is not the fount of all wisdom and that a common life need not be uniform or standardized.

This is more obvious today than it was in the late nineteenth or early twentieth centuries. But it was quite evident to John Marshall and Joseph Story. The Constitution, as its original interpreters saw it, made room for the separate status of the Indian tribes.

Professor of Law, Scalia Law School, George Mason University.