Jurisprudence

Thomas grimaces as he stares straight ahead, his wife in a red dress just out of focus.

Supreme Court Justice Clarence Thomas sits with his wife and conservative activist Virginia Thomas while he waits to speak at the Heritage Foundation on October 21, 2021 in Washington, D.C.
Drew Angerer/Getty Images

On Wednesday, the Supreme Court will hear arguments in Brackeen v. Haaland, a case engineered to hobble the federal government’s power to protect Native communities from exploitation. The plaintiffs are asking the justices to invalidate the 44-year-old Indian Child Welfare Act, which prioritizes the placement of Native children in custody proceedings with Native families. But they’re also contesting a constitutional foundation of Indian law itself. Allying with Republican legal groups and lawmakers, the plaintiffs want to kneecap congressional authority to regulate tribes for the benefit of their own members.

After greenlighting countless laws diminishing tribal sovereignty, the Supreme Court could soon strike down a law attempting to enhance it. And the court may do so on the basis of history that is not just dubious but objectively false, rooted in a mistaken theory about the Founders’ vision for relations with Native tribes that has been conclusively debunked.

It’s important to understand that history to see how wrong the plaintiffs’ originalist argument is. In 1787, the Framers needed to provide a solution to various problems created by the Articles of Confederation, including challenges around Indian affairs. The Articles had tried to split authority over tribal relations between the states and the federal government, and the result was a disaster. Some states, for instance, refused to comply with treaties between the federal government and tribal nations, leading to violent conflicts over white settlement on Indian land.

To resolve this, the new Constitution handed all authority over Indian affairs to the federal government. It gave the government broader treaty and war powers—which, at the time, was crucial to tribal relations—and removed those powers from the states. It also gave Congress the ability to “regulate commerce” with “the Indian tribes.” (This is called the Indian Commerce Clause.) From George Washington’s administration onward, the federal government interpreted its constitutional powers to encompass exclusive authority over Indian affairs.

Southern states with large Native populations disliked this arrangement. In the 1820s, they tried to expand jurisdiction over tribes within their borders. Georgia, for example, tried to abolish tribal governments through legislation. Several states also seized tribal lands illegally, arguing that, as “sovereign” states, they had inherent authority to do so. In 1832, the Supreme Court shot down this theory, rejecting state claims of a constitutional right over “Indian nations.” By that point, however, the states had an ally in President Andrew Jackson, who signed the Indian Removal Act that brutally deported these nations to the West.

The tragic history continued from there, even as the court consistently sided with the federal government over the states in relations with Native populations. Throughout the 19th century, Congress used this power to “assimilate” tribal members. Among other things, it sold off tribal lands without the consent of the tribes and stole Native children from their families, sending them to boarding schools where they would be “civilized.”

It’s this practice—the legalized theft of Native kids—that forms the backdrop of the Indian Child Welfare Act (ICWA), which Brackeen puts in the Supreme Court’s crosshairs. In the second half of the 20th century, Congress slowly adopted a different approach to Indian regulations, and passed multiple laws designed to respect and reinforce tribal sovereignty. ICWA was one of these measures. The law grew out of investigations into the removal of Indian children from their families. Congress found that state and private child welfare agencies colluded with state courts to seize these kids from their homes without any evidence of mistreatment. Indian children were placed in the foster care system at far higher rates than other kids and almost always placed in non-Indian homes. States seized Indian children from their parents on a massive scale, with no due process for the families, and concealed their actions from tribes to prevent protest.

ICWA addresses this problem in several ways. It favors family reunification over foster care, requiring Native kids to be placed with their extended families whenever feasible. If reunification is not possible, ICWA favors placement with another tribal member. The law also imposes procedural requirements on state courts—which were complicit in the forced “assimilation” of Native children for so long. For instance, it requires state courts to notify tribes about involuntary child custody proceedings involving Native children, and allows tribes to intervene to promote placement with family or a tribal member. (The adoptive parents who sued in Brackeen are aggrieved that tribes exercised these rights, complicating their efforts to adopt Native kids.)

In short, ICWA takes a federal power that was long used to break up Native communities and uses it to keep them together, instead. Why, then, is it under fire at the Supreme Court? Because in recent years, Republican lawyers, activists, and judges have put forth a revisionist history of the Constitution that denied Congress’ clear authority to regulate Indian affairs. Their first argument claims that ICWA violates equal protection by using race-based classifications—even though it looks not at race but at tribal membership, which the Supreme Court has long identified as a permissible “political” classification. Their second argument is that ICWA exceeds congressional power, an idea that would’ve been unthinkable before the concerted conservative effort to lend it plausibility.

A turning point came in 2007, when University of Montana Law Prof. Robert Natelson published an article in the Denver Law Review titled “The Original Understanding of the Indian Commerce Clause.” Natelson is a former scholar, talk radio host, and failed Republican candidate for Montana governor. He purported to proffer historical evidence Congress has no constitutional authority to regulate Indian affairs, a theory that would render ICWA—and countless other federal laws—unconstitutional. Recall that the Constitution allows Congress to regulate “commerce” with “the Indian tribes.” According to Natelson, “commerce” in this context originally meant nothing more than “trade.” So, he argued, Congress can regulate the exchange of goods with tribes, and nothing more.

Justice Clarence Thomas favorably cited Natelson in a 2013 opinion that turbocharged this assault on Indian law. The plaintiffs in Brackeen use his article to make their case. Texas, a plaintiff in the case, cites Natelson. Conservative groups supporting Texas cite Natelson. Other red states supporting Texas cite Natelson.

It is a problem for the plaintiffs, then, that Natelson is wrong. In 2015, Stanford Law Prof. Gregory Ablavsky published a lengthy article in the Yale Law Journal that, among other things, rebutted Natelson’s claims. Unlike Natelson, Ablavsky has a PhD in history and his scholarship adheres to the rigorous standards of academic historical analysis. Ablavsky identified a series of errors in Natelson’s article that do not just undermine but refute his conclusions.

For example, Natelson claimed to undertake an exhaustive review of the phrase “commerce with Indian tribes” in the 18th century and asserted that it “almost invariably” meant economic “trade with Indians” and “nothing more.” Ablavsky undertook his own comprehensive review and discovered that “commerce with Indian tribes” was routinely used to describe far more than the mere trade of goods. He also found that the definition of “trade” itself was vastly broader than Natelson asserted, encompassing a vast array of non-economic activities—including, decisively in the current case, the adoption of children.

Natelson also completely misrepresented the position of a Founding-era essayist who opposed the Indian Commerce Clause. Moreover, based on his “knowledge of Latin” and certain constitutional language, he incorrectly wrote that the Framers did not view Indian tribes as sovereign. Ablavsky provided ample Founding-era sources that describe tribes as sovereigns, akin to a foreign nation—a direct rejoinder to Natelson’s Latin-based extrapolation. The list goes on, but the upshot is clear: Natelson’s work was riddled with errors, exaggerations, omissions, and misstatements. It is not a reliable source of scholarship.

When Brackeen arrived at the 5th U.S. Circuit Court of Appeals, Ablavsky filed a brief describing Natelson’s argument as “deeply flawed, marred by inaccurate versions of sources and unsupported assertions directly at odds with explicit Founding-era evidence.” Natelson responded by furiously criticizing Ablavsky for writing a “shyster-like” brief. He later published a document “cite checking” Ablavsky’s article that purported to identity various errors. Ablavsky responded with a long article thoroughly rebutting each one of Natelson’s accusations, then filed another brief when Brackeen came to SCOTUS.

This conflict is more than a mere academic tiff. It is a challenge to originalism as a reliable and honest methodology. Rarely in constitutional law does the history point so clearly in one direction. Because he is a real historian, Ablavsky refuses to say he has reached the “correct” answer; in an interview, he told me: “There aren’t right answers in history. There are interpretations that are better and better founded in evidence. That’s what it is to be a historian. There’s always room for doubt.”

That is surely true, but the Supreme Court has put itself in the position of divining a “right answer” anyway. Brackeen therefore provides a perfect acid test of originalism, and Thomas’ approach in particular. If the justice refuses to abandon his previous views in light of new, unassailable evidence, it will prove that he applies this methodology in a hollow, insincere, and inconsistent manner—latching onto a conclusion that fits his policy preferences, then refusing to budge when it is repudiated. If Thomas lacks the integrity to apply the Constitution’s original meaning here, there is no reason to believe that he will ever will.

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  • Native Americans

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