I much appreciated the guest-post by Prof. Lorianne Updike Toler (Northern Illinois) on Brackeen back in November, based on her recent University of Chicago Law Review article, The Missing Indian Affairs Clause; now that Brackeen has been handed down, I thought I'd pass along this follow-up:
Halaand v. Brackeen, which upheld the Indian Child Welfare Act (ICWA) as an appropriate exercise of Congress' plenary power over native tribes, is being hailed as the Term's most important decision to use framing history. Although the decision is but a week old, much has already been written about the history found in Justices Gorsuch and Thomas' concurring and dissenting opinions, including an excellent post on this blog by Josh Blackman here, another by my colleague Evan Bernick on the Originalism Blog here, and my more humble post elsewhere, among others.
I write only to highlight that history provides an answer to whether ICWA is constitutional that no one on the Court considered, perhaps because it is hiding in plain sight: the Framers specifically chose not to grant Congress an Indian Affairs power in the Constitution, but believed any federal power to regulate tribes was covered by the Indian Commerce Clause, Treaty Power, War & Peace Power, Territory, or Spending Clauses. After Congress halted tribal treaty-making in 1871, the Court 's 1886 U.S. v. Kagama decision wrongly filled the power vacuum with Congressional plenary power, which was later associated with the Indian Commerce Clause. Rather than ratify this wrong turn, the Court in Brackeen should have corrected it by recognizing that when the federal government stopped treating with tribes in 1871, the authority to regulate tribes reverted not to the federal government (nor the state governments), but to the tribes themselves.
