I was chatting with Prof. Lorianne Updike Toler (Northern Illinois), and she mentioned some thoughts of hers on this subject, based on her recent University of Chicago Law Review article, The Missing Indian Affairs Clause. I encouraged her to write up a blog post, and she kindly passed along the following:
In the November 9th oral argument for Haaland v. Brackeen, which challenges the constitutionality of the Indian Child Welfare Act, Justice Amy Coney Barret's question about the impact of overruling Congress' plenary power over tribes underscores a centuries-old confusion about federal Indian Affairs.
It's not just the Court that is confused. Former Volokh Conspiracy posts on point reveal the deep academic fissures over the historical context of the Indian Commerce Clause. Unknown to the Court and most of academe is the root cause of all the confusion: that the Constitutional Convention initially forgot (and then later intentionally excluded) the Articles of Confederation's Indian Affairs Clause in the Constitution.
