Toler on the Missing Indian Affairs Clause

Lorianne Updike Toler, a Visiting Fellow, at Information Society Project at the Yale Law School, has posted The Missing Indian Affairs Clause, which is forthcoming in the University of Chicago Law Review:

Conflicting lines of precedent and philosophy are the defining characteristics of Federal Indian Affairs law. Scholarship and case law run the gamut from finding a pre-constitutional federal plenary power over Native Americans to narrow readings of the Indian Commerce Clause limiting Congressional power to trade only. All claim historical legitimacy, but none has been able to explain why the Indian Affairs Clause from the Articles of Confederation failed to appear in the Constitution, or, conversely, why the new federal government never limited themselves to regulating Indian trade. The combination of the unexplained textual shrinkage and disharmony between text and practice seems to suggest that the Framers made a mistake in drafting the Constitution.

In fact, the Framers did make a mistake, or at least five of them did. This article examines the drafting history of the Constitution and suggests a startling explanation for the omission of an Indian Affairs Clause: at its heart is an innocent but consequential scrivener’s error. The Committee of Detail, tasked by the Constitutional Convention to produce a working draft of a Constitution, seems to have accidentally omitted an Indian Affairs Clause. Not only was inclusion of a Congressional power over Indian Affairs compelled by its long pre-history and a unanimous vote by the Convention, but John Rutledge as Committee chair directed James Wilson to include it in a marginal note. The evidence indicates that Wilson meant to comply with the command: not only was he personally motivated to comply, but he placed a check-mark next to the Clause. However, he simply failed to include the power in his final draft. Thereafter, only one caught the mistake, a handful (at most) addressed the lapse and provided an awkward, partial fix by importing “Indians” into the Commerce Clause, and none thereafter fixed the fix. The omission has thereafter caused a bicentennial of confusion to the detriment of the tribes.

This history raises serious questions for constitutional theory, federal Native American policy, state-tribal relations, and Commerce Clause jurisprudence. This article addresses the question of whether the partially-fixed scrivener’s error should be fixed, and suggests some possible responses. These responses include judicial correction via statutory construction’s mistake doctrine, constitutional amendment, or re-implementation of the Washington Administration’s accord to treat with tribes as foreign nations, but with a textual twist: the United States would have to treat with a tribe before Congress could enact legislation to address subjects external to the Indian Commerce Clause. Though it does not provide a clean textual fix, the last option provides a practical one and affords the greatest normative benefits — it is consistent with precedent, the Constitution, and separation of powers principles. Moreover, treating with tribes again would restore tribal sovereignty and dignity.

--Dan Ernst