Tuesday, November 8, 2022

Ablavsky, "Further Thoughts on the Constitutional History of Federal Power Over Indian Affairs"

This post provides an update to an entry in our October 15, 2022, Weekend Roundup, where we noted the following:

It is rare for a seven-year-old law review article to prompt much debate, but with the Indian Child Welfare Act before the Supreme Court this term (in Brackeen v. Haaland), Greg Ablavsky's "Beyond the Indian Commerce Clause" (published in the Yale Law Journal in 2015) is newly relevant. In a recently posted SSRN piece (also available on the Stanford Law School website), Ablavsky details how and why his article came to be "cite-checked" by another scholar earlier this year and what the stakes are of getting this history right. 

Ablavsky (Stanford Law School) has now posted "Further Thoughts on the Constitutional History of Federal Power Over Indian Affairs." The abstract:

This short piece builds on my earlier response to Robert Natelson's purported "cite check" of my 2015 Yale Law Journal article by addressing some of the arguments in his new Federalist Society Review article. It argues 1) that Natelson misinterprets Federalist 42, 2) that colonial-era regulations of Indian trade support a quite broad scope for the law merchant, and 3) that Natelson mischaracterized my methodology while making some odd methodological choices of his own.

It also briefly offers some new evidence on the historical scope of federal authority in Indian affairs that further supports an interpretation of the meaning of "commerce with the Indian tribes" that encompasses intercourse. 

An abbreviated response is available here, at the FedSoc blog.

The Supreme Court will hear arguments in the Brackeen v. Haaland case on November 9.

-- Karen Tani