The Commerce Clause part of the decision is a mess. There’s no more polite way to describe it.
Before going further, I should mention the Orwellian nature of the statute’s name. It isn’t really about “child welfare.” Rather, it places the interests of tribal politicians above those of homeless Indian children. It requires state courts, when placing homeless Indian children, to subordinate the “best interests of the child” to placement with members of tribes—including tribes with which the child has no connection whatsoever.
Admittedly, though, the law’s title and defects don’t affect its constitutionality.
The Constitutional Background
Here’s some constitutional background:With two exceptions in favor of the states, the Articles of Confederation (1781–1789) gave Congress broad power over all Indian “affairs.” When writing the Constitution, some framers wanted to give the new federal Congress complete authority over Indian “affairs,” but without the exceptions.
- the Constitution gave Congress authority over “Commerce” with the tribes;
- it also gave Congress general authority over any residents (including Indians) living in federal territories;
- it empowered Congress to define “the Law of Nations,” including relationships with tribal non-citizens;
- it granted the president authority over military operations, including Indian wars; and
- it bestowed upon the president-and-Senate the power to make treaties with the tribes.
The most significant remaining federal power is Congress’s commission to “regulate Commerce ... with the Indian Tribes.” When Congress passed the ICWA, it claimed to be doing this.
The Court’s Opinion
Justice Amy Coney Barrett wrote the court’s majority opinion. She acknowledged that “this case is about children who are among the most vulnerable: those in the child welfare system.” But she proceeded to uphold a law subordinating the interests of native children to tribal politics.Three contradictions were at the core of this very strange opinion:
First: Barrett admitted that any congressional power “must derive from the Constitution, not the atmosphere” because “Article I gives Congress a series of enumerated powers, not a series of blank checks.” But she then found congressional authority in sources outside the Constitution, including “pre-constitutional powers” and a “trust relationship.”
Second: She claimed that Congress’s Indian power is “plenary,” a word that means “absolute.” But then she said that the Indian affairs power “is not absolute.”
Third: She wrote that Congress’s power under the Indian Commerce Clause isn’t absolute because it has boundaries. But then she expanded those boundaries beyond the orbit of the planet Saturn: “Congress’s power under the Indian Commerce Clause encompasses not only trade but also ‘Indian affairs.’”
Recall that giving Congress unlimited “Indian affairs” authority was precisely what the framers rejected! Instead, they gave targeted powers to Congress, the president, and the Senate—and left the rest to the states.
Barrett claimed congressional power was “exclusive” of state responsibility. In other words, she claimed the states have no role in Indian affairs. But that contention is disproved by the Ninth and Tenth Amendments. It also is contrary to 200 years of practice. In real life, Native Americans become subject to state law all the time: When they drive on state roads, they must obey state traffic laws. When they vote, they do so mostly under state regulations. And so forth.
At some level, I think Barrett understood the weaknesses in her argument. This is because her ultimate resort wasn’t to her constitutional propositions, but to case precedents—precedents that aren’t worth much as constitutional analysis. In his dissent, Justice Clarence Thomas nailed them. He said they are “judicial ipse dixit.” In other words, they merely pronounce, “It’s so because we say so.”
The Gorsuch Concurrence
I found Justice Neil Gorsuch’s meandering concurrence even more disappointing, because I expected much more from this brilliant jurist.The first third of his opinion was consumed by a list of prior injustices—as if shame were a valid constitutional argument. After that, he slipped on his own contradictions.
For example, he acknowledged that congressional power under the Indian Commerce Clause isn’t plenary. “Instead of a free-floating Indian-affairs power,” he wrote, “the framers opted for a bundle of federal authorities tailored to ‘the regulation of [the Nation’s] intercourse with the Indians.’”
Gorsuch then pointed out that during the administration of President George Washington, the federal government assumed broad authority over Indian affairs. He cited some early federal Indian-relations statutes as examples.
But in doing so, he overlooked his earlier acknowledgment that the federal government was then operating under a “bundle” of powers, not under the Commerce Clause alone. The federal statute he cited was also supported by Congress’s authority to regulate territories, the law of nations, and its power to carry out treaties—all of which are irrelevant to the ICWA.
Like Barrett, Gorsuch implausibly dismissed the reserved state role in Indian affairs. After noting the “bundle” of federal powers, he wrote that “the Constitution came with no indication that States had any similar sort of power.”
Silver Linings
There are three silver linings in this case.First: In 2004, Thomas began to encourage the court to rationalize its Indian law precedents, and in this case he wrote a brilliant dissent. It fairly well punctured the court’s reasoning. (Disclosure: Thomas relied on some of my own published research.)
Third: Poorly reasoned decisions often don’t last over the long term. Later courts frequently narrow them, overrule them, or punch holes in them. If we’re fortunate, that will happen to Haaland v. Brackeen.
