Originalism at War: A Critical Analysis of Haaland v. Brackeen and the Indian Commerce Clause

INTRODUCTION

In 2016, Chad and Jennifer Brackeen took foster custody of A.L.M., a 10-month-old Navajo child [1]. After spending a year with A.L.M., the Brackeens sought to adopt him in Texas. However, the Navajo Nation intervened, informing the state that it had “located a potential alternative placement with nonrelative tribal members living in New Mexico” [2]. Under the placement preferences of the Indian Child Welfare Act (ICWA), a federal statute designed to keep Native American children connected to Indian families, the Navajo family in New Mexico ranked ahead of non-Indian families, such as the Brackeen’s. Therefore, the Texas Department of Family and Protective Services announced its intention to relocate A.L.M. to the Navajo family in New Mexico [3]. The Brackeens, unwilling to concede, filed a lawsuit in the U.S. District Court for the Northern District of Texas, challenging the constitutionality of ICWA [4]. In response, the Navajo family eventually withdrew from consideration, allowing the Brackeens to adopt A.L.M.

However, after adopting A.L.M, the Brackeens also sought to adopt his sister, Y.R.J — once again facing opposition from the Navajo Nation. The case continued to progress, consolidating with similar lawsuits being filed across the nation. On June 2023, Haaland v. Brackeen reached the United States Supreme Court. In a 7-2 decision, the Court upheld ICWA, dismissing various constitutional challenges brought forth by the Brackeens and the State of Texas (collectively known as the “petitioners”).

For starters, the petitioners asserted that Congress exceeded its constitutional authority in enacting ICWA and that several of ICWA’s provisions violated the Tenth Amendment’s anti-commandeering principle, a doctrine which prevents Congress from compelling state officers “to administer or enforce a federal regulatory program” [5]. Additionally, petitioners argued that ICWA infringed upon the Fourteenth Amendment equal protection clause by hindering non-Indian families from fostering or adopting Indian children based solely on their race [6]. Lastly, they declared that a specific provision in ICWA allowing tribes to determine the order of adoption breached the nondelegation doctrine [7].

However, in this historic ruling, the court not only upheld the constitutionality of the Indian Child Welfare Act (ICWA) but also dismissed the petitioners' Tenth Amendment anti-commandeering challenges for lack of “merits,” and the equal protection and nondelegation claims for lack of “standing” [8].

At the heart of the court’s legal reasoning in Brackeen was a substantial clash between two staunch proponents of originalism. Justice Neil Gorsuch, a self-proclaimed originalist, delivered a passionate concurring opinion defending the constitutionality of the ICWA. On the contrary, Justice Clarence Thomas, also adhering to the originalism framework, dissented, arguing that Congress lacked the constitutional authority to enact ICWA.

Given that neither Justice devotes much attention to the anti-commandeering, equal protection, or nondelegation clauses, these constitutional challenges will not be examined in this paper. Instead, this paper centers its analysis on the primary issue disagreed upon by the two originalist justices: the original meaning of the Indian Commerce Clause — a provision in Article 1, Section 8, Clause 3 of the Constitution that gives Congress the authority “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes” [9].

Part I outlines the arguments presented by Justice Gorsuch and Justice Thomas to support their respective positions. Part II analyzes their conflicting interpretations of the Indian Commerce Clause, despite adhering to the same originalist approach. Part III argues that this dispute reveals a major shortcoming of originalism as a theory of constitutional interpretation — the challenges it faces when confronted with historical ambiguities. In cases where the historical record can be misconstrued (even by jurists of the highest caliber), I argue that judicial opinions relying on originalist interpretations run the risk of not only being legally inconsistent but also factually uncertain — potentially endangering the legitimacy of stare decisis application.

It should be noted that not all self-described originalists treat original meaning as binding when interpreting the Constitution. Justice Elena Kagan famously remarked in her confirmation hearing, "We are all originalists” in the sense that all justices attempt to “apply what [the founders] meant to do” [10]. Similarly, Justice Ruth Bader Ginsburg considered herself "an originalist" who used founding principles, such as “equality,” as a starting point for interpreting constitutional provisions [11]. However, for this paper, the term "originalist" refers to the stringent historical approach employed by Justice Gorsuch and Justice Thomas, i.e. a commitment to treating the original meaning of the text of the Constitution as the definitive guiding principle for constitutional interpretation.

I. A BATTLE BETWEEN TWO ORIGINALISTS

For Justice Gorsuch, the majority decision succeeded “in keeping with the Constitution’s original design” [12]. For starters, he viewed the “original understanding of tribal sovereignty,” as one that fully recognized the tribal right to “self-government” [13]. In fact, he argued this interpretation traces back to a time preceding the existence of the United States. The British considered “the Indians as owners of their land” and entered into “all manner of treaties with the Tribes…just as it did with fellow European powers” [14]. Although Justice Gorsuch conceded that following the American Revolution, there was certainly a period “driven by state and individual intrusions on tribal land” resulting from the Articles of Confederation, he emphasized that the subsequent Constitution and conduct of early political administrations left no ambiguity regarding the original meaning of tribal sovereignty [15]. Henry Knox, for instance, in a letter to George Washington, described Indian Tribes as akin to “foreign nations, not as the subjects of any particular [S]tate” [16]. Thomas Jefferson spoke of them as sustaining “full, undivided, and independent sovereignty as long as they chose to keep it” [17]. Moreover, early legal precedents in cases such as Worcester v. Georgia, The New York Indians, and Elk v. Wilkins further recognized “the inherent sovereignty of Tribes” [18].

Following his discussion on tribal sovereignty, Justice Gorsuch proceeded to explain why “responsibility for managing interactions with the Tribes rests exclusively with the federal government” and not the states [19]. Once again, he revisits colonial America. “Since the first days of British rule,” the Crown had the authority to control “Colonies’ engagement with the Indian Tribes” [20]. Even then, the British recognized the Indians as “separate and distinct people from them” and made efforts to treat them as such [21]. When the American Constitution was ratified, it omitted “nettlesome language in the Articles [of Confederation]” regarding states’ legislative power, which states used to infringe upon tribal sovereignty [22]. While the Constitution’s increased centralization of authority was a subject of controversy among federalists and anti-federalists, neither group doubted that “the power to manage Indian affairs would reside” with “the federal government, not the States” [23]. As with the issue of tribal sovereignty, early practice and court decisions reflected this understanding of tribal authority. Thomas Jefferson, for instance, succinctly expressed the consensus among state and federal officials at that time: “[U]nder the present Constitution…states lack any right to Treat with the Indians without the consent of the General Government” [24]. The Court, recognizing the “absence of state authority over tribal matters” concluded in Worcester that “precisely because Tribes exist as a distinct community…the laws of [States] can have no force as to them” [25].

While the Constitution grants Congress certain powers concerning legislation with Indian tribes, that power, according to Justice Gorsuch, is limited in nature” [26]. He believed that interpreting Congress’s authority over Indian tribes as unbounded, no matter how well-intentioned, “elides text and original meaning in favor of broad pronouncements about the Constitution’s purposes,” and “rested on nothing more than judicial claims about putative constitutional purposes that aligned with contemporary policy preferences” [27].

Given this restrained federal power in enacting legislation concerning Indian tribes, it becomes essential to explore the scope of Congress’s constitutional authority. This inquiry requires a discussion of the Indian Commerce Clause, a constitutional provision that shapes much of contemporary federal Indian law. This topic will be addressed in Part II.

Much like Justice Gorsuch, Justice Thomas agreed that there is no “constitutional basis” for unlimited congressional authority to legislate on tribal matters [28]. However, their concurrence on this point is essentially where their agreement ends. Justice Thomas begins his critique by condemning ICWA for diverging from “the normal state laws governing child custody” based on the mere fact a child “is eligible for membership in a tribe and [is] the biological child of a tribal member” [29]. Justice Thomas finds the notion that a tribe can intercede at the last minute and obstruct proceedings even “if the biological parents, the child, the adoptive parents, and the court all agree on what is best for the child to be absurd [30]. Instead of prioritizing the child's best interests in placement decisions, ICWA introduces an entirely separate “hierarchy of preferences” that may not align with the wishes of the child and their parents [31]. Justice Thomas concludes Part I of his dissent with the following statements:

Normally, we would say that the Federal Government plainly lacks the authority to enact a law like this. The only question is thus whether Congress has some additional authority that allows it to regulate the adoption process for U.S. citizens in state courts merely because the child involved happens to be an Indian. To answer that question, I turn first to the text and original meaning of the Constitution [32].

At this point, Justice Thomas begins his investigation of the Indian Commerce Clause. Given this clause serves as the golden key to understanding his originalist interpretation, I will proceed to the subsequent section of this paper, which will examine how two justices applying a similar approach to analyzing the Indian Commerce Clause could have completely different interpretations.

II. THE INDIAN COMMERCE CLAUSE

In light of the Indian Commerce Clause, which states that “Congress shall have Power to…regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes,” a significant question comes to mind [33].

What does the term “Commerce” encompass in the context of this clause?

For Justice Gorsuch, the Commerce Clause as a whole “is really three distinct Clauses rolled into one: a Foreign Commerce Clause, an Interstate Commerce Clause, and an Indian Commerce Clause” [34]. While they all share the word “Commerce,” it is “well-established” that the individual Commerce Clauses have distinct practical applications [35]. The “founding-era usage,” explains Justice Gorsuch, “confirms that the term “Commerce,” when describing relations with Indians, took on a broader meaning than simple economic exchange.” [36]. To support this claim, he cites Professor Gregory Ablavsky, a prominent legal historian whose scholarship focuses primarily on “issues of sovereignty, territory, and property in the early American West.” [37].The significance of this citation will be evident through later discussion in Part III.

Justice Gorsuch develops two textual justifications for the “special usage” of the word “Commerce” as it pertains to the Indian Commerce Clause [38]. To begin, he notes that the word “among” is used to describe the Interstate Commerce Clause, while the term “with” is used to refer to the Foreign and Indian Commerce Clauses [39]. To Justice Gorsuch, this linguistic detail, although seemingly insignificant, was intentional on the founders' part. As he points out, “this language suggests a shared framework for Congress’s Indian and foreign commerce powers and a different one for its interstate commerce authority” [40]. The term “with,” he believed, implied a broader interpretation for federal legislative authority, allowing Congress to manage “all interactions or affairs” with Indian Tribes and Foreign Nations” [41]. Additionally, Justice Gorsuch makes a distinction between the founders’ usage of the word States, which he defines as a “collection of territorial entities”, and Tribes, which he refers to as a “collection of individuals.” [42]. Since Tribes are collections of people, not domains, Justice Gorsuch argues that the Indian Commerce Clause grants Congress the “authority to regulate commerce with Native Americans” as individuals, not territories [43]. These subtle textual nuances, he believed, elevated the significance of the term “Commerce” in the Indian Commerce Clause beyond mere economic transactions.

Early practice also recognizes the aforementioned distinctions. The adoption of the Indian Trade and Intercourse Act in 1790, for example, consisted of provisions that “plainly regulated noneconomic interaction” [44]. Legal precedents such as United States v. Bailey and Worcester, interpreted Congress’s interference with criminal trespasses against Indians as within the scope of the Indian Commerce Clause. “Trespass against even one individual Indian,” Justice Gorsuch highlights, “could disrupt commerce with that individual” [45].

Justice Thomas expressed a clear divergence of opinion from Justice Gorsuch concerning the Indian Commerce Clause. From his perspective, the notion that the Commerce Clause “could have a broader application with respect to Indian tribes than for commerce between States…makes little textual sense” [46] After all, according to Justice Thomas, it seems unnatural that the word “Commerce” could share different meanings with regard to “foreign Nations, and among the several States, and with the Indian Tribes” [47].

In fact, citing his own concurring opinion from Adoptive Couple, Justice Thomas contends that the historical evidence “points in the opposite direction” of Justice Gorsuch’s interpretation [48]. He points to statements from founding figures such as George Washington, Henry Knox, and Thomas Jefferson that used the term “commerce” synonymously with economic “trade” [49]. Furthermore, Justice Thomas highlights that the founders had an opportunity to use the broader term “affairs” as opposed to the narrower term “commerce.” Instead, the “Indian affairs language…was twice proposed (and rejected) at the Constitutional Convention” [50]. This omission, which Justice Thomas perceived as intentional, was enough for him to conclude that “there is no basis to stretch the Commerce Clause beyond its normal limits” [51].

Clearly, the two originalist justices hold opposing views regarding the original interpretation of the Indian Commerce Clause, and this disagreement is a significant part of their differing stances on the outcome of the case. At first glance, such a dispute may seem inconsequential, as disagreement among Supreme Court Justices regarding constitutional matters is not unusual. However, there is a fascinating dimension to this particular disagreement that elevates it beyond the scope of any individual case.

III. NEGATIVE EXTERNALITIES OF ORIGINALISM

Upon a closer examination, it appears that Justice Thomas’s dissent frequently referenced his own concurring opinion in the 2013 case, Adoptive Couple v. Baby Girl. His opinion in Adoptive Couple extensively drew upon Robert Natelson’s article, “The Original Understanding of the Indian Commerce Clause,” published in the Denver Law Review [52]. Natelson, a Professor of Law at the University of Montana, provides a fundamentally different historical account of the Indian Commerce Clause compared to the research of Professor Ablavsky, whom Justice Gorsuch relied heavily on.

Unlike Ablavsky, who argued that the Indian Commerce Clause gave the federal government broader authority over Indian affairs, Natelson viewed the clause as conferring upon Congress the authority to specifically regulate “Indian trade and certain activities traditionally connected with trade” [53]. Anything beyond that, according to Natelson, is “inconsistent with the Constitution’s separation of powers approach” [54]. In light of these distinct historical citations, it becomes apparent that the dispute between Justices Thomas and Gorsuch essentially constituted “an originalist battle over the proper interpretation of the historical evidence” [55].

This exposes an inherent challenge with originalism — the theory lacks a systematic approach for dealing with ambiguities in historical evidence. The legitimacy of originalism depends on its neutral and objective criteria that result in consistent judicial decision-making. However, this is only possible with accurate historical evidence. The sharply contrasting historical interpretations offered by Natelson and Ablavsky, both grounded in seeking original meaning, present a quandary. Both cannot be simultaneously correct. Consequently, it follows that either Justice Gorsuch or Justice Thomas have misconstrued the historical record.

As a result, we observe that Justices Gorsuch and Thomas, despite both embracing originalism, arrive at entirely different conclusions when confronted with unclear historical narratives. In instances where the historical record is ambiguous or incomplete, originalism does not seem to provide a clear resolution. Instead, it can lead to decisions that not only diverge more significantly from each other than alternative jurisprudential methods but, more critically, may simply be factually wrong.

CONCLUSION

While a comprehensive evaluation of the historical accuracy presented by Natelson and Ablavsky, and thus by extension, the positions taken by Gorsuch and Thomas, is beyond the purview of this paper, it is crucial to acknowledge that in complex cases such as Brackeen, where understanding the historical context of a constitutional provision can profoundly influence the result of a case, strict adherence to originalism could potentially result in fundamentally incorrect decisions merely due to inaccurately ascertained historical facts.

Furthermore, errors of factual interpretation can have far-reaching consequences for the stability of the American legal system, especially when they originate from the highest authority, the Supreme Court. The common law principle of stare decisis, which holds a paramount place in the legal doctrine, establishes an intentionally high threshold for overturning established legal precedents [56]. A pivotal facet of stare decisis, which the Court has repeatedly emphasized, is that justices cannot reverse a decision merely on the grounds that they “think the prior decision was wrongly decided” [57]. However, there are certain “special justification[s]” that permit the court to overrule precedents, one of which is “incorrect factual premises” [58].

To illustrate, let us hypothetically consider a scenario in which Justice Gorsuch’s opinion forms the majority decision in this case. If subsequent revelations demonstrate that the rationale behind this decision rested on factually inaccurate information, the Court is left with no alternative but to disregard Stare Decisis. This, in turn, can instigate instability within the American legal system, as it challenges the bedrock principles of legal precedent and the consistency that underpins it.

No approach to constitutional interpretation is flawless. Given this inherent truth, this paper should not be interpreted as a scathing criticism of originalism. Rather, its purpose is to highlight a particular challenge—cases with historical ambiguity—where the application of an originalist interpretation may have inadvertent consequences for the rule of law.

BIBLIOGRAPHY

[1] Haaland v. Brackeen, 599 U.S. 6 (2023) (Syllabus).

[2] Ibid.

[3] Ibid.

[4] Shaw, Jessie. “Commandeering the Indian Child Welfare Act: Native American Rights Exception to Tenth Amendment Challenges.” Cardozo Law Review 42, no. 5 (September 2021): 2015.https://cardozolawreview.com/commandeering-the-indian-child-welfare-act-native-american-rights-exception-to-tenth-amendment-challenges/

[5] Haaland v. Brackeen, 599 U.S. 19 (2023).

[6] Haaland v. Brackeen, 2 (Syllabus).

[7] Ibid.

[8] Haaland v. Brackeen, 2.

[9] U.S. Constitution, art. 1, sec. 8.

[10] U.S. Congress, Senate, Committee on the Judiciary, The Nomination of Elena Kagan to be an Associate Justice of the Supreme Court of the United States: Hearing Before the Committee on the Judiciary United States Senate, 111th Congr., 2nd sess., June 28–30 and July 1, 2010, 62.

[11] Vogue, Ariane de. “Justice Ginsburg Speaks About Gender Equality.” ABC News Network. November 18, 2011. https://abcnews.go.com/blogs/politics/2011/11/justice-ginsburg-speaks-about-gender-equality/.

[12] Haaland v. Brackeen, 599 U.S. 38 (2023) (Gorsuch, N., concurring)

[13] Haaland v. Brackeen, 17-18 (Gorsuch).

[14] Haaland v. Brackeen, 14 (Gorsuch).

[15] Haaland v. Brackeen, 15 (Gorsuch).

[16] Ibid.

[17] Haaland v. Brackeen, 16 (Gorsuch).

[18] Haaland v. Brackeen, 17 (Gorsuch).

[19] Haaland v. Brackeen, 18 (Gorsuch).

[20] Ibid.

[21] Haaland v. Brackeen, 19 (Gorsuch).

[22] Haaland v. Brackeen, 21 (Gorsuch).

[23] Haaland v. Brackeen, 22 (Gorsuch).

[24] Ibid.

[25] Haaland v. Brackeen, 23 (Gorscuh).

[26] Haaland v. Brackeen, 24 (Gorsuch).

[27] Haaland v. Brackeen, 32-33 (Gorsuch).

[28] Haaland v. Brackeen, 599 U.S. 3 (2023) (Thomas, C., dissenting)

[29] Haaland v. Brackeen, 3-4 (Thomas).

[30] Haaland v. Brackeen, 4 (Thomas).

[31] Haaland v. Brackeen, 5 (Thomas).

[32] Ibid.

[33] U.S. Constitution, art. 1, sec. 8.

[34] Haaland v. Brackeen, 25 (Gorsuch).

[35] Haaland v. Brackeen, 25 (Gorsuch).

[36] Haaland v. Brackeen, 26 (Gorsuch).

[37] “Gregory Ablavsky,” Stanford Law School Directory, https://law.stanford.edu/directory/gregory-ablavsky/

[38] Haaland v. Brackeen, 26 (Gorsuch).

[39] Haaland v. Brackeen, 26-27 (Gorsuch).

[40] Haaland v. Brackeen, 27 (Gorsuch).

[41] Haaland v. Brackeen, 27 (Gorsuch).

[42] Haaland v. Brackeen, 27 (Gorsuch).

[43] Haaland v. Brackeen, 28 (Gorsuch).

[44] Haaland v. Brackeen, 29 (Gorsuch).

[45] Haaland v. Brackeen, 30 (Gorsuch).

[46] Haaland v. Brackeen, 19 (Thomas).

[47] Haaland v. Brackeen, 20 (Thomas).

[48] Ibid.

[49] Ibid.

[50] Haaland v. Brackeen, 21-22 (Thomas).

[51] Haaland v. Brackeen, 23 (Thomas).

[52] Ablavsky, Gregory. “Beyond the Indian Commerce Clause: Robert Natelson’s Problematic “Cite Check”.” Stanford Law School Blogs. October 11, 2022. https://law.stanford.edu/2022/10/11/beyond-the-indian-commerce-clause-evaluating-robrt-natelsons-cite-check/.

[53] Natelson, Rob. “A Preliminary Response to Prof. Ablavsky’s “Indian Commerce Clause” Attack.” Independence Institute. April 7, 2022. https://i2i.org/a-preliminary-response-to-prof-ablavskys-indian-commerce-clause-attack/.

[54] Ibid.

[55] Ablavsky, Gregory. “Clarence Thomas Went After My Work. His Criticisms Reveal a Disturbing Fact About Originalism.” Slate. June 20, 2023. https://slate.com/news-and-politics/2023/06/clarence-thomas-indian-law-originalism-hisory.html

[56] “Understanding Stare Decisis.” American Bar Association. December 16, 2022. https://www.americanbar.org/groups/public_education/publications/preview_home/understand-stare-decisis.

[57] Edward M. Kingdom Institute for the United States Senate. “John Roberts: Supreme Court Nomination Hearings from PBS NewsHour and EMK Institute.” June 25, 2010. 18:11. https://www.youtube.com/watch?v=PNF_pwkP6gg&t=400s.

[58] Kozel, Randy J. “Special Justifications.” University of Minnesota Digital Conservancy. October 6, 2018. https://conservancy.umn.edu/bitstream/handle/11299/200600/8%20-%20Kozel.pdf