Tuesday, June 25, 2013

Quick reaction: Adoptive Couple vs Baby Girl

Thomas' concurrence in Adoptive Couple vs Baby Girl is shocking. He manages to concoct a story whereby the Constitution granted Congress *less* power relative to the states than the Articles had when it came to Indian affairs. He claims that the Indian Commerce Clause only applies to tribes in the unorganized west, outside state boundaries altogether. This is very nearly backwards. Madison very deliberately *removed* the restriction in the Articles limiting Congressional authority to "Indians, not members of any of the States."

(I discuss this in this paper. http://www.academia.edu/422868/Indians_in_Madisons_Constitutional_Order ).

Thomas is right that the Indian Commerce Clause should not be read in the Lone Wolf/ Kagama way to grant plenary power over all Indian affairs. But he's so utterly wrong about the jurisdiction to which the clause applies that the conclusion ends up backward: he would grant plenary power *to the states*, and declare the clause a dead letter now that there is no part of Indian Country that lies outside state boundaries. There is simply no evidence that the Founders envisioned the extinction of Indian Commerce Clause jurisdiction and a complete transfer of power to the states.

It's worth saying that I don't actually have a clear view about the merits of the case. ICWA cases are hard, and require knowing not only federal Indian law but also family law. I know essentially nothing about the latter. (I suspect that this is true of some of the justices, too-- ICWA cases are about the only family law cases the Court ever has to hear-- but they have clerks.) Indeed, Thomas' outlandish view here is (on his own telling) irrelevant to the case. I have sometimes admired his urge to make his points about the Constitution's original meaning even when he was clearly on his own. But in this case he has got it the wrong way around.

See more here (and in comments), and here (from longtime friend of the blog and former Supreme Court clerk Will Baude) (and in comments.) I also strongly recommend Gregory Ablavsky, "The Savage Constitution," forthcoming Duke Law Journal.

Another update:
Michael Ramsey says
I'm not sure Professor Levy is reading Thomas right. Off the top of my head, I can't see anything in the Constitution's text that would limit Congress' Indian Commerce power to tribes beyond state boundaries. Nor is it obvious why that limit would be assumed -- at the time, some of the tribes within state boundaries were extremely powerful, and relations with them seemed to call for a national approach. But I don't read Thomas as imposing that limit; all he says is that Congress' power is only to "regulate trade with Indian tribes — that is, Indians who had not been incorporated into the body-politic of any State", which (I would think) could include Indians living in tribes either within or outside a state.

To which I reply with a quotatiom from Thomas' opinion:

"The ratifiers almost certainly understood the Clause to confer a relatively modest power on Congress — namely, the power to regulate trade with Indian tribes living beyond state borders."

To this I'll add one more:

"It is, thus, clear that the Framers of the Constitution were alert to the difference between the power to regulate trade with the Indians and the power to regulate all Indian affairs. By limiting Congress' power to the former, the Framers declined to grant Congress the same broad powers over Indian affairs conferred by the Articles of Confederation."

This claim-- that the Constitution gave Congress less authority than did the Articles with respect to Indian affairs-- can't survive reading the text of those two documents and Madison's commentary on the change between them. My piece linked to above, and Ablavsky's far more comprehensively, provide the evidence; and the claim should startle even readers who don't know or care about the Indian power as such, given the relationship between the Articles and the Constitution.

Even if Natelson is right that Congressional and state power run concurrently (and I don't think that he is), Thomas' view goes implausibly far beyond that.