Commerce with the Indian Tribes: Original Meanings, Current Implications


Professor of Law, Scalia Law School, George Mason University.

The Supreme Court’s 2022 ruling in Oklahoma v. Castro-Huerta defied much current precedent and practice, as four dissenters protested. But neither side grappled with the Constitution’s original meaning. Both text and early practice confirm that the federal power to regulate “commerce with the Indian tribes” was a different, more constrained power than the power to regulate “commerce among the states.” But as nineteenth century courts recognized, federal Indian law could also draw on powers inherent in national sovereignty—a wider, but not unbounded, source of authority and one which necessarily excluded interference from states. Even if tribal reservations are now seen as no more independent than states, they have good claims to protection under constitutional safeguards for the free flow of commerce—rather than being treated as colonial dependents of
state governments. In contrast to the conformist and assimilationist policies imposed by federal authority in the decades after the Civil War, today’s America should be more receptive to the Constitution’s original view on Indian tribes—as separate nations within the larger American nation.

Dissenters denounced the Supreme Court’s decision in Oklahoma v. CastroHuerta for disregarding established precedent. In most of the controversial decisions delivered in the spring of 2022, the conservative majority discounted established precedents in the name of restoring or respecting the Constitution’s
original meaning. In Castro-Huerta, the majority did not make that claim. But nor did the four dissenters, speaking through Justice Gorsuch, rely on the Constitution’s original meaning.

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