The Missing Indian Affairs Clause

Congressional plenary power over Native Americans sits in direct conflict with tribal sovereignty. Scholarship and case law justifying plenary power run the gamut from finding an expansive preconstitutional federal plenary power over Native Americans to narrowly reading the Indian Commerce Clause to limit congressional power to trade alone. All claim historical legitimacy, but none has been able to explain why the Indian Affairs Clause from the Articles of Confederation failed to appear in the Constitution or, conversely, why the new federal government never limited itself to regulating Indian trade. The combination of the unexplained textual shrinkage and disharmony between text and practice seems to suggest that the Framers made a mistake in drafting the Constitution.Based on archival and forensic research, this Article concludes that the Constitution is missing an Indian Affairs Clause first by mistake, then by design. The five-member Committee of Detail, tasked by the Constitutional Convention with producing a working draft of the Constitution, seems to have accidentally omitted an Indian Affairs Clause. Inclusion of a congressional power over Indian trade and affairs was compelled by its long prehistory and a unanimous vote by the Convention, and John Rutledge as Committee chair directed James Wilson to include it in a marginal note. The evidence indicates that Wilson meant to comply with the command: not only was he personally motivated to comply, but he placed a check mark next to the Clause. However, he simply failed to include the power in his final draft. Thereafter, James Madison caught the mistake, and the Committee of Detail deigned to address its lapse by importing “Indian Tribes” into the Commerce Clause but refused to restore power over “Indian affairs,” converting an innocent mistake into a meaningful omission. None thereafter seemed to notice the disappearance of the Indian affairs power, and the omission has caused two centuries of confusion to the detriment of the tribes.This history raises serious questions for constitutional theory, federal Native American policy, state-tribal relations, and Commerce Clause jurisprudence. This Article addresses the implications of the missing clause for congressional plenary power over tribes and suggests that the Constitution, written without an Indian Affairs Clause, should be taken seriously. By its omission, the preconstitutional Indian affairs power was split between the president and Congress under the Constitution’s enumerated powers, with the residue flowing back to the tribes, not the states. In the stead of congressional plenary power, this Article recommends the reinitiation of tribal treaty-making as a fix for the missing clause. Re-treating with tribes is consistent with the Constitution’s text, history, structure, and precedent. The time is ripe for such a change: current events and the present moment of racial awareness could provide the impetus for overturning one and a half centuries of colonialism and restoring beleaguered tribal sovereignty.