THE UNTENABILITY OF JUSTICE CLARENCE THOMAS'S INDIAN LAW JURISPRUDENCE: CONFRONTING THE INDIAN COMMERCE CLAUSE TO ADDRESS THE PROBLEM OF HISTORICAL CHANGE IN FEDERAL INDIAN LAW

Authors

Abstract

By viewing the Indian Commerce Clause as conferring only a modest grant of federal power over Indian affairs—a power limited solely to trade in the economic sense of the word—Justice Clarence Thomas has subjected the Court’s Indian law jurisprudence to a wide-ranging originalist critique that, if successful, would invalidate nearly all of federal Indian law. Justice Thomas’s efforts to locate plenary power within the metes and bounds of the Indian Commerce Clause are here revealed for what they really are: attempts at tenability and coherence in a field of law which simultaneously bolsters tribal sovereignty while restricting it in ways that do not necessarily accord with the Court’s own precedents nor the language of the Constitution itself. Though a more thorough and faithful approach to history shows Justice Thomas’s conclusions about the purposes and limits of the Indian Commerce Clause to be unpersuasive, his broader point remains: the Court will continue to grapple with the challenge of reinterpreting historical legacy into present day jurisprudential categories and ought to develop a more historically accurate and less “schizophrenic” manner of doing so. This article puts forth a new framework for addressing the problem of historical change in the Court’s Indian law jurisprudence: a shift away from coherence as the ideal towards a more text-specific, statute-and-treatise-focused approach which accurately incorporates the relevant historical context.

Recommended Citation

(2025) "THE UNTENABILITY OF JUSTICE CLARENCE THOMAS'S INDIAN LAW JURISPRUDENCE: CONFRONTING THE INDIAN COMMERCE CLAUSE TO ADDRESS THE PROBLEM OF HISTORICAL CHANGE IN FEDERAL INDIAN LAW," American Indian Law Journal: Vol. 13: Iss. 1, Article 3.
Available at: https://digitalcommons.law.seattleu.edu/ailj/vol13/iss1/3