The Constitution gives Congress the right to “regulate Commerce . . . with the Indian tribes.” Has the Indian Commerce Clause achieved its purpose? Have the Courts interpreted the Clause consistent with Congressional intent? I argue that the answer is, disappointingly, “no.” The Supreme Court has emasculated and denigrated the Indian Commerce Clause, preventing implementation of the Founders’ vision. The Court has refused to use the Clause as a shield against state taxation. Chief Justice John Marshall had the opportunity in 1832 in Worcester v. Georgia to shape the Clause into a powerful doctrine. As a ratifier, he was privy to the debates over the Clause. Instead of making the Indian Commerce Clause the centerpiece of his opinion, he used the case as a platform for an eloquent and courageous defense of Indian sovereignty — a thumb in President Jackson’s eye who had initiated the Removal Act of 1830 — just two years before Worcester. Despite the long discussion in Worcester describing and defending the pre- and extra-constitutional sovereignty doctrine — immunizing the Cherokees from Georgia’s laws — Chief Justice Marshall was apparently worried about resting the opinion on that ground. The jurisdictional constraints on the Court imposed by the Judiciary Act of 1789 required that the case be grounded in the Constitution itself. He needed narrower grounds than the grandiose and sweeping pre- and extra-constitutional concept of Indian sovereignty, especially in a case involving penal laws. It was not enough that the laws of Georgia violated the sovereignty of the Cherokees, he had to show that they were repugnant to the “constitution, laws, and treaties of the United States.” With an economy of language (and lack of verve) inconsistent with the fervor of his earlier discussion of sovereignty, Marshall satisfied the Judiciary Act’s requirement with a compact and conclusory reference to Georgia’s laws being repugnant to the “constitution, laws, and treaties of the United States.” Although he did not fully unbundle this reference, the “constitution” encompassed the Indian Commerce Clause. This lack of a resounding and explicit endorsement of the Clause, however, led to its being overshadowed by that part of the opinion in which Marshall championed Indian sovereignty, arguably dicta. Ironically, that part of the opinion which Marshall apparently feared would not satisfy the Judiciary Act came to characterize Worcester and initially took center stage, while the Indian Commerce Clause receded into the wings. Worcester set in motion the course of subsequent litigation. Tribes understandably feel passionately about their sovereignty. The briefs involved in the tax cases discussed in this Portfolio show that arguments based on sovereignty, at least early on, figured more prominently than those based on the Indian Commerce Clause. This was similarly true of arguments based on treaties, federal statutes, and state enabling acts. In some cases, this ordering of arguments might have reflected concerns about whether sufficient “commerce” existed to trigger the invocation of the Clause, but more generally it seemed to reflect the Clause’s lack of prominence in Worcester. The Court’s early opinions ignored the Clause. For example, the 1867 cases, The Kansas Indians, and The New York Indians, emphasized the sovereignty of the tribes and the existence of a treaty. The Indian Commerce Clause was not cited (perhaps because of concerns that “commerce” might not have existed). The 1885 case of Utah & Northern Railway also ignored the Clause (even though commerce was clearly implicated). In 1886, the Kagama Court rejected the Clause as the source of Congress’s right to enact the Major Crimes Act, although the rationale in that case was the lack of “commerce” and not that the Clause had no relevance at all. In the 1898 case of Thomas v. Gay, there were no federal statutes, treaties, state enabling acts or the like to serve as a shield against state taxation. “Commerce” clearly existed. The case was thus perfect for an Indian Commerce Clause argument. But instead of breathing life into the Clause, the Court disposed of the case with ipse dixit reasoning and a retreat into formalism. The Court also erroneously claimed that the Clause had been rejected earlier in Utah & Northern Railway. By the end of the 19th century, the message to litigants was clear. There were no major state tax cases implicating the Clause in the early part of the 20th century. The Solicitor General took up the cause in the early part of the 1980s, attempting to resurrect the Clause. In an intense short period of time, starting with Colville (1980), continuing with Central Machinery (1980), and reaching its zenith in Ramah (1982), the government was an aggressive advocate for using the Clause to create a tax-free zone on a reservation, exactly what Thomas v. Gay refused to do. Inexplicably, Justice Thurgood Marshall, one of the Indians strongest allies, did not even acknowledge the Solicitor General’s brief in Central Machinery. Less surprising was that Justice Rehnquist (and White) also failed to mention the government’s brief in Colville. In Ramah, the Solicitor General filed two briefs — the second of which was a sweeping endorsement of the Clause. Justice Marshall, responding only to the first brief and ignoring the second, rejected the government’s efforts, arguing that current law apart from the Indian Commerce Clause was adequate to protect the Indians’ interests. If an ally of the Indians felt this way, it is not surprising that the government would retreat from its sweeping views. A more robust Indian Commerce Clause would have reversed the results in many of the cases discussed above. The states would have been the clear losers. But Congress would have been expected to have intervened in some manner to establish a new order. How that would have played out would be conjecture. It would also be sheer speculation on whether the Roberts Court will provide a fresh opportunity to raise the Indian Commerce Clause going forward. If the Indian Commerce Clause has not fulfilled its promise, at least I can try to fulfill my promise in the Introduction to help negotiate the “labyrinth of unpredictability,” which characterizes state-Indian taxation. As a start, the transactions discussed in this Portfolio can be arrayed along a continuum. At one end of the continuum are those transactions taking place on a reservation without any direct connection to off-reservation activities: the facts in McClanahan. McClanahan immunized from state income taxation an Indian who worked and lived on a reservation, having no direct off-reservation activities. Chickasaw teaches that a state cannot impose a tax whose legal incidence falls on a tribe (or an Indian) if the taxed activity takes place on a reservation. McClanahan would seem to be an application of Chickasaw (which had not yet been decided, although the cases upon which it relied had been), but Chickasaw went on to draw a line between Indians who work and live on a reservation and those who work on a reservation but live off-reservation, and holds that a state can impose its income tax on the latter. The Court justified this distinction by relying on international custom and practice. Although the Court did not explain the rationale for this custom and practice, presumably it is rooted in the notion beneficiaries of public goods and sectors can be made to contribute to the fisc. Presumably the Indians living off-reservation benefited from state-provided goods and services in a way that on-reservation Indians did not, and that difference was enough to distinguish McClanahan, notwithstanding that the legal incidence of a personal income tax is on the individual. In the case of cigarette excise taxes, however, the Court has ignored the Chickasaw line between Indian residents and Indian non-residents. The Court did not fashion a result that distinguished resident Indian consumers from non-resident Indian consumers. From a policy perspective, ignoring that line is proper because cigarette excise taxes are consumption taxes, which do not incorporate a concept of residency and are not administered in that manner, and there is no custom or practice suggesting otherwise
