Not Your Mother’s Originalism: Could Textualist Interpretations Help Secure Native American Rights?

Written by Arshiya Pant, Edited by Yoonjung Choi
Arshiya Pant is a sophomore in the College of Arts & Sciences at the University of Pennsylvania studying history and legal studies. 
Originalism and conservatism have become near-synonymous in the past few decades of American legal history. Strong associations exist between the interpretive theory and efforts to undermine rights not explicitly enumerated in the Constitution. Originalism is the constitutional application of textualist readings, characterized by a narrow and strict interpretation of the law. Textualist interpretations have recently justified monumental conservative wins such as the end of a federally-backed right to abortion in Dobbs v. Jackson Women’s Health Organization, raising questions about what originalism could undo next. As a chief proponent of originalism, Justice Clarence Thomas has asserted that the right to privacy established in Griswold v. Connecticut, the legal recognition of same-sex marriage in Obergefell v. Hodges, and other cases decided through substantive due process are at risk of being overturned. [1] Given this association with restricting unenumerated rights, it may come as a surprise that some argue originalist thought could serve as a vehicle for affirming the rights and sovereignty of a particular group—Native Americans. 

The argument for originalist justifications of tribal rights begins at the heart of originalist thought itself: the Constitution. The basis of Federal Indian law is rooted in the Constitution in Article I, Section 8, Clause 3 which specifies that Congress may “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” [2] This clause has been largely understood to institute plenary power in the Federal Government’s relationship with Native Americans, establishing tribal sovereignty. 

In 1832 the Court’s holding in Worcester v. Georgia emphasized that tribes, despite relinquishing some autonomy in exchange for a fiduciary relationship with the United States, are sovereign entities. [3] In 1886, the plenary powers of Congress over Native American tribes was affirmed in US v Kagama. [4] Roughly a century later, the responsibilities of the federal government to Native American tribes continued to be upheld, applying to cases such as Covelo v. Watt, where it was argued that unresolved land damages from the federal government constituted a breach of trust in its fiduciary duties. [5]

The originalist reasoning behind securing Native American rights relies on the argument that the aforementioned “Indian Commerce Clause” (especially coupled with the historical tradition of several pre-constitutional treaties honoring sovereignty) constructs a legal framework preserving the sovereignty of Indian tribes as a critical part of the relationship between the federal government and Native Americans. 

In keeping with the originalist values of history and tradition, one could draw a consistent line of legal logic that respects tribal sovereignty by observing not only the Constitutional clause, but also treaties dating back to the 17th century and the Marshall trilogy of court cases which established much of modern Federal Indian law. [6] Justice Neil Gorsuch, who is indubitably the most influential pro-sovereignty originalist the Court has ever seen, even included a chronological account beginning with pre colonial Jamestown’s tribal populations in a concurring opinion aiming to provide historical context to the issue of state relationships with tribes. [7]

This understanding of Congress and tribal relationships was also reinforced by the Court’s landmark decision in Haaland v. Brackeen, a 2023 case which upheld the Indian Child Welfare Act as constitutionally legitimate legislation able to be implemented by Congress. [8] However, a closer examination of different justices’ opinions in Haaland demonstrates that originalist thought does not point to one clear answer in interpretations of the Indian Commerce clause. Specifically, self-proclaimed originalist Justices Gorsuch and Clarence Thomas can be used as case studies of two distinct trains of thought (both claiming to be rooted in textualism) regarding tribal sovereignty: Justice Gorsuch represents the preservation of rights and sovereignty through a holistic consideration of legal history and context, while Justice Thomas represents a limited view of the Indian commerce clause and subsequently, a limited view of tribal sovereignty. 

Justice Thomas’s view on issues on tribal sovereignty largely stem from his views on the Indian Commerce Clause. Like Justice Gorsuch, he emphasizes verbiage, but the two justices nonetheless interpret this verbiage quite differently. Because both justices use textualist theory as a roadmap for interpretation, both seek to understand the purpose of the clause by understanding the definition of its words in the context in which they were written. Justice Thomas interprets the phrase “commerce” to literally mean commercial matters and trade, whereas Justice Gorsuch interprets the phrase to include more general issues outside of economic matters. [9] It is worth noting that recent proponents of originalism-supported Indian sovereignty have cited research suggesting the definition of “commerce” at the time, especially with the context of referring to tribes, would in fact have encapsulated more than strictly economic issues. [10] 

The differing interpretation of commerce fundamentally changes the justices’ entire views regarding the nature of tribal sovereignty. Centuries of legislation and protective acts supporting the rights of Native American individuals and autonomy of legally-recognized tribes—all finding basis in the Indian Commerce Clause—would be fundamentally altered under Justice Thomas’s view. It may be unsurprising then, that Justice Thomas has gained a notorious reputation among some scholars for being anti-sovereignty. [11] Conversely, Justice Gorsuch has notably ruled in favor of Native American interests in well above the majority of cases he has presided over—it is incredibly difficult to find any public records proving limitations of his pro-Native rulings. [12]

Despite the stark contrast in Justice Thomas and Gorsuch’s stances on Native rights, both justices similarly wield the logic of originalism to call into question implied rights in a vast range of other issues. This can be seen especially in their justifications for conservative positions regarding abortion, administrative law, and gun control. [13,14,15] Some might ask how a theory that could justify conservative goals to this extent would be compatible with the preservation of rights for a minority group. Yet, originalism has been associated with the expansion of rights — second amendment rights. 

In New York State Rifle and Pistol Association v. Bruen, the Court used originalist reasoning to eliminate the scrutiny test previously applied to infringements on second amendment rights, instead replacing it with an originalist “text, history, and tradition test.” [16] One might wonder how this loss for gun control advocates relates to Native American rights—after all, society does not often see the same political and social groups championing tribal sovereignty and second amendment rights. However, the case poses an interesting question; could originalism be used to expand tribal sovereignty if the focus were shifted to text, history, and tradition? Using reconstruction-era policies as an example, legal scholars ask if proving the existence of certain progressive ideals in historical legal canon could advance Federal Indian rights. 

Observing Justice Gorsuch’s record, one might be tempted to argue that originalism can, in fact, secure tribal sovereignty and Native rights. At the same time, Justice Thomas’s arguments should remind scholars and attorneys alike of the theory’s manipulability. Ultimately, one legal theory will not be the champion of hundreds of years of struggle for rights and recognition. Yet, originalist justifications for Indian interests in federal law could provide hope for proponents of Native American rights and autonomy. If an ideologically diverse set of paths could lead towards the same destination of sovereignty, perhaps more tribes will be able to reach that destination sooner.

The opinions and views expressed in this publication are the opinions of the designated authors and do not reflect the opinions or views of the Penn Undergraduate Law Journal, our staff, or our clients.

Bibliography 

[1] Stolberg, Sheryl. “Thomas’s Concurring Opinion Raises Questions about What Rights Might  
Be Next.” New York Times. June 24, 2022.https://www.nytimes.com/2022/06/24/us/clarence-thomas-roe-griswold-lawrence-obergefell.html
[2] Cohen, Felix S., 1907-1953. Handbook of federal Indian law Cohen's handbook of federal Indian law / Nell Jessup Newton, editor in chief. 2012 edition. https://guides.loc.gov/american-indian-law/Federal-Law
[3] Scope of Commerce Clause Authority and Indian tribes. https://constitution.congress.gov/browse/essay/artI-S8-C3-9-1/ALDE_00012976. 
[4] “United States v. Kagama, 118 U.S. 375 (1886).” Justia Law. https://supreme.justia.com/cases/federal/us/118/375/. 
[5] “Covelo Indian Community v. Watt, James G.” Covelo v. Watt, selected case documents; National Indian Law Library, Native American Rights Fund (NARF). https://www.narf.org/nill/documents/Covelo_v_Watt/. 
[6] “Tribal Governance.” Marshall Trilogy | Tribal Governance. https://www.uaf.edu/tribal/academics/112/unit-1/marshalltrilogy.php. 
[7] Haaland v. Brackeen, 599 U.S. 255 (2023). https://www.supremecourt.gov/opinions/22pdf/21-376_7l48.pdf. 
[8] “Indian Child Welfare Act (ICWA) (Haaland v. Brackeen).” Native American Rights Fund, June 15, 2023. https://narf.org/cases/brackeen-v-bernhardt/. 
[9] Ablavsky, Gregory, The Original Meaning of Commerce in the Indian Commerce Clause (May 01, 2024).  56 Connecticut Law Review 1013 (2024). https://ssrn.com/abstract=4911164
[10] Ablavsky, Gregory. “Beyond the Indian Commerce Clause.” The Yale Law Journal - Home. https://www.yalelawjournal.org/article/beyond-the-indian-commerce-clause. 
[11] Wilkins, David E. “Justice Thomas and Federal Law: Hitting His Stride.” Indian Country Today 23, no. 47 (May 2004): A4. https://scholarship.richmond.edu/cgi/viewcontent.cgi?article=1327&context=jepson-faculty-publications
[12] Dossett, John. “Justice Gorsuch and Federal Indian Law.” American Bar Association. https://www.americanbar.org/groups/crsj/publications/human_rights_magazine_home/vol--43/vol--43--no--1/justice-gorsuch-and-federal-indian-law/.
[13] Hamm, Andrew. “Dobbs v. Jackson Women’s Health Organization.” SCOTUSblog. https://www.scotusblog.com/case-files/cases/dobbs-v-jackson-womens-health-organization/. 
[14] Howe, Amy. “Supreme Court Strikes down Chevron, Curtailing Power of Federal Agencies.” SCOTUSblog, July 26, 2024. https://www.scotusblog.com/2024/06/supreme-court-strikes-down-chevron-curtailing-power-of-federal-agencies/. 
[15] “New York State Rifle & Pistol Association Inc. v. Bruen.” Ballotpedia. https://ballotpedia.org/New_York_State_Rifle_%26_Pistol_Association_Inc._v._Bruen. 
[16] Beauchamps, Nathalie, and Name. “Originalism: A Conservative Doctrine or an Opportunity to Expand Rights?” Harvard Civil RightsCivil Liberties Law Review. https://journals.law.harvard.edu/crcl/originalism-a-conservative-doctrine-or-an-opportunity-to-expand-rights/.