Law Commons^™

The Missing Indian Affairs Clause, Lorianne Updike Toler

College of Law Faculty Publications

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 …