by Rob Natelson

An earlier post provided a preliminary response to a law professor named Gregory Ablavsky, who claimed in a legal brief that my 2007 article The Original Understanding of the Indian Commerce Clause was defective scholarship. My preliminary response explained that his criticisms were not based primarily on what I had written, but on his own misrepresentations of what I’d written.

I added that a further response would come after I finished a larger project—an article entitled, The Original Understanding of the Indian Commerce Clause: An Update. The article now has been published and is available here.

In preparing the Update, my research assistant, Jeremy Sallee, and I examined writings published since I researched my 2007 article. One was Professor Ablavsky’s Beyond the Indian Commerce Clause, published in Yale Law Journal in 2015. We examined some of his footnotes and sources because we wanted to know if his sources might affect our own conclusions.

Unfortunately, we discovered that Beyond the Indian Commerce Clause contained a disturbing number of inaccurate, non-existent, and misleading citations, as well as deceptively-edited quotations. I have prepared a partial list called Cite Checking Professor Ablavsky’s “Beyond the Indian Commerce Clause.” You can read it here (pdf). More on that below.

My New “Update:” Separation of Powers

My Update article re-examines the scope of the Constitution’s Indian Commerce Clause (Article I, Section 8, Clause 3): “The Congress shall have Power . . . to regulate Commerce . . . with the Indian Tribes”). It supplements my earlier publication on the subject, particularly in light of pending litigation over the constitutionality of the federal Indian Child Welfare Act. The Update—

• presents and discusses additional Founding-era evidence on the federal Indian affairs powers,
• further explains the meaning of the phrase “regulate Commerce,” and
• shows that the meaning of “regulate Commerce” does not change when the Indian tribes are involved.

If the Update has a major theme, it is separation of powers. As is well known, the Constitution granted more authority to the new federal government than the Articles of Confederation had given the Confederation Congress. However, the Constitution split that increased authority among different branches of government. In the realm of Indian affairs, the Constitution followed the same pattern: Some powers were lodged in the President alone, some in Congress, and some in the President-and-Senate, operating through the Treaty Power. Whatever aspects of Indian affairs were not preempted by the proper branch(es) of government were reserved to the states.

The Update finds that the Constitution most emphatically did not grant Congress carte blanche over Indian affairs, as Congress now asserts. Specifically, the Constitution did not give Congress authority to adopt the Indian Child Welfare Act. Adoption of something like the Indian Child Welfare Act should have been negotiated through the treaty process with individual tribes. Only when supported by existing treaties, could Congress legislate in that area.

Near the end of the Update, I address Ablavsky’s claim that the federal “Indian affairs” power is broader than its parts—that the federal government in general, and Congress in particular, have more power than a normal reading of the Constitution (he calls it a “clause-bound” reading) would justify. The Update identifies several weaknesses in this claim:

• Most of of the events and statements cited to support this conclusion arose from self-interested political actors after the Constitution was ratified. These events and statements could not have been known, much less considered, by the framers or ratifiers.
• Ablavsky admits his method is “heterodox,” but the Constitution was designed for standard methods of interpretation, not “heterodox” ones.
• His “sum is greater than the parts” approach (which he calls “holistic”) directly violates the commands of the Ninth and Tenth Amendments—particularly the Ninth, which was designed to prevent readings like his.

However, the Update does not examine Ablavsky’s many citation deficiencies. That is the task of the document called the Cite Check (pdf).

The Cite Check

The list of defective citations in the Cite Check is not comprehensive: We confined our examination to footnotes relevant to our preparation of the Update, and we let some apparently inadvertent errors pass (such as wrong page numbers). However, even the Cite Check’s partial list includes examples of

• non-existent sources,
• unavailable sources,
• cherry-picking some parts of a source while ignoring other parts,
• drawing more from a source than it says,
• factual inaccuracies, and
• references that otherwise didn’t check out.

But perhaps the most insidious practice was

• altering and editing source quotations to make them seem to support the author’s thesis, when they did not.

The last item included manipulation of several quotations to support the thesis that early federal and state officials interpreted the federal government’s Indian affairs powers “holistically.”

In my preliminary response I referenced an example of this manipulation appearing in a 2019 brief Ablavsky submitted to the United States Court of Appeals for the Fifth Circuit. The brief quoted a portion of a statement from a member of Congress. The statement was presented in a way that implied that pending congressional legislation was based on the Indian Commerce Clause or perhaps was untethered to any specific grant in the Constitution. However, the presentation omitted the Congressman’s immediately preceding sentence, which explained that legislation was based on the Constitution’s Territories and Property Clause (Article IV, Section 3, Clause 2).

In Beyond the Indian Commerce Clause, this deceptive tactic appears again and again. Two examples:

• A letter from President George Washington is presented as stating that  “the United States” [i.e., the federal government] “possess[es] the only authority of regulating an intercourse with [the Indians].” But in the original letter the phrase was not “the United States” but “the Executive of the United States” and the reference was not to Indians generally, but to the Seneca tribe. In fact, Washington was alluding to his duties under a specific treaty between the United States and the Six Nations (one of which was the Senecas)—not to any general power over all Indians.
• A letter from Washington’s Secretary of War, Henry Knox, is presented to make it appear that I erred when I concluded  that the Hopewell treaties formed a basis for Congress’s 1790 Indian Intercourse Act. However, the presentation omitted an extensive passage in the letter that actually confirmed my conclusion. (Ablavsky cited two other alleged comments by Knox that turned out to be non-existent.)

Further examples are listed in Cite-Checking.

A Puzzle: How Did Ablavsky’s Article Get Published?

Yale Law Journal is one of the nation’s most prestigious scholarly law magazines. Its editors (top students) are supposed to examine an author’s sources carefully to ensure that they are cited accurately and actually support the author’s text. As any author who has been through this process knows, several editors usually are assigned to an article. When they are doing their jobs, each editor is looking for nits to pick to ensure that the article is absolutely accurate.

For an author undergoing this kind of review, the process can be wearying and sometimes humiliating: The author may have to modify or defend dozens of footnotes.

If this procedure had been followed when Ablavsky’s article was reviewed, it either would have been denied publication or changed considerably. Although some of his mistakes might have escaped the notice of editors not familiar with constitutional or Indian law, most are abundantly clear.

I have no inside information about the workings at Yale Law Journal, but from my long experience with legal publishing, I can offer two hypotheses as to what happened. These are not mutually exclusive.

First, the student editors may have had their critical faculties blunted by a desire to please a professor—perhaps one who (without checking the sources) recommended the article. Second, the student editors may have had their critical faculties blunted by a desire to publish a submission for political reasons. Student editors are usually left-of-center, and may let problems pass in a left-of-center piece that they would pounce on if the article had a conservative or traditionally-originalist bent. (That is, in the unlikely event the editors initially agreed to publish a conservative or originalist submission.)

I emphasize that both of these possibilities are merely speculative. What we can say for certain is that in this case, the editorial process broke down badly.