The Supreme Court will address this important question in this term’s Brackeen v. Haaland. The case involves a constitutional challenge to placement preferences in the Indian Child Welfare Act of 1978, alleging that the law both discriminates on the basis of race and exceeds Congress’s Article I authority. Article I of the Constitution says “The Congress shall have Power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.”

In a recent Federalist Society Review article, Professor Rob Natelson argues that Congress’s power to regulate commerce with the Indian tribes authorizes broad regulatory authority over trade with Indian tribes and incidents to that trade, but not plenary power over Indians. The article updates his 2007 article, which made a similar case and was cited by Justice Thomas in a 2013 concurrence.

Professor Gregory Ablavsky has argued for a broader understanding of federal power over Indian affairs. His 2015 Yale Law Journal article making that case, Beyond the Indian Commerce Clause, was cited by Justice Gorsuch in a dissent last year. He also filed an amicus brief in support of the government in the Fifth Circuit en banc proceedings below in Brackeen. Yesterday, he published a response to Professor Natelson at the Stanford Law blog.

David Kopel ably summarizes the academic debate in a Volokh Conspiracy blog post, adding his own thoughts on the issue.

Our November Seat at the Sitting will feature a discussion of the Brackeen case, which is set to be argued on November 9.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].