Beyond the Indian Commerce Clause: Robert Natelson’s Problematic “Cite Check”

Academic disagreements risk becoming reality shows. Conflict and drama are entertaining; they draw attention. Historical research, by contrast, is much less entertaining: careful parsing of complicated eighteenth-century documents makes bad television.  And so the temptation is to just fast-forward through these boring, detail-oriented bits. The drama, not the facts, become the story. But this isn’t a show; it’s a dispute with real-world consequences. Facts and scholarship should matter.

The stakes here are much more significant than the potentially wounded egos of two non-Native scholars. The argument between Mr. Natelson and me takes place in the shadow of Brackeen v. Haaland, one of the most important constitutional disputes over Indian affairs to reach the Supreme Court in decades. The outcome in this case will profoundly affect the lives of countless Native children and the rights of Native and non-Native families who seek to care for them. The decision could also call into question many other federal laws that similarly seek to support Native autonomy, profoundly affecting Native communities.

For this reason, I have taken the time to carefully go through Mr. Natelson’s critiques and respond thoroughly to each of his concerns with my 2015 Yale Law Journal article Beyond the Indian Commerce Clause. The result is necessarily lengthy—over half as long as the original article. I do this even though, given the context of this dispute, no one could mistake Mr. Natelson for a good faith critic of my work. (I will address Mr. Natelson’s additional arguments in his recent Federalist Society Review article in a subsequent publication).

Gregory Ablavsky, Professor of Law
Gregory Ablavsky, Professor of Law

Here’s that context: In 2007, Mr. Natelson wrote a law review article on the original understanding of the Indian Commerce Clause. Justice Thomas later cited Mr. Natelson’s article in a 2013 concurrence questioning Congress’s authority to enact the Indian Child Welfare Act (ICWA). In 2015, while a graduate student finishing my J.D./Ph.D. in American Legal History at Penn, I published Beyond the Indian Commerce Clause in the YLJ, which revisited original understandings of the sources of federal power over Indian affairs. In the article, I argued that the Founders thought that the federal government’s authority rested not just on the Indian Commerce Clause but on the interplay between multiple constitutional provisions, including the Treaty Clause, the Territory Clause, the war powers, the law of nations, and the Constitution’s limits on state authority. The article also challenged Justice Thomas’s and Mr. Natelson’s conclusions in what Mr. Natelson later conceded was a “generally respectful” tone. Since the article, a number of subsequent articles by other scholars, some right-of-center and others disagreeing with my conclusions, have similarly challenged Mr. Natelson’s views.

Thomas’s concurrence predictably spawned a number of legal challenges to ICWA. In 2019, when the Brackeen case was before the Fifth Circuit, I submitted an amicus brief reiterating the conclusions of my 2015 article and repeating, in condensed form, my earlier critiques of Mr. Natelson’s conclusions. Earlier this year, Mr. Natelson discovered this brief. He published an explosive response accusing me of being a “shyster.”  Now, deciding the best defense is a good offense, he has taken it upon himself to “cite check,” eight years on, my 2015 Yale article.

Mr. Natelson’s accusations are dramatic.  He claims that the article had a “disturbing number of inaccurate, non-existent, and misleading citations, as well as deceptively-edited quotations.” He even suggests that the Yale Law Journal failed so egregiously in its cite-checking that the article could only have been published either to placate a faculty member or for “political reasons” due to left-wing bias.

Beyond the Indian Commerce Clause did, in fact, go through an extensive cite-checking process. I’m deeply appreciative to the Yale Law Journal’s student editors who went through the Article’s 416 footnotes and over 140 primary sources to make sure that each citation was fair and accurate. Mr. Natelson’s “cite check,” by contrast, clearly did not undergo the same rigorous scrutiny, since many of its allegations can be disproven with a simple Google search.

Nor did the Article simply confirm “left-of-center” ideological and normative priors. As anyone who has spent time in Indian country knows, the federal government has long played an at-best ambiguous role in Indian affairs, often using its authority to cause great harm to Native communities. Thus, the most vehement critiques of federal Indian law from the left, derived from critical race theory, have been attacks on federal authority. Although I do not think my historical findings support the doctrine of federal “plenary power” over tribes, the article nonetheless examined how “the first federal leaders’ narrow claims of sovereignty over Native nations became the doctrinal tools for ever more aggressive assertions of federal authority to regulate Indians.” I personally would strongly favor a constitutional interpretation that gave more space to Native independence and less to federal power, but the underlying Founding-era history that the article uncovered is complex and multivocal.

If, as the Supreme Court has increasingly insisted, history will be the primary basis for determining constitutional meaning, then we need to ensure that that history rests on the best, fullest evidence. Originalists insist that originalism is not just an effort to confirm preordained conclusions that conform to ideological preferences. In this regard, the seeming imperviousness of Mr. Natelson’s views and his ceaseless attempts to find reasons to ignore substantial contrary evidence—as well as his repeated claims that I am unscholarly and my work published only because of left-wing bias–are worrying.  This, unfortunately, is not a conversation between two scholars committed to reading all the evidence and arriving at the best interpretation. It has become, I fear, about Mr. Natelson insisting that he is right. I believe that, at the very least, the history before the Court should be based on more than that. I recognize that I am hardly an impartial observer either, but I think I have the receipts for my interpretations. I invite readers to look beyond the flashy controversy, examine the sources, and decide for themselves.

I address Mr. Natelson’s critiques individually and at much more length below. I’ve done so by sorting his critiques into three broad categories. Here, I’ll briefly explain these categories as well as provide a general critique of the argumentative moves they make.

  1. Plain Error: In these critiques, Mr. Natelson accuses me of relying on non-existant sources. Mr. Natelson’s mistakes are not subjective: sources either exist or they don’t. Every instance of a source that Mr. Natelson and his assistant were unable to locate is readily available online, and confirms my original citation. Without any instruction from me, my Research Assistants were able to locate most of them in minutes—sometimes in seconds. Readers can do the same: I’ve provided screenshots and also linked to the sources.
  2. Claiming that Context Confirms His Conclusions in the Absence of Any Actual Evidence: Allegations of “misleading citations,” “deceptively edited quotations,” and “manipulation” reflect a more complicated disagreement, which I will discuss in more detail below. But Mr. Natelson’s basic move is consistent. When confronted with contrary evidence whose plain textual meaning seems contravene his preferred interpretation, he retrieves additional context from the original source—a useful exercise. But he then claims to discover in that context a limiting principle that he claims “proves” some alternate explanation—one that conveniently leaves his original hypothesis untroubled.

    Yet the actual sources contain nothing that directly substantiates or supports Mr. Natelson’s proposed limiting principle. His conclusion rests instead on his own often-tenuous inferences about what the author must have meant.

    This is best understood through concrete examples. Take President Washington’s statement that “the Executive of the United States possess[es] the only authority of regulating an intercourse with them [the Seneca Indians].”   In the original article, I cited this provision only to show that Washington asserted federal supremacy over Indian affairs; I relied on other documents to discuss the source of federal authority. Nonetheless, Mr. Natelson insists that the President here “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.”

    How does Mr. Natelson know? You might think, based on Natelson’s confident conclusion, that Washington’s letter explicitly said that he was relying on the treaty. If so, you’d be wrong: though he was writing about the Senecas, Washington’s letter said absolutely nothing about the treaty. Thanks, however, to Mr. Natelson’s apparent mind meld with Washington, the treaty’s mere existence “proves” that Natelson’s conclusion is definitively correct.

    I think Mr. Natelson’s interpretation here is unlikely; it cuts against significant other historical evidence, which I discuss below. But, though I think my interpretation more plausible, I cannot “prove” Mr. Natelson’s view wrong any more than Mr. Natelson can “prove” my view wrong: no responsible historian would assert such certainty in the face of a silent source. The only claim here that I think can be fairly deemed objectively wrong is Mr. Natelson’s claim to definitive authority and knowledge.

    This example is representative of other similar examples, which I will discuss below.
  3. Asserting Interpretive Disagreements are Factual Errors: Though similar to the prior move, in these instances Mr. Natelson just reiterates diverging interpretations and then accuses me of error for not agreeing with his conclusions. Did Mr. Natelson or I more faithfully interpret what an author said in her book or article? Is a treaty provision an “assertion” of federal authority or an acknowledgement that it would otherwise be absent? How best to read the appearances of the word “exclusive” in the Constitution? These are all classic interpretive questions. Mr. Natelson is free to dispute my views, which he clearly does. But the idea that I committed scholarly misconduct by offering my interpretations in my article is laughable. This standard of “cite-checking” decrees as sound scholarship only the interpretations that Mr. Natelson deems correct—a standard ultimately subversive of scholarship itself.

All of these issues frame a larger disagreement between Mr. Natelson and me. He finds great certainty in his interpretations of the past and of other scholars—so much so that, when I earlier pointed out much of his argument rested on an inaccurate version of a quotation that, when corrected, directly contradicted his original interpretation, he insisted that the corrected quotation still did not trouble his original conclusion. You will find a similar attitude throughout his “cite check”: deep confidence that not only is his interpretation right and mine wrong, but that my view is so egregiously incorrect as to not warrant publication.

I don’t feel such complete certainty about the unerring correctness of my conclusions, though I sometimes wish I did. But I also think such certainty is antithetical to the virtues of a good historian and scholar: openness to the ambiguity and complexity of the past; commitment to understanding historical sources on their own terms rather than in light of predetermined conclusions; acknowledgment when incomplete evidence makes definitive answers impossible.

The only reason I felt justified in reaching the conclusions that I did in my original article was that I had looked at lots of sources, from different perspectives, that coalesced around similar points. I have not repaid Mr. Natelson’s work with the attention he has lavished on mine, though my brief digging suggests that it might not meet his own standards: my RAs, for instance, reexamined his text search on the use of the “commerce” and concluded that it does not support his claims about its invariable equivalence with “trade” (more on this below). Nonetheless, the reason I was comfortable asserting that he and Justice Thomas were sometimes wrong in their accounts of the past was because I had uncovered multiple historical sources that explicitly and directly contradicted their claims. There is, however, always the possibility of new evidence or that I missed something. In Castro-Huerta, for instance, Justice Gorsuch cited a letter from Thomas Jefferson to Henry Knox about treaties that I had read long ago but completely forgotten about.

And so my initial thought on discovering Mr. Natelson’s cite check was that maybe I had gotten something wrong.  After all, I wrote Beyond the Indian Commerce Clause nearly a decade ago, when I was very junior, and mistakes inevitably happen. And, in fact, I did discover a factual inaccuracy, although not one “corrected” by Mr. Natelson.  In footnote 265, I said that the U.S. first asserted criminal jurisdiction over Natives in Indian country in 1834. Actually, that happened in federal statute enacted in 1817. Though nothing in my article turned on this precise date, I regret the error. (I discuss this more below).

Otherwise, I was pleasantly surprised at how well my article stood up against Mr. Natelson’s rather naked attempt to scour it for any and all flaws, no matter how minor, with which to discredit it. In the end, Mr. Natelson presented no evidence that I had not already read and considered when I wrote the original article. And I found his attempts to debunk my work and explain away unhelpful evidence either unambiguously wrong or highly unpersuasive. He did helpfully catch some stray volume numbers and dates in a couple citations. Nearly eight years after publication, though, it’s probably too late to go back and correct them.

The rest of the article can be found here.