The Original Meaning of Commerce in the Indian Commerce Clause

In Haaland v. Brackeen, the Supreme Court returned to the foundational question of federal authority over relations between the United States and Native nations, long known as “Indian affairs.” The decision reaffirmed well-established precedent affirming broad federal authority in the area, but it also underscored ongoing disagreement, as Justices Gorsuch and Thomas offered lengthy and dueling investigations of the original understanding. This Essay explores one aspect of that history: the original meaning of “commerce” in the Indian Commerce Clause. Nearly a decade ago, I wrote an article that sought, as its title indicated, to move “beyond the Indian Commerce Clause.” The Clause, I argued, was only one small component in how the early American political elite understood federal authority in this area. Consequently, that article addressed the Clause itself only briefly.

In this Essay, in the wake of the contention in Brackeen, I draw on both the Corpus of Founding Era American English and early American documents of law and governance to investigate the original meaning of “Commerce . . . with the Indian tribes.” Ultimately, this Essay concludes that “commerce” was a widely and commonly used synonym for both “trade” with Indians and “intercourse” with Indians, a broader term that conveyed quotidian interactions between Native peoples and Anglo-Americans. The use of intercourse as a synonym for commerce was particularly frequent in documents dealing with governance in the early republic, with George Washington, Thomas Jefferson, members of the First Congress, and early caselaw all deploying the term that way. The historical evidence does not support either the claim that “commerce” was routinely used as a synonym for “Indian affairs,” or that the term exclusively referred to trade and purportedly “economic” interactions.