The Constitution’s Rules for Relations with Indian Tribes: Part Two



The previous episode of this two-part series described the Supreme Court’s current interest in the law of Indian tribal sovereignty, that is, the law governing the relationship between federal, state and tribal governments. One of the results is the 2020 court decision (pdf) which led to 43% of the state of Oklahoma (pdf), including most of the city of Tulsa, being classified as “Indian Country”. (“Indian Country” is a legal term which includes Indian reserves and additional territory.)

Other recent SCOTUS rulings have partially overturned state tax laws (pdf) and land use (pdf). A case in progress will decide whether Congress can override state child placement laws and dictate rules to state court systems.

All recent cases have been decided by 5 to 4 majorities, and one of them was actually 3 to 2 to 4. As I said in the previous episode, one of the reasons why the judges split as they do is that the law in this area is chaotic. It is also quite far from the actual rules of the Constitution in this matter.

This article describes how the Constitution addresses the relationships between the branches of the federal government, the states, and the tribes. To understand this, however, we need to start before the Constitution was adopted – with the Articles of Confederation.

The Articles of Confederation

The Articles of Confederation was a defensive treaty agreement between the American states, somewhat comparable to today’s NATO. The Continental Congress proposed the Articles to the states in 1777, and the last of the 13 states (Maryland) ratified them in 1781.

Under the Articles, each state sent delegates to an assembly known as the Congress of the Confederacy, where each state had one vote.

The Articles granted the Congress of the Confederacy authority over “all Indian affairs”. However, the grant was significantly reduced by exceptions allowing states to manage relationships with natives residing within state borders. Thus, the Confederate Congress could manage relations with Indians in federal territories and outside the United States, but Congress needed the cooperation of the states to deal with the tribes of the state.

The Constitution comes into force

The Constitution was written in 1787, but the new government did not move the articles until 1789. Initially, this new government represented only 11 states. However, North Carolina joined later in 1789, Rhode Island in 1790, and Vermont in 1791.

The Constitution granted more authority to the federal government than the Articles had granted to the Congress of the Confederacy. But under the Articles all authority had been unified in Congress; under the Constitution, it was divided between different branches of government. This is called the “separation of powers”. Functions not distributed among the branches of the federal government were reserved for the states.

This was also the case with Indian affairs: the new federal government was given more authority over native relations than the old Confederate Congress had enjoyed, but that authority was split. Here’s how:

First: the president has been given responsibility for diplomacy and the conduct of wars.

Second: The President, with the approval of two-thirds of the Senate, has been given the duty to make treaties with the tribes (Article II, Section 2, Clause 2). The treaties defined the relationship between the United States and the tribes. They could tackle almost any topic. In the United States, a treaty has the same legal value as an act of Congress.

At that time, state legislatures elected senators, so the requirement that two-thirds of the senators consent to any treaty protected the states against proposed covenants that might invade the state-only sphere of government.

Third: For a treaty to be binding on a tribe, the tribe had to agree to it. This preserved a certain freedom for the tribes; the degree of freedom they enjoyed depended on their military power and other circumstances.

Fourth: The Constitution empowers Congress to:

  • declare war (Article I, Section 8, Clause 11);
  • governing federal territories outside state boundaries (Article IV, Section 3, Clause 2);
  • regulate the “law of nations”, in particular the movement of persons across the borders of Indian Country (Article I, Section 8, Clause 10);
  • regulate “trade with Indian tribes” (Article I, Section 8, Clause 3); and
  • pass laws to assist the President in negotiating and executing treaties (Article I, Section 8, Clause 18).

Congress also had the recognized prerogative to abrogate treaties.

Fifth: To the extent that federal officials (following the rules set forth above) did not regulate any aspect of Indian affairs, the states could (amendments IX and X). For example, a state legislature could pass laws governing native people living within its borders. Of course, enforcing state laws might not be practical if an Indian nation was strong enough.

States’ powers over Indian affairs were limited in two ways: States could not enter into treaties (Article I, Section 10, Clause 1) and any state law was subject to reversal by federal action properly enacted.

How this system worked in practice

Let’s see how these rules worked in practice.

After the Constitution took effect, the President frequently negotiated with Indian nations and occasionally conducted military operations. The president also made treaties with individual tribes and submitted them to the Senate for approval. Often the parties to a treaty agreed that the tribe would interact only with the federal government and not with any state, and that no state had jurisdiction over the tribe.

Additionally, during the 1790s, Congress passed laws on Native affairs. These measures regulated trade, facilitated the negotiation and enforcement of treaties, governed Indian affairs in federal territories, and (in accordance with its constitutional authority to “define…the law of nations”) regulated travel to and from the Indian country. States also enforced their own laws against natives residing within their borders.

A Legal Myth: The Constitution Gives Congress “Full Power” Over Indian Affairs

Unfortunately, many writers on Indian law are unfamiliar with the broader context of constitutional law and history. They are generally unfamiliar with 18th century legal concepts and the way we analyze constitutional meaning. And many of them also have political agendas. As a result, the modern law of US-India relations has been infected with misunderstandings and myths.

The most significant of these misunderstandings or myths is that the Constitution grants Congress “plenary” (absolute) authority over Indian affairs. The primary source of this authority is, supposedly, the constitutional power of Congress to “regulate commerce…with the Indian tribes.” Some writers even make the unlikely claim that the phrase “regulate trade” changes meaning when applied to Indian affairs.

Naturally, Congress has seized on the myth of “full power” to justify its own excesses. And – as I will show in a future article – liberal academics have tortured the evidence to support Congress’s claims.

But as we have seen, the Constitution separated powers in Indian affairs. The Constitution did not make any government, or any branch of government, absolute. Congress’ power to regulate commerce is limited to the administration of a traditional body of jurisprudence called “merchant laws,” which includes the governance of activities such as cross-border commerce, shipping, and marine insurance.

It certainly does not encompass “full authority” over the Indians.

Robert G. Natelson, former professor of constitutional law and senior scholar of constitutional jurisprudence at the Independence Institute in Denver, is the author of “The Original Understanding of the Indian Commerce Clause” (pdf) and is currently composing an update to this article that will be posted soon.

The opinions expressed in this article are the opinions of the author and do not necessarily reflect the opinions of The Epoch Times.


Robert G. Natelson, a former professor of constitutional law, is senior scholar of constitutional jurisprudence at the Independence Institute in Denver.


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