The Constitution's Native American Tribal Recognition

The United States Constitution mentions Native American tribes three times, and the Founding Fathers who signed the Constitution had deep familiarity with Native nations, with some having negotiated treaties or engaged in diplomatic relations with them. Native Americans had their own distinct legal systems, worldviews, and forms of recordation, separate from Anglo-American law. The constitutional framers may have admired the federalist principles of the Iroquois Confederacy, and other Native governments, but they also viewed Indigenous people as inferior. The US Constitution does not grant Native nations full constitutional protection of their tribally-based rights, and Congress has the power to enact legislation regarding Tribal nations.

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Influence of Native American governments on the Founding Fathers

The US Constitution, signed in 1787, is often thought to be influenced by the political theories of ancient Athens and the European Enlightenment. However, several scholars have argued that the Founding Fathers were also influenced by the political systems of the Native American tribes that were their neighbours.

Benjamin Franklin

Benjamin Franklin, a Founding Father, was closely involved in negotiating and printing treaties with Native American nations, including the Iroquois Confederacy. He studied their systems of governance and wrote about his observations and interactions with Native Americans, most notably the Iroquois, but also the Delawares and Susquehannas, in his essay "Remarks Concerning the Savages of North America". In his essay, Franklin comments on the conventions of Iroquois life, noting that their government is based on "the Council or advice of the sages" without "force, prisons, [or] officers". Franklin also wrote about the superiority of Native American foods, especially corn, and argued that American forces should adopt Native modes of warfare.

John Adams

John Adams suggested that those drafting the Constitution should study the governments of "the ancient Germans and modern Indians", specifically citing the Mohawks as an example of a people who enjoyed "complete individual independence".

Thomas Jefferson

Thomas Jefferson studied Native American systems of government and expressed admiration for them, although he incorrectly characterised them as having "no law". In a letter written after the completion of the first draft of the Constitution, he wrote:

> "The only condition on earth to be compared with ours is that of the Indians, where they still have less law than we. The Europeans are governments of kites over pidgeons."

Other Founding Fathers

Other Founding Fathers also had deep familiarity with Native American nations, having negotiated treaties or engaged in diplomatic relations with them. The Iroquois Confederacy, in particular, is thought to have influenced the Founding Fathers' ideas about democracy and the separation of powers. The Iroquois, for example, generally separated military and civil leadership, guarded certain personal freedoms, and included democratic policies for referendums, vetoes, and recalls. They also gave women a large role in government, something that would not be seen in the US for over a century.

In conclusion, while the influence of Native American governments on the Founding Fathers may have been indirect or disputed, it is clear that the Founding Fathers were familiar with and, in some cases, admired the political systems of Native American tribes.

Tribal sovereignty and US federal law

The US Constitution, adopted in 1787, considered Indigenous nations as independent sovereigns, free to align themselves with any country they chose. This freedom was only truly curtailed in 1846 when Great Britain signed the Oregon Treaty, giving the US sole authority over the Oregon Territory.

The idea of tribal sovereignty is that Indigenous tribes have an inherent right to govern themselves within the borders of the United States. This sovereignty is dependent on, and subordinate to, the federal government, not the individual states. The US federal government has recognized American Indian tribes as sovereign nations, and has entered into policy agreements with them via treaties.

The Indian Civil Rights Act of 1968 imposed key portions of the Bill of Rights on Tribal governments in their relations with reservation residents. However, Tribes remain immune from the reach of the federal Constitution, and Congress can enact legislation regarding Tribal nations. For example, Indigenous peoples may be legally terminated, and tribal criminal jurisdiction over non-Native Americans who commit crimes on tribal land is still an issue.

In recent years, there has been a trend to affirm Tribal sovereignty and to strengthen the ability of Tribal governments to protect public safety within their reservations. Congress has also invested more in Tribal law enforcement agencies and Tribal courts.

The Founding Fathers who signed the Constitution had familiarity with Native nations, with some, like Benjamin Franklin, having negotiated treaties with them and studied their systems of governance. John Adams suggested that those drafting the Constitution should study the governments of "the ancient Germans and modern Indians," and Thomas Jefferson also studied and expressed admiration for Native systems of government.

US treaties with Native American tribes

Treaties, or solemn agreements between sovereign nations, are at the heart of the relationship between Native American Nations and the United States. Native American Nations were considered independent nations, and the treaties made with them were often coerced and sometimes violated. Treaties typically covered issues such as land boundaries, hunting and fishing rights, and guarantees of peace.

The United States Constitution empowered Congress to "regulate commerce with foreign nations, and among the several States, and with the Indian tribes". In early treaties, Native American Nations acknowledged themselves ""to be under the protection of the United States of America, and of no other sovereign whosoever". Treaties were made between the tribes and the executive branch, with the advice and consent of the Senate.

The US government used treaties as a means to displace Native Americans from their tribal lands, a mechanism strengthened by the Removal Act of 1830. This Act established a process whereby the President could grant land west of the Mississippi River to Native tribes that agreed to give up their homelands. During his presidency (1829-1837), Andrew Jackson signed into law almost seventy removal treaties, which resulted in the removal of nearly 50,000 eastern Indians to Indian Territory and the opening up of millions of acres of land to white settlers.

The Treaty of Hopewell, signed with southern Native American tribes, extended friendship and "protection" from the United States. However, this treaty was violated as white settlers moved onto Cherokee lands, leading to the Treaty of Holston (1791), in which the Cherokee forfeited more land. Another example is the Treaty of New Echota, in which a Cherokee chief agreed to relocation. This treaty was ratified by Congress despite protests, and the Cherokee were forced to leave their land under the threat of federal troops and Georgia state militia.

In 1871, Congress ended the practice of making treaties with individual Native American tribes, declaring that no tribe would be "acknowledged or recognized as an independent nation, tribe or power with whom the United States may contract by treaty". However, this did not invalidate previous treaties, and federal and state governments have continued to enter into contracts and agreements with tribes on various topics.

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Native Americans' interpretation of the US Constitution

The US Constitution, as it stands, does not apply to Native Nations. Native Americans, even as individual citizens, are not entitled to the full constitutional protection of their tribally-based rights. While the 1968 Indian Civil Rights Act imposed key portions of the Bill of Rights on Tribal governments in their relations with reservation residents, Tribes remain immune from the reach of the federal Constitution.

However, Native Americans did have a prerevolutionary constitutional order, known as the "diplomatic constitution", which governed the relationships between Native peoples and Euro-Americans. After the Constitution's drafting, Native Americans engaged in their own version of the ratification debates, and in the Early Republic, they invoked and critiqued the document as they faced removal.

Native American nations had a wide variety of government models in the 18th century, from relatively complex to simple governments, and from nearly autocratic to highly democratic governments. The governments of eastern North America that the Founding Fathers were most familiar with were confederacies of tribal nations, including the powerful Iroquois Confederacy in upstate New York. The Iroquois, Shawnee, Cherokee, and other political formations generally separated military and civil leadership, guarded certain personal freedoms, including freedom of religion, and included somewhat democratic policies for referendums, vetoes, and recalls.

John Adams suggested that those drafting the Constitution should study the governments of "the ancient Germans and modern Indians", which he believed divided power among the three branches of executive, judicial, and legislative governance. Thomas Jefferson also studied and expressed admiration for Native systems of government, though he incorrectly characterised them as having "no law".

In 1987, Oren Lyons, a Faithkeeper for the Iroquois Confederacy, went to the Senate Select Committee on Indian Affairs and discussed the influence of the Iroquois Confederacy on the US Constitution. This motivated Congress to pass a resolution in 1988 formally acknowledging this influence and reaffirming the "continuing government-to-government relationship between Indian tribes and the United States established in the Constitution".

Native Americans' constitutional rights as US citizens

The US Constitution, adopted in 1787, considered Native Nations as independent sovereigns, free to align themselves with any country they chose. However, this also meant that Native Nations were not subject to the protections offered by the Constitution.

The Constitution's Article I originally stated that "Indians not taxed" couldn't be counted in the voting population of states, and Native Americans were not considered citizens until 1924 with the Indian Citizenship Act. Even after this, Native Americans were not entitled to the full constitutional protections of their tribally-based rights.

The Indian Citizenship Act did not offer full protection of voting rights to Native Americans, and they were not included in the constitutionally-mandated apportionment. This exclusion was partly to allocate tax burdens, and "Indians not taxed" were not counted in all aspects of apportionment.

The US Constitution also contains a Commerce Clause, which gives Congress the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes". This clause has been used to justify federal power over Native Americans and their lands, and Congress has repeatedly acted to limit the scope of tribal power.

Despite this, Native Nations have retained some self-governance. The Supreme Court has recognised the sovereign status of Indian tribes, and Native Nations have their own constitutional rules and powers of self-government. Native Nations have also been free to legislate within the extent allowed by their constitutions, and many of these contain provisions equivalent to the Bill of Rights.

In conclusion, while Native Americans have been legally recognised as US citizens since 1924, they have not been entitled to the full constitutional protections and rights enjoyed by other citizens. Native Nations have retained some self-governance and sovereignty, but their powers have been limited over time by acts of the federal government.

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