The Constitution And Indigenous Americans: A Complex History

The United States Constitution mentions Native American tribes three times. The first mention is in Article I, Section 2, Clause 3, which states that Representatives and direct Taxes shall be apportioned among the several States ... excluding Indians not taxed. The second mention is in Article I, Section 8, Clause 3, which empowers Congress to regulate commerce with foreign nations…states…and with the Indian tribes. The third mention is in the Fourteenth Amendment, which addresses the handling of Indians not taxed in the apportionment of representatives to Congress. These constitutional provisions have been interpreted by the Supreme Court to define the status of Indians and tribes in the federal system, recognizing their inherent right to govern themselves while also subjecting them to federal authority.

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The US Constitution mentions Native Americans three times

The second mention is in Article I, Section 8, Clause 3, also known as the Indian Commerce Clause. This clause grants Congress the power to "regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." This clause has been interpreted to mean that while Native American tribes have the right to self-government, their sovereignty is ultimately subject to federal authority.

The third mention is in the Fourteenth Amendment, which addresses the handling of "Indians not taxed" in the apportionment of seats in the House of Representatives. This amendment, ratified in 1868, was intended to grant citizenship and equal protection under the law to all persons born or naturalized in the United States. However, interpretations of the amendment immediately excluded most Native Americans from citizenship, as they were not considered subject to the jurisdiction of the United States.

It is worth noting that despite these mentions in the Constitution, Native American tribes have a unique relationship with the US government. They are considered sovereign nations with the inherent right to govern themselves, and their authority is not delegated by congressional acts. The federal government has recognized this sovereignty and stresses government-to-government relations with federally recognized tribes.

Tribal sovereignty and the right to self-government

The United States Constitution mentions Native American tribes three times. The first two references are found in Article I, Section 2, Clause 3 and Section 2 of the Fourteenth Amendment, which address the handling of "'Indians not taxed'" in the apportionment of the seats of the House of Representatives according to population. The third reference is a grant of power to Congress in the commerce clause of Article I to "regulate Commerce with...the Indian tribes".

The idea that tribes have an inherent right to govern themselves is at the foundation of their constitutional status. Tribal sovereignty refers to the inherent authority of tribal nations to self-govern, including the authority to establish their own form of government, determine citizenship, preserve cultural identity, and make and enforce laws. The sovereignty status of tribal nations still remains today, and the federal government has a "duty to protect" tribal lands and rights.

However, tribal sovereignty has been continuously challenged and undermined by the federal government and individual states. Congress can limit tribal sovereignty and has the ultimate authority over matters affecting the tribes. Most Native American land is held in trust by the United States, and federal law regulates the economic and political rights of tribal governments. Tribal jurisdiction over persons and things within tribal borders is often contested, and tribes do not have criminal jurisdiction over non-Native persons who commit crimes in Indian Country.

Despite recognition of tribal sovereignty in the Constitution, it wasn't until the 1970s that the federal government actively supported tribal self-governance. This shift in policy followed centuries of settler colonialism, state-sanctioned violence, and forced removal and assimilation of tribal nations. Today, the federal government recognizes the sovereignty of 574 tribal nations and stresses government-to-government relations with these tribes.

The interpretation of the 14th Amendment

The Fourteenth Amendment, passed by Congress on June 13, 1866, and ratified on July 9, 1868, extended liberties and rights granted by the Bill of Rights to formerly enslaved people. The amendment's primary author, Congressman John A. Bingham of Ohio, intended to nationalize the Bill of Rights by making it binding on the states.

The Fourteenth Amendment addresses various aspects of citizenship and the rights of citizens. It grants citizenship to "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." This provision was meant to confer citizenship on formerly enslaved people. However, interpretations of the amendment immediately excluded most American Indians from citizenship. The phrase "Indians not taxed" in the amendment was not a grant of tax exemption but a description of the status of Indians at the time the Constitution was written. Indians were generally treated as outside the American body politic and were not considered citizens or subject to federal and state legislation.

The Senate Judiciary Committee clarified in 1870 that the Fourteenth Amendment did not alter the status of Indian tribes within the United States. At that time, only 8% of American Indians were classified as "taxed" and eligible for citizenship. The Fourteenth Amendment's reference to "Indians not taxed" excluded them from being counted in the apportionment of representatives to Congress and direct taxes among the states.

Despite this exclusion, the Supreme Court has developed a body of law defining the status of Indians and tribes within the federal system. This body of law recognizes the inherent sovereignty of Indian tribes and the government's duty to protect them. The Supreme Court has ruled that ordinary constitutional strictures apply to federal Indian legislation, and the Fifth Amendment's due process clause must be considered when enacting laws affecting Indian tribes.

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Federal power over Indians and their land

The United States Constitution mentions Native American tribes three times. The first two references are found in Article I, Section 2, Clause 3 and the Section 2 of the Fourteenth Amendment, which address the handling of "Indians not taxed" in the apportionment of the seats of the House of Representatives according to population. The third reference is a grant of power to Congress in the commerce clause of Article I to "regulate Commerce with...the Indian Tribes".

The phrase "Indians not taxed" described the status of Indians at the time the Constitution was written. Indians were not taxed because they were generally treated as outside the American body politic and were not considered citizens. Tribal laws, treaties with the United States, and special federal Indian legislation governed their affairs.

The federal government has an obligation to protect tribes, their way of life, and to provide services such as education, housing, and healthcare to ensure their survival and welfare. This obligation, known as the 'doctrine of trust responsibility', is primarily based on treaty promises to protect tribes and on the fact that American Indians and Alaska Natives had aboriginal claims to all land in America.

While tribal sovereignty is limited today by the United States under treaties, acts of Congress, Executive Orders, federal administrative agreements, and court decisions, what remains is nevertheless protected and maintained by the federally recognized tribes against further encroachment by other sovereigns, such as the states. Tribal sovereignty ensures that any decisions about the tribes concerning their property and citizens are made with their participation and consent.

Tribes possess all powers of self-government except those relinquished under a treaty with the United States, those expressly extinguished by Congress, and those that federal courts have ruled are subject to existing federal law or inconsistent with overriding national policies. Limitations on inherent tribal powers of self-government include not having the power to make war, engage in foreign relations, or print and issue currency.

Congress's Article I power to regulate "the Territory or other Property belonging to the United States" supplements the treaty and Indian commerce clause powers. Most Indian lands are held in fee by the United States, subject to a beneficial tribal interest in reservations set aside by treaty or executive order, and to the Indians' right of occupancy.

The history of treaties between the US and Native Americans

Treaties between the US government and Native Americans are agreements between sovereign nations that lie at the heart of the relationship between the two parties. Native American nations made treaties with each other long before Europeans arrived in the Western Hemisphere. Treaties between the US and Native Americans were negotiated to establish borders and prescribe conditions of behaviour between the parties.

From 1774 until about 1832, treaties were negotiated between the US and Native American nations. Between the Revolutionary War and the aftermath of the Civil War, the two sides signed approximately 368 treaties that would define their relationship for centuries to come. The treaties were based on the idea that each tribal group was an independent nation, with its own right to self-determination and self-rule.

However, as white settlers began to encroach on Native American lands, this idea came into conflict with the relentless westward expansion. This resulted in many broken promises on the part of the US government. Treaties were often broken, sometimes coerced, and used as a means to displace Native Americans from their tribal lands. For example, the Treaty of New Echota, which was ratified by Congress in 1835, saw a faction of the Cherokee agree to relocation. The majority of Cherokees, led by Principal Chief John Ross, attempted to hold onto their land but were forced to the dry plains across the Mississippi under the threat of violence. Between three and four thousand out of the fifteen to sixteen thousand Cherokees died en route from the brutal conditions of the "Trail of Tears".

In 1871, the House of Representatives ceased recognition of individual tribes within the US as independent nations with whom the US could contract by treaty. This ended the nearly 100-year-old practice of treaty-making between the two sides.

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