Eleanor Finch
The United States Constitution specifically mentions American Indians three times. Article I, Section 2, Clause 3 and the Section 2 of the Fourteenth Amendment address the handling of Indians not taxed in the apportionment of the seats of the House of Representatives according to population and in so doing suggest that Indians need not be taxed. In Article I Section 8, Clause 3, Congress is empowered to regulate commerce with foreign nations…states…and with the Indian tribes. Technically, Congress has no more power over Indian nations than it does over individual states. In the 1970s, Native American self-determination replaced Indian termination policy as the official United States policy towards Native Americans. In recent decades, Congress has adopted numerous laws relevant to Native Americans. The Indian Civil Rights Act of 1968 extends all of the provisions of the First Amendment (except the establishment clause, which might disadvantage tribal religions) and most other provisions of the Bill of Rights to Native Americans.
| Characteristics | Values |
|---|---|
| Number of times Native Americans are mentioned in the Constitution | Three |
| Clause in Article I, Section 2 | "Representatives and direct Taxes shall be apportioned among the several States ... excluding Indians not taxed" |
| Section of the Fourteenth Amendment | "Indians not taxed" |
| Section of Article I | "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes" |
| Status of Native Americans | Non-parties to the Constitution |
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What You'll Learn
The US Constitution mentions Native American tribes three times
Article I, Section 2, Clause 3 states that "Representatives and direct Taxes shall be apportioned among the several States ... excluding Indians not taxed". This clause determined that Native Americans who were not taxed were not to be counted in the formula for representation in the US House of Representatives. According to Story's Commentaries on the US Constitution, this clause also acknowledged that Native Americans did not form a part of independent communities or tribes, exercising general sovereignty and powers of government within the boundaries of the states.
Article I, Section 8 of the Constitution states that "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes". This clause determined that Indian tribes were separate from the federal government, the states, and foreign nations.
The Fourteenth Amendment also addresses the handling of "Indians not taxed" in the apportionment of the seats of representatives to Congress among the states.
Despite these references, Native American tribes are not parties to the US Constitution and are therefore not subject to the restrictions contained in the Bill of Rights or subsequent amendments.
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Native Americans are not subject to the Bill of Rights
Article I, Section 8 of the Constitution states that "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes". This determines that Indian tribes are separate from the federal government, the states, and foreign nations.
The Fourteenth Amendment also addresses the handling of "Indians not taxed" in the apportionment of seats. This means that Native Americans are not subject to the restrictions contained in the Bill of Rights or subsequent amendments.
At times, national and state governments have denied First Amendment rights to Native Americans, such as press and speech freedoms. Indian religious beliefs have sometimes posed dilemmas for the application of such freedoms.
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Native Americans have been denied First Amendment rights
The United States Constitution mentions Native American tribes three times. Article I, Section 2, Clause 3 states that "Representatives and direct Taxes shall be apportioned among the several States ... excluding Indians not taxed". Article I, Section 8 of the Constitution states that "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes", determining that Indian tribes were separate from the federal government, the states, and foreign nations. The third mention of Native Americans is in the Fourteenth Amendment, which addresses the handling of "Indians not taxed" in the apportionment of seats.
Despite these mentions, Native Americans have been denied First Amendment rights, such as press and speech freedoms. In 1800, Congress adopted "An Act for the preservation of peace with the Native American tribes", which limited First Amendment speech and press freedoms as a way of suppressing Native American criticism of the US. Indian religious beliefs have also posed dilemmas for the application of such freedoms. For example, most Native Americans regarded the land as something that belonged to everyone, but Europeans brought with them the idea of individual property ownership. As the population of European immigrants increased and their claims to the land expanded, Native Americans were forced to fight or retreat, and frequently had to sign treaties that recognised the rights of the federal government to their lands.
The Indian Civil Rights Act of 1968 extends all of the provisions of the First Amendment (except the establishment clause, which might disadvantage tribal religions) and most other provisions of the Bill of Rights to Native Americans. Another law protects sacred Indian shrines. In 1978, Congress adopted a largely hortatory statement of policy in the American Indian Religious Freedom Act.
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Native Americans are treated as a third sovereign
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". This clause, along with the Fourteenth Amendment, addresses the handling of "Indians not taxed" in the apportionment of seats in Congress and the formula for representation in the U.S. House of Representatives.
The second mention is in Article I, Section 8, which states that "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes". This determines that Indian tribes are separate from the federal government, the states, and foreign nations.
The third reference to Native Americans in the Constitution is in the form of a protectorate relationship between the government and the tribes. This relationship is based on the history between Indians and the federal government, including wars, conquest, and treaties.
As non-parties to the United States Constitution, Native American tribes are not subject to the restrictions contained in the Bill of Rights or subsequent amendments. This means that Native Americans are treated as a third sovereign, operating within a limited but distinct sphere.
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Native Americans are mentioned in the Fourteenth Amendment
The United States Constitution specifically mentions Native Americans three times. Two of these references are found in Article I, and the third is in the Fourteenth Amendment.
Article I, Section 2, Clause 3 states that "Representatives and direct Taxes shall be apportioned among the several States... excluding Indians not taxed". This means that Native Americans who were not taxed were not counted in the formula for representation in the U.S. House of Representatives.
The Fourteenth Amendment also addresses the handling of "Indians not taxed" in the apportionment of seats.
According to Story's Commentaries on the U.S. Constitution, "There were Indians, also, in several, and probably in most, of the states at that period, who were not treated as citizens, and yet, who did not form a part of independent communities or tribes, exercising general sovereignty and powers of government within the boundaries of the states".
As non-parties to the United States Constitution, Native American tribes are not subject to the restrictions contained in the Bill of Rights or subsequent amendments.
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Frequently asked questions
Three times.
Article I, Section 2, Clause 3 and the Section 2 of the Fourteenth Amendment.
It addresses the handling of "Indians not taxed" in the apportionment of the seats of the House of Representatives according to population.
It empowers Congress to "regulate commerce with foreign nations…states…and with the Indian tribes."
No.
