Indigenous People: Where In The Constitution?

The United States Constitution mentions Indigenous people three times, specifically referring to Indians not taxed in Article I, Section 2, Clause 3, and Section 2 of the Fourteenth Amendment. Article I, Section 8, Clause 3, empowers Congress to regulate commerce with foreign nations, states, and Indian tribes. However, Indigenous nations were not included in the creation of federal or state constitutions and have never been formally incorporated into these systems. This has resulted in a unique, extra-constitutional relationship with the government, leaving them vulnerable to exploitation and neglect. Other countries, like Canada and Mexico, have enshrined Indigenous rights within their constitutions, but the U.S. has not followed suit, despite efforts by Native scholars and activists to change this.

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Indigenous people and the US Constitution

The United States Constitution mentions Native American tribes three times. Firstly, Article I originally stated that "Indians not taxed" couldn’t be counted in the voting population of states. Secondly, the 14th amendment states that it has no effect on the status of Indian tribes within the United States. Thirdly, it is unclear what the third mention is.

Indigenous peoples have always had their own, separate legal systems that rested on fundamentally different principles, worldviews, authorities, and forms of recordation than Anglo-American law. The 574 federally acknowledged Native nations inhabiting what is now the United States occupy a distinctive political and legal niche within the larger society. They are recognized as the original sovereigns of North America by virtue of their continuous existence and as documented in hundreds of formal diplomatic arrangements—often termed treaties.

The extra-constitutional status of Indigenous peoples within the US has always been both a blessing and a curse. Even Natives in their individual capacity as American citizens are not entitled to the full constitutional protection of their tribally-based rights, since that document and its amendments do not apply to Native nations. Tribes remain immune from the reach of the federal Constitution. However, there is great risk in relinquishing their status as extra-constitutional sovereigns through the act of the adoption of an Indigenous-defining amendment.

The idea that tribes have an inherent right to govern themselves is at the foundation of their constitutional status – the power is not delegated by congressional acts. Congress can, however, limit tribal sovereignty. Unless a treaty or federal statute removes a power, however, the tribe is assumed to possess it.

Indigenous people and the Australian Constitution

The Australian Constitution does not explicitly recognise Aboriginal and Torres Strait Islander peoples. In 1967, a referendum was held, and Australians agreed to change the Constitution to modify section 51 (xxvi), which prevented the Australian Parliament from making laws for Aboriginal and Torres Strait Islander peoples. This change allowed the Parliament to make laws for these communities, but it did not recognise them in the Constitution.

In 2023, another referendum was held, asking Australians if they approved a proposal to alter the Constitution to recognise the First Peoples of Australia by establishing an Aboriginal and Torres Strait Islander Voice. Unfortunately, the proposal was not agreed upon.

The lack of recognition of Indigenous peoples in Australia's Constitution stands in contrast to the approach taken by some other countries. For example, in 2007, the United Nations adopted the Declaration on the Rights of Indigenous People ("The Declaration"), which Australia initially voted against. However, in 2010, President Barack Obama declared that the U.S. government supported it. While the requirements of The Declaration have not been adopted into U.S. law, it represents a step towards recognising and protecting the rights of Indigenous people internationally.

The ongoing absence of recognition for Aboriginal and Torres Strait Islander peoples in Australia's Constitution highlights the need for further progress in ensuring that the nation's founding document reflects the diversity and history of all Australians.

Indigenous rights and recognition

In the United States, the Constitution does contain references to Indigenous people, specifically mentioning "Indians not taxed" in Article I, Section 2, Clause 3, and Section 2 of the Fourteenth Amendment. Additionally, Article I, Section 8, Clause 3, empowers Congress to "regulate commerce with foreign nations, states, and Indian tribes." However, it is important to note that Indigenous nations were not included in the drafting of the Constitution and have never been formally institutionalized within federal or state constitutions. This has resulted in a unique extra-constitutional relationship between Indigenous polities and the government, leaving them vulnerable to exploitation and neglect.

The history of Indigenous peoples' engagement with the U.S. Constitution is complex. Indigenous peoples had their own legal systems, worldviews, and forms of record-keeping that differed significantly from Anglo-American law. They resisted challenges to their diplomatic constitution and experienced a post-revolutionary period of turmoil. Despite their treaty-affirmed extra-constitutional status, Indigenous peoples' authority and land rights have been diminished over time by federal and state powers. Additionally, like other people of color, Indigenous peoples in the U.S. have faced direct and systemic racism and have had to fight for their civil, political, and economic rights.

In Australia, the situation is somewhat similar. The Commonwealth of Australia Constitution Act of 1900 does not recognize Aboriginal and Torres Strait Islander peoples. A referendum held in 2023 sought to alter the Constitution to recognize the First Peoples of Australia, but the proposal was not agreed upon. However, in 1967, a referendum led to a change in the Constitution, modifying a section that prevented the Australian Parliament from making laws for Aboriginal people, which was a step towards recognition and self-determination.

On a global scale, the United Nations adopted the Declaration on the Rights of Indigenous Peoples in 2007, which the United States initially voted against. In 2010, President Barack Obama declared support for the Declaration, but as of 2022, its requirements had not been adopted into U.S. law. This highlights the ongoing struggle for Indigenous rights and recognition, even in the face of international efforts to promote and protect those rights.

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Tribal sovereignty

The United States Constitution mentions Native American tribes three times, and Native peoples are named specifically in two sections of Article 1. However, Indigenous nations were not involved in the construction of the US federal or state constitutions and have never been formally incorporated into these systems. This means that they possess a unique, extra-constitutional relationship with these governments.

The US recognizes 574 tribal nations, 229 of which are in Alaska. Each is a government entity with its own policies, processes and system of governance. Tribal sovereignty is the inherent authority of tribes to govern themselves, allowing them to preserve their cultures and traditional ways of life. Tribal sovereignty is dependent on, and subordinate to, only the federal government, not states. Tribes are sovereign over tribal members and tribal land.

Tribal governments are responsible for a broad range of governmental activities on tribal lands, including education, law enforcement, judicial systems, healthcare, environmental protection, natural resource management, and the development and maintenance of basic infrastructure.

In 1832, the US Supreme Court affirmed in Worcester v. Georgia that the Cherokee Nation was not subject to state regulation. Today, states have no authority over tribes unless Congress gives it to them. In 1934, tribal authority, rather than United States authority, gave the tribal courts legitimacy. John Collier and Nathan Margold wrote the solicitor's opinion, "Powers of Indian Tribes", which stated that "Conquest has brought the Indian tribes under the control of Congress, but except as Congress has expressly restricted or limited the internal powers of sovereignty vested in the Indian tribes such powers are still vested in the respective tribes and may be exercised by their duly constituted organs of government."

Indigenous people and citizenship

Indigenous people, also referred to as Native Americans or American Indians, have had a unique and complex relationship with the United States Constitution and the concept of citizenship. While the Constitution does not explicitly use the term "Indigenous people", it specifically mentions American Indians three times. Notably, Indigenous nations were not included in the construction of the Constitution and have never been formally institutionalised within federal or state constitutions. This has resulted in a distinct extra-constitutional relationship with the government.

Historically, Indigenous people have had their own separate legal systems, worldviews, and forms of recordation that differ significantly from Anglo-American law. Despite this, the Constitution does reference Native peoples in specific sections. Article I, also known as the "`diplomatic constitution'", addresses the handling of "Indians not taxed" in the apportionment of seats in the House of Representatives. This clause suggests that Indians are exempt from taxation. Additionally, Article I, Section 8, Clause 3 empowers Congress to "regulate commerce with foreign nations, states, and Indian tribes". This clause establishes that Indian tribes are separate from federal or state governments, and states do not have the authority to regulate commerce or interactions with the tribes.

The issue of citizenship for Indigenous people in the United States has been a contentious and evolving topic. Originally, the Constitution's Article I stated that "Indians not taxed" could not be counted in the voting population of states, while slaves were counted as three-fifths of a person. This exclusionary clause set a precedent for the complicated citizenship status of Indigenous people. In 1857, the Dred Scott decision by Chief Justice Roger Taney argued that American Indians, unlike enslaved blacks, could become citizens under congressional and legal supervision. However, the ratification of the 14th Amendment in 1868, which granted citizenship to all persons born or naturalized in the United States, immediately excluded most American Indians from citizenship.

It is important to note that the interpretation of the 14th Amendment regarding American Indian citizenship was ambiguous, leading to further confusion. The Dawes Act of 1887 marked a significant shift, offering American citizenship to Native Americans who accepted individual land grants, which also resulted in the loss of communal tribal lands. In 1924, a pivotal moment arrived when all American Indians were granted United States citizenship. Despite this milestone, Native nations continue to face challenges due to their extra-constitutional status. They are vulnerable to the exercise of Congressional plenary power, which can threaten their political status and proprietary rights.

While the United States has voted against the UN Declaration on the Rights of Indigenous People, efforts towards self-determination and sovereignty for Indigenous people have gained momentum. The modern era has seen a refinement of the competing jurisdictions of tribal nations, states, and the federal government. Additionally, the recognition and inclusion of Indigenous voices in constitutional histories and narratives are becoming increasingly important, aiming for a more inclusive understanding of the past and present.

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