Isabella Carter
The United States Constitution mentions Native American tribes only three times, with Indians being referred to as not taxed. This exclusion from taxation meant that Indians were not considered citizens and therefore could not be counted in the voting population of states. Despite this, the Supreme Court has developed a body of law defining the status of Indians and tribes in the federal system, acknowledging their sovereignty and their right to self-govern. This right to self-governance is not derived from congressional acts but is inherent, and while Congress can limit tribal sovereignty, it is assumed that the tribe possesses all powers unless restricted by a treaty or federal statute.
| Characteristics | Values |
|---|---|
| Number of times American Indians are mentioned in the Constitution | 3 |
| Reason for limited mentions | Indians were independent sovereigns and could align with any country they wished |
| American Indians in the voting population | "Indians not taxed" couldn't be counted in the voting population of states |
| American Indians in the Constitution | Held subject to federal statutes, including tax laws, except where special Indian legislation or treaties offered exemptions |
| Tribal sovereignty | Tribal authority on Indian land is organic and not granted by the states in which Indian lands are located |
| Plenary power doctrine | Congress has ultimate authority with regard to matters affecting the Indian tribes |
| Trust relationship | The federal government has a "duty to protect" the tribes |
| Treaty-making with Indian tribes ended | 1871 |
| Citizenship | All American Indians were granted US citizenship in 1924 |
| Voting rights | The Indian Citizenship Act did not offer full protection of voting rights to Indians. In 1948, Arizona and New Mexico barred many American Indians from voting |
| Number of federally acknowledged Native nations | 574 |
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What You'll Learn
- The US Constitution mentions Native Americans only three times
- Native Americans were excluded from the voting population
- US federal law has plenary power over Indigenous rights and governments
- Native Americans were granted US citizenship in 1924
- Native American nations are recognised as original sovereigns
The US Constitution mentions Native Americans only three times
The three references to Native Americans in the Constitution are found in Article I and the Fourteenth Amendment. The first two references exclude "Indians not taxed" from the counts for apportioning direct taxes and representatives to Congress among the states. The third reference, in Article I, Section 8, states that "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes." This determined that Indian tribes were separate from federal or state governments and that the states did not have the power to regulate commerce with the tribes.
The explicit references to Indians in the Constitution reflect the situation that confronted the United States at the time they were written. When the U.S. Constitution was adopted, Indigenous nations were independent sovereigns, free to align themselves with any country or remain nonaligned. Benjamin Franklin, John Adams, and Thomas Jefferson were closely involved in negotiating and printing treaties with Native nations, including the Iroquois Confederacy, and studied their systems of governance.
Despite the limited number of references to Native Americans in the Constitution, the federal government has recognized the sovereignty of tribal nations and stressed the government-to-government relations between the United States and Federally recognized tribes. Native American self-determination has replaced Indian termination policy as the official United States policy towards Native Americans, promoting the ability of tribes to self-govern and make decisions concerning their people.
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Native Americans were excluded from the voting population
The United States Constitution mentions Native American tribes only three times. One of these mentions, in Article I, excludes "Indians not taxed" from the voting population of states. This exclusion was based on the premise that Native Americans were not considered citizens of the United States, a status that persisted well into the 20th century.
The unique political and legal position of Native Americans within the United States is a result of their recognition as the original sovereigns of North America. Before the United States assumed primacy among the sovereigns competing for midcontinent Indigenous allegiance after the War of 1812, Indigenous nations were wholly free to align themselves with any country they wished or remain nonaligned. This recognition of Indigenous sovereignty is reflected in the Constitution, which states that ""Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes".
The exclusion of "Indians not taxed" from the voting population in Article I of the Constitution was not the only instance of Native Americans being excluded from the political process. In 1870, the Senate Judiciary Committee clarified that the 14th Amendment, ratified in 1868, had no effect on the status of Native Americans within the United States. This clarification was made due to confusion regarding Native American citizenship after the amendment's ratification. According to the 1870 census, only 8% of Native Americans were classified as "taxed" and eligible for citizenship, leaving 92% of the population ineligible.
Despite the Indian Citizenship Act of 1924, which granted citizenship to all Native Americans born within the territorial limits of the United States, Native Americans continued to face barriers to voting. As late as 1948, Arizona and New Mexico had laws that prevented many Native Americans from voting. Native Americans also faced obstacles such as Jim Crow-like tactics and poll taxes, similar to those experienced by Black Americans. It was not until the passage of the Civil Rights Act of 1965 that these barriers were officially removed.
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US federal law has plenary power over Indigenous rights and governments
The US Constitution mentions Indians only three times. However, the Supreme Court has developed a vast body of law defining the status of Indians and tribes in the federal system. This body of law draws on constitutional sources, as well as the history between Indians and the federal government, including wars, treaties, and the assumption of a protectorate relationship by the government.
Article One, Section 8 of the US Constitution refers to the power of Congress to regulate commerce with Indian tribes. This section has been interpreted by the Supreme Court to mean that Congress has exclusive rights and powers to regulate affairs and trade with Indian tribes. The power that Congress has over Indian tribes is referred to as 'plenary power', which means that Congress has the same power and authority over Indian affairs as States have over the affairs of their citizens.
The plenary power of Congress includes the ability to limit, modify, or eliminate powers that tribes possess, as well as the ability to terminate tribal status. This power is derived from the Indian Commerce Clause of the Constitution. However, it is not unlimited, as the Supreme Court can review Congressional actions regarding tribes.
The federal government has an obligation to protect tribes and their way of life, as well as to provide services such as education, housing, and healthcare to ensure their survival and welfare. This is known as the Federal Trust Responsibility. Additionally, the Indian Civil Rights Act of 1968, which is similar to the US Bill of Rights, applies to all tribes in the US. The Act requires tribes to provide due process and prohibits cruel or unusual punishment.
Despite these protections, federally recognized Native communities are vulnerable to the exercise of plenary power, which could diminish or eliminate their political identities or proprietary rights. Native nations are extra-constitutional and lack protections from Congressional plenary power, even for individuals who are American citizens.
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Native Americans were granted US citizenship in 1924
The United States Constitution, adopted in 1787, did not recognize American Indians as citizens. At the time, Indigenous nations were independent sovereigns, free to align themselves with any country or remain nonaligned. The Constitution mentions Indians only three times, and the 14th Amendment, ratified in 1868, excluded most Native Americans from citizenship.
The Indian Citizenship Act of 1924 finally granted citizenship to Native Americans, marking the end of a long debate and struggle over birthright citizenship for this community. The Act, proposed by U.S. Representative Homer P. Snyder and signed into law by President Calvin Coolidge on June 2, 1924, declared that Indigenous persons born within the United States are citizens. This Act recognized that Indigenous people did not have to apply for citizenship and could maintain their tribal citizenship alongside their new status as US citizens.
However, it is important to note that even after the Indian Citizenship Act, Native Americans still faced barriers to voting and full political participation. The Act itself did not grant immediate voting rights to Indigenous people, and as late as 1948, certain states had laws that prevented many Native Americans from voting. Additionally, Native nations remained extra-constitutional, leaving them vulnerable to the plenary power of Congress and without full constitutional protection of their tribally-based rights.
The unique political and legal status of Native Americans within the United States has been a complex and evolving issue. While the Indian Citizenship Act of 1924 represented a significant step towards recognizing the rights of Native Americans, ongoing activism and legal efforts have continued to shape the relationship between Indigenous communities and the US government.
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Native American nations are recognised as original sovereigns
Native Americans have a long and complex history with the United States, and their recognition as sovereign nations is a critical aspect of their relationship. Native American nations are recognised as the original sovereigns of North America, a status that is affirmed by their continuous existence and hundreds of formal diplomatic arrangements with multiple international states. This recognition is reflected in the United States Constitution, which mentions Native American tribes three times.
The concept of sovereignty holds various meanings for Indigenous people globally, encompassing their longstanding autonomy and inherent self-determination. For Native American nations, sovereignty includes the right to govern themselves, establish their own form of government, determine membership requirements, and enact legislation. The U.S. Constitution recognises Indian tribes as distinct governments, and they possess the same powers as federal and state governments to regulate their internal affairs.
The struggle for recognition as sovereign nations has been a significant aspect of the Native American experience. Initially, Native American nations were viewed as independent sovereigns, free to align themselves with any country or remain non-aligned. However, with the expansion of European powers and the establishment of the United States, tribal populations declined, and tribal sovereignty was gradually eroded. Despite this, Native American nations have persistently asserted their sovereignty and sought to protect their rights and lands.
The federal Indian trust responsibility is a legal obligation under which the United States has assumed a position of primacy in its relationship with Native American tribes. This obligation includes protecting tribal treaty rights, lands, assets, and resources. While Native American nations are limited in their access to U.S. courts to bring cases against individual states, they do enjoy immunity from many lawsuits as sovereign nations.
The recognition of Native American nations as sovereign has evolved over time, with the 1970s marking a shift towards Native American self-determination as the official policy of the United States. This shift promoted the ability of tribes to self-govern and make decisions concerning their people. Additionally, Native Americans have actively pursued political independence and the revival of treaty processes to strengthen their sovereignty. Today, the United States recognises 574 tribal nations, 227 of which are in Alaska, and these nations continue to assert their sovereignty and protect their rights within the context of their unique political and legal niche in American society.
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Frequently asked questions
Indians are mentioned only three times in the Constitution. The three references to Indians in the Constitution presage a body of law that draws heavily on the history between Indians and the federal government, including wars, conquest, treaties, and the assumption by the government of a protectorate relationship toward the tribes.
Article I, Section 2, Clause 3 of the Constitution 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".
The US recognizes 574 tribal nations, 227 of which are in Alaska. The National Congress of American Indians explains that "Native peoples and governments have inherent rights and a political relationship with the U.S. government that does not derive from race or ethnicity." American Indians are recognized as the original sovereigns of North America by virtue of their continuous existence and as documented in hundreds of formal diplomatic arrangements.
The relationship between the US government and American Indians has evolved since the Constitution was adopted. Initially, Indigenous nations were wholly free to align themselves with any country they wished or remain non-aligned. Over time, the US government asserted more control, and in the 1880s, it claimed plenary authority over Indigenous governments, resources, and rights. The Indian Reorganization Act of 1934 allowed Indian nations to select from a catalogue of constitutional documents that enumerated powers for tribes and tribal councils. In the 1970s, Native American self-determination replaced Indian termination policy as the official US policy towards Native Americans, promoting tribal self-governance and decision-making.
