Introduction to American Indian Law and the Constitution

Professor Kevin Washburn
University of Minnesota Law School
kkw@umn.edu

American Indian Tribes in the American Constitutional Structure

American Indian tribes occupy a unique position in the political and governmental structure of the United States.  The Constitution recognizes them as distinct from states and yet as also distinct from foreign nations.  It also recognized that, at the time of the drafting and until well after the Fourteenth Amendment, Indians were not citizens of the United States and therefore not subject to federal taxes and the federal political apportionment regime. 

Key Questions and Answers About American Indian Law and Policy:

What happened to the sovereign authority of Indian tribes as the United States was forming?

When Europeans arrived in America, Indian tribes were self-governing communities that managed their own affairs and exercised the same sovereign powers as other nations.  From the beginning, England, Spain, and France dealt with Indians as they did other foreign sovereign nations.  They sent delegations to negotiate and often entered into treaties with the Indian tribes.  To the Europeans, however, the status of the Indian tribes was not quite the same as European nations.  For example, the European view, which became known as the Doctrine of Discovery reflected the notion that the first European nation to “discover” lands in the new world had the right to exercise governmental power over the land.  This right was not absolute, though, and it was not quite the same as ownership because the European nations also believed that the Indians had the right to continue to occupy the lands until this right was extinguished by sale or by treaty. 

Because the Indian tribes had important native resources, including sophisticated knowledge of North American agriculture and geography, and also because they had tremendous military strength, Indian tribes served as powerful allies as the European nations battled one another for dominion over North American lands.  Because wars against the Indians were expensive in resources and human lives, the British (and later the colonial American government) sought to deal with Indian tribes through treaties and through voluntary means rather than warfare.  Though it is common to think of Indian tribes as being conquered in military battles, most of the disputes over land between tribes and the federal government were resolved peacefully through the negotiation of Indian treaties.  Indian treaties have the same force as other federal laws.  Through these treaties, most of the land in the United States was purchased from Indian tribes.  Indeed, little land was actually taken by force.  Moreover, most of the Indian tribes that battled with the federal government signed treaties that allowed them to continue to exist as sovereign nations, not entirely unlike Germany and Japan after World War II. 

Often, however, the federal government violated the treaties it signed with Indian tribes.  While the Supreme Court has recognized the unilateral right of Congress to abrogate Indian treaties, tribes have occasionally successfully sued the federal government in court for damages based on these broken promises.  Most of the Indian tribes that signed treaties with the United States still exist today. 

Many Indian tribes ceded large tracts of land to the United States in treaties and other agreements in the 1800s and early 1900s.  At the time of these cessions, the tribes often retained large tracts of land for themselves.  These lands that Indian tribes “reserved” for themselves from these cessions to the federal government are called Indian reservations.  On Indian reservations, Indian tribes exercise governmental powers, much like a county or municipal government exercises governmental authority within a county or city, with the exception that an Indian tribal authority is strongest when it is being exercised over Indians.  Indian tribal governments have more limited authority over non-Indians.  The collective governmental powers of an Indian tribe are known as tribal sovereignty.

What is the relationship between Indian tribes and the federal government and states? 

The Supreme Court recognizes Indian tribes as sovereign nations that pre-existed the states and the United States.  Though Indian tribes existed before Constitution, they were not invited to ratify the Constitution and they were not parties to its formation.  Although the Constitution does not contain a clear explanation of the relationship between the United States and Indian tribes, it does allocate certain powers to Congress and the President that relate to Indian tribes.  First, the Commerce Clause states: “Congress shall have the power to regulate commerce with foreign nations, and among the several states, and with the Indian tribes.”  Congress has repeatedly passed laws related to Indian tribes under this commerce clause power  

Second, the President has the power to negotiate treaties, with the advice and consent of the Senate.  The President negotiated hundreds of treaties with Indian tribes in the first century of the United States.  These treaties have the force of federal law.  During the 18^th Century, however, the House of Representatives grew weary of being left out of the treaty process involving Indian tribes.  Since the Senate ratifies treaties, but the House is involved in federal monetary appropriations, the President and the Senate were making agreements that could not be fulfilled unless the House agreed to the appropriation of money to meet the agreements.  In 1871, the House threatened to withhold the appropriations necessary to fulfill the treaties unless it could be involved in ratifying agreements with the Indians tribes.  Congress thereafter passed a law providing that there would be no new treaties with Indian tribes.  Congress then started dealing with Indian issues by enacting statutes in lieu of ratifying treaties. 

In addition to the treaty power and the commerce clause power, Chief Justice John Marshall recognized a third source of federal power over Indian tribes.  Justice Marshall thought of Indian tribes not as foreign nations, but as “domestic dependent nations.”  Justice Marshall used the word “domestic” because they are not foreign; rather, they are nations within a nation.  He used the word “dependent” because he saw them as primitive nations that were under the guardianship or the responsibility of the federal government.  Because of this guardian relationship, the Supreme Court recognized that there was a duty of protection owed to the tribes by the United States.  This duty, sometimes called the federal government’s trust responsibility toward the Indians, continues to exist today.

In an 1832 Supreme Court case, entitled Worcester v. Georgia, Chief Justice John Marshall held that, one tribe of Indians, the Cherokee Nation, “is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of congress. The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States.”  In other words, dealing with Indian tribes was an exclusive federal function, not a state function.  This principle from Worcester remains, though the notion that state law has no force within Indian reservations has been eroded.  States now are recognized as having authority over non-Indians within Indian reservations.

What is the status of Indian tribes in the United States today?

During the past two centuries, Congress, the President and the Supreme Court have vacillated between two competing policies: one that respects the separate sovereignty and self-determination of the Indian tribes that pre-existed the United States and, conversely, one that seeks complete integration of Indians into the national polity and dismantling of tribal governments.  Neither view has ever fully prevailed in federal policy debates. 

Indians and Indian tribes have long preferred the policy of tribal self-determination and have resisted efforts to take away tribal sovereign (or governmental) powers.  While tribes have sought to continue exercising governmental powers, state governments have often times strongly resisted the notion that the tribes could exist as separate sovereigns within state borders.  States have frequently expressed the notion that Indians should be assimilated completely into state governmental systems and that Indian governmental systems should fade away.  In this vein, states have often sought greater control over Indians on Indian reservations, and have sometimes succeeded in convincing Congress to share control over Indian reservations with state governments, at least for some purposes, such as law enforcement and criminal justice.  Yet, because of their desire to continue long held traditions and culture that served them well for centuries, the tribes have successfully resisted efforts by the federal government to encourage complete assimilation.  As a result, despite several expensive and time-consuming attempts to promote assimilation through coercive laws or persuasive monetary appropriations, the federal government has never fully succeeded in convincing Indians to abandon their tribal governments.  Tribes have been no more willing to give up their governing structures, institutions and cultures as states have been.

Today, the official policy of Congress and the President is to support “self-determination” for Indian tribes.  The federal government has a “government-to-government” relationship with each of the 565 Indian tribal governments in the United States that are officially recognized by the federal government.  Each of these tribes has different cultural values.  Though the federal government no longer signs treaties with Indian tribes, Congress has enacted laws requiring the federal government to consult with tribes when it makes decisions that affect them.

Indians are now considered to be citizens of the United States and the states in which they reside, but they are also citizens of their Indian tribe and are subject to rights and responsibilities of tribal membership.  Indian tribes have developed their own forms of government consistent with their own diverse cultures that are sometimes similar to states and the federal government, though many differ in crucial ways.  Most tribal governments have courts, legislative bodies and executive officials, though the weight given to each branch of government may differ dramatically. 

Some small tribes, for example, do not have a representational legislative body like Congress or a state legislature, but instead have governing “general councils” that include each of the adult members of the tribe.  This theoretically produces a purer system of a democracy than the American system because it is constitutes direct democracy rather than representative democracy.

* * *