American Indians and the Constitution

• Author: Carole E. Goldberg-Ambrose
• Pages: 79-81

Page 79

Indians are mentioned only three times in the Constitution. Yet the Supreme Court has developed a vast body of law defining the status of Indians and tribes in our federal system. This law makes use of constitutional sources but also 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. It reveals that our government is not only, as is popularly believed, one of dual sovereigns, federal and state. There is also a third sovereign, consisting of Indian tribes, operating within a limited but distinct sphere.

The three references to Indians in the Constitution presage this body of law. Two of the three are found in Article I and the FOURTEENTH AMENDMENT, which exclude "Indians not taxed" from the counts for apportioning DIRECT TAXES and representatives to Congress among the states. 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" was not a grant of tax exemption. Rather, it described the status of Indians at the time the Constitution was written. Indians were not taxed because generally they were treated as outside the American body politic. They were not United States citizens, and they were not governed by ordinary federal and state legislation. Tribal laws, treaties with the United States, and special federal Indian legislation governed their affairs. Only the few Indians who had severed their tribal relations and come to live in non-Indian communities were treated as appropriate for counting in the constitutionally mandated apportionment.

The phrase probably was chosen because the apportionment served partly to allocate tax burdens. That aspect of the apportionment has lost significance, however, since the SIXTEENTH AMENDMENT made it unnecessary for the federal government to apportion income taxes.

The exclusion of "Indians not taxed" from all aspects of apportionment has, in fact, been mooted by changes in the status of American Indians since ratification of the Fourteenth Amendment in 1868. Treaty-making with Indian tribes ended in 1871, and in 1924 all native-born Indians who had not already been made citizens by federal statute were naturalized. Indians were held subject to federal statutes, including tax laws, except where special Indian legislation or...