American Indians and the Constitution (Update)

• Author: Vine Deloria
• Pages: 81-83

Page 81

American Indians are a casual part of the text of the Constitution. They are mentioned primarily in passing in the apportionment clause of section 2 and the COMMERCE CLAUSE of section 8 of Article I. The language of apportionment is again found in the FOURTEENTH AMENDMENT. In all three instances, the primary purpose was to define the powers of Congress and limitations on the states, not to provide a clear understanding of the relationship between the United States and the Indian tribes then living within and bordering the United States. Today, a large body of federal law governs relations among the federal government, the states, and the Indian tribes. The main constitutional foundations for these enactments are Congress's power to regulate commerce "with the Indian tribes" (construed to reach transactions with individual Indians), the NECESSARY AND PROPER CLAUSE, and the TREATY POWER.

In colonial times, the individual colonies dealt with Indians by royal authority or on their own initiative, and the power to deal with Indians on an individual state basis was preserved in the ARTICLES OF CONFEDERATION. Land purchases by states were permissible, but conducting war with Indian tribes required the consent of the CONTINENTAL CONGRESS. The English and French method for dealing with Indians had been the negotiation of treaties, and the United States continued the practice. The treaty clause of Article II, section 2 was employed to make treaties with Indian tribes, and the states were prohibited from making treaties by Article I, section 10. State treaties made with tribes before the Constitution was adopted remained valid, and in fact, some state treaties made before 1789 are still in force. While Indian treaty-making was a formal practice of the United States until 1871, Congress had been legislating concerning Indian affairs since the earliest days, beginning with the Non-Intercourse Act of 1793, which regulated trade with Indians.

In 1870, the SENATE JUDICIARY COMMITTEE issued a report that declared Indians to be subject to tribal JURISDICTION and to have allegiance to their own nations. The next year, however, the U.S. HOUSE OF REPRESENTATIVES insisted that the power of the President to recognize Indians for treaty-making purposes should be curtailed, and the U.S. SENATE agreed. Thereafter, agreements and contracts having the legal status of treaties were used to deal with Indians. More recently, congressional LEGISLATION has been used to resolve long-standing problems involving Indian rights and claims.

Two MARSHALL COURT decisions, Cherokee Nation v. Georgia (1831) and Worcestor v. Georgia (1832), created the concept of the "domestic dependent nation" which was used to characterize the status of Indian tribes with respect to the federal government. Johnson v. McIntosh (1823) bolstered the idea that the United States had a special responsibility for the welfare of American Indians. This responsibility took both legal and political forms. On the legal side, Delaware Tribal Business Committee v. Weeks (1977) held that the DUE PROCESS clause...