American Indians and the Constitution

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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 treaties offered exemptions. By 1940 the Department of the Interior officially recognized that there no longer were Indians who can properly be considered "Indians not taxed."

The commerce clause reference to Indians, by contrast, continues to have real force. Since the abandonment of federal treaty-making with Indian tribes in 1871, it has been the primary constitutional provision supporting exercises of federal power over Indians as such. Notwithstanding its reference to commerce "with the Indian Tribes," the clause also applies to transactions with individual tribal Indians, including some off-reservation transactions, and to non-Indians doing business on reservations. Congress's Article I power to regulate "the Territory or other Property belonging to the United States" supplements the treaty and Indian commerce clause powers. Most Indian lands are held in fee by the United States, subject to a beneficial tribal interest in reservations set aside by treaty or executive order, and to the Indians' right of occupancy. Congress's power to make war was also invoked in the early years of dealing with the Indians.

This combination of powers, read together with the necessary and proper clause of Article I and the supremacy clause of Article VI, has been the foundation of a complex structure of federal, state, and tribal relations. The federal government's power over Indian affairs is extensive and preemptive of state power. (See cherokee indian cases, 1831–1832.) In the nineteenth century the courts called the federal power "plenary," and challenges to its exercise were labeled political questions. In fact this federal authority is a general police power, comparable to Congress's power over the district of columbia and the territories. In Delaware Tribal Business Committee v. Weeks (1977), the Court held that ordinary constitutional strictures apply to federal Indian legislation, and that, under the Fifth Amendment's due process clause in particular, such legislation must be reviewed to determine whether it is "tied rationally to the fulfillment of Congress's unique obligation toward the Indians." Even though this trust obligation has not prevented Congress from enacting laws contrary to the best interests of Indians, the Supreme Court now insists upon some determination that Indians will be protected when disadvantageous laws are passed. Thus, for example, Congress may not take Indian property for a non-Indian use without paying just compensation, and it may not arbitrarily give tribal assets to some tribal members but not others.

A law that satisfies the "tied rationally" test is not constitutionally defective under the equal protection requirement of the Fifth Amendment's due process clause simply because it singles out Indians for special treatment. For example, Congress may establish a preference for employment of tribal Indians with the Bureau of Indian Affairs, or may subject Indians to harsher punishments than non-Indians would suffer in state court for doing the same acts. Such legislation is held not to constitute an otherwise forbidden racial classification, because of the separate status of Indians under the Constitution (i.e., their subjection to federal and tribal rather than state jurisdiction).

Although Congress has enacted laws governing a wide variety of activities on Indian reservations, there is no detailed code comparable to the District of Columbia's. In the absence of such federal legislation, states and Indian tribes have competed for control. The Supreme Court has repeatedly upheld tribal independence from state jurisdiction, basing its decisions on preemptive federal power over Indian affairs and the broad federal policy of setting aside lands for tribal self-government. Although in cases outside Indian law the Supreme Court has refused to apply the preemption doctrine to exclude the operation of state law where congressional intent was doubtful, in Indian cases it has inferred preemptive intent from the general purposes of treaties and statutes to protect tribal resources and promote tribal sovereignty. Thus, absent clear and express congressional consent, states may not regulate non-Indian activities that affect tribal self-government. Despite their lack of authority over reservation Indians, states are prohibited by the Fourteenth Amendment from denying Indians rights available under state law.

Within their realm of authority, Indian tribes exercise powers of self-government, not because of any delegation of powers, but rather because of their original, un-relinquished tribal sovereignty. The Supreme Court recognized this sovereign status of Indian tribes in United States v. Wheeler (1978), which held that it would not constitute double jeopardy to try an Indian in federal court after he had been convicted in tribal court because the court systems belong to separate sovereigns. The Constitution has never been invoked successfully to prevent Congress from abolishing tribal authority in whole or in part; but the Supreme Court has required a clear and specific expression of congressional intent before recognizing the termination of tribal powers. This canon of construction was established to implement the federal government's obligation to protect the Indian tribes. Some tribal powers were necessarily relinquished when the United States incorporated the tribes, such as the power to carry on foreign relations, the power to transfer Indian land without consent of the United States, and the power to prosecute non-Indians for crimes. These relinquished powers are few, however, and Congress could restore them if it chose.

Because the bill of rights limits only the federal government and the Fourteenth Amendment limits only the states, Indian tribes need not follow their dictates. However, in 1968, Congress enacted the Indian Civil Rights Act, which conferred some but not all protections of the Bill of Rights on individuals subject to tribal authority.

Carole E. Goldbergambrose


Cohen, F. 1982 Handbook of Federal Indian Law. Indianapolis: Bobbs-Merrill.

Getches, D. and Wilkinson, C. 1979 Federal Indian Law: Cases and Materials. St. Paul, Minn.: West Publishing Co.

Price, M. 1973 Law and the American Indian: Readings, Notes and Cases. Indianapolis: Bobbs-Merrill.

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American Indians and the Constitution

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American Indians and the Constitution