American Indians and the Constitution (Update)

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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 of the Fifth Amendment required Congress, in enacting Indian legislation, to show that it bore a rational relation to fulfilling the United States' trust obligation. This trust responsibility also produced a legal obligation of federal administrative agencies to protect tribal interests when those interests might be compromised by government action, such as the licensing of a dam with adverse environmental effects. On the political side, the idea of trust responsibility gradually blossomed into massive programs to assist Indians in adjusting to the economic and political institutions of the West. The Supreme Court confused the issue considerably in United States v. Kagama (1886) when it invoked this trust responsibility as a basis of congressional power, even as it ruled that the commerce clause did not justify the establishment of a criminal justice system on an Indian reservation. In concluding that the trust responsibility gave the federal government such powers, the Court appeared to give Congress virtually unlimited power over Indians.

The Constitution did not, of its own force, limit the powers of tribal governments. In Talton v. Mayes (1896), the Court upheld the laws of the Cherokee Nation regarding grand jury composition on the grounds that the Cherokees were self-governing, and had been so since before the adoption of the Constitution. Therefore, only the powers the Indian nation had specifically surrendered were to be subject to constitutional protection. This theory was reaffirmed sixty years later by a lower federal court in Native American Church v. Navajo Tribal Council (1959), laying the groundwork for modern tribal sovereignty claims that tribes are separate political entities with a status higher than states.

The Indian Civil Rights Act of 1968 reduced this political isolation, imposing on tribes some of the guarantees of the federal Constitution in their dealings with individuals, including their own citizens. religious liberty was the most notable constitutional guarantee not imposed on Indian tribes, because some of them were traditional theocracies. This law was enacted in response to a lower court ruling in 1965, Colliflower v. Garland, in which it was decided that an Indian could appeal a tribal court decision to a federal district court on the ground that the tribal court was partially a creation of the national government.

As a rule, constitutional guarantees have not been interpreted to protect American Indians directly. Although the thirteenth amendment did away with slavery, Congress had to pass a special act to prevent Navajo "peonage" and end the slave trade in captured children in the Southwest. Elk v. Wilkins (1884) ruled that even though Indians were born within the United States, they had to have a definite act by the United States to qualify as citizens and voters under the Fourteenth Amendment and the fifteenth amendment; abandonment by the individual of tribal relations was insufficient by itself to sever his or her tribal membership. Neither the prohibition amendment nor its repeal affected the sale of alcohol to American Indians, because treaties and federal statutes had already prohibited the activity.

The first amendment guarantee of religious liberty has never been made effective for Indians. Church and state worked hand-in-hand to assimilate Indians, and for a long time missionaries were asked to provide educational opportunities that the federal government was bound to make available to the tribes. With the "peace policy" of President ulysses s. grant, churches were able to nominate Indian agents for the different reservations, eliminating any real distinction between state and church. In Quick Bear v. Leupp (1908), the Court ruled that it was permissible for the federal government to allocate tribal funds for sectarian education under the guise of granting religious freedom to the followers of certain Christian denominations. But the decision sought to circumvent federal statutory prohibitions on the use of public funds for religious education.

Persistent efforts were made to eliminate the use of peyote by Indians, beginning with congressional hearings in 1919 that sought to bring the cactus plant within prohibitions against alcoholic beverages. State courts were more reasonable in upholding the freedom of religion in the use of peyote until employment division, department of human resources of oregon v. smith (1990), when the U.S. Supreme Court ruled that an Oregon anti-peyote statute could be applied constitutionally to the taking of peyote during Native American religious ceremonies. An earlier decision, Lyng v. Northwest Indian Cemetery Protective Association (1988), had found no violation of religious freedom in the federal government's authorization of a logging road through portions of a wilderness in California used by several tribes as vision quest and ceremonial sites. Smith and Lyng, considered together, constitute a serious impairment of American Indians' religious freedom. Recently, however, both Congress and some state legislatures have enacted laws that are more protective of Indian religious beliefs and practices.

Fifth Amendment protections of property have also been impaired as a result of the complications introduced by treaties and land cessions of the late nineteenth century. One major problem has been to discover the primary role of the United States in these transactions. At the time of land cessions, did the government act as a purchaser or as the tribe's trustee? The Indian Claims Commission, in resolving long-standing land claims, had found that the Indians were paid unconscionably low sums for their lands. This conclusion led the courts to suggest, without clearly articulating the idea, that some land deals were in fact confiscations without just compensation. In United States v. Sioux Nation of Indians (1980), the Court reaffirmed that a transaction in which the United States acts as a "trustee," to advance a tribe's interests, is not subject to the just compensation clause of the Fifth Amendment. The Court made clear, however, that no presumption of congressional good faith could substitute for a careful judicial inquiry into that "factual" question. The cardinal rule in deciding these cases now seems to be that the government must identify which of two hats it will wear—trustee for the Indians or purchaser of land.

In the 1960s and 1970s, the trend in Indian affairs was to subcontract to tribal councils the administration of programs that the government would otherwise provide for reservation residents. A new line of thought, devised by the U.S. Bureau of Indian Affairs to slow the growth of this movement, has been to argue that either the appointments clause of Article II or a principle of nondelegation of powers prevents the federal government from surrendering any real decisionmaking to the tribes. Although this reasoning is contradicted by a century of administrative practices to the contrary, it illustrates the propensity of federal officials to rely on constitutional phrases to justify their positions.

In the early 1950s, Senator Patrick McCarran proposed a new constitutional amendment that would eliminate trade with Indian tribes from the commerce clause, but Congress rejected the amendment. His fellow legislators could not imagine another constitutional rubric under which the United States would have authority to deal with Indian matters. The incident illustrates the extreme confusion and frustration involved in establishing a firm constitutional basis for treating Indians differently from other Americans. While the present structure of intergovernmental relations is based primarily on historical precedent, it is difficult to see how another structure, whether or not based on an amendment to the Constitution, could resolve the current conflicts of authority. One avenue would be to create a new property title for Indian lands, eliminating the so-called trust responsibility that rests on early international law and the doctrine of discovery. Indians as a group undoubtedly qualify for constitutional protection against state racial discrimination along the lines of brown v. board of education (1954). Congressional discrimination presents more complicated issues; Morton v. Mancari (1974) upheld a hiring preference for qualified Indians in the federal Bureau of Indian Affairs.

Vine Deloria, Jr.

(see also: Cherokee Indian Cases.)


Newton, Nell Jessup 1984 Federal Power Over Indians: Its Sources, Scope, and Limitations. University of Pennsylvania Law Review 132:195–288.

Pevar, Stephen L. 1992 The Rights of Indians and Tribes: The Basic ACLU Guide to Indian and Tribal Rights, 2nd ed. Carbondale: Southern Illinois University Press.

Strickland, Rennard, ed. 1982 Felix S. Cohen's Handbook of Federal Indian Law. Charlottesville, Va.: Bobbs-Merrill.

Wilkinson, Charles F. 1987 American Indians, Time, and the Law: Native Societies in a Modern Constitutional Democracy. New Haven, Conn.: Yale University Press.

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American Indians and the Constitution (Update)

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American Indians and the Constitution (Update)