Tribal Sovereignty in The United States - Native American Sovereignty and The Constitution

Native American Sovereignty and The Constitution

The United States Constitution specifically mentions the relationship between the United States federal government and Native American tribes three times:

• Article I, Section 2, Clause 3 states that "Representatives and direct Taxes shall be apportioned among the several States ... excluding Indians not taxed." According to Storey's Commentary on the US Constitution, "There were Indians, also, in several, and probably in most, of the states at that period, who were not treated as citizens, and yet, who did not form a part of independent communities or tribes, exercising general sovereignty and powers of government within the boundaries of the states."

• Article I, Section 8 of the Constitution states that “Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes”, determining that Indian tribes were separate from the federal government, the states, and foreign nations; and

• The Fourteenth Amendment, Section 2 amends the apportionment of representatives in Article I, Section 2 above.

These basic provisions have been changed and/or clarified by various federal laws over the history of the United States. Regulate, historically means facilitate. Therefore, the Congress of these United States was to be the facilitator of commerce between the states and the tribes.

These Constitutional provisions, and subsequent interpretations by the Supreme Court (see below) are today often summarized in three principles of U.S. Indian law:

• Territorial Sovereignty. Tribal authority on Indian land is organic and is not granted by the states in which Indian lands are located.
• Plenary Power Doctrine. Congress, and not the Executive Branch, has ultimate authority with regard to matters affecting the Indian tribes. Federal courts give greater deference to Congress on Indian matters than on other subjects.
• Trust Relationship. The federal government has a "duty to protect" the tribes, implying (courts have found) the necessary legislative and executive authorities to effect that duty.