by Rob Natelson

Just as Congress has stretched its Interstate Commerce Power into authority over the entire national economy, so it has used the Indian Commerce Clause to justify micro-managing the lives of American Indians and of their tribes.

It wasn’t supposed to be that way.

The Articles of Confederation gave Congress power over Indian ‘affairs,’ but in practice the states also continued to exercise authority over Indians. States passed trade laws, regulated Indian land transactions, and in some cases exercised a general police power over Indians within their boundaries.

When the Constitution was adopted, the federal government was granted some control over dealings with the Natives. However, this was one of the very few areas where the Constitution actually granted the new government less authority than Congress had enjoyed under the Confederation. Instead of sweeping power over Indian ‘affairs,’ the Constitution granted (1) to the President-and-Senate, power to make treatise with the Natives, (2) to Congress, power over federal property and territories (where many tribes lived), and (3) also to Congress, the power to ‘regulate Commerce . . . with the Indian tribes.’

The Treaty Clause (II-2-2) empowered the President-and-Senate to govern the details of Indian relations, but only with the consent of the affected tribes, since both sides must agree to a treaty. The Territories and Property Clause (IV-3-2) granted Congress power to regulate tribes, but only on federal land. The Indian Commerce Clause (I-8-3) gave Congress control over mercantile trade and certain related activities. The specific model in the Indian area consisted of state Indian trade statutes and a Confederation ordinance that addressed such matters as preventing fraud, licensing merchants, and regulating prices.

Also part of the constitutional settlement was that the states retained their general police power over Indians within their borders, subject to pre-emption by congressional regulations of commerce and by treaties.

This system began to break down in the 1870s with the announcement by Congress that the federal government would no longer make treaties with the Indians. How Congress could bind the President-and-Senate this way was never adequately justified or explained.

Congress then began to regulate Indian affairs on the basis that doing so was part of its ‘inherent sovereign authority’ ‘”supposedly unenumerated authority outside the Constitution. The theory of ‘inherent sovereign authority’ is complete jurisprudential nonsense, and contradicted by both the intent and words of the Tenth Amendment. Although the Supreme Court rejected the theory in Kansas v. Colorado (1907), it continues to surface from time to time.

Also cited as justifying wide congressional authority was the ‘trust relationship’ between the federal government and the Indians. But trust rules do not grant power; they merely set standards by which power is to be executed.

In modern times, the favorite justification for congressional omnipotence over the tribes is the Indian Commerce Clause. Apologists resort to some of the same tricks used to justify congressional omnipotence over the economy’”including the Indian Trade and Intercourse Act of 1790, which I discussed in my last post.

In the area of Indian commerce, moreover, apologists for Congress often go even farther, claiming that congressional authority over Indian affairs is exclusive‘”that states have no jurisdiction over Indians at all. There is little justification for this theory, and it has proved unworkable in practice.

The Original Constitution

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In 2007, I researched and wrote an article called The Original Understanding of the Indian Commerce Clause. During the research, I found that the state of the commentary on the Indian Commerce Clause was even more dismal than in most other areas of constitutional law. Most of articles on the constitutional background consist of interventions by activists and others with little knowledge of the Founding Era or of originalist methodology.

Bottom line: Reading the Constitution according to its real meaning shows that, although Congress was to have a significant say in Indian affairs, its rightful power is far from absolute. Both Indians and non-Indians need to inform Congress of this much more often.

In private life, Rob Natelson is a long-time conservative/free market activist, but professionally he is a constitutional scholar whose meticulous studies of the Constitution’s original meaning have been published or cited by many top law journals. (See www.umt.edu/law/faculty/natelson.htm.) Most recently, he co-authored The Origins of the Necessary and Proper Clause (Cambridge University Press) and The Original Constitution(Tenth Amendment Center). After a quarter of a century as Professor of Law at the University of Montana, he recently retired to work full time at Colorado’s Independence Institute.

Rob Natelson