CHAPTER III

THE CONSTITUTION AND AMERICAN INDIAN TRIBES

The Federalist Papers

Establishing a form of government that would work efficiently was a far greater concern of the constitutional fathers than dealing with the Indian tribes within the states and on the frontier. As a result, we have few comprehensible insights into how the framers of the Constitution viewed tribes or individual Indians, and we know little of what they had in mind regarding the future activities of the United States in relation to tribal nations. The Federalist Papers address some of the topics of debate waged by the successful advocates of the Constitution. By examining how these essays represent the public arguments presented on the part of constitutional advocates, we can determine how the popular mind understood the role and status of Indian peoples in the new constitutional framework.

A surprising amount of theoretical discussion is presented in the Federalist/anti-Federalist debates. The constitutional fathers were cognizant of the intellectual debates concerning the nature of government that had substantially altered the European political landscape in the preceding centuries. The French philosopher Baron de Montesquieu,¹ in particular, seems to have been influential; his idea that a republic must of necessity embrace a small territory in order to be effective was cited many times by the anti-Federalists.2 Their chief worry was the question of whether the Constitution was improving a confederation or in fact creating a national government. The speech of George Mason at the ratifying convention of Virginia may be cited as a fair representation of the concerns of the anti-Constitution delegates:

Is it to be supposed that one national government will suit so extensive a country, embracing so many climates, and containing inhabitants so very different in manners, habits, and customs? It is ascertained, by history, that there never was a government over a very extensive country without destroying the liberties of the people: history also, supported by the opinions of the best writers, shows us that monarchy may suit a large territory, and despotic governments over so extensive a country, but that popular governments can only exist in small territories. Is there a single example, on the face of the earth, to support a contrary opinion? Where is there one exception to this general rule? Was there ever an instance of a general national government extending over so extensive a country, abounding in such a variety of climates, where the people retained their liberty?³

The concern was not that the United States would not eventually expand and include more states and territory but that the effort to create a national government was doomed to failure because of the already extensive lands and peoples that constituted the new nation.

Considerable debate raged over how to organize the territory lying north and west of the Ohio River. Virginia had long-standing claims to the area and was willing to surrender its lands on the condition that other states having expansive territorial descriptions in their charters do likewise. The Northwest was a puzzle to the Americans, as it had been to the English before them. Every scenario looked forward to the political organization of the area as a separate state, but how should the state be qualified to join the nation? A three-tiered process was finally approved whereby the territory would at first be governed strictly by federal officials appointed by the president and approved by Congress.⁴ As the population increased and it became possible to organize a legislature, self-government of a sort was to be allowed. When the population reached a certain level, the territory could apply for admission to the union. The new state government would then partially satisfy the Montesquieu problem of governing too large an area by a strong central government. This process was approved and in place before the Constitution was adopted.

The ordinance for settling the Northwest did not look at the question of the Indians; it contemplated a time when the territory would be settled by whites. People assumed that the lands would be purchased from the Indians—but where would the Indians go? One does not need to be prophetic to see that absent a definite provision—something other than the sentiments contained in Article 3 of the ordinance—the Indians would have to be moved out of the area. If anyone looked to the small remnant reservations in Connecticut, Massachusetts, New Jersey, Virginia, Delaware, and South Carolina as forecasting a policy of reserving lands to create small enclaves for Indians, the subject never arose in the constitutional debates.5

Instead, the concern when dealing with the Indian question was one of preventing frontier wars and allowing the federal government to supervise trade with the Indian nations so as to make the Americans competitive with the English and Spanish on the distant frontiers established by the Treaty of Paris. Because of the lack of foresight, the realistic alternatives to dealing with Indians were but three: 1) new state boundaries could be drawn excluding the Indian lands; 2) no more treaties could be made, and the Indians would eventually become citizens of the new states; or 3) “Indians” as a subject matter could be made an exclusively federal matter and treaty making would be continued.

No effort was made to exclude Indian lands from the new state boundaries for a number of reasons. Land cessions were not always in clear, manageable tracts. Creating geographical enclaves in the midst of states, or between them, would only produce lawless areas where mischief would be fostered. It was difficult enough to keep the settlers from invading Indian lands beyond the agreed boundary established by the Treaty of Fort Stanwix in 1784. The United States did not have the military power to abrogate any treaties at the time of the constitutional debates. Indeed, in the 1790s a coalition of Ohio tribes inflicted two devastating defeats on American armies sent into the Ohio country to chastise the tribes. The opinions of foreign nations at the abrogation of Indian treaties would have provided the European nations with the excuse they needed to meddle in American affairs.

So Indians became a federal matter. John Jay, in favor of a strong federal government, produced the argument that probably determined the outcome of the issue. He wrote that “not a single Indian war has yet been occasioned by aggressions of the present federal government, feeble as it is; but there are several instances of Indian hostilities having been provoked by the improper conduct of individual States, who, either unable or unwilling to restrain or punish offenses, have given occasion to the slaughter of many innocent inhabitants.”6 Whether a conflict could be provoked by England or Spain, initiated by the Indians, or caused by lawless settlers, the feeling was that Indian matters should be handled by the national government.

Much comment has been heard about the malicious institution of slavery, which was once formally written into the Constitution and required a war to erase its stain. The failure to look ahead and contemplate the real alternatives to the Indian problem was as great a sin—but one of omission, laziness, and allegiance. It created a situation in which the states and territories would frequently be the opponents of the federal government when Indians were the subject of debate.⁷ Because Congress was comprised of senators and representatives of the several states, the opportunities for Indians to consistently receive an impartial hearing in the federal legislature were few. Elected officials were at times torn between their responsibilities as federal representatives and their need to get reelected by their predominantly non-Indian constituents. There was seldom any question where their sympathies lay. The only appeal could be to the sense of national honor, and that was a slim reed upon which tribes could base their hopes.

Learned commentators reviewing the genius of the Constitution frequently argue that the division of sovereignty between three branches of government was sufficient to ensure that the rights of minorities were not abused.⁸ The further division of political power between the national government and the states meant that even more protections would be guaranteed because almost all the states modeled their governments after the federal example. This analysis, however, is extremely naive. The constitutional checks-and-balances system protects a temporary political-minority point of view.⁹ It allows for the exploitation of any small or dissident group that has any kind of continuing existence in the American social fabric. Racial minorities, small religious sects, and often the laboring class have had great injustices heaped upon them by the coordinate efforts of these three branches of government because such groups are always in the political minority and are not formally represented anywhere.

Explicit Clauses Dealing with Indians

American Indians are named specifically in two sections of Article 1 of the Constitution. In section 2, paragraph 3, in the formula for determining the apportionment for representatives to Congress and direct taxes, we find the phrase “excluding Indians not taxed.” The wording seems to be a variation of similar phrasing found in Article 9 of the Articles of Confederation, which gives to Congress the exclusive right and power to regulate trade and manage affairs with Indians “not member of any of the States.” Indeed, the constitutional phrase only makes more specific the distinction between Indians having no relationship to states and individual Indians considered to be regular citizens over whom the states might extend tax liabilities. The phrasing of section 2 appears once again in the Fourteenth Amendment to the Constitution, and the interpretation of the phrase in both instances is reasonably obscure.

Section 8, paragraph 3 contains the major clause by which most actions dealing with Indians have been undertaken. It gives to Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Most litigation dealing with Indian matters revolves around the interpretation of this clause,10 and from it springs the massive edifice of legislation, court decisions, and administrative rules and regulations that compose the structure and substance of the federal relationship with Indians and Indian tribes. We will deal more specifically with the meaning and implications of this paragraph later.

One direct reference to Indians contained in the Articles of Confederation was omitted from the provisions of the Constitution. Article 6 prohibited any state from making war unless it was actually being invaded or “shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay, till the United States in Congress assembled can be consulted.” This omission cannot be credited wholly to the plenary nature of the commerce clause. The same article gave states the right to send embassies to other states and preserved for states a certain measure of external sovereignty. In the allocation of the diplomatic functions of the federal government, exclusion of the states’ right to make war on Indians must be seen as advancing the status of the federal government rather than as an internal reform.

The simple language that mentions Indians in the Constitution does not give any indication of the manner in which the Constitution was to be specifically applied to Indians. Indeed, a careful, plain reading of the clauses indicates that relationships with Indians are an external matter for both the states and the federal government. Congressman Lloyd Meeds (Democrat, Washington), writing his dissent in the final report of the American Indian Policy Review Commission in 1977, said that the Constitution admitted only two sovereigns, the states and the federal government. He could, therefore, find no constitutional basis for supporting Indian tribal sovereignty.11 In this contention he was absolutely correct, but only insofar as the Constitution identifies the specific sovereigns that created it, the states; establishes and restrains the sovereignty of the federal government; and establishes procedures to admit new states as sovereigns. There is no mention of France or Spain in the Constitution either, but that does not deprive them of the power to make treaties with the United States and have their provisions enforced.

Tribes are preexisting sovereigns whose existence is not beholden to the Constitution or to the federal or state governments. Moreover, the explicitly Indian-related phrases in the Constitution deal with the situation that confronted the United States at the time they were written. When the U.S. Constitution was adopted, Indian tribes, as independent sovereigns, were wholly free to align themselves with any sovereign they wished or to remain nonaligned if they so chose. England and Spain were aggressively courting the larger Indian confederacies, and it was not until the end of the War of 1812 that the United States finally assumed a position of primacy among the sovereigns competing for midcontinent Indian allegiance. On the Pacific coast it was not until the settlement of the Oregon question in the middle of the nineteenth century that the Indian tribes were precluded from dealing with other sovereigns.

Implicit Clauses Dealing with Indians

The Constitution allocates the sovereign powers of our nation between the constituent states and the federal government. In general, according to the explanations offered by advocates of the Constitution in The Federalist Papers, most internal affairs of the people are reserved to the states, with the primary exception of the commerce clause, which underscores the need for a uniform commercial system to ensure the free flow of commerce between and among the states. All foreign affairs and the power to deal with the property of the United States are vested in the federal government. The constitutional clauses that imply a power or responsibility to deal with Indians are applicable to the degree that the federal government, finding itself confronted with a new and specific problem involving Indians, looks beyond explicit authorizations and finds that an existing constitutional power originally meant to deal with an entirely different question can be cited as justification for actions it might take in solving the new problem.

There are two aspects to the exercise of such powers that must be noted. On the basis of former acts and the history of former dealings with Indians, Congress, the president, or the federal courts can assume that a certain implicit power applies because it has been used before in similar situations. Or—and this difference is critically important—confronted with a new situation for which there does not seem to be an existing constitutional power or congressional act, Congress, the president, or the federal courts can imply that an existing power can be used to justify and authorize actions that are contemplated.

The act of assuming or implying that a power or authority exists finds its validity in previous practice, and here precedent plays an important role. Such an act is always subject to the scrutiny of the different branches of the federal government and should be subject to some kind of constitutional control or limitation. The course of American history has demonstrated that where Indian tribes have no recourse within the American political system, new laws and new theories of the relationship between the United States and Indians are allowed to go unchallenged and—whether in fact constitutional or not, and whether in fact just or not—become part of the law of the land insofar as it describes the status and rights of American Indians.

Changing either the assumptions about the applicability of a constitutional power or the implications of the applicability of that power has traditionally meant that one of the three branches of the federal government has made a statement of reasonable clarity unchallenged by the other two branches. Clearly this situation has dangers of severe magnitude for Indians. If Indians are not regarded as a subject of pressing national importance—after 1890 they began to play a minor role in domestic affairs—there is no rational basis for one of the branches of the federal government to confront another branch that has done an injustice to Indians. Checks and balances is a valid method of governing only when the subject under discussion has tangible and profound implications and importance for the government as a whole. In the absence of a sense of overwhelming importance, the tendency of the tripartite form of government is to stand back and allow one branch to dominate a certain subject matter, in both a de facto and a de jure manner. This level of domination sometimes reaches the point of actually excluding the other two branches.

Some examples from American history make this situation clear and comprehensible. In the earliest decades of American political existence, it was assumed that the treaty-making power was applicable to Indian tribes and foreign nations.12 The major difference between dealing with Indian tribes and foreign nations was the necessity of sending formal diplomatic missions to the foreign nations while only sending agents and treaty commissioners to the Indian tribes. With the passage of time and the subsequent expansion of the territory of the United States, Indian lands and tribes became enclosed within the exterior boundaries of the country. It could not be argued with any degree of credibility that Indian tribes remained “foreign,” because their geographical location was obviously within the boundaries of the country. Because of their location, then, and solely because of this geographical dimension—even though politically and legally tribal nations remained foreign to the United States—Indians became, in the eyes of many people, a matter of domestic concern. Consequently, in 1871 Congress prohibited the future recognition of any Indian tribe as a political entity with which the United States could make treaties.¹³ This unequivocal stand taken by Congress was not challenged by either the judiciary or the executive branches and became law.

From the beginning of the republic until a major Supreme Court decision in 1903, Lone Wolf v. Hitchcock,14 it was assumed that the United States was reasonably restricted in its power to affect the use and status of Indian lands,¹⁵ although the federal government had virtually no restrictions on its power insofar as the imposition of federal criminal jurisdiction onto Indian lands was concerned.¹⁶ Indians, under the doctrine of discovery, had clear equitable title to the lands they occupied, and until they voluntarily chose to sell all or a part of their lands, it was the responsibility and duty of the United States to protect them in the undisturbed enjoyment of their territory.¹⁷ However, in Lone Wolf v. Hitchcock, the Supreme Court ruled that the federal government, in the exercise of congressional powers, had, and had always had, plenary powers over Indian lands and property. Plenary power was implied through the application of convoluted judicial logic in defiance of the historical record and specific articles of a treaty written and explained by federal representatives.¹⁸ But the doctrine of plenary power was not challenged or disclaimed by either the Congress or the president and so has come to be regarded as constitutional law.

When implied powers are assumed, the historical record should act as a limitation on their exercise. Precedent plays a critical role in defining the permissible limits within which the implied power can be exercised. When an implied power is the creation of a particular problem-solving situation and there is no good historical precedent or record to which the power can be referred and judged, then the articulation of the power becomes an open-ended proposition. It is, in fact, new law making, a change in the meaning, scope, and intent of the Constitution, and is capable of giving birth to an endless series of additional implied powers or novel applications of the newly articulated power—with virtually no limitations.

In the case of American Indian peoples, the original assumption is that the federal government is authorized and empowered to protect the Indians in the enjoyment of their lands. Once it is implied that this power also involves the ability of the federal government by itself to force a purchase of the lands, there is no way the implied power can be limited. If the government can force the disposal of lands, why can it not determine how the lands are to be used? And if it can determine how the lands are to be used, why can it not tell the Indians how to live? And if it can tell the Indians how to live, why can it not tell them how to behave and what to believe? And so forth. For small, economically and politically weak groups like Indian tribes, the only slight limitation placed on the federal government is the outcry of the affected tribe, and at times of the general public, at the outrageous conditions the U.S. government has created and perpetuates—conditions that place tribes in precarious positions vis-à-vis states, the federal government, and society at large. Or, as former Commissioner of Indian Affairs Francis A. Walker put it, “the Government is only bound in its treatment of [the Indians] by considerations of present policy and justice and not by the Constitution.”19 The force of implied power simply rolls along of its own internal logic.

Implied powers ebb and flow according to the manner in which the nation sees itself and conducts its business. Almost any clause can be seen, in the right context, as authorizing federal activity consonant with the intent and scope of the Constitution. Depending upon the set of circumstances confronting the federal government and upon its vision of its role in governing the country, the various clauses move in and out of favor according to the political philosophy of those in power. Ultimately, then, implied powers of the Constitution are the trump cards of elected officials, and the government is one of persons, not of laws.

The implied powers of the Constitution that have at one time or another been believed to be applicable to American Indians, their rights, and their properties include the following:

1) the power to lay and collect taxes

2) the power to establish a rule for Naturalization of citizens

3) the power to establish Post Offices and Post Roads

4) the power to constitute Tribunals inferior to the Supreme Court

5) the power to make all Laws which shall be necessary and proper for carrying into Execution other powers

6) the presidential power to grant reprieves and pardons

7) the power of judicial review

8) the power to make new states

9) the power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States

10) the power to protect states from domestic violence

We shall deal specifically with the application of these powers in the field of Indian affairs below. There is one additional implied power that, because of its importance in Indian matters, must be recognized. Article 6, clause 2, declares that “all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme law of the land.” Assuming, as both the Indians and the United States did, and as history attests, that the treaty-making power extends to the relationship with Indian tribes, then it follows that the treaties made with Indian tribes are the supreme law of the land. The logic of this reasoning attaches to both the treaty document and to the enforcement of its specific provisions. But treaties have been honored in the breach more than in the enforcement. Nevertheless, insofar as we can discuss the application of the Constitution to Indian tribes, their status, rights, and property, it is necessary that we include this subject in our discussion. Consequently, federal legislation dealing with Indians is separate from and has a superior status in comparison to general national legislation and must be treated as a unique subject. As the Supreme Court remarked in The Kansas Indians,20 “the conduct of Indians is not to be measured by the same standard which we apply to the conduct of other people.” If we follow the policy originally articulated in the Northwest Ordinance, which is the only clear policy statement made by Congress, all activities dealing with Indians or Indian matters must reflect a high moral standard.