Commerce with the Indian Tribes

The Congress shall have Power To ...regulate Commerce...with the Indian Tribes....

Article I, Section 8, Clause 3

The Commerce Clause grants Congress plenary power to regulate commerce between the United States and three other forms of sovereign entities: the states, foreign nations, and the Indian tribes.

At the Constitutional Convention, there were several different drafts describing how the Indians should be incorporated into the Constitution. Finding a single formula was not easy, because Indians resided within the United States as well as within the states. A troubling precedent was the ambiguous relationship between Congress, the states, and the Indians in the Articles of Confederation. Thus, the Framers gave the power of regulating commerce solely to Congress, without reference to the states. For Justice Joseph Story, the power to regulate trade and commerce with the Indian tribes passed naturally from the Crown to the federal government after the Revolution, and this clause confirmed that proposition. In Worcester v. Georgia (1832), Chief Justice John Marshall confirmed the supremacy of federal authority over the states in regard to the Indians.

One can derive the plenary authority of Congress over the Indians from the Commerce Clause, the Treaty Clause (Article II, Section 2, Clause 2), the Property Clause (Article IV, Section 3, Clause 2), and from the nature of the sovereign power of federal government in relation to the Indians. For the first century following the ratification of the Constitution, Congress regulated Indian affairs through the Trade and Intercourse Acts and through treaties. Tribes had juridical existence, not as foreign states, but as "domestic dependent nations," Cherokee Nation v. Georgia (1831), and were entitled to rights in property and self-rule, subject to the will of Congress. Johnson v. McIntosh (1823). The Court declared Indians as "wards" in a trust relationship with the United States government. Cherokee Nation v. Georgia; United States v. Kagama (1886).

Federal policy toward the Indians has developed through a number of phases, punctuated by treaties (until 1871), legislation, and conflict, but it has consistently rejected state incursions into federal authority. Expansion of lands for settlement and Indian removal from east of the Mississippi dominated congressional attention until 1850. Thereafter, the government attempted to move the western tribes to reservations, followed, beginning in 1887, with a policy of assimilation. In 1924, Congress granted citizenship to all Indians born in the United States who had not been made citizens under a prior treaty. In the Indian "New Deal" beginning in 1934, the government ended the assimilation policy and sought to reorganize and maintain tribal structure. In the 1950s, however, policy veered again, this time toward ending tribal status and integrating the Indians into the political structure as individuals. In 1953, Congress began allowing some states to extend their jurisdiction to Indian areas within their borders, but beginning in 1968, policy once again reversed when the Indian Civil Rights Act extended constitutional guarantees to Indians in relation to their own tribal governments. At the same time, Congress sought to expand the areas of Indian local self-rule. Under the Indian Gaming Regulatory Act (1988), Indian tribes throughout the country have been able to establish gambling institutions on their lands under compacts entered into with the states.

The Supreme Court has been highly deferential to congressional control of relations with the Indian tribes, and the Court closely monitors under the Supremacy Clause any state legislation affecting the Indians. Furthermore, the Court has increasingly required the executive to abide by specific undertakings found in the laws and treaties dealing with the Indians, particularly in upholding Indian monetary claims. However, the Court has never enforced a trust arrangement between the Indians and the government as a ubiquitous legal rule.

Profile photo of David F. Forte
David F. Forte
Professor of Law
Cleveland-Marshall College of Law