Congressional authority over Native nations has always been held to rest on the Commerce Clause of the U.S. Constitution. The Clause (Article 1, Section 8, Clause 3) claims that Congress has the power “to regulate Commerce with foreign Nations, and among several states, and with the Indian Tribes.”
The Commerce Clause forms the very bedrock of modern U.S.-tribal relations. And it has been grossly misinterpreted for far too long.
Two points illustrate this fact.
The first can be found in the nature of international relations. Under customary international law, nation-states like the U.S. are sovereign and independent. They alone exercise legal and political jurisdiction over their territories and peoples. Only entities equal to nation-states can enter into treaties with other states. And the laws written by a state apply only to citizens of that state.
Thus, when the United States entered into treaties with Native nations, it recognized those nations as legal and political equals. Native nations were sovereign, separate, and independent. Their tribal members were, in effect, citizens of foreign nations.
This is one reason why Native Americans had to be extended dual citizenship under the 1924 Indian Citizenship Act, also known as the Snyder Act. Because, up until 1924, Native nations and their citizens were not legally citizens of the United States. They were members of foreign nations.
Customary international law also maintains that foreign powers cannot regulate the activities or commerce of citizens of foreign lands or nations. This means that the Commerce Clause could not have been applied to regulating the activities of Native American tribes.
This is reflected in the second area where the Commerce Clause tends to be misinterpreted, the wording of the Clause itself.
The Clause holds that Congress can regulate commerce “with” Indian tribes. It does not say that Congress can regulate commerce “of” Indian tribes.
The distinction is more than symbolic. Had Congress said it had the power to regulate commerce “of” Indian tribes, it would have meant that Congress had power and jurisdiction over Native nations. But such claims, had Congress intended to make them, would have violated customary international law.
This is why the Clause instead says that Congress could regulate commerce “with” Indian tribes, meaning the commerce and activities of non-Indian U.S. citizens. The Commerce Clause did not apply to members of Indian tribes.
To read the Clause as applying to Native nations or as giving Congress any authority over them, as often happens in court cases involving Native nations and their citizens, is to misinterpret history and the nature of international relations. Native nations, when the Clause was written, were separate, sovereign, and independent.
It was only years after the Commerce Clause was written into the Constitution that the U.S. government decided, illegally, to unilaterallybreak its treaties with Native nations. When the U.S. broke those treaties, it effectively ended the legal and political relationships between the U.S. and Native nations.
Some would argue that this, combined with citizenship, effectively brought Native nations under the jurisdiction of the U.S. government.
But, under customary international law, illegal acts, even those made by states like the U.S., cannot terminate the legal validity of international treaties to which they’ve entered. Illegal acts also cannot terminate the legal existence or status of foreign and independent nations. They remain equal, sovereign, and independent. Imperial conquest and dual citizenship do not change that.
Thus, treaties entered into between the U.S. government and Native nations remain legally valid. And the Commerce Clause applies only, as it was originally written, to non-Native U.S. citizens.
It’s time for the U.S. to stop misreading and abusing the commerce clause and to start honoring its treaties with Native nations. It’s also time for the U.S. to recognize that it has no rights or legal grounds from which to claim the ability to regulate the activities of citizens of today’s Native nations, who remain sovereign and independent.
DaShanne Stokes is an author, speaker, commentator, and a Lakota doctoral candidate in sociology at the University of Pittsburgh. His research on tribal recognition has appeared in scholarly conferences and journals. His dissertation on the political recognition of nation-states and quasi-states is entitled “Tibet, Taiwan, Palestine, and the Quest for Recognition.” Follow him on Twitter @DaShanneStokes.