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The commerce clause and Indian entrepreneurship

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The commerce clause is primarily aimed at creating stable and efficient markets, but government policy has not provided viable market conditions to American Indian tribes.

Have you ever wondered why the main reference to American Indians in the U.S. Constitution is in the commerce clause? In Article I, Section 8, 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.'' By the time the Constitution was written and adopted in the late 1780s, some East Coast Indian tribes had been trading with European colonists for at least two centuries. The Indians provided skins and furs to European traders, who in return traded guns, traps, metal goods, cloth, food, beads, alcohol and other goods. The fur trade was the primary economic relation of American Indians to the colonies and European countries. Deer skins were made into leather goods and beaver furs made into fashionable hats.

American Indians were incorporated into the emerging global markets through the fur trade industry, which was an early version of the contemporary global market. Indians provided hunting skills, tanning production and knowledge, and often transportation to trade posts. While some Indians operated as middlemen for trade with tribes deeper into the interior, most were family or individual hunters and traders. The tribes neither controlled the trade nor profited excessively from it. The trade for European manufactured goods created economic dependencies for tribal economies as they did not produce metal goods, rifles, ammunition and other goods. These dependencies required that tribes make commercial and military alliances, treaties, with one or another of the colonies. During wars, for example during the War of Independence, the United States sought Indian military allies through establishing trade relations. The commerce clause was born from the experience and the colonial rivalries of the late 1700s.

What does the commerce clause mean to most Americans? The commerce clause puts the management of international and national markets in the hands of Congress. The intention was to centralize national management of markets in the federal government, and remove them from the control of the individual states. This allows for common national and international policies. One of the most important achievements of the U.S. Constitution is the creation of institutional support for a national market economy. Before the Constitution, the former colonies, now states, minted their own coin, had economic relations with foreign powers and made their own often conflicting laws about trade and transportation of goods. The commerce clause is designed to create a more unified national market with an eye toward supporting market efficiency, stability and growth. Of course, the creation of a strong and innovative marketplace is one of the significant achievements of the United States, and the U.S. Constitution. Americans have benefited from long-term government efforts to provide a stable institutional marketplace, and encourage private enterprise and overall economic growth.

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While Indian tribes are mentioned in the commerce clause, government policy has not focused on creating and supporting market growth and economy in Indian country. Trade and diplomacy were used to gain alliances, maintain dependency, and subdue and acquire American Indian economic assets. Tribes were not seen as economic entities like states, which were invited into the emerging national market. Instead, diplomatic and political interests prevailed in the transformation and assimilation of Indian country. Policies of land allotment, boarding schools, termination and relocation programs were aimed at including Indians into the U.S. economy as individuals, but not as communities.

Many American Indian tribes are now more ready and willing to participate in the U.S. economy than anytime in history. American Indians want to join the American market system, but in ways that assist in cultural, community and political renewal. The U.S. government needs to rethink its policies toward American Indians and give primary policy emphasis toward fostering favorable market conditions in Indian country. Tribes are mentioned along with states and foreign nations in the commerce clause, but American Indian tribes have not been included in the development and growth of the U.S. market system. Any long-term solution to poverty in Indian country and the generation of tribal economic self-reliance will necessarily include access to the U.S. market. Government policy in Indian country should help set the conditions for market relations and economic growth, just as it does with the rest of the country. Tribes should have status in the economy like states and foreign nations, as written in the Constitution. Tribal economic self-reliance should be a primary goal for federal Indian policy, and tribal governments should play an active role in negotiations and lawmaking that will improve market institutions and enterprise among tribally owned businesses in Indian country. One of the primary ways to gain self-reliance in a market economy is to own and operate productive and innovative enterprises. Government policies aimed at improving market opportunities and growth in Indian country are congruent with the U.S. Constitution and provide a long-term alternative to dependency and poverty persisting in Indian country.