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The 'More Perfect Union': Analysis vs. Wishful Thinking

When Jefferson Keel, newly elected president of the National Congress of American Indians (NCAI) delivered the 9th Annual State of Indian Nations Address on January 27, 2011, he opened his remarks with the notion of an "Era of Recognition," of "Responsibilities Met, or of Promises Kept." He said, "it brings us closer than ever to the true Constitutional relationship between the United States and Indian nations. …to what the Constitution calls a 'more perfect union.'"

President Keel went on to say, "America’s founders recognized the inherent sovereignty of Indian tribes and the special relationship between tribes and the federal government, and they affirmed it by putting it into words in our Constitution." His evidence for this assertion, he said, was the fact that Indians are mentioned in Article 1, Section 8, of the U.S. Constitution, in the company of "foreign Nations" and "the several States." ?This is the clause that gives Congress power to "regulate Commerce."

While it is true that Section 8 lists "Indian Tribes" in the same sentence as foreign Nations and the States, it is not true that United States law places these on the same level. In fact, this very question about Indian nationhood was decided negatively in 1831 in the case of Cherokee Nation v. Georgia. We need to look at that decision to understand what the Supreme Court says the "true Constitutional relationship" is. Ironically, President Keel's argument that Indian Tribes are equivalent to foreign Nations is what the lawyers for the Cherokee Nation argued in the Supreme Court. And with even more irony, it was Section 8 that Chief Justice Marshall cited to knock down that argument!

Here's what the court said: "The objects to which the power of regulating commerce might be directed are divided into three distinct classes—foreign nations, the several States, and Indian tribes. When forming this article, the convention considered them as entirely distinct. … Had the Indian tribes been foreign nations in the view of the convention, this exclusive power of regulating intercourse with them might have been, and most probably would have been, specifically given in language indicating that idea, not in language contradistinguishing them from foreign nations. Congress might have been empowered 'to regulate commerce with foreign nations, including the Indian tribes, and among the several States.' This language would have suggested itself to statesmen who considered the Indian tribes as foreign nations…."

In other words, the U.S. Supreme Court said "the true Constitutional relationship" is that Indian nations are not equal to foreign nations, precisely because they are listed separately in Section 8. To make matters worse, the Supreme Court went a step further in Cherokee Nation and suggested that the Indians "may, more correctly, perhaps, be denominated domestic dependent nations." The court's suggestion ("may… perhaps") soon became a controlling idea in federal law: namely, that the "relation [of Indian nations] to the United States resembles that of a ward to his guardian. …[T]hey are in a state of pupilage."

The ward-guardian-pupilage image is the core of the "special relationship" between Indians and the federal government. It is shorthand for the basic principle of federal Indian law: namely, as Justice Marshall put it, "They [the Indians] occupy a territory to which we [the United States] assert a title independent of their will…."

As to being part of the "union," the Supreme Court knocked that down in a 1991 case, Blatchford v. Native Village of Noatak, where the court referred to the argument as "absurd," and said the Constitution is "a convention to which [the Indians] were not even parties." This may be an uncomfortable conclusion, but it is accurate: neither the founders of the United States nor the highest U.S. court consider Indian nations part of the "union," except insofar as the "union" claims ownership of Indian lands.

We may wish it were true that the United States recognized Indian nations as fully sovereign and equivalent to foreign nations, but wishing doesn't make it so. The strongest position for Indian nations is sovereignty in international law, rather than being subsumed within another nation's structure. This is the promise of the United Nations Declaration on the Rights of Indigenous Peoples. That would be a "new era" to celebrate.

Peter d’Errico graduated from Yale Law School in 1968. Staff attorney in Dinebeiina Nahiilna Be Agaditahe Navajo Legal Services, 1968-1970. Taught Legal Studies at University of Massachusetts, Amherst, 1970-2002. Consulting attorney on indigenous issues.