The Constitution’s original intent treats Indian nations and tribes as prior sovereigns, with jurisdiction over our citizens and territory. The Treaty and Supremacy Clauses embody America’s recognition of the sovereign status of “Indian nations” by affirming the earliest treaties and authorizing 370 later Indian treaties. In the phrase “Commerce … with the Indian Tribes,” the Constitution establishes a government-to-government relationship with Indian tribes. In America’s first 150 years, the Apportionment Clause treated Natives as citizens of Indian Nations, not citizens of the United States. The 14th Amendment Citizenship Clause acknowledges the “jurisdiction” of Indian nations over Indians, that is: Indian Self-Determination. The 14th Amendment Apportionment Clause affirms tribal citizens as “Indians not taxed.” As Native peoples, we should call upon the United States to honor our original treaties and the original intent of the Constitution.
In the Declaration of Independence, Thomas Jefferson penned the first principles of American Democracy:
all men are created equal, … they are endowed by their Creator with certain unalienable Rights, … among these are Life, Liberty and the pursuit of Happiness. — That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed….
Chief Swift Bird said, “All men red, white, black, and yellow are equal, and we come together as friends. The same Creator is the father of all.” From the dawn of time, our people lived as free people. The first principle of Native Democracy is this: We, the Native Peoples, from time immemorial through the present day, are the source of our sovereignty.
Indian nations were independent sovereign nations prior to the formation of the United States. Great Britain, Spain, France, and the Netherlands entered treaties with Indian nations to make peace, promote friendship and commerce, and secure recognition of colonial territory. In his 1983 American Indian Policy Statement, President Reagan acknowledged:
When European colonial powers began to explore and colonize this land, they entered into treaties with sovereign Indian nations. Our new nation continued to make treaties and to deal with Indian tribes on a government-to-government basis….
In 1776, General Washington sought help from the Delaware Nation in securing food and supplies for his army, and the United States entered its first Indian treaty, the Treaty with the Delaware Nation in 1778 to secure the American—Delaware Nation military alliance.
Under the Articles of Confederation, during the American Revolutionary War period, the new American Republic entered 16 treaties: 9 Indian treaties and 7 foreign treaties. When the Constitution was ratified in 1789, the Treaty Clause provided for treaty-making as the law-making process to establish United States’ relations with fellow nations. The Supremacy Clause mandates that:
all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land….
The Supremacy Clause places all prior and future Indian treaties among “the supreme law of the land.” Pre-constitutional Indian treaties were made with the Delaware Nation, the Cherokee Nation, Choctaw, Chickasaw, Shawnee, the Six Nations, and “the Indian Nations” of the Northern Department: the Wyandot, Ottawa, Chippewa, Potawatomi and Sac Nations. With affirmation of the early Indian treaties, the Constitution’s Treaty and Supremacy Clauses embody America’s recognition of the sovereignty of “Indian nations.”
This is the true, original meaning of the Constitution and it is borne out by President Washington’s first act in the field of Indian affairs: the 1790 Creek Nation Treaty. Using the protocol for the Creek Nation Treaty, President Washington established the standard method for securing the advice and consent of the Senate for all subsequent treaties, Indian and foreign. It is still used for treaties today.
The Commerce Clause is one of the most important sources of Federal power. The Indian Commerce Clause authorizes Congress to regulate commerce “with the Indian Tribes,” preempting contrary state authority. It is a recognition of Indian Tribes as governments parallel to the Foreign Commerce Clause—“with foreign Nations.” The Constitution’s use of the phrase “Commerce … with the Indian Tribes” establishes a government-to-government relationship with Indian tribes. The true, original meaning of the Constitution concerning Native Nations is reflected in the signature act of Thomas Jefferson’s Presidency, the 1803 Louisiana Purchase Treaty with the French Republic, where:
The United States promise to execute Such treaties and articles as may have been agreed between Spain and the tribes and nations of Indians until by mutual consent of the United States and the said tribes or nations other Suitable articles Shall have been agreed upon.
The United States’ commerce with Indian Tribes was to be conducted cooperatively through treaties between the nations, such as the 1826 Mandan Nation Treaty.
In the Constitution’s original Apportionment Clause, “Indians not taxed” are excluded from Apportionment of Congress (House seats) and direct taxation. In America’s formative years, the Constitution recognized Native Americans as citizens of Native Nations, not citizens of the United States.
At the end of the Civil War, the United States desired peace and it had just been through disastrous Plains wars with the Sioux Nation, the Cheyenne, the Arapaho, the Kiowa, and the Comanche. The Army had just forced the Navajo on the Long Walk. The Indian Peace Commission was sent to negotiate treaties, and the Commission negotiated treaties, including the 1868 Navajo Nation Treaty and the 1868 Sioux Nation Treaty. In 1868, Congress was framing and later ratifying the 14th Amendment to create a framework for Reconstruction in the South. To protect freedmen from state oppression, the Citizenship Clause provides that:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States….
Congress intended to make freed slaves citizens in the Citizenship Clause, but once again, Indians were excluded from automatic U.S. Citizenship by birth: Natives were not subject to United States jurisdiction, as its text required. Congress understood that our native people were subject to Native jurisdiction. The Citizenship Clause acknowledges the jurisdiction of Indian nations over Indians, that is: Indian Self-Determination.
When the 14th Amendment’s revised Apportionment Clause removed the constitutional original reference to slavery (“3/5s of other persons”), it now said: “All persons, excluding Indians not taxed ...” should be counted for congressional representation. With the term Indians not taxed, the 14th Amendment Apportionment Clause affirms the status of Indians as tribal citizens.
Many Americans do not know our history, and as Native people it is up to us to teach the American public the Constitution’s original intent, which mandates respect for our Indian treaties.
Mark Van Norman is the former DIrector, Office of Tribal Justice, USDOJ, former Director, National Indian Gaming Association, 1986 Harvard Law School JD, and represents Indian nations and tribes.