The 574 federally acknowledged Native nations inhabiting what is now the United States occupy a distinctive political and legal niche within the larger society. They are recognized as the original sovereigns of North America by virtue of their continuous existences and as documented in hundreds of formal diplomatic arrangements—often termed treaties—with multiple international states including England, Spain, France, Russia, and the United States. Most importantly, they retain inherent sovereignty and governmental capacity; extra-constitutional powers which they have never relinquished to the United States.
No other group of U.S. citizens wields such authority, yet no other is so lacking in definitive constitutional protections. While this poorly understood, ambiguous status has often served to protect Native nations from fatal challenges, their existence largely outside the federal constitutional structure has also left individuals and communities susceptible to exploitation, neglect, and even political termination. Other countries, such as Canada and Mexico, have enshrined Indigenous rights and recognition within their constitutions, but the Indigenous nations within their boundaries have little to show for these actions. In fact, it could be argued that with increased visibility came increased vulnerability, as their clarified status rendered them more legally accessible targets for those seeking to erode their powers or lay claim to their resources. It is no wonder that many U.S. based Native scholars and activists are reluctant to disturb the existing precarious balance—they know even with the best of intentions things can always get worse.
While U.S.-based Native nations have most certainly suffered from the brevity and ambiguity of their constitutional mentions, they have also endured because of it. Given this tenuous situation, there is great risk in relinquishing their status as extra-constitutional sovereigns through the act of the adoption of an Indigenous-defining amendment. The very act of adopting an amendment, no matter what the content, would render Native nations as constitutional sovereigns, a momentous change of status. Any proposed amendment must take this into account. The concepts should be broad and simple, providing definitive affirmation and protection, but compromising neither the collective nor individual standings that have been hard-won and defended by so many.
Native History and Presence in the Constitution
Indigenous nations were not parties to the construction of U.S. federal or state constitutions and have never been explicitly institutionalized as part of these systems. Thus, having never been formally incorporated into either the United States or state constitutions, these polities possess a unique, extra-constitutional relationship with these governments. In fact, many federal court cases affirm that the United States Constitution and its amendments do not apply to Native nations. The federal Constitution does, however, contain several direct references to Natives, both individually and collectively.
Native peoples are named specifically in two sections of Article 1 of the US Constitution. In section 2, paragraph 3, in the formula for determining the apportionment for representatives to Congress and direct taxes, we find the phrase “excluding Indians not taxed.” This appears to be a variation of the language in Article 9 of the Articles of Confederation granting Congress the exclusive right and power to regulate trade and manage affairs with Indians “not members of any of the States.” Indeed, the constitutional phrase serves only to specify that while Native nations have no formal relations with states, Native individuals may be considered as regular state citizens for purposes of taxation. The phrasing of section 2 appears once again in the Fourteenth Amendment and in both instances is decidedly vague.
Section 8, paragraph 3 contains the critical clause giving Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” A mere sixteen words, yet they offer valuable insight into colonial dealings with Indigenous peoples and the perspectives of the framers. There is no indication of the manner in which the Constitution was to be specifically applied to Native persons or nations. Indeed, careful reading would indicate that relations with Natives are an external matter for both the states and the federal government as the ensuring decades of treaty-making affirm.
Hence, Indigenous nations are constitutionally defined as pre-existing sovereigns whose existence is neither beholden nor subject to federal and state authorities. Modern legal scholarship and litigation dealing with Native matters revolves around the interpretation of the clear acknowledgment of Indigenous nations as distinct sovereign entities. From this simple phrase springs the massive edifice of legislation, court decisions, and administrative rules and regulations that comprise the structure and substance of the federal relationship with Native nations and their citizens.
The explicit references to Indians reflect the situation that confronted the United States at the time they were written. When the U.S. Constitution was adopted, Indigenous nations, as independent sovereigns, were wholly free to align themselves with any country they wished, or to remain nonaligned if they so chose. England and Spain aggressively courted the larger Native confederacies, and it was not until the end of the War of 1812 that the United States finally assumed a position of primacy among the sovereigns competing for midcontinent Indigenous allegiance. Pacific Coast Native Nations were precluded from dealing with other sovereigns in 1846 when Great Britain signed the Oregon Treaty giving the US sole internationally recognized authority over the Oregon Territory. The U.S. was then free, from the viewpoint of international law of the time, to enter into treaty negotiations with those Tribes. Pressures to fulfill the vociferous demands of Manifest Destiny were increasing and these documents were key to opening the West to colonization.
Negotiated Sovereign Existences Outside the Constitution
Notwithstanding their treaty-affirmed extra-constitutional status, Native peoples’ authority as governing bodies and proprietary landholders has been substantially diminished by federal and state statutes, presidential decrees, judicial opinions, and administrative rules and regulations. The Department of the Interior, charged since its inception in 1849 with carrying out the federal government’s treaty obligations and trust relationship (the legal and moral duty of the federal government to protect Native lands, essential rights, and cultural heritage) with Indigenous nations, has profoundly shaped and limited Native autonomy through more than 150 years of bureaucratic maneuvers, one-sided rule interpretations and budgetary manipulations. The real-life consequences of these decisions were horrific—thousands died from starvation, disease, exposure and other bureaucratically induced calamities. Lands and resources that were to be kept in trust by the federal government for the benefit of Indian people were squandered or stolen outright. In 2009 Cobell v. Salazar finally addressed failures of the trust obligation by awarding $3.4 billion for compensation, land repurchasing and scholarships. This amount was a fraction of the actual calculated losses due to 150-years of gross mismanagement, which at the time of the settlement were estimated to be in excess of $175 billion.
In spite of these ambiguities, biases and abuses, the nearly 400 ratified treaties that were negotiated between 1778 and 1871 affirmed Native sovereignty and established a close, if uneven, enduring political relationship with the United States. Complicating this unique government-to-government arrangement is the reality that federal lawmakers have attempted at various times to forcibly assimilate Native individuals through a variety of mechanisms including boarding schools, individualization of Tribal property, imposition of Western legal institutions and values, and Christian missionary activity.
For example, the passage of the Indian Citizenship Act of 1924 granted U.S. citizenship to those Natives who had not yet been enfranchised with the goal of absorbing them into the larger society. Interestingly, this action positioned Native individuals as rights holders in three polities: their Native nation, their state of residence, and with the federal government. Even when armed with treble citizenship, Native political, property, and cultural rights still lack fundamental protections from the federal government, despite ratified treaties and constitutional acknowledgment.
Natives and the American Mythos
As if this tangle of legal and historical forces were not enough, Native treaties and the trust relationship also have moral and ethical dimensions. In an obvious sense the formal obligations are pledges of reciprocal honor. Thus, for the federal government to ignore, pervert, or abrogate these agreements is to refute the cherished national ethos of American moral exceptionalism, “one nation, under God, indivisible, with liberty and justice for all.” That Natives with trust and treaty rights still exist in the 21st century is an inconvenient reminder that North America was not an empty land brought to life by hardworking immigrants but rather was built upon, and continues to benefit from, displacement, caricature, and exploitation of Natives and other people of color.
A significant number of non-Native Americans seem to prefer the romantic fiction of the U.S. origin story to the actual events. After centuries of spurious policy-making under the guise of the American democratic experiment, Natives understand very well that their lives and resources are governed, not only by political and economic expediency, but also by a fundamental public ambivalence. Mainstream American society came to love the romantic ideal of Indians but remains content to sacrifice their actual existences for what they perceive as the greater, short-term good—be that manifest destiny or access to cheap oil.
There is hope that with changing demographics and increased visibility due to powerful grassroots movements against injustices in Indian Country, such as the intrusion of pipelines and human trafficking, that the rest of the nation is gaining a nascent understanding of their shameful national heritage and the costs of maintaining this illusion. A wider perspective is critical as the application of better Indian policy and law oftentimes depends on the perceptions that the public, presidential administrations, Congress, and the Supreme Court maintain.
A Uniquely Powerful and Uniquely Vulnerable Political Status
National romantic ambivalence fosters a dangerous environment for Native peoples. Like other people of color, Natives are sometimes subject to direct and systemic racism and have fought to gain and retain hard-won civil, political, and economic rights. But Native nations, because of their pre-existing sovereign status, must also contend with constant threats of loss or termination of their political status through the exercise of Congressional plenary power. Beginning in the 1880s, the US government arbitrarily asserted that it had plenary (virtually absolute) authority over Indigenous governments, resources, and rights. Thus, federally recognized Native communities are uniquely vulnerable as this power could be exercised at any time to diminish or eliminate their political identities or proprietary rights. As Native nations are extra-constitutional, they have no protections from Congressional plenary power.
Even Natives in their individual capacity as American citizens are not entitled to the full constitutional protection of their tribally-based rights, since that document and its amendments do not apply to Native nations. Although the 1968 Indian Civil Rights Act imposed key portions of the Bill of Rights, in statutory form, on Tribal governments in their relations with reservation residents, Tribes remain immune from the reach of the federal Constitution. Important in this light is the fact that there is no limitation on the power of Congress to enact legislation regarding Tribal nations. Indigenous peoples may, for example, be legally terminated, as a number were in the 1950s and 1960s. Other racial, ethnic, or gender groups are not threatened with political elimination and states cannot be abolished by the federal government.
Thus, the pattern of forces working simultaneously to both advantage and disadvantage Native nations holds true with regard to the historical nature of distinctive Indigenous rights, as well. There may be advantages in the sense that inherent sovereignty and treaty and trust relationships afford legal, political, and property rights that other racial and ethnic groups do not possess. Native nations, however, have also borne the brunt of specious laws, doctrines, and policies tailored to allow non-natives to presume paternalistic superiority while brutally claiming the right to disenfranchise, disempower, and dispossess Indigenous peoples.
Defending Inherent Rights and Identities
Many have speculated on ways to effectively fight against substantial constitutional, legal, political, and intergovernmental threats. Exit was an early and obvious alternative. When conditions deteriorated, many Indigenous peoples would simply leave the region, in some cases crossing into Canada or Mexico. Then there were treaties and other forms of diplomacy that, for the first 200 years, were valuable and flexible mechanisms wielded to adjust political relations with non-native governments. Between the late 18th and early 20th centuries there were also Indigenous attempts to create a Native territory, and even a Native state, that were pursued with some vigor. The incorporation of Native individuals via the extension of United States citizenship was yet another approach that was aimed at the assimilation of individual Natives. Finally, the pursuit of political independence via international recognition has been explored by elements of some Native nations, particularly the more traditional minded members of the Haudenasounee (Iroquois) Confederacy and some of the leading activists affiliated with the American Indian Movement.
With the surge of Native activism in the 1960s, these and other ideas were put forth by those committed to enhancing and supporting Native sovereignty and self-determination. Vine Deloria, Jr. and Hank Adams called for reviving the treaty process that had been effectively halted in 1871. Others took the idea of political exit even further and called for the United Nations to fully open its doors to Native nations.
As for the efficacy of a constitutional amendment, at the outset, we noted that the only references to Natives in the U.S. Constitution are the archaic clauses that reference “excluding Indians not taxed” and the more important Commerce clause that specifies Congress’ only power vis-à-vis Native nations. While this language was arguably sufficient in 1789, some such as Barsh and Henderson in their 1980 work, The Road: Indian Tribes of Political Liberty argued that a fully developed U.S. constitutional amendment was necessary if Native peoples were to secure inherent rights and clarification of their political relationships.
This idea is not without precedent. Several international states have amended their constitutions to incorporate and acknowledge Indigenous rights and sovereignty. For example, the Canadian people in 1982 modified their Constitution declaring that, “the existing aboriginal and treaty rights of the aboriginal peoples of Canada are hereby recognized and affirmed.” The 2006 election of Evo Morales, an Aymara Indian, made Bolivia one of the first states to be headed by an Indigenous person. Three years later, the country adopted a new constitution which declared in Article 2 that “Given the precolonial existence of nations and rural native indigenous peoples and their ancestral control of their territories, their free determination, consisting of the right to autonomy, self-government, their culture, recognition of their institutions, and the consolidation of their territorial entities, is guaranteed within the framework of the unity of the State, in accordance with this Constitution and the law.”
As S. James Anaya points out in his study, Indigenous People in International Law, 2nd ed. (2004), several other international states also amended their Constitution to recognize Native sovereignty, territorial rights, and cultural autonomy, including Russia, Nicaragua, Guatemala, Columbia, Argentina, Mexico, Brazil, and Honduras. Although the words are now on paper, the actions of these countries, without exception, have since generally belied their commitment to these lofty principles.
An Amendment Affirming Indigenous Sovereignty and Self-Determination
Scholars, Native leaders, and activists have speculated on the wisdom of overt constitutional inclusion through an amendment, but have found it challenging to put forth an elegant proposal that would not over-regulate, limit, or endanger Indigenous rights.
To my mind, the most powerful language to date offering the most protection with the least amount of risk was put forth by Frank Pommersheim, a non-Native law professor highly respected in Indian Country. In his book, Broken Landscape: Indians, Indian tribes, and the Constitution, in which he examines the distinctive constitutional and extra-constitutional status of Indigenous nations, he proposes a constitutional amendment he contends would stabilize and clarify the status of Native nations and individual Natives in the United States:
The inherent sovereignty of Indian tribes within these United States shall not be infringed, except by powers expressly delegated to the United States by the Constitution. The Congress shall have power to enforce, by appropriate legislation, the provisions of this Article.
This 41-word statement is, in many ways comparable to the 10th and 14th Amendments. The straightforward content introduces no new concepts and requires no congressional or regulatory action beyond adoption of the amendment. Such simplicity renders it more palatable to lawmakers and the larger population. As Pommersheim explains, it has two key elements: “respectful and durable constitutional recognition of inherent tribal sovereignty, which harks back to the original text of the Constitution, with a new sense of respect and inclusion,” and recognition of “congressional authority to enact (necessary) legislation to enforce its basic guarantees.” While the amendment does not reference existing treaties or agreements, he contends those would remain inviolate, as those documents are integral to the foundation upon which Native sovereignty is constructed.
In theory, if such an amendment were to be ratified it could, indeed, provide a stronger level of protection for Native sovereignty than the current safeguards which rely heavily on treaty provisions, constitutional clauses (e.g., treaty, commerce, property) and citizenship. Of course, as we know from experience, constitutional amendments are only as effective as interpretation and enforcement actions of responsible political and legal bodies and personnel. Further, this language would not preclude Native nations from continuing individual pursuits for greater international recognition of self-determination. More importantly, it would provide explicit constitutional presence for Native peoples that they are currently denied. The politically and legal vulnerabilities of the present situation are painfully evident in an opinion by associate Justice Clarence Thomas in United States v. Lara (2004) where in comparing Native governments to states Thomas said:
But the States (unlike the tribes) are part of the constitutional framework that allocates sovereignty between the State and Federal Governments and specifically grants Congress the authority to legislate with respect to them… The tribes, by contrast, are not part of this constitutional order, and their sovereignty is not guaranteed by it.
A concise, measured amendment such as Pommersheim’s could solidify protections for sovereignty, land, and rights while minimizing unintended consequences. Its simplicity is its true strength, as it does not involve development of an elaborate policy plan or legislative action, but simply affirms the current foundations of Tribal governments. Thus, it allows for the continuation of autonomy and self-determination for all the diverse Native nations located within U.S. boundaries.
Conclusion – Native Nations as Constitutional Sovereigns
The extra-constitutional status of Indigenous peoples within the US has always been both blessing and curse. From this legally obscure position, and against all odds, Native nations have managed to fend off centuries of attempts at eradication and assimilation. Given this hard-fought status, any amendment crafted in an attempt to improve the status of Indigenous people in the U.S. is a dangerous proposition. Disturbing the existing balance in pursuit of overtly recognized rights as formally integrated polities is a gamble that could jeopardize the collective inherent sovereign rights and powers Native peoples have retained as citizens of their nations. If the scales were to be tipped in a way that were to weaken Tribal sovereignty, legal and moral protections would be lost and the rights of Indigenous peoples diminished to the level of other ethnic groups.
Tribal Sovereignty, the inherent power neither related nor beholden to the existence of the U.S., is the shield that forestalls total overrun, absorption, and erasure. A simple, affirmative amendment fashioned in a manner similar to previously adopted amendments could, perhaps, serve to better protect the Nations, but only if penned in a way that avoids overreach.
The single goal should be to clearly ground and protect inherent sovereignties for the duration of each Nation’s relationship with the United States. Native peoples and these lands have always been, and will continue to be, indivisible, long after treaties and constitutions are distant memories. We have to make sure any move to create a Native amendment to the U.S. constitution—an action that would move Tribal nations and peoples from the safe obscurity offered by extra-constitutionality to the high visibility of overt constitutional inclusion—aligns with this reality.
David E. Wilkins is E. Claiborne Robins Distinguished Professor in Leadership Studies at the University of Richmond. He concentrates much of his work on Native politics and governance, with particular attention on the transformations that Indigenous governments have both coercively and voluntarily engaged in from pre-colonial times to the present. His most recent book is Red Prophet: The Punishing Intellectualism of Vine Deloria, Jr. (Fulcrum Publishing, 2018).