Sunday, September 14, 2008

Ssssssshhhh - don't tell Congress

Constitutional mythbusters
Tucson, Arizona
Published: 09.14.2008

The U.S. Constitution grants Congress and the president authority over American Indian tribes.

Myth. The U.S. Constitution only gives Congress the power to manage commerce with the Indian tribes and gives the president, with the consent of the U.S. Senate, the power to make treaties with Indian tribes. In a now-infamous 19th century case called United States v. Kagama, the Supreme Court said that it could not find an explicit provision in the Constitution that recognized federal authority over Indian tribes, but nevertheless concluded that the power must exist.

This notion, later labeled "the it-must-be-somewhere doctrine" conflicts with the more traditional understanding that the Constitution should be viewed as a document granting only limited and enumerated powers. As a result, the federal authority over Indian tribes is built on a tenuous constitutional footing. Nevertheless, Indian tribes have generally acceded to the exercise of federal power as long as the United States continues to meet most of its treaty obligations and continues to support their more limited independence.

The Supreme Court has repeatedly recognized that Indian tribes pre-existed the United States and the states themselves. Thus, their powers are inherent powers arising from their own "tribal sovereignty," not from the Constitution.

Moreover, tribal governments may have inspired the formation of the United States itself. Only after spending time among the Six Nations of the Iroquois did founding father Benjamin Franklin realize that states could both maintain independent sovereign existence and also form a "more permanent union." This idea, borrowed from the Iroquois, has produced one of the powerful nations in world history.

Kevin K. Washburn,
Rosenstiel Distinguished Professor of Law