Article 1, Section 8, Clause 3 (Indians)

[Volume 2, Page 550]

Document 11

Joseph Story, Commentaries on the Constitution 2:§§ 1092--96


§ 1092. The power of congress also extends to regulate commerce with the Indian tribes. This power was not contained in the first draft of the constitution. It was afterwards referred to the committee on the constitution (among other propositions) to consider the propriety of giving to congress the power "to regulate affairs with the Indians, as well within, as without the limits of the United States." And, in the revised draft, the committee reported the clause, "and with the Indian Tribes," as it now stands.

§ 1093. Under the confederation, the continental congress were invested with the sole and exclusive right and power "of regulating the trade and managing all affairs with the Indians, not members of any of the states, provided, that the legislative right of any state within its own limits be not infringed or violated."

§ 1094. Antecedently to the American Revolution the authority to regulate trade and intercourse with the Indian tribes, whether they were within, or without the boundaries of the colonies, was understood to belong to the prerogative of the British crown. And after the American Revolution, the like power would naturally fall to the federal government, with a view to the general peace and interests of all the states. Two restrictions, however, upon the power were, by the above article, incorporated into the confederation, which occasioned endless embarrassments and doubts. The power of congress was restrained to Indians, not members of any of the states; and was not to be exercised, so as to violate or infringe the legislative right of any state within its own limits. What description of Indians were to be deemed members of a state was never settled under the confederation; and was a question of frequent perplexity and contention in the federal councils. And how the trade with Indians, though not members of a state, yet residing within its legislative jurisdiction, was to be regulated by an external authority, without so far intruding on the internal rights of legislation, was absolutely incomprehensible. In this case, as in some other cases, the articles of confederation inconsiderately endeavoured to accomplish impossibilities; to reconcile a partial sovereignty in the Union, with complete sovereignty in the states; to subvert a mathematical axiom, by taking away a part, and letting the whole remain. The constitution has wisely disembarrassed the power of these two limitations; and has thus given to congress, as the only safe and proper depositary, the exclusive power, which belonged to the crown in the ante-revolutionary times; a power indispensable to the peace of the states, and to the just preservation of the rights and territory of the Indians. In the former illustrations of this subject, it was stated, that the Indians, from the first settlement of the country, were always treated, as distinct, though in some sort, as dependent nations. Their territorial rights and sovereignty were respected. They were deemed incapable of carrying on trade or intercourse with any foreign nations, or of ceding their territories to them. But their right of self-government was admitted; and they were allowed a national existence, under the protection of the parent country, which exempted them from the ordinary operations of the legislative power of the colonies. During the revolution and afterwards they were secured in the like enjoyment of their rights and property, as separate communities. The government of the United States, since the constitution, have always recognised the same attributes of dependent sovereignty, as belonging to them, and claimed the same right of exclusive regulation of trade and intercourse with them, and the same authority to protect and guarantee their territorial possessions, immunities, and jurisdiction.

§ 1095. The power, then, given to congress to regulate commerce with the Indian tribes, extends equally to tribes living within or without the boundaries of particular states, and within or without the territorial limits of the United States. It is (says a learned commentator) wholly immaterial, whether such tribes continue seated within the boundaries of a state, inhabit part of a territory, or roam at large over lands, to which the United States have no claim. The trade with them is, in all its forms, subject exclusively to the regulation of congress. And in this particular, also, we trace the wisdom of the constitution. The Indians, not distracted by the discordant regulations of different states, are taught to trust one great body, whose justice they respect, and whose power they fear.

§ 1096. It has lately been made a question, whether an Indian tribe, situated within the territorial boundaries of a state, but exercising the powers of government, and national sovereignty, under the guarantee of the general government, is a foreign state in the sense of the constitution, and as such entitled to sue in the courts of the United States. Upon solemn argument, it has been held, that such a tribe is to be deemed politically a state; that is, a distinct political society, capable of self-government; but it is not to be deemed a foreign state, in the sense of the constitution. It is rather a domestic dependent nation. Such a tribe may properly be deemed in a state of pupillage; and its relation to the United States resembles that of a ward to a guardian.

The Founders' Constitution
Volume 2, Article 1, Section 8, Clause 3 (Indians), Document 11
The University of Chicago Press

Story, Joseph. Commentaries on the Constitution of the United States. 3 vols. Boston, 1833.

© 1987 by The University of Chicago
All rights reserved. Published 2000