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

Peter D'Errico

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.

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oldcitizen's picture
I respectfully disagree. That our current state of affairs has worked out as the author explains is regrettable, but it doesn't make it right. Courts as an institution have based their interpretation of the Constitution and the federal/tribal relationship upon Justice Marshall's model. But that doesn't mean that Marshall's interpretation was the correct one. At the time that the Constitution was written, those drafters did view Indian Nations as fully sovereign entities. That the Court has not doesn't make it so - it makes the Court wrong. The Court was wrong in 1823, and it is wrong today. The author is correct, however, in that is is all that we have to work with. That is the unfortunate reality of it all.
piqua's picture
To Eddye: The Executive Branch is in charge of making treaties on behalf of the United States. The Treaty Clause provides the authorization. The Commerce Clause provided for the federal govt. to regulate commerce (e.g., land purchases) WITH "Indian tribes." As you rightly state, it did not provide any federal authority OVER Indian nations or "tribes." The S.Court devised the "domestic dependent" label to categorize Indian nations in a way that would suggest, on the basis of the Doctrine of Christian Discovery, they were SUBJECT to the territorial or "ultimate" dominion of the federal govt. of the U.S. To Oldcitizen: I do not read Mr. d'Errico as saying that the current U.S. legal interpretations are "all we have to work with." It is, however, what we have to respond to in detail. He certainly does not explicitly say anywhere in his article that this is all we have to work with. I read him as saying that we need to be accurate and precise when we speak or write about such things. I also read d'Errico as saying that in building our arguments in favor of Indian sovereignty and self-determination, we have to respond (refute) what the Supreme Court ACTUALLY said. When, d'errico states: "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," it would have been better if he had written "We may wish it were true that the United States Supreme Court recognized Indian nations as fully sovereign and equivalent to foreign nations...." The fact remains that, as stated above, the United States Supreme Court built the "domestic dependent nation" category on the basis of the Doctrine of Christian Discovery and the dehumanizing categorization of our nations as "heathens" and "savages," etc. It is at this foundational level that we need to confront the conceptual system that the United States continues to use against Indian nations and peoples. If a prominent leader such as Mr. Keel were to at long last explicitly address this dark side of federal Indian law and policy in a State of the Indian Nations address, now THAT would be something to witness and celebrate. On a positive note, last Fall Assistant Sect. of the Interior Larry Echo Hawk did mention and critize the Doctrine of Discovery without mentioning that it is rooted in Christian categories. This was a great step in the right direction, for unless we accurately define the nature of the problem it is unlikely that it will be possible to prescribe an effective solution.
piqua's picture
To oldcitizen: I do not read Mr. d’Errico as saying that that the interpretations put forth by the United States is “all that we have to work with.” What he does seem to be saying is that when we characterize or refute the interpretations of the United States relative to Indian nations, we ought to be accurate and precise. When d’Errico said “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,” it would have been better if he had limited this to the United States Supreme Court. In a nineteenth century federal district court decision in Michigan, the court pointed out that the Constitution does not permit making a distinction between U.S. treaties with Indian nations and U.S. treaties with “foreign nations.” The exact same treaty making power of the constitution is exercised in the making of such treaties. As that Court sensibly stated: “It is contended that a treaty with Indian tribes has not the same dignity or effect as a treaty with a foreign and independent nation. This distinction is not authorized by the constitution.” William Wirt, while he was Attorney General of the United States acknowledged the independence of the Indian nations: “…so long as a tribe exists and remains in possession of its lands, its title and possession are sovereign and exclusive. We treat with them as separate sovereignties, and while an Indian nation continues to exist within its acknowledged limits, we have no more right to enter upon their territory than we have to enter upon the territory of a foreign prince.” (Op. Att. Gen.), April 26, 1821, p. 345. Two years later, in 1823, the United States Supreme Court handed down Johnson v. M’Intosh on the basis of the Doctrine of Christian Discovery, and the religious categories in Johnson were again used by the Supreme Court in 1831 to characterize Indian nations as “domestic dependent.” Thus, d’Errico’s article tacitly points to the fact that it is the premise of Christian discovery that needs to be challenged and refuted. If Mr. Keel had mentioned that it would been highly significant. Importantly, Assistant Sect. of Interior Echo Hawk did openly criticize the discovery doctrine last fall; he just left the religious content out of his remarks. Still that was a significant step in the right direction.
derrico's picture
Thanks for the comments! To be sure: I do NOT think the court was right. In fact, as each of the comments suggests, the court's decision was designed to do a wrong to indigenous nations, to deny their sovereignty (on the basis of the fact they were not 'Christian'). The commerce clause didn't do that; the court did that. US law has accepted this wrong as a basis for federal Indian law. My point is that we have to criticize this decision, not pretend it didn't happen. We have to criticize the 'doctrine of Christian Discovery,' as well as everything else in federal Indian law that is based on that doctrine. Federal Indian law premised on 'Christian Discovery' is NOT all we have. We have our power to criticize those ideas and to build political and legal positions on a different basis, namely, the original basis of indigenous sovereignty. Every time someone pretends the US Constitution is a good thing for Indian nations, they are walking down a dead-end path. The 'new era' to celebrate is when every Indian leader harks back to the real foundation of Indian nationhood and refuses to play the 'domestic dependent' game. By the way, if inclusion in the 'commerce clause' made Indians 'part of the union,' wouldn't it also make 'foreign nations' part of the union? But that would be an absurdity, wouldn't it?
garry's picture
If the legal professionals, elders, leaders and readers look to the formation of the nations against the backdrop of the documents of discovery and use this knowledge in searching out all of the information. This is only the first step, which is one step that will enable them to help define the true nature of the problem. The second step is being able to not only see the solutions but to prescribe them. Within the context of the US legal system the first step is easiest but the second one is almost virtually impossibe. UNtil one can see beyoind the glass ceilings of the laws responsible for the formation of the nations it is only possible to take the fisrt step. Piqua, as led please contact me at agarrevan@aol.com. Some of this information was partially already shared. Garry Umphress New Generation
eddye's picture
who does the constitution of the US authorize the president to make treaties with? anyone? the commerce clause was designed to prevent states from making deals with Indians in new york and georgia. the federal government was afraid the state of new york and georgia would create a war with Indians, who at that time, could have beaten the US in a war. so the feds came up with commerce clause to give authority to regulate non indians in their dealings/commerce with Indians. it was never designed to exercise authority over Indians. it was to regulate commerce WITH Indians. foreign courts got it wrong when they redefined indians as domestic dependent nations. cant make treaties with dependent domestic nations, only nations.