'Indian tribes' in the Constitution
According to the Commerce Clause (Article 1, Section 8, Clause 3) in the U.S. Constitution, ''The Congress shall have power ... To regulate commerce with foreign nations, and among the several states, and with the Indian tribes.'' The Constitution was drafted in September 1787; what did the Constitutional Convention mean by the term ''Indian tribes''? There is no clear definition of the term ''Indian tribes'' within the document itself. The Federalist Papers, a series of newspaper editorials believed written by James Madison, John Jay and Alexander Hamilton, are regarded as an explanation of the rationale for forming a constitutional government. But while Indians are mentioned in several of the articles, there is no definition for the term ''Indian tribes.''
The expression ''Indian,'' as we all know now, has its origins in a miscalculation by Christopher Columbus. When in 1492 he landed in the present-day Caribbean, he encountered people he believed were inhabitants of the Asian subcontinent of India. He called them ''Indios'' and this expression caught on generally among Europeans, even though the original peoples of the ''New World,'' or those living within territories then unknown to Europeans, were not the peoples Columbus thought he'd met.
When Columbus introduced the expression ''Indian'' for the generic name for the New World inhabitants, he did not know how many cultures, languages, nations or peoples populated the lands. Columbus and the Europeans could not define the extent of the land and did not have knowledge of the great diversity of cultures and nations. Thus, the generic term ''Indians'' came to stand.
We now consider the expression ''Indian'' to be a great oversimplification and certainly not the way tribal communities or individuals express their identities, which is generally tribal identities first, rather than pan-ethnic or pan-tribal identities. Since Americans, many non-tribal people and Native peoples themselves continued to use the expression ''Indian'' in everyday, scholarly and government policy statements, the expression of ''Indian'' has come to have a life of its own. Nevertheless, the expression of ''Indian'' as an identifier of indigenous peoples, or First Nations, or Native peoples is not well-defined, and is often not the preferred expression used by indigenous peoples. But since ''Indian'' is used in the U.S. Constitution, it becomes a legal and political expression, despite its lack of clear definition or confidence that the expression is used with any great knowledge about the many peoples it claims to identify.
When the Continental Congress formed as a government to manage the political affairs of the rebellion against Britain, the members hoped that all colonies, including those in present-day Canada and South America, would join in throwing off colonial rule and establishing new, democratic governments. The original plan of the rebellions was widely conceived, and in some sense not too long after during the first two decades of the 1800s, most colonies in the New World won independence from European mother states. ''Indians,'' in this wider scope, is an expression designating those peoples of the New World whose cultures were significantly different from Europeans, who established governments and territories from time immemorial before the European arrival, and who were either subordinated to a colony or were independent enough to negotiate trade, diplomatic and military treaties and alliances with the European colonies.
When the drafters of the Constitution referred to Indian tribes, they did not know how many Indian tribes were in the New World, nor did they have knowledge of their cultures, lands or histories. After the Louisiana Purchase of 1803, the United States did not have good information about the tribal communities in its new land claim. By the 1820s, new states and territorial governments were established in the West, but with little understanding of the numbers or characteristics of most indigenous peoples living west of the Mississippi River. After establishing territorial governments, the U.S. government went about the business of establishing relations and treaties with the Native nations living in the territory.
Some communities are federally recognized as Indian tribes who say they are not American Indians. This is the case of many Alaskan villages of Yupiks, Inuits and probably Aleuts, who say they are not ''Indians'' and reserve that term for the Dene, Tlingit and other groups. The denial of Indian identity by many Alaskan indigenous peoples gave rise to the expression ''Alaska Natives.'' Yet many Alaska Native villages are recognized in the Federal Register, the Alaska Native Claims Settlement Act of 1971 and numerous national legislations targeted for American Indians and Alaska Natives. Similarly, Native Hawaiians are beneficiaries of many congressional legislative acts along with American Indians and Alaska Natives. Yet, Native Hawaiians are not federally recognized as an ''Indian tribe'' the way that many Alaska Native villages are.
Should Native Hawaiians and Pacific Islanders, indigenous peoples from the Pacific territories, also be classified as ''Indian tribes'' for the purposes of the Constitution and law? Did the Constitution's framers mean ''indigenous peoples'' when they used the more politically, culturally and historically limited expression ''Indian tribes''?