Article I, Section 8, Clause 3:

[The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .

Jurisdiction over matters in “Indian Country” 1 “is governed by a complex patchwork of federal, state, and tribal law.” 2 Since Worcester v. Georgia in 1832,3 the Supreme Court has recognized that Native American “tribes are unique aggregations possessing attributes of sovereignty over both their members and their territories.” 4 They are no longer “possessed of the full attributes of sovereignty,” 5 however, having relinquished some part of it by “[t]heir incorporation within the territory of the United States and their acceptance of its protection.” 6 Accordingly, “[t]he sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance.” 7

While previously “the subject of some confusion,” the source of federal authority over tribal matters is generally recognized to “derive[ ] from federal responsibility for regulating commerce with Indian tribes and for treaty making.” 8 The Constitution’s so-called “Indian Commerce Clause” explicitly authorizes Congress to regulate commerce with the tribes.9 Congress’s authority to regulate commercial activity in “Indian Country” is plenary,10 exclusive,11 and broad,12 and persists even though such activity may occur within a state’s territorial boundaries.13

Using its Indian Commerce Clause authority, Congress may determine with whom and in what manner the tribes engage in commercial activity.14 Major areas where Congress has exercised its power to regulate include: tribal land; tribal gaming; hunting, fishing, and wildlife; and natural resources, such as minerals, oil and gas, and timber. Congress has also attempted to promote tribal political and economic development15 through legislation such as the Indian Reorganization Act of 193416 and the Native American Business Development, Trade Promotion, and Tourism Act.17

The Supreme Court has increasingly recognized Congress’s power under the Indian Commerce Clause as a source of authority to regulate tribal rights and obligations beyond matters of mere commerce.18 Although the power of Congress over tribal affairs is broad, it is not limitless.19 While “the United States has power to control and manage the affairs of its Indian wards in good faith for their welfare, that power is subject to constitutional limitations.” 20 The Court has articulated a standard of review that defers to legislative judgment “[a]s long as the special treatment can be tied rationally to the fulfillment of Congress’s unique obligation toward the Indians.” 21 A more searching review is warranted when it is alleged that the federal government’s behavior toward a tribe contravenes its obligations, or when the government has taken property which it guaranteed to the tribe without compensating the tribe for the land’s full value.22

Footnotes

1

“Indian Country” is statutorily defined in 18 U.S.C. § 1151 as: (a) “all land within the limits of any Indian reservation under the jurisdiction of the United States Government” ; (b) “all dependent Indian communities within the borders of the United States” ; and (c) “all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.”

2

Duro v. Reina, 495 U.S. 676, 680 (1990) (citing United States v. John, 437 U.S. 634, 648–49 (1978)), superseded by statute as recognized in United States v. Lara, 541 U.S. 1931 (2004).

3

31 U.S. (6 Pet.) 515 (1832). See also Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). Under this doctrine, tribes possess sovereign immunity from suit in the same way as the United States and the states. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); United States v. U.S. Fid. & Guar. Co., 309 U.S. 506, 512–13 (1940). The Supreme Court has repeatedly rejected arguments to abolish or curtail tribal sovereign immunity. See, e.g., Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 510 (1991).

4

United States v. Wheeler, 435 U.S. 313, 323 (1978) (internal quotation marks and citation omitted), superseded by statute as recognized in Lara, 541 U.S. 1931.

5

United States v. Kagama, 118 U.S. 375, 381 (1886) ( “[T]he Indian tribes residing within the territorial limits of the United States are subject to their authority, and where the country occupied by them is not within the limits of one of the States, Congress may by law punish any offense committed there, no matter whether the offender be a white man or an Indian.” ).

6

Wheeler, 435 U.S. at 323.

7

Id. See also South Dakota v. Bourland, 508 U.S. 679 (1993) (discussing abrogation of tribal treaty rights and reduction of sovereignty). Congress may also remove restrictions on tribal sovereignty. The Supreme Court has held, however, that absent authority from federal statute or treaty, tribes possess no criminal authority over non-Natives (with some limited exceptions). Montana v. United States, 450 U.S. 544 (1981); see also Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). In United States v. Cooley, No. 19-1414, slip op. at 1 (U.S. June 1, 2021), the Court applied the Montana Doctrine to hold that a “tribal officer possesses the authority . . . to detain temporarily and to search a non-Indian on a public right-of-way that runs through an Indian reservation.” As to members of other tribes, the Court held in Duro v. Reina, that a tribe has no criminal jurisdiction over members of other tribes who commit crimes on the reservation. Congress, however, later enacted a statute recognizing the inherent authority of tribal governments to exercise criminal jurisdiction over non-member Natives; the Court subsequently upheld congressional authority to do so in United States v. Lara.

8

McClanahan v. State Tax Comm’n of Ariz., 411 U.S. 164, 172 n.7 (1973) (citing U.S. Const. art. I, § 8, cl. 3; art. II, § 2, cl. 2; Williams v. Lee, 358 U.S. 217, 219 (1959); Perrin v. United States, 232 U.S. 478 (1914). Article II, Section 2, Clause 2 of the Constitution gives the President the “Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur . . . .” For more on the treaty-making power, see infra .

9

U.S. Const. art. I, § 8, cl. 3. See also Williams v. Lee, 358 U.S. 217, 220 n.4 (1959) ( “The Federal Government’s power over Indians is derived from Art. I, s. 8, cl. 3, of the United States Constitution, and from the necessity of giving uniform protection to a dependent people.” (citing Perrin v. United States, 232 U.S. 478 (1914))).

10

Michigan v. Bay Mills Indian Cmty., 572 U.S. 782 (2014); United States v. Jicarilla Apache Nation, 564 U.S. 162 (2011).

11

Montana v. Blackfeet Tribe of Indians, 471 U.S. 759 (1985); Oneida Cnty. v. Oneida Indian Nation of New York State, 470 U.S. 226 (1985); Howard v. Ingersoll, 54 U.S. 381, 410 (1851) ( “Constitutionally [the United States] could alone regulate commerce with the Indian tribes.” ).

12

United States v. Lara, 541 U.S. 193 (2004); Ramah Navajo Sch. Bd., Inc. v. Bureau of Revenue of N.M., 458 U.S. 832 (1982); White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980).

13

United States v. Jackson, 280 U.S. 183 (1930).

14

Perrin v. United States, 232 U.S. 478 (1914); Tinker v. Midland Valley Mercantile Co., 231 U.S. 681 (1914).

15

25 U.S.C. §§ 1451 et seq.

16

Id. §§ 461 et seq.

17

Id. §§ 4301 et seq. Other examples include the Indian Revolving Loan Fund, id. §§ 1461 et seq.; 25 C.F.R. §§ 101.1 et seq., Indian Loan Guaranties and Insurance, 25 U.S.C. §§ 1481 et seq.; 25 C.F.R. §§ 103.1 et seq., and Indian Business Grants, 25 U.S.C. §§ 1521 et seq.

18

In an early case, the Supreme Court rejected the Commerce Clause as a basis for congressional enactment of a system of criminal laws for Native Americans living on reservations. United States v. Kagama, 118 U.S. 375 (1886). Nonetheless, the Court sustained the laws on the grounds that the federal government had the obligation and thus the power to protect a “weak and diminished” people. Id. at 384. Cf. United States v. Holliday, 70 U.S. (3 Wall.) 407 (1866); United States v. Sandoval, 231 U.S. 28 (1913). A special fiduciary responsibility between the federal government and tribes can also be created by statute. See, e.g., United States v. Mitchell, 463 U.S. 206 (1983) ( “[T[he statutes and regulations now before us clearly give the Federal Government full responsibility to manage Indian resources and land for the benefit of the Indians. They thereby establish a fiduciary relationship and define the contours of the United States’ fiduciary responsibilities.” ).

19

“The power of Congress over Indian affairs may be of a plenary nature; but it is not absolute.” United States v. Alcea Bank of Tillamooks, 329 U.S. 40, 54 (1946) (plurality opinion) (quoted with approval in Del. Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 84 (1977)).

20

United States v. Klamath & Moadoc Tribes, 304 U.S. 119, 123 (1938).

21

Morton v. Mancari, 417 U.S. 535, 555 (1974). The Court applied this standard to uphold a statutory classification that favored employment of “qualified Indians” at the Bureau of Indian Affairs. In Delaware Tribal Business Comm. v. Weeks, 430 U.S. 73 (1977), the same standard was used to sustain a classification that favored, although inadvertently, one tribe over other tribes. While tribes are unconstrained by federal or state constitutional provisions, Congress has legislated a “bill of rights” statute covering them. See Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978).

22

United States v. Sioux Nation, 448 U.S. 371 (1980). See also Solem v. Bartlett, 465 U.S. 463, 472 (1984) (stating there must be “substantial and compelling evidence of congressional intention to diminish Indian lands” before the Court will hold that a statute removed land from a reservation); Nebraska v. Parker, 577 U.S. 481, 494 (2016) (noting that “only Congress can divest a reservation of its land and diminish its boundaries,” but finding the statute in question did not clearly indicate Congress’s intent to effect such a diminishment of the Omaha Reservation); McGirt v. Oklahoma, No. 18-9526, slip. op. at 8 (U.S. July 9, 2020) (stating that to disestablish a reservation, Congress must “clearly express its intent to do so” ). In McGirt, the Court held that Congress had not expressed a sufficiently clear intent to disestablish the Creek Reservation, concluding the reservation survived allotment and other intrusions “on the Creek’s promised right to self-governance.” Id. at 13.