- From Wikipedia: Tribal sovereignty in the United States.
The United States Constitution mentions Native American tribes three times:
- Article I, Section 2, Clause 3 states that "Representatives and direct Taxes shall be apportioned among the several States ... excluding Indians not taxed."According to Story's Commentaries on the U.S. Constitution, "There were Indians, also, in several, and probably in most, of the states at that period, who were not treated as citizens, and yet, who did not form a part of independent communities or tribes, exercising general sovereignty and powers of government within the boundaries of the states."
- Article I, Section 8 of the Constitution states that "Congress shall have the power to regulate Commerce with foreign nations and among the several states, and with the Indian tribes", determining that Indian tribes were separate from the federal government, the states, and foreign nations; and
- The Fourteenth Amendment, Section 2 amends the apportionment of representatives in Article I, Section 2 above.
These basic provisions have been changed or clarified by various federal laws over the history of the United States. Regulate historically meant facilitate, rather than control or direct in the more modern sense. Therefore, the Congress of these United States was to be the facilitator of commerce between the states and the tribes.
These constitutional provisions, and subsequent interpretations by the Supreme Court (see below), are today often summarized in three principles of U.S. Indian law:
- Territorial sovereignty: Tribal authority on Indian land is organic and is not granted by the states in which Indian lands are located.
- Plenary power doctrine: Congress, and not the Executive Branch or Judicial Branch, has ultimate authority with regard to matters affecting the Indian tribes. Federal courts give greater deference to Congress on Indian matters than on other subjects.
- Trust relationship: The federal government has a "duty to protect" the tribes, implying (courts have found) the necessary legislative and executive authorities to effect that duty
