Peter D'Errico: Wishful thinking for tribes and their sovereignty

Thursday, February 24, 2011  

"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!"

Get the Story:
Peter D'Errico: The ‘More Perfect Union’: Analysis vs. Wishful Thinking (Indian Country Today 2/23)