DaShanne Stokes: US must stop interfering with sovereign tribes

To read the Clause as applying to Native nations or as giving Congress any authority over them, as often happens in court cases involving Native nations and their citizens, is to misinterpret history and the nature of international relations. Native nations, when the Clause was written, were separate, sovereign, and independent.

It was only years after the Commerce Clause was written into the Constitution that the U.S. government decided, illegally, to unilaterallybreak its treaties with Native nations. When the U.S. broke those treaties, it effectively ended the legal and political relationships between the U.S. and Native nations.

Some would argue that this, combined with citizenship, effectively brought Native nations under the jurisdiction of the U.S. government.

But, under customary international law, illegal acts, even those made by states like the U.S., cannot terminate the legal validity of international treaties to which they’ve entered. Illegal acts also cannot terminate the legal existence or status of foreign and independent nations. They remain equal, sovereign, and independent. Imperial conquest and dual citizenship do not change that.

Thus, treaties entered into between the U.S. government and Native nations remain legally valid. And the Commerce Clause applies only, as it was originally written, to non-Native U.S. citizens.