The article below ran in the Providence Journal on 13 December 2002, but it is still relevant today. The article was mainly concerned with Congress’ penchant for granting “federal” recognition to Indian tribes; now the U.S. Supreme Court is trying its hand at Indian ‘nation-building’, but many of the arguments below still apply.
“THE QUESTION of Connecticut’s ability to exert sovereignty within its borders may be reaching critical mass, as it faces a potential explosion of Indian petty-states foisted upon it by a federal agency – the Bureau of Indian Affairs. Several minor tribes, the Paugussetts, the Schatigcokes and others, have applied for so-called federal recognition, and with it, the purported right to establish Indian casino enterprises in their mini-states. But what “federal recognition” was ever intended?
The success to date of tribes in achieving “federal recognition” rests on the assumption that Congress has supremacy when it comes to relations with Indian tribes: “Congress shall have Power…to regulate Commerce with…the Indian Tribes” (Article I, Section 8, U.S. Constitution). Congress, however, may not have supremacy in all Indian affairs.
A look at the Articles of Confederation and the later U.S. Constitution suggests that the first 13 states, and perhaps Texas, hold supremacy in state Indian affairs; “federal recognition” may be a wholly false concept.
Under federal recognition as we know it, a tribe so recognized exercises powers of government and sovereignty under the national government, and is politically deemed a state. A Bureau of Indian Affairs decision that erects a state within a state seems at odds with that part of the Constitution that forbids it: Article IV, Section 3: “…no new States shall be formed or erected within the jurisdiction of any other State”. No doubt, federal agencies would try to defeat this argument by citing the supremacy of Congress in Indian affairs. Except for some state legislatures, citing congressional supremacy might make for a closed case.
Going further back in U.S. history to the Articles of Confederation though, one finds the progenitor of so-called congressional supremacy in Indian affairs – Article 9 of that document: “the United States in congress assembled shall have the sole and exclusive right of…regulating the trade and managing all affairs with the Indians, not members of any states, provided that the legislative right of any state within its own limits be not infringed or violated.”
This article is explained this way: Those Indian tribes within the states proper fell under the jurisdiction of those states. Tribes outside the proper boundaries of the said states fell under the jurisdiction of Congress – except in the case of states that had land claims beyond the proclamation line of 1763. Those territorial claims were within a state’s “own limits”, and so recognized by Congress. States such as Connecticut and Virginia had claims that extended to the Mississippi.
Each state also had allotted tracts within those claims, with which to pay its Revolutionary War veterans. Some Indian tribes were already located on these claims, but had no relations with the claimant states. Congress was to have jurisdiction over them, except where the claimant states’ legislative acts pre-empted or displaced acts of Congress.
Then the U.S. Constitution appeared and with a modified version of the Confederation’s old Article 9: Article I, Section 8. It reads: “Congress shall have Power to regulate Commerce…among the several States, and with the Indian tribes.” This is a restatement of Article 9, Articles of Confederation, except the specification “Indians not members of any state” and the caveat respecting state powers to legislate within their own limits, no longer appears. By the time the Constitution was written, most states had voluntarily ceded their western claims to Congress. With the land cessions went the Indian tribes.
Now that the states had relinquished their stakes in the Northwest Territory, the framers of the Constitution no longer needed to consider the status of Indians within the former claim lines, nor a protective caveat respecting state legal prerogatives within the same. Indian tribes and states were now divided into two distinct spheres with regard to that section of the Constitution regulating commerce; Congress never thought to regulate Indian commerce within a state, and did not think to do so for 200 years.
Now, if the establishment of an Indian reservation by Congress preceded the statehood of a given state, say Arizona or New Mexico, then Congress might have absolute authority over it. Still, one might meet this argument with the rule that all states are to be admitted to the Union on an “equal footing”. The federal government then would have to relinquish any authority over an Indian nation to a newly admitted state sovereignty.
According to an examination of those sections in the Articles of Confederation and U.S. Constitution that deal with Indian affairs, Congress was never delegated the authority to legislate on matters concerning Indian tribes within any state. Further, Article IV, Section 3, U.S. Constitution, protects the states from such congressional meddling by precluding the power to set up states within states.
Any apparent conflict between that section and the one assigning Congress responsibility for Indian affairs is resolved by our prior examination, and one more crucial section of the U.S. Constitution: the Contract clause in Article VI. It reads: “All Debts contracted and Engagements entered into, before the Adoption of this Constitution, shall be as valid against the United States under this Constitution, as under the Confederation.”
States were accepted “as is” into the Confederation. This concept applied when the states ratified the U.S. Constitution. Any arrangements that individual states had made with Indian tribes before and after the Revolutionary War and before the adoption of the Constitution, had to be given full faith and credit, like all other public acts and records. it is impossible that the original 13 states would have ratified the Constitution, if they had understood the section governing the affairs of Indian tribes to mean that a federal government could place itself into areas that so intimately affected a state’s sovereignty – something that all had just fought a seven-year war to protect, and something all were very motivated and jealous to preserve. Giving up independence to a federal government was one thing – giving up sovereignty was entirely another.
If is readily understood and admitted that in the past decade or so, some of the 13 original states have mistakenly permitted Capitol Hill to usurp reserved powers and conduct state-tribe relations that were hitherto a domain of the state. Does this mean that the states have forever lost a prerogative of sovereignty to Washington, D.C.? Not at all?
The rule of sovereignty is that a sovereign is never estopped. In other words, a state is not prevented or hindered from resuming its sovereignty in any area, even if its own actions and previous behavior were prejudicial to that very exercise. In the case of Connecticut, it may declare null and void any and all BIA decisions that affect Hartford in its relations with any state tribal groups. The Bureau’s decisions that purport to confer “federal recognition” on a tribe could be rendered powerless.
If Connecticut so chose, it could even shut down Indian gaming operations that arose as a result of noxious BIA judgements.
Conferring so-called federal recognition to Indian tribes that have been members of states long established constitutes nothing short of an unwarranted interference in sovereign powers lawfully reserved to the states, in accordance with the 10th Amendment. Like King George III’s notorious Quebec Act of 1763, the so-called granting of federal recognition to Indian tribes establishes arbitrary power within the limits of existing states, and is an instrument for extending the same unwarranted federal control.
The original 13 states can win this state-federal battle, given that history, the facts and time are on their side. A success on their part may give other states the resolve to defend their sovereignty, and prevail. More broadly, if one state prevails (perhaps Connecticut), successful resolution of the “federal recognition” problem may give the push that swings the pendulum away from extreme federal power, back to a healthier state-federal balance.
Rectifying the situation only requires a state willing to use its constitutional authority to that end. Will it require more than the current two-party system to do so?”
Mr. Cloutier is the author of Mussolini’s War in Spain 1936-1939. Italian Intervention in the Spanish Civil War.