Constitutionalism, Federal Common Law, and the Inherent Powers of Indian Tribes: A Counter Argument

By: Nicholas Fiaschetti

In a recent article published in the American Indian Law Review, author Alex Tallchief Skibine makes an argument for why Native American Tribes should be treated as a “third sphere of sovereignty” within the United States Constitution. Through historical analysis and interpretations of Supreme Court decisions, it is argued that Native American Tribes have historically been treated as separate sovereigns. Given the language of the Commerce Clause in the Constitution, the argument further posits that the Supreme Court has misinterpreted constitutional authority in its ability to regulate Native American affairs. As a result, the article suggests that Native Americans may be more prone to abuse at the whims of the courts and Congress. The suggested solution then, is to treat Native American Tribes a quasi-autonomous separate sovereign, yet with a surety of constitutional protections. I respectfully disagree.

The idea of holding Native American Tribes as true sovereigns, while at the same time holding that they be backed by a constitutional method of analysis to ensure proper congressional control over their affairs, seems contradictory at best. It is suggested that because Native American Tribal issues are not held to a constitutional level of scrutiny, Native Americans are at greater risk of abuse from both the courts and Congress. Essentially, there is too much power with no check. However, focusing on the contradictory nature of this idea, what if the Supreme Court did decide to treat Native American tribes in the suggested manner? Although the author did concede many severe consequences, I can think of more.

There are currently around 566 recognized Native American Tribes residing within the United States. If each were to be treated as an independent sovereign subject to a constitutional surety, the tribes themselves may actually be worse off. If Native American Tribes were to be given the aforementioned level of sovereignty and scrutiny in their affairs, Congress would have to pass some fairly sweeping legislation to allow the general U.S. public (Non-Native American or Tribe affiliated individuals) to even conduct business with the tribes. By the strictest adherence to the constitution, only Congress may regulate trade with the “Indian Tribes.” Although there are great arguments to be made about the meaning of the word “regulate,” as it appears in the clause, ultimately I am hard pressed to believe that Congress would simply give up its power over the tribes to the general public. This may have dire impacts on trade given that essentially no private entity could enter into economic business with the tribes’ without a Congressional mandate.

The bigger danger may also come in the form of basic legal enforcement issues. Where would disputes be settled? In which court system? Given present adherence to “consent to govern” philosophies, I find it hard to believe as a public policy matter that the Supreme Court or Congress would allow a U.S. citizens to be legally bound by a tribal court within a U.S. state that is still technically subject to the Bill of Rights. Furthermore, if we are going to treat reservations as truly separate independent states, would this constitute international commerce? If it did, this would carry with it enormous tax consequences that would need dealt with by Congressional action. Not to mention the inevitable “border control issues” that would arise.

Back to my original point of contention though, it simply seems fundamentally illogical to call Native American Tribes sovereign entities, but have them be subject to our Constitution. While there are serious administrative and institutional competency issues at play here, simply stated, trying to grant Native American Tribes quasi-autonomous sovereignty with a legal surety backed by the U.S. Constitution will open the door to more problems than it will solve, and may ultimately stand to economically injure Native American Tribes more than helping. While the fear of abuse is understandable, opening up Native American Tribes to fall under the Constitution would only further weaken their claims of sovereignty, and may have dire economic consequences on the tribes that recent gaming laws may not be enough to fix. Although I freely concede that this is a serious and pervasive issue that deserves genuine attention and real congressional recognition and action, I cannot support a theory that would hold Native Americans as separate sovereigns backed by the U.S. Constitution. It is fundamentally opposed to the truest ideas of legitimate state sovereignty, and would only serve to further segregate this class of people from our country when we should be moving towards greater inclusion of all races and peoples to our society and economy at large.


Alex Tallchief Skibine, Constitutionalism, Federal Common Law, and the Inherent Powers of Indian Tribes, 39 Am. Indian L. Rev. 77 (2015).

Tribal Directory, US Dept. of the Interior Indian Affairs, (last updated Oct. 14, 2015, 3:48 PM).

U.S. Const. art. I, § 8, cl. 3.

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