Native Americans and the Constitution

Essential Questions

What was the status of American Indian nations under the commerce clause of the Constitution?

The Commerce Clause and Indian Nations

When the American government was formed the question arose about what to do about the Native Americans. Were they included as part of the new nation or were they separate nations. Americans still had a lot of prejudice twords Native Americans and have had several conflicts with them throughout their history.

There are two parts of the Constitution that mention Native Americans:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three-fifths of all other Persons.

[Congress had the authority] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

“Indians not taxed” were exempted from being counted in the formula for representation in the U.S. House of Representatives. This did not give them a say in the representative government unless they chose to pay taxes. Allowing them to choose whether or not they wish to be part of the government

Also, Congress was given the explicit power to regulate commerce with Native Americans as well as to enter into treaties with them. It also made Native Americans a special group. They are neither foreign nations nor are they states, but something special. They were not citizens, nor were they considered foreign nations. So, the status of Native Americans under the Constitution remained hazy.

This was both positive and negative. Natives maintain some sovereignty, or self-rule, as nations, under U.S. law. The sovereign status allows Native American groups to use their land for businesses subject to different laws than other businesses. Native American businesses also pay different taxes than others. However, they were at the mercy of the Federal Government.

Discussion Questions

  • What was the status of American Indians under the Commerce Clause (Article 1 Section 8 of the U.S. Constitution)?

Activity 1: What was the status of American Indian nations under the commerce clause?

Using the information from this lesson, answer the questions in a thinking map. Complete this assignment digitally or on paper. It will be collected in your portfolio.

Extension Activities

NEWSELA: Conceived of Compromises: Creating the U.S. Constitution