Indiana Law Review
Volume 56 2023 Number 2

ARTICLES

COMMERCE WITH THE INDIAN TRIBES: ORIGINAL
MEANINGS, CURRENT IMPLICATIONS

JEREMY RABKIN*

The Supreme Court’s 2022 ruling in Oklahoma v. Castro-Huerta defied much
current precedent and practice, as four dissenters protested. But neither side
grappled with the Constitution’s original meaning. Both text and early practice
confirm that the federal power to regulate “commerce with the Indian tribes”
was a different, more constrained power than the power to regulate “commerce
among the states.” But as nineteenth century courts recognized, federal Indian
law could also draw on powers inherent in national sovereignty—a wider, but not
unbounded, source of authority and one which necessarily excluded interference
from states. Even if tribal reservations are now seen as no more independent than
states, they have good claims to protection under constitutional safeguards for
the free flow of commerce—rather than being treated as colonial dependents of
state governments. In contrast to the conformist and assimilationist policies
imposed by federal authority in the decades after the Civil War, today’s America
should be more receptive to the Constitution’s original view on Indian tribes—as
separate nations within the larger American nation.

INTRODUCTION: ORIGINALISM HAS NOT REACHED INDIAN LAW

Dissenters denounced the Supreme Court’s decision in Oklahoma v. Castro-
Huerta for disregarding established precedent.1 In most of the controversial
decisions delivered in the spring of 2022, the conservative majority discounted
established precedents in the name of restoring or respecting the Constitution’s
original meaning.2 In Castro-Huerta, the majority did not make that claim. But

* Professor of Law, Scalia Law School, George Mason University. Thanks to Adam

Crepelle, Dylan Hedden-Nicely, Robert Miller, Richard Monette and other participants in the May

2022 conference of George Mason University’s Tribal Law and Economics Center. Particular

thanks to Chief Standing Bear of the Osage Nation for pointing out to me, at an earlier conference,

that the Constitution’s commerce clause uses different prepositions for different categories of trade.

1. Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2505-27 (2022) (Gorsuch, J., dissenting).

2. See Dobbs v. Jackson Women’s Health Org., 142 S. Ct. 2228 (2022) (state authority to

regulate abortion); Kennedy v. Bremerton Sch. Dist., 142 S. Ct. 2407 (2022) (expanding protection

for voluntary prayer in public schools); N.Y. State Rifle & Pistol Ass’n v. Bruen, 142 S. Ct. 2111

(2022) (Second Amendment protection for carrying guns); West Virginia v. EPA, 142 S. Ct. 2587

(2022) (heightened judicial scrutiny of agency interpretations of “major” statutory issues).



280 INDIANA LAW REVIEW [Vol. 56:279

nor did the four dissenters, speaking through Justice Gorsuch, rely on the
Constitution’s original meaning.

The case considered whether Oklahoma could prosecute a crime committed
by a non-Indian against an Indian victim, on territory recognized by treaty as
reserved for Indians. A bare majority of the Court found the answer to be yes,
reasoning that even Indian reservations are part of the surrounding state.3 The
dissenters insisted that the Court’s precedents of recent decades required, at
minimum, a far more cautious or qualified response to this question.4 Whatever
else it decided, Castro-Huerta seems to demonstrate that the Court is not very
interested in recovering the Constitution’s original meaning as it applies to
America’s original peoples.

One reason for this lack of interest may be that emphatic precedents seem to
claim that Congress has “plenary power” to regulate matters involving Indian
tribes.5 If Congress can do anything in this field, it might seem of no great
moment whether it shares some of that power with state governments. In more
technical terms, Castro-Huerta seemed to rely on a preemption analysis, which
assumes Congress can assert federal authority as it chooses: if Congress has not
legislated, it may be inferred that it has authorized state laws to fill resulting
gaps.6 

There may be another, equally important explanation for the Court’s unusual
indifference to claims about original meaning in relation to Indian law. It is that,
while a great deal of valuable scholarship has explored the historical context of
the Constitution’s provisions on Indian tribes,7 few scholars have made much

3. Castro-Huerta, 142 S. Ct. at 2504 (majority opinion) (“Indian country within a State’s

territory is part of a State, not separate from a State”). 

4. Id. at 2511 (Gorsuch, J., dissenting) (“reservations are not glorified private campgrounds”). 

5. See United States v. Lara, 541 U.S. 193, 200 (2004) (Congress has “plenary and exclusive”

authority over Indian affairs); Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989)

(Congress has “plenary power to legislate in the field of Indian affairs”); Morton v. Mancari, 417 U.S.

535, 551 (1974) (“plenary power of Congress to deal with the special problems of Indians”). See

COHEN’S HANDBOOK OF FEDERAL INDIAN LAW §5.02 (Nell Jessup Newton ed., 2019) (“The term

‘plenary’ indicates the breadth of congressional power to legislate in the area of Indian affairs . . . .

The term . . . has also been employed as a shorthand for general federal authority to legislate on

health, safety, and morals within Indian country, similar to the states’ police powers over non-

Indians.”).

6. See Castro-Huerta, 142 S. Ct. at 2495 (majority opinion) (“Importantly, . . . the General

Crimes Act does not say . . . federal jurisdiction is exclusive in Indian county, or that state jurisdiction

is preempted in Indian county.”).

7. For highlights of efforts at recovering the original meaning of the Indian commerce clause,

see Mark Savage, Native Americans and the Constitution: The Original Understanding, 16 AM.

INDIAN L. REV. 57 (1991); Robert N. Clinton, The Dormant Indian Commerce Clause, 27 CONN. L.

REV. 1055 (1995); Matthew L.M. Fletcher, Preconstitutional Federal Power, 82 TUL. L. REV. 509

(2007); Robert G. Natelson, The Original Understanding of the Indian Commerce Clause, 85 DENV.

U. L. REV. 201 (2007); Gregory Ablavsky, The Savage Constitution, 63 DUKE L.J. 999 (2014)

[hereinafter Ablavsky, The Savage Constitution]; Gregory Ablavsky, Beyond the Indian Commerce



2023] COMMERCE WITH THE INDIAN TRIBES 281

effort to extrapolate from the historical record to conclusions about what the
Constitution should mean in our time. 

This Article argues that the original meaning has many direct applications to
current questions on the status of Indian tribal authority within reservations. Part
I below argues that Indian tribes must be seen as having claims to an independent
political existence—as early Supreme Court rulings recognized. Part II argues
that federal power over Indian tribes was understood as a means of excluding
outside interference with tribes, by foreign nations but also by U.S. states. Part
III argues that federal power to regulate Indian tribes was not seen as “plenary”
in the nineteenth century but understood to reach beyond regulation of commerce
only for claims of national sovereignty. These were, in turn, understood to have
inherent limits. Part IV argues that tribal territories have at least as much claim
as states to be free from restrictions on the flow of commerce into and out of their
jurisdictions. Part V argues that the special provisions for state criminal
jurisdiction on tribal lands, even if (arguably) defensible in the name of
preserving order, cannot justify the Court’s readiness to extend state taxing and
regulatory claims on tribal lands. Part VI concludes with observations on the way
tribal claims to autonomy reflect wider concerns which the Constitution was
designed to safeguard. These concerns are more resonant today than in the late
nineteenth and early twentieth centuries when federal policy sought to coerce
Indian assimilation to mainstream American culture. 

I. THE HISTORICAL AND CONSTITUTIONAL GROUNDING OF
INDIAN SELF-GOVERNMENT

The two references to Indians in the original Constitution suggest, on their
face, that Indian tribes were regarded as independent or at least semi-independent
entities. They were seen in exactly that way by the most authoritative interpreters
of the Constitution in its formative decades.

The first reference is in Article I, Section 2—almost at the very outset. That
provision apportions seats in the House of Representatives based on population
but excludes from each state’s population “Indians not taxed.”8 The same
provision indicates that slaves should be counted as three fifths of a person. That
painful compromise limited the representational weight that could be claimed by
slave-owners but still acknowledged slaves as among the economic or social
constituencies counted in the apportionment of House seats.9 “Indians not

Clause, 124 YALE L.J. 1012 (2015) [hereinafter Ablavsky, Beyond the Indian Commerce Clause];

M. Alexander Pearl, Originalism and Indians, 93 TUL. L. REV. 269 (2018); Lorianne Updike Toler,

The Missing Indian Affairs Clause, 88 U. CHI. L. REV. 413 (2021).

8. U.S. CONST. art. I, § 2, cl. 3.

9. The same formula was adopted to apportion direct taxes, so excluding slaves altogether

would have substantially lessened the tax burden on slave-holding states. Counting slaves as full

persons (for purposes of allocating seats in the House) would have given extra representation to slave-

holding states but not, of course, to persons held as slaves. Whatever one thinks of this compromise,

the notable thing is that no such compromise was attempted for “Indians not taxed”—who



282 INDIANA LAW REVIEW [Vol. 56:279

taxed”—which seems to mean, outside the reach of state authorities, otherwise
keen to impose taxation—stand outside the whole scheme.

“Indian tribes” then appear in Article I, Section 8, setting out powers of
Congress. Among these are the power “[t]o regulate Commerce with foreign
Nations, and among the several States, and with the Indian Tribes.”10 Close
attention to the wording suggests that, from the stand-point of federal authority,
Indian tribes are akin to foreign nations. Congress can regulate commerce among
the states—which implies a range of transactions already scattered through the
nation, running in many directions across all the various state boundaries.
Commerce with foreign nations seems to allude to streams of trade that will
operate within well-defined channels, seemingly focusing on transactions
between the United States, as a whole, and particular foreign nations. The same
preposition—“with the Indian tribes” —seems to indicate the same sense of focus
or limitation, as if this sphere of regulation also concerns the United States as a
whole and particular Indian tribes.11 

It is not necessary to put great weight on the differing prepositions in these
clauses, however, to see the general point. Widely divergent early practice in
these different areas of “regulation” confirms that these clauses were understood
to have differing reach. Throughout American history, the power to regulate
commerce “among the states” has been understood to embrace a power to set
down rules for actions taken within states that may affect the stream of commerce
across state lines.12 The power has come to be understood as reaching quite
deeply or broadly into commercial activity that occurs within states (and even to
activity not itself commercial but that may affect commerce indirectly). No one

presumably would not be reached by federal direct taxes either. 

10. U.S. CONST. art. 1, § 8, cl. 3.

11. Somewhat surprisingly, commentators have failed to notice these distinctions. See

Saikrishna Prakash, Our Three Commerce Clauses and the Presumption of Intrasentence Uniformity,

55 ARK. L. REV. 1149 (2003) (reporting numerous claims from past scholarship that the term

“commerce” means the same thing in each clause but failing to notice that the prepositions preceding

that word differ from clause to clause). A skeptical response suggests “commerce” may mean

different things in each subclause given other textual allocations of power (as to the President in

foreign affairs), without pondering the different prepositions before each kind of “commerce” in

Article I, Section 8 enumeration. See Adrian Vermeule, Three Commerce Clauses? No Problem, 55

ARK. L REV. 1175 (2003). Similarly, another commentator takes for granted that “commerce” should

mean the same thing in each clause. See Nathan Speed, Examining the Interstate Commerce Clause

Through the Lens of the Indian Commerce Clause, 87 B.U. L. REV. 467 (2007). I have encountered

no scholarly work commenting on the implications of the different prepositions. 

12. As famously affirmed in Chief Justice Marshall’s exposition in Gibbons v. Ogden, “[t]he

word ‘among’ means intermingled with. A thing which is among others, is intermingled with them.

Commerce among the states, cannot stop at the external boundary line of each State, but may be

introduced into the interior.” 22 U.S. (9 Wheat.) 1, 74 (1824). He then notes that, “if a foreign voyage

may commence or terminate at a port within a State [as at a port on an inland river], then the power

of Congress may be extended within a State.” Id. But he never suggests that the power to regulate

“commerce with foreign nations” gives authority to impose regulations “within a foreign nation.” 



2023] COMMERCE WITH THE INDIAN TRIBES 283

claims Congress has a similar power to impose safety or environmental controls
or worker protections for commercial activity in foreign countries. The power to
regulate commerce “with foreign Nations” does not confer federal power to
regulate practices within foreign nations. The power to regulate commerce “with
the Indian Tribes” seems to have been viewed as operating under similar
limitations—for good reasons. 

When the United States has sought to induce foreign countries to change their
domestic practices, it has often done so by negotiating a treaty.13 The federal
government makes treaties with foreign nations because it cannot simply
command them to accept U.S. standards. Among the earliest treaties of the United
States were treaties with Indian tribes—or “nations,” as they were often called in
early treaties.14 Such treaties were negotiated even before the adoption of the
Constitution, when the government operated under the Articles of Confederation.
As Chief Justice Marshall pointed out, the provision in Article VI making treaties
“supreme law of the land” was worded in such a way as to preserve the
continuing authority of these earlier treaties—seemingly with conscious reference
to Indian treaties as well as treaties with European nations.15 When the
Constitution was put into effect, the Washington administration followed the
same procedure—submission to the “advice and consent” of the Senate—with
Indian treaties as with all its other treaties.16

13. The first United States treaty, for example, included French promises to exempt U.S.

citizens owning property in France from local limitations on inheritance of property by foreigners.

Treaty of Amity and Commerce, Fr.-U.S., art. 13, Feb. 6, 1778, 8 Stat. 12, available at https://avalon.

law.yale.edu/18th_century/fr1788-1.asp [https://perma.cc/F4B4-YWEU]. The same treaty promised

that, in the event of war between the two countries, merchants of either who held property in the

other’s territory should be given six months to sell such property “for the better promoting of

Commerce on both sides.” Id. at art. 22. 

14. See Treaty with the Delawares, Delaware Nation-U.S., Sept. 17, 1778, 7 Stat. 13

(characterized in its preamble as “articles of agreement with . . . Chief Men of the Delaware Nation”);

Treaty with the Six Nations, Six Nations-U.S., Oct. 22, 1784, 7 Stat. 15; Treaty with the Choctaw,

Choctaw Nation-U.S., Jan. 3, 1786, 7 Stat. 21.

15. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 519 (1832). The Supremacy Clause adopts

different wording for different types of legal commitments. It attributes “supreme Law of the Land”

status to “the Constitution” and “the Laws of the United States which shall be made in Pursuance

thereof” (that is, laws enacted after the Constitution takes effect) but also to “all Treaties made, or

which shall be made, under the Authority of the United States”—embracing treaties already made

under the Articles of Confederation. U.S. CONST. art. VI, cl. 2. The framers had particular concern

to preserve the status of the treaties made with France during the War of Independence and the 1783

peace treaty with Britain, affirming American independence. But the Framers did not specify that

they meant only treaties with European powers. So Chief Justice Marshall had grounds to argue: “The

constitution, by declaring treaties already made, as well as those to be made, to be supreme law of the

land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently,

admits their rank among those powers who are capable of making treaties.” Worcester, 31 U.S. at

519.

16. ANDREW C. MCLAUGHLIN, CONSTITUTIONAL HISTORY OF THE UNITED STATES 249-50



284 INDIANA LAW REVIEW [Vol. 56:279

A traditional way of enforcing a treaty or of inducing a foreign nation to
agree to a treaty is with trade sanctions: the United States can impose a special
tariff on a disfavored state or even prohibit all trade with that state.17 It is the
nature of such sanctions to be specific to disfavored nations, so that nations which
do conform to U.S. expectations can be accordingly favored.18 The Constitution,
however, seems to prohibit federal trade sanctions against U.S. states by requiring
that no tax can be imposed on exports from states (which could include exports
to other states)19 and that import taxes must be uniform among all ports of the
United States.20 Just as there are no such limitations on targeted sanctions against
foreign nations, there is no stated limitation in the Constitution on trade
restrictions applied to particular tribes. They are, again, left in the position of
foreign nations.21

The conclusion seemed plain to early constitutional authorities. Chief
Justice’s Marshall’s opinion in Worcester v. Georgia canvassed federal
legislation and practice over the whole period from before the Constitution’s

(1935). President Washington’s initial experience seeking “advice” from the Senate before

completing negotiation on a treaty persuaded him not to repeat that process. All subsequent

presidents have treated “advice and consent” of the Senate as a single process that can be completed

after negotiations are concluded. Id. That precedent-setting treaty experience concerned a treaty with

an Indian tribe. Id.

17. The general embargo on foreign trade, adopted by the Jefferson administration (to exert

pressure on European powers to respect U.S. neutrality) was regarded as constitutionally

questionable precisely because it sought to restrict trade with all countries—the expected application

was to exercise discrimination in the application of trade restrictions. 3 JOSEPH STORY,

COMMENTARIES ON THE CONSTITUTION § 640-646 (1833). “The argument was, that the power to

regulate did not include the power to annihilate commerce, by interdicting it permanently and entirely

with foreign nations.” Id. at § 646.

18. One of the trade agreements sponsored by the World Trade Organization, for example,

commits signatories not to subsidize production (within their own country) of products for export,

so that they do not compete unfairly with products made elsewhere. Agreement on Subsidies and

Countervailing Measures, art. 3, Apr. 15, 1994, Marrakesh Agreement Establishing the World Trade

Organization, Annex 1A, 1869 U.N.T.S. 14.

19. U.S. CONST. art. 1, § 9, cl. 5 ( “No Tax or Duty shall be laid on Articles exported from any

State.”). Since “duties” were associated with tariff charges collected at ports, the inclusion of the term

“tax” suggests a concern to include over-land commerce between states, as well. 

20. Id. art. 1, § 9, cl. 6 ( “No Preference shall be given by any Regulation of Commerce or

Revenue to the Ports of one State over those of another . . . .”). The clause does not specify that

Congress lacks authority to impose a unique tax on overland imports into a particular state, but this

seems never to have been attempted. It would surely raise severe constitutional questions if Congress

attempted, for example, to pressure a hold-out state to ratify a constitutional amendment by imposing

an embargo on its commerce across land borders with other states. 

21. Tribes might make treaties with each other—the Constitution imposes no restriction on this

practice (already known to exist in 1787). By contrast, the Constitution flatly prohibits states from

entering treaties and forbids states, “without the consent of Congress . . . [to] enter into any

Agreement or Compact with another State.” Id. art. 1, § 10, cls. 1, 3.



2023] COMMERCE WITH THE INDIAN TRIBES 285

adoption and through four decades thereafter. Chief Justice Marshall’s opinion
for the Court concluded that all the relevant measures “manifestly consider the
several Indian nations as distinct political communities, having territorial
boundaries, within which their authority is exclusive.”22 

A few years later, Joseph Story, the most learned justice ever to sit on the
Court, offered a still more emphatic characterization in his treatise on the
Constitution: an Indian tribe, as it is “exercising the powers of government, and
national sovereignty, under the guarantee of the general [i.e., federal] government
. . . . is to be deemed politically a state; that is, a distinct political society, capable
of self-government.”23 

In New York, James Kent, a jurist who ranked with Story and Marshall in
eminence, had already affirmed a similar conclusion, based on his own review of
the historical record. The United States “never dealt with those people [Indians]
. . . as if they were extinguished sovereignties” but “constantly treated . . . them
as dependent nations, governed by their own usages, and possessing governments
competent to make and to maintain treaties.”24 

Whatever else one might say about the original understanding, it most
certainly was not that Indian reservations are simply part of the surrounding state,
as the decision in Castro-Huerta claims. As Justice Gorsuch pointed out in the
dissenting opinion, many distinctive legal powers and immunities of tribal
governments are not reconcilable with the notion that they are mere subdivisions
of the surrounding states.2 5 Thus, the Supreme Court has affirmed in recent
decades that Indian tribal authority retains sovereign immunity—that is, it cannot
be sued without its own consent.26 Nor does prosecution in a tribal court preclude
subsequent prosecution in federal court.27 A tribal court is regarded as a separate

22. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 557 (1832). Marshall also emphasized there the

associated terminology: “The very term ‘nation,’ so generally applied to them, means ‘a people

distinct from others.’ . . . The words ‘treaty’ and ‘nation’ are words of our own language, selected in

our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood

meaning. We have applied them to Indians, as we have applied them to the other nations of the earth.

They are applied to all in the same sense.” Id. at 559-60.

23. STORY, supra note 17, at § 535.

24. Goodell v. Jackson, 20 Johns. 693, 714 (N.Y. 1823). He reasoned from this history that

state governments had only the most limited authority over Indian tribes within their territory.

“Chancellor” Kent (who presided over New York’s Court of Chancery at the end of his career) won

fame for his scholarship as much as his judicial rulings. He was the first professor of law at Columbia

College in New York and published the four-volume Commentaries on American Law, whose

influence and prestige prompted comparisons with Blackstone’s Commentaries on the Laws of

England. See James Kent Was Appointed the First Professor of Law at Columbia 220 Years Ago,

COLUM. L. SCH., https://www.law.columbia.edu/news/archive/james-kent-was-appointed-first-

professor-law-columbia-220-years-ago [https://perma.cc/YSB6-X9LN] (last visited Feb. 10, 2023).

25. Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2511 (2022) (Gorsuch, J., dissenting)

(“Tribes are sovereigns”).

26. Kiowa Tribe of Okla. V. Mfg. Techs., Inc., 523 U.S. 751, 759-60 (1998). 

27. United States v. Wheeler, 435 U.S. 313, 329-30 (1978) (holding conviction in Navajo court



286 INDIANA LAW REVIEW [Vol. 56:279

jurisdiction, unlike a U.S. territory like Puerto Rico, where local prosecutions
cannot be retried in ordinary federal courts.28 Unlike local governments within
states, tribal authorities can impose regulations with the force of law, without
having to invoke authority delegated from outside.2 9 In all these ways, Indian
tribes are more like analogs to states than dependent components of states. 

In some ways, tribes are more independent. The guarantees of the Fourteenth
Amendment—due process, equal protection of the laws, and so on—apply to each
“State.”30 Those guarantees have all been extended to local government entities
as creatures of the state, hence the most famous Equal Protection case—Brown
v. Board of Education of Topeka—concerns a local government entity.31 But the
Supreme Court has continuously adhered to the view that the Fourteenth
Amendment does not, by its own terms, apply to Indian tribal authorities,32 nor
has the Court ever indicated that the amendment extends federal regulatory power
over Indian reservations.33 Tribes are not, for example, bound by the Supreme
Court’s decision requiring states to recognize same-sex marriage.34 An express
provision of the Fourteenth Amendment seems to reinforce the conclusion that

did not preclude subsequent federal prosecution); Denezpi v. United States, 142 S. Ct. 1838, 1849

(2022) (holding conviction under Ute tribal code did not preclude subsequent prosecution for

violation of federal law, covering same action). 

28. Puerto Rico v. Sanchez Valle, 579 U.S. 59, 73-78 (2016) (holding a plea bargain in federal

court excluded subsequent prosecution for same gun trafficking activity in Puerto Rico courts since

authority for both court systems traces to U.S. Constitution, under which Congress authorized P.R.

statutes).

29. Wheeler, 435 U.S. at 323-26 (recognizing Indian tribes still possess aspects of sovereignty

not withdrawn by treaty or federal statute and so may impose criminal penalties on members without

authorization from Congress or any other outside authority). 

30. U.S. CONST. amend. XIV.

31. Brown v. Bd. Of Educ., 347 U.S. 483 (1954).

32. Elk v. Wilkins, 112 U.S. 94, 99, 109 (1884) (deciding that the Fourteenth Amendment does

not apply to tribes because they are not “subject to the jurisdiction of the United States” as they are

“not part of the people of the United States”).

33. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 55, 58 (1976). The Supreme Court’s initial

ruling on the Indian Civil Rights Act did not claim Congress was authorized to enact it by its power

to enforce the guarantees of the Fourteenth Amendment. The Court did not say clearly how Congress

derived authority to enact this measure in 1968 except by affirming, in very general terms, that all

aspects of tribal sovereignty are “subject to the superior and plenary control of Congress,” while

acknowledging at the same that tribes “remain a ‘separate people, with the power of regulating their

internal and social relations.’” Id. at 55, 58 (quoting United States v. Kagama, 118 U.S. 375, 381-82

(1886)). But the Court may have tacitly indicated misgivings about congressional authority by

holding that the Indian Civil Rights Act did not confer a private right of action allowing tribal

members to sue tribal authorities. See Judith Resnik, Dependent Sovereigns: Indian Tribes, States,

and the Federal Courts, 56 U. CHI. L. REV. 671 (1989). 

34. Lilly Knoepp, Here’s How Same-Sex Marriage Laws Differ on Tribal Lands, BLUE RIDGE

PUB. RADIO (Sept. 30, 2021, 10:07 AM), https://www.bpr.org/news/2021-09-30/heres-how-same-

sex-marriage-laws-differ-on-tribal-lands [https://perma.cc/G6T8-XK4E].



2023] COMMERCE WITH THE INDIAN TRIBES 287

it does not apply to tribes by repeating the original Constitution’s exclusion from
representation of “Indians not taxed.”35 

Courts in the nineteenth century thought states could not assert jurisdiction
over Indians by trying to tax them.36 The lands held by tribes were held to be
exempt from state taxation.37 Even the modern Supreme Court has held that tribal
authorities have residual authority to contest state taxes and in some cases escape
them altogether (as in relation to earnings by Indians from tribal undertakings).38

Viewed against these acknowledged exceptions for tribal authority, the
Constitution has another provision of considerable relevance to the status of
Indian tribes. In Article IV, Section 3, the framers went to the trouble of
stipulating that no state could be subdivided without the consent of its own
legislature.39 Georgia seems to have raised this point in the dispute over the claim
of the Cherokees to be exempt from state regulation.40 How could the federal
government set up an “independent power within a sovereign state [i.e.,
Georgia]”?41 The answer of Chief Justice Marshall has already been quoted: the
Cherokees were an independent nation, long before Georgia or the rest of the
United States attained independence.42 

Georgia’s challenge—with Marshall’s response—remains a formidable
obstacle to the reasoning of Castro-Huerta. If Indian reservations are simply part
of a state, what gives the federal government authority to exempt the residents
from state taxation, to pursue prosecutions on their own (even of those who might
be previously acquitted in state trials), or to refuse to be sued by state authorities?

35. U.S. CONST. amend. XIV, § 2. The Fourteenth Amendment begins by affirming, “[a]ll

persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens

of the United States.” Id. § 1 (emphasis added). Section 2 then overrides the original three fifths count

for slaves by affirming that representation in the House will be “apportioned among the several States

according to their respective numbers, counting the whole number of persons in each State,”—but

immediately qualifies this provision with an exception: “excluding Indians not taxed.” Id. § 2.

Indians, when living on their own tribal lands, beyond the reach of state taxes, seem to have been

regarded as not “subject to the jurisdiction” of the United States, at least not in the same way as

citizens. 

36. See, e.g., In re Kan. Indians, 72 U.S. (5 Wall.) 737 (1866).

37. Id. at 760.

38. See McClanahan v. State Tax Comm’n of Ariz., 411 U.S. 164 (1973); Bryan v. Itasca

Cnty., 426 U.S. 373 (1976); Okla. Tax Comm’n v. Chickasaw Nation, 515 U.S. 450 (1995). 

39. U.S. CONST. art. IV, § 3.

40. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 589-90 (1832) (M’Lean, J., concurring). The

report of the Court’s opinion in Worcester v. Georgia does not summarize arguments from Georgia,

but the concurring opinion of Justice M’Lean takes note of them: “Much has been said against the

existence of an independent power within a sovereign state; and the conclusion has been drawn, that

the Indians, as a matter of right, cannot enforce their own laws within the territorial limits of a state.”

Id. at 589. He notes that no other state had asserted authority to govern internal affairs of Indian tribes

“ever since the adoption of the Constitution.” Id. at 590. 

41. Id. at 589.

42. Id. at 589-90.



288 INDIANA LAW REVIEW [Vol. 56:279

Can the federal government simply recognize any body of people within a state
as a separate, federally protected enclave with special privileges compared with
others in the state? If the federal government could do all this by unilateral
exertion of its own regulatory power, there would seem to be no effectual
meaning to the guarantee in Article IV. 

It does not require much reflection to see that the Court’s reasoning in
Castro-Huerta is at odds with the most evident provisions of constitutional text
and practice. That is reason enough to make a new start. The most reasonable
place to start—particularly in the current era of constitutional interpretation—is
where the Constitution started, with the original understanding of its provisions
on the status of the Indian tribes. 

II. FEDERAL POWER EXCLUDES THE STATES BECAUSE IT IS NOT PLENARY

The power to regulate commerce “with the Indian tribes”43 is a successor to
provisions in the Articles of Confederation, and before that, to practices of British
colonial authority.4 4 The impetus to all these assertions of authority was the fear
that Indians might be provoked to make war on frontier settlements if not
carefully handled.45 In the 1750s, Indian tribes had sided with the French against
British colonial settlements in the French and Indian War.46 A generation later,
rebellious colonists found that the Indians often took sides with Britain, attacking
American outposts.47 Accordingly, among the first treaties of the newly
independent United States were agreements with Indian tribes, seeking to re-
establish peace on the frontier.48 

To put the point most starkly, Indian tribes were a threat to peace. Hence the
complaint in the American Declaration of Independence that Britain had, amidst
all its other abuses, sought to “bring on the . . . merciless Indian Savages,”
described in terms that make Indian fighters seem as fearful as the German
mercenaries, denounced in a preceding provision.49 Successive authorities in the

43. U.S. CONST. art. 1, § VIII, cl. 3.

44. Worcester, 31 U.S. (6 Pet.) at 520, 573.

45. See id. at 573.

46. DANIEL K. RICHTER, FACING EAST FROM INDIAN COUNTRY: A NATIVE HISTORY OF EARLY

AMERICA 184-86 (2001) (on French advantages in recruiting Indian allies). For a particularly vivid

account of an Indian massacre of English troops, while assisting the French, see 2 FRANCIS

PARKMAN, FRANCE AND ENGLAND IN NORTH AMERICA 1166-94 (Libr. Am. 1983) (1884) (“Fort

William Henry,” Ch. XV in “Montcalm and Wolfe: Part I”). 

47. See THE FEDERALIST NO. 24, at 157 (Alexander Hamilton) (Clinton Rossiter ed., 1999).

It was not, of course, a matter of abstract preference by eastern tribes at the time. As Hamilton

candidly noted, Indian tribes were “natural allies” of Britain and Spain “because they have most to

fear from us, and most to hope from them.” Id.

48. For valuable context, see FRANCIS PAUL PRUCHA, AM ERICAN INDIAN POLICY IN THE

FORMATIVE YEARS: THE INDIAN TRADE AND INTERCOURSE ACTS 1790-1834, at 26-40 (1962). 

49. THE DECLARATION OF INDEPENDENCE para. 29 (U.S. 1776). The “known rule of warfare”

of the Indian fighters is said to be “an undistinguished destruction of all ages, sexes and conditions.”



2023] COMMERCE WITH THE INDIAN TRIBES 289

eighteenth century—British Imperial, Confederal, Federal—did not have
confidence that they could summon the resources or the political support for the
sort of protracted wars that would be necessary to assure complete submission of
warlike tribes.50 So, they tried to accommodate the tribes with treaties in which
Indians promised peace and the continental authority promised protection.51

In the nature of the situation, promises of protection went along with claims
to exclusive regulation of relations with outsiders. As the British did not want
French interference, the Confederation Congress did not want British—or French
or Spanish—interference with Indian treaty partners.5 2 For the same reason, the
Confederation also wanted to exclude interference from newly independent
American states.53 Impulsive interference by the states might provoke frontier
conflicts which the Confederation might then need to mobilize troops to suppress.
Along with foreign powers, the states, too, were seen as threats to the United
States’ authority on the frontier.54

Accordingly, the Articles of Confederation specified that the Confederation
Congress would have “sole and exclusive right and power of . . . regulating the
trade and managing all affairs with the Indians.”55 The phrase “affairs with the
Indians” might prompt association with “foreign affairs,” assigned to the daily

Id. The “large Armies of foreign Mercenaries” are said to “compleat the works of death, desolation

and tyranny, already begun with circumstances of Cruelty & perfidy scarcely paralleled in the most

barbarous ages.” Id. at para. 27. The British forces are said to have “plundered our seas, ravaged our

Coasts, burnt our towns, and destroyed the lives of our people.” Id. at para. 26. In the Declaration’s

telling, there does not seem much moral difference between the war tactics of “savage” Indians or

“barbarous” European forces. 

50. ROBERT A. WILLIAMS, JR., LINKING ARMS TOGETHER: AMERICAN INDIAN TREATY VISIONS

OF LAW AND PEACE, 1600-1800, at 20-21 (1997) (“survival” of European settlements understood to

depend on “cooperative relationships with surrounding Indian tribes rather than through wars and

conflict”); Jennifer Roback, Exchange, Sovereignty and Indian-Anglo Relations, in PROPERTY

RIGHTS AND INDIAN ECONOMIES 5, 11 (Terry L. Anderson ed., 1992) (“Trade with the Indians . . . was

profitable. War was costly.”).

51. RICHTER, supra note 46, at 166-71 (discussing the “culture of diplomacy” among imperial

powers dealing with Indian tribes before the French and Indian war).

52. Id. at 223-25 (discussing United States concern about British perpetuation of some Indian

alliances, from bases near Canada, even after signing the peace treaty ending the American War of

Independence).

53. Ablavsky, The Savage Constitution, supra note 7, at 1009-38 (discussing frustrated hopes

of leading Confederation era statesmen, including Washington, Madison, and Hamilton, to exclude

states from interfering with Indian tribes).

54. THE FEDERALIST NO. 3 (John Jay), supra note 47, at 38-39. The concern proved well

founded, down to the end of the Confederation period: “Not a single Indian war has yet been

produced by aggressions of the present federal government [under the Articles of Confederation],

feeble as it is; but there are several instances of Indian hostilities having been provoked by improper

conduct of individual States . . . .” Id.

55. ARTICLES OF CONFEDERATION OF 1781, art. IX, para. 4 (emphasis added).



290 INDIANA LAW REVIEW [Vol. 56:279

management of a “Department of Foreign Affairs” in 1781.5 6 But there were
already claimed exceptions, to which the same provision in the Articles gave
vague acknowledgement: federal power would extend only to “Indians, not
members of any of the states” and then only so far as “the legislative right of any
state within its own limits be not infringed or violated.”57 The qualifications likely
referred to Indians living outside tribal territories, already submitting to state
taxation and control. But the language was notably unclear. The Federalist No.
42 thus praised the new Constitution for leaving the Indian commerce power
“very properly unfettered from two limitations in the articles of Confederation,
which render the provision [in the Articles] obscure and contradictory.”58 

The phrasing of the Constitution’s Indian commerce clause does not clearly
indicate its reach, nor that it must be “exclusive.” Recent scholarship has
established that the drafting committee had originally intended to incorporate a
version of the provision in the Articles and then inadvertently neglected to do
so.59 In the last days of the Philadelphia Convention, this lapse was hastily
remedied by folding a new phrase into the already approved provision conferring
power to regulate foreign and interstate commerce.60 If the framers had intended
to restrict federal power in this area, or make it less exclusive, compared with the
power granted in the Articles, it would have been a unique instance in which the
Constitution actually restricted, rather than enlarged federal power.61 

Early practice confirms that, by the original understanding, this new clause
conferred a substantial but still exclusive power. Congress exercised this power
by establishing a licensing scheme to limit who could trade with Indian tribes.62

It would have made no sense to limit commercial relations in this way if states
had the authority to circumvent this scheme with their own rival authorizations.

56. 19 JOURNALS OF THE CONTINENTAL CONGRESS: 1774-1789, at 42-44 (Wash. Gov’t Printing

Off., 1912). The Articles of Confederation, approved by the Continental Congress in November

1777—barely three years before—were under debate in several states at the time, so the phrase was

still current.

57. ARTICLES OF CONFEDERATION OF 1781, art. IX, para. 4. 

58. THE FEDERALIST NO. 42 (James Madison), supra note 47, at 265 (“What description of

Indians are to be deemed members of a State, is not yet settled, and has been a question of frequent

perplexity and contention in the federal councils. And how the trade with Indians, though not

members of a State, yet residing within its legislative jurisdiction, can be regulated by an external

authority, without so far intruding on the internal rights of [state] legislation, is absolutely

incomprehensible.”). Madison seems to have taken for granted that Indians “not members of a State”

would be shielded from state legislation under the new dispensation.

59. See Updike Toler, supra note 7.

60. Id. at 444-46, 460 (pointing out that a to-do list by the chairman of the Committee on Detail

included “Indian affairs” with a check mark next to it, indicating committee approval to include

it—though this has been obscured, for more than two centuries, by binding tape on the original

record). 

61. Id. at 443. 

62. 25 U.S.C. § 177; see also PRUCHA, supra note 48, at 45-47, 53-55 (for background on

policy debate at the time).



2023] COMMERCE WITH THE INDIAN TRIBES 291

In fact, states seem to have accepted that the new federal power was exclusive;
until the late 1820s, no state tried to regulate activity in Indian territories.63

Georgia’s effort to assert control over entry into Cherokee territory was thus
rejected by the Supreme Court as a radical innovation, defying the established
understanding of the constitutional settlement regarding state power and Indian
tribes.64 

The Marshall Court, in rejecting Georgia’s authority, depicted federal
authority as paramount only because it was limited and necessarily limited
because it rested on the recognition that tribes retained an independent status (or
semi-independent status, as what Chief Justice Marshall elsewhere described as
“domestic dependent nations”).65 The federal government, in fact, limited its
exercise of authority to regulating non-Indians interacting with Indians.66

The Court in Castro-Huerta does not try to explain how or why this original
understanding came to be superseded, except to say, vaguely, that it happened in
the course of the nineteenth century.67 Some elements of this story are well-

63. See DEBORAH A. ROSEN, AMERICAN INDIANS AND STATE LAW: SOVEREIGNTY, RACE, AND

CITIZENSHIP, 1790-1880, at 19-29 (2007) (describing extensive dispute in New York State courts in

the early 1820s over the state’s authority to prosecute a Seneca Indian chief for executing a Seneca

woman for practicing witchcraft—apparently the first assertion of state authority over Indian-on-

Indian crime). State appellate judges were divided and uncertain. The state legislature subsequently

voted to pardon the chief in this case but affirmed a limited jurisdiction for the future to protect

Indians from “barbarous Indian practices.” Id. at 29. Rosen finds that assertions of state criminal

jurisdiction increased over the course of the century, with nearly three-quarters of states by 1880

claiming jurisdiction in special circumstances (as when Indians committed crimes outside tribal

territory or when the victims were non-Indians). Id. at 53. 

64. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). For impressively detailed

background, see Clinton, supra note 7 (documenting that leading participants at the Philadelphia

Convention sought to exclude states from interfering in Indian affairs, as Hamilton, Madison, and

others had, even while serving in the Confederation Congress). Clinton thus reads conferral of the

power to “regulate commerce with the Indian tribes” as implicitly excluding states from doing so (on

the model of the doctrine that congressional power to regulate interstate commerce implies exclusion

of states even when that power remains “dormant,” or unexercised). Id. at 1181. The difficulty with

this analysis, however, is that it seems to make total exclusion of state authority dependent on a grant

of total regulatory power in Congress. If Congress had such total authority, it would seem to have full

discretion to delegate regulatory authority to states, since the ultimate authority to arrange or

rearrange the status of tribal authority would remain with Congress. It is more consistent with the

history—and the Constitution’s text—to see the Indian Commerce Clause as recognizing pre-existing

independence of the tribes, on analogy with the clause governing commerce with foreign nations. 

65. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831); see also Worcester, 31 U.S. (6

Pet.) at 561 (discussing Emer de Vattel’s treatise on international law, illustrating foreign practice

recognizing sovereignty of client states). 

66. PRUCHA, supra note 48, at 56 (explaining that federal agents were sent to live with tribes

to assist in developing agricultural and cloth-making skills but the “agent’s duties were in large part

reportorial,” monitoring compliance with trade regulations involving outsiders).

67. Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2497 (2022) (“the Worcester-era



292 INDIANA LAW REVIEW [Vol. 56:279

known. The westward spread of settlement left Indian enclaves surrounded by
more prosperous and confident white inhabitants, inducing many tribes to sell
their lands and migrate further west. Federal authorities thus became less and less
concerned about the threat of war with Indian tribes, except in the far West.68

Even there, a larger army presence after the Civil War ultimately persuaded tribal
leaders of the futility of armed resistance. Meanwhile, the Union’s success in the
Civil War deflated states-rights claims in Congress, allowing the federal
government to assert its powers in many new areas.69 As the federal government
became more ambitious in general, it felt free to attempt more ambitious designs
in dealing with the Indians.

The question remains whether such larger historical trends justify a wholesale
repudiation of the original understanding of limits on federal (and state) power
to regulate Indian tribes. It could be argued, with similar logic, that in 1787, it
was necessary to reassure small states by allocating two senators for each state in
the U.S. Senate, without regard to any state’s relative population. After the Civil
War, it was no longer necessary to worry about the break-up of the Union, while
massive immigration and internal migration intensified population disparities
between the largest and smallest states.70 It does not follow that in this different
context, Congress suddenly acquired the authority to reapportion the Senate to

understanding of Indian country as separate from the State was abandoned later in the 1800s”).

68. Terry L. Anderson & Fred S. McChesney, Raid or Trade? An Economic Model of Indian-

White Relations, 37 J.L. & ECON. 39, 65-71 (1994) (arguing limited available force in early

nineteenth century encouraged federal efforts to negotiate treaties by which tribes relinquished land

claims to advancing white settlements in the East, while the much greater size of the post-Civil War

army in the West made it easier for the federal government to fight Indians than negotiate with them).

Major battles ended when the last Apache fighters agreed to return to their reservation in 1887.

ROBERT M. UTLEY, FRONTIER REGULARS: THE UNITED STATES ARMY AND THE INDIAN, 1866-1891,

at 369-96 (1973).

69. Even while the Civil War continued, Republican majorities in Congress authorized a

Department of Agriculture to assist farmers (though they farmed within states), a national currency

sustained by a scheme of national banking regulation (supplanting paper currency issued by state

banks), support for railway construction (much of it taking place within existing states), eventually

followed up by a scheme of regulation of interstate rail service (applied to service even within states). 

70. According to the 1790 Census, the then most populous state (Virginia, with 747,610

people) was not quite 13 times larger than the then least populous state (Delaware, with 59,094). 1790

Census: Return of the Whole Number of Persons within the Several Districts of the United States,

U.S. CENSUS BUREAU, https://www.census.gov/library/publications/1793/dec/number-of-persons.

html [https://perma.cc/U8N8-B646] (last visited Mar. 3, 2023). By 1920, the then most populous

state (New York, with 10.385 million people) was 134 times larger than the then least populous state

(Nevada, with 77,407). 1920 Census: Volume 1. Population, Number and Distribution of Inhabitants,

U.S. CE N S U S  BU R E AU , https://www.census.gov/library/publications/1921/dec/vol-01-

population.html [https://perma.cc/X2LV-EAZD] (last visited Mar. 3, 2023). So, by the early

twentieth century, the disparity between large and small states was more than ten times larger than

it had been when the rule of equal representation of states in the Senate had been negotiated at the

Founding. 



2023] COMMERCE WITH THE INDIAN TRIBES 293

make state representation there proportional to population. 
A seemingly plausible fallback is to argue that whatever the original

understanding of federal power in this field, it is too late now, in the twenty-first
century, to revert to it, because so much federal legislation has developed on the
theory that the power to regulate “commerce with the Indian tribes” is, in
practice, a grant of plenary federal power over tribes.71 Indeed, as conservative
justices of the Supreme Court have tried to claw back some limits on federal
authority to interfere with states, they have frequently agreed to extend state
power over Indian tribes—as if this were part of the same project of protecting
states against outside interference.72 To do otherwise, it might be argued, would
simply be too disruptive. But these arguments seem to invoke constitutional
balance (as between state and federal authority) in disregard of the actual
Constitution, certainly in disregard of long-established understandings of the
Constitution which still resonate in contemporary case law.73

In other areas, the Supreme Court’s current majority has displayed
considerable sympathy for appeals to the Constitution’s original meaning.74 But
there is more than remote history at stake. There is a parallel in the status of
treaties with Indian tribes. In 1871, Congress signaled a more confident (or more
aggressive) federal stance by enacting a statute which purported to prohibit
further treaties with Indian tribes.75 What Congress did not do was pronounce all
past treaties cancelled. And though treaties have often been disregarded, the
Supreme Court in recent decades has often insisted that old treaties remain legally
binding—as in treaties with the Cherokees that gave rise to the dispute that
divided the Court in Castro-Huerta, where not even the majority argued that old
treaties were altogether irrelevant.76 Old legal commitments remain relevant
amidst changed circumstances because the rule of law cannot survive insouciant
disregard of solemn obligations embraced in previous generations. There may be
unavoidable exceptions but wholesale indifference to yesterday’s binding legal
commitments undermines ongoing confidence in the authority of law. 

71. COHEN’S HANDBOOK OF FEDERAL INDIAN LAW, supra note 5, at §5.02 (reviewing leading

cases, doctrines and some scholarly resistance). 

72. See id. § 6.01. 

73. See McGirt v. Oklahoma, 140 S. Ct. 2452 (2020) (finding nineteenth century treaties

reserved much of eastern Oklahoma for tribes, so the state could not assert jurisdiction over a crime

by an Indian perpetrator against an Indian victim.) Four dissenters argued that the treaties had been

superseded—not that states must always have had inherent jurisdiction over crimes by or against

Indians within state borders. Id. at 2482-02 (Roberts, C.J., dissenting).

74. See supra note 2 and accompanying text.

75. 25 U.S.C. § 71. Presidents continued to negotiate executive agreements with tribes (which

were not subject to Senate ratification) and such agreements were not more generous than formal

treaties in the preceding era. See also Arthur Spirling, U.S. Treaty Making with American Indians:

Institutional Change and Relative Power, 1784-1911, 56 AM. J. POL. SCI. 84 (2012). 

76. Oklahoma v. Castro-Huerta, 142 S. Ct. 2486 (2022). The change of one vote on the Court

(as Justice Barrett replaced Justice Ginsburg) left the McGirt dissenters in the majority in Castro-

Huerta, but they did not challenge the treaty interpretations on which McGirt rested. 



294 INDIANA LAW REVIEW [Vol. 56:279

There is a better way to think about the constitutional balance here. It is
closer to the Founding view in this area and closer to constitutional traditions
developed in the first century after the Founding. It could very well sustain a
more structured, focused inquiry, with better delineation of competing claims,
than the improvised jumble of precedents that has evolved in recent decades.77

III. NATIONAL SOVEREIGNTY AND ITS LIMITING LOGIC

As part of the effort to assure peace on the frontier, early treaties often
specified that federal authorities would punish U.S. citizens who committed
crimes against Indians and Indians would turn over such offenders when captured
on Indian territory.78 Such “extra-territorial claims” were exceptional and limited
to non-Indian offenders.79 The federal government did not claim authority to
punish crimes between Indians in Indian territory until late in the nineteenth
century when Congress enacted the Major Crimes Act.80 

This novel exertion of federal authority was endorsed by the Supreme Court
in United States v. Kagama.81 The Court’s unanimous opinion agreed that
Congress had authority to assert such jurisdiction but scoffed at the notion that
it was regulating “commerce with the Indian tribes” in doing so: “it would be a
very strained construction of this clause” [i.e., the Indian Commerce Clause] to
claim that it conferred federal authority to punish “common-law crimes of

77. See New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 334 (1983) (summarizing

precedent this way: “State jurisdiction [over Indian reservations] is preempted by the operation of

federal law if it interferes or is incompatible with federal and tribal interests reflected in federal law,

unless the State interests at stake are sufficient to justify the assertion of State authority.”). A leading

reference work sums up subsequent experience this way: “This test . . . probably yields even more

unpredictable results in the field of regulation than it does in that of taxation.” WILLIAM C. CANBY,

JR., AMERICAN INDIAN LAW IN A NUTSHELL 350 (7th ed. 2020).

78. See Treaty with the Chickasaw, Chickasaw Nation-U.S., art. VI, Jan. 10, 1786, 7 Stat. 24

(“If any citizen of the United States of America, or person under their protection, shall commit a

robbery or murder, or other capital crime, on any Indian, such offender or offenders shall be punished

in the same manner as if the robbery or murder or other capital crime had been committed on a citizen

of the United States of America . . . .”); Treaty with the Creeks, Creek Nation-U.S., art. IX, Aug. 7,

1790, 7 Stat. 35 (“If any citizen or inhabitant of the United States . . . shall go into any town,

settlement or territory belonging to the Creek nation of Indians, and shall there commit any crime

upon, or trespass against the person or property of any peaceable and friendly Indian or Indians . . .

such offender or offenders shall be subject to the same punishment, and shall be proceeded against

in the same manner, as if the offence had been committed within the jurisdiction of the state or

[federal territorial] district to which he or they may belong, against a citizen or white inhabitant

thereof.”). 

79. See Treaty with the Chickasaw, supra note 78; Treaty with the Creeks, supra note 78.

80. Ch. 341, 23 Stat. 362, 385 (1885) (codified as amended at 18 U.S.C. § 1153) (reacting to

Supreme Court ruling in Ex Parte Crow Dog, 109 U.S. 556 (1883), which disclaimed federal

jurisdiction over reservation crimes between Indians).

81. 118 U.S. 375 (1886). 



2023] COMMERCE WITH THE INDIAN TRIBES 295

murder, manslaughter, arson, burglary, larceny, and the like.”82 The Court instead
argued that federal authority did not require a specific enumerated power, since
there remained some inherent, residual federal authority over the national
territory.83 The reasoning echoed that of Chancellor Kent in New York State,
decades earlier.84 It would take many more decades before the Court thought it
plausible to claim that the Indian Commerce Clause conferred “plenary power”
on Congress to regulate Indian reservations.85

In recent decades, commentators have denounced Kagama’s appeal to
inherent sovereign powers as slipping the bounds of the Constitution.86 Some
have noticed it was applied to Indian tribes at roughly the time when the Court
invoked similar doctrines to justify racial restrictions on immigration and the
exercise of colonial control over territories gained in war (such as Puerto Rico
and Guam).87 Some scholars have therefore claimed the doctrine reflected a
generalized readiness to invoke stereotype and deceit to abuse non-white
peoples.88

But versions of the argument from inherent national authority have repeatedly
been embraced in other contexts. To start with, the Constitution does not mention
a power to acquire new territory. President Jefferson—a self-styled “strict-
constructionist”—accordingly argued that a constitutional amendment would be
necessary to authorize the Louisiana Purchase.8 9 Congress did not agree. The

82. Id. at 378-79.

83. Id. at 381.

84. Goodell v. Jackson, 20 Johns. 693 (N.Y. 1823). The Iroquois (in New York) “have always

been, and are still considered by our laws as dependent tribes, governed by their own usages and

chiefs, but placed under our protection, and subject to our coercion, so far as the public safety

required it, and no further.” Id. at 710 (emphasis added). 

85. Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163 (1989). The “central function of the

Indian Commerce Clause is to provide Congress with plenary power to legislate in the field of Indian

affairs.” Id. at 192. Earlier cases, even in the twentieth century, do not formulate the power in such

sweeping and emphatic terms. The one case cited by the Court for this proposition in Cotton

Petroleum speaks much more cautiously of the “plenary power of Congress to deal with the special

problems of the Indians.” Morton v. Mancari, 417 U.S. 535, 551 (1974) (emphasis added).

86. See Philip P. Frickey, Domesticating Federal Indian Law, 81 MINN. L. REV. 31, 35 (1996)

(Kagama’s “slipshod method of bootstrapping a congressional plenary power over Indian affairs is

an embarrassment of logic. Its holding . . . is an embarrassment of humanity.”).

87. See Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and

the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 TEX. L. REV. 1, 10 (2002)

(comparing Kagama with the Insular Cases on colonial control and the Chinese Exclusion case,

upholding race-based exclusion of immigration in defiance of treaty commitments).

88. DAVID WILKINS, AMERICAN INDIAN SOVEREIGNTY AND THE SUPREME COURT 67-81

(1997).

89. See Letter from Thomas Jefferson to Wilson Cary Nicholas (Sept. 7, 1803), NAT’L

ARCHIVES, available at https://founders.archives.gov/documents/Jefferson/01-41-02-0255

[https://perma.cc/959N-5AE6] (last visited Feb. 10, 2023). Jefferson’s concern was not mere

legalistic fussiness to burnish his credentials as a strict constructionist: “I cannot help believing the



296 INDIANA LAW REVIEW [Vol. 56:279

power to acquire new territory has been viewed ever since (through successive
territorial acquisitions across North America and to islands in the Pacific and the
Caribbean) as an incident of sovereignty.90 The Constitution enumerates a
congressional power to “coin money” but does not authorize making paper
money into legal tender.91 The practice was justified by the Supreme Court by
reference to what other sovereigns have routinely done.92 Similarly, the
Constitution enumerates a congressional power to establish a “uniform Rule of
Naturalization” but not to control which foreigners may be admitted to the United
States in the first place.93 The Court found that power inherent in national
sovereignty.94 The Eleventh Amendment guarantees that states cannot be sued in
federal court without their consent.95 The counterpart claim of sovereign
immunity for the federal government seems to have been assumed from the
outset, as an incident of sovereignty, though there is no explicit assertion of such
immunity in the text of the Constitution.96

It was not, in this larger context, a great leap to claim that the federal
government had some inherent authority to maintain minimal order on Indian
reservations. If it did not have such power, the reservations could become havens
for criminal gangs, for foreign agents preparing attacks on the United States or
other threats to basic security. The opinion in Kagama spoke in general terms of
implications from national sovereignty: “the right of exclusive sovereignty which

intention [of the Constitution] was [only] to permit Congress to admit into the union new states which

should be formed out of the territory for which & under whose authority alone they [the Framers]

were then acting. I do not believe it was meant that they [Congress] might receive England, Ireland,

Holland &c. into it [by congressional vote alone].” Id.

90. See STORY, supra note 17, at § 644 (reviewing the dispute over the power to acquire

territory, raised by the Louisiana Purchase). “The friends of the measure [Louisiana Purchase] were

driven to the adoption of the doctrine, that the right to acquire territory was incident to national

sovereignty.” Id. 

91. U.S. CONST. art. I, § 8, cl. 5.

92. Legal Tender Cases, 79 U.S. 457 (1870). 

93. U.S. CONST. art. I, § 8, cl. 4.

94. Chinese Exclusion Case, 130 U.S. 581, 605-06, 609 (1889) (citing a similar reasoning from

the Legal Tender Case (Knox v. Lee), then reasoning that the federal government must have “powers

which are to be exercised for protection and security” and the “power of exclusion of foreigners [is]

an incident of sovereignty belonging to the government of the United States”). 

95. U.S. CONST. amend. XI.

96. The doctrine is asserted in The Federalist No. 81 on the basis of general principles, without

reference to any particular clause in the Constitution. “It is inherent in the nature of sovereignty not

to be amenable to the suit of an individual without its consent.” The FEDERALIST NO. 81 (Alexander

Hamilton), supra note 47, at 486. The case of Chisholm v. Georgia, which provoked the Eleventh

Amendment (by asserting that states could be sued in federal court without their consent) did not

dispute that the federal government retained such sovereign immunity. 2 U.S. (2 Dall.) 419 (1793).

The Federal Tort Claims Act, codified at 28 U.S.C. §§ 2675-2680, does allow suits against the federal

government but assumes a background of sovereign immunity where not waived by this or other

statutes. 



2023] COMMERCE WITH THE INDIAN TRIBES 297

must exist in the national government, and can be found nowhere else.”97 Recent
research by Gregory Ablavsky, a scholar who has poured over the historical
record in close detail, seems to confirm that the Founders did expect the federal
government could claim broader constitutional support for exerting authority over
Indian tribes than is indicated by the isolated reference to regulating “commerce
with the Indian tribes.”98 In the first decades after the Founding, most regulation
of relations with the Indian tribes was conducted by the War Department and the
State Department, but none (it seems) by the Treasury.99

The question is how far this power might extend. As soon as it is granted that
the tribes have in some sense, retained “sovereign” powers of their own, the claim
of Congress to override that status looks suspect or disputable. Two analogies
with international practice may be suggestive here. It was well established by the
time of Kagama that military occupation in wartime gave the occupying power
the authority to impose a version of criminal justice as an incident of its need (and
obligation) to maintain order and security for its own forces and for the civil
population now living under its authority. What the occupier could not do was
rewrite all the laws of the actual sovereign—those in place before the onset of the
conflict—since this would not be necessary to the security of the occupying
force.100 

Another suggestive analogy is with the status of foreign ships in American
ports. The general rule in international law has long been that a ship is governed
by the state whose flag it flies. Jeremy Bentham, the early nineteenth century
legal theorist, expressed the idea by describing a ship as an “ambulatory
province” of the home state.101 What if the ship were in waters adjoining the
territory of a foreign state? Only two years after Kagama, in Wildenhus’ Case, the
Court faced a dispute regarding jurisdiction to prosecute a Belgian sailor for the

97. United States v. Kagama, 118 U.S. 375, 380 (1886).

98. Ablavsky, Beyond the Indian Commerce Clause, supra note 7 (emphasizing expected force

of treaty and war powers in addition to “commerce” power, implying a relationship somewhere

between actual foreign nations and states within the union). 

99. See LEONARD D. WHITE, THE FEDERALISTS: A STUDY IN ADMINISTRATIVE HISTORY 374-

82 (1948).

100. Hague Convention (II) with Respect to the Laws and Customs of War on Land, art. 43, Jul.

29, 1899, 32 Stat. 1803 (“The authority of the legitimate power having actually passed into the hands

of the occupant [as a result of seizure in war, pending ultimate peace treaty], the latter shall take all

steps in his power to re-establish and insure, as far as possible, public order and safety, while

respecting, unless absolutely prevented, the laws in force in the country.”). The Convention was seen

at the time as an attempt to codify or clarify already established “customs of war,” respected in past

conflicts at least over the preceding century. This provision was retained in the 1907 Hague

Convention (IV) on the same subject and remained in effect during the world wars of the twentieth

century. Hague Convention (IV) with Respect to the Laws and Customs of War on Land, art. 43, Oct.

18, 1907, 36 Stat. 2277.

101. For context of Bentham’s remark and nineteenth century legal disputes, see 2 D.P.

O’CONNELL, INTERNATIONAL LAW OF THE SEA, 735-41 (I.A. Shearer ed., 1982).



298 INDIANA LAW REVIEW [Vol. 56:279

murder of a Belgian shipmate on board a Belgian ship, while in a U.S. port.102

The Belgian government pointed out that the United States had protested when
authorities in Antwerp, some years before, had tried to assert local jurisdiction
over an American sailor who was injured in a fight with an American crewmate
on an American ship in the Belgian port.103 The United States made the same
protest against French authorities when France tried to press criminal charges
against an American officer (on a merchant ship) for abusing a member of the
crew (also American) while in the harbor of Marseille.104 In both cases, local
authorities eventually accepted the United States’ claim for the exemption of
crews on American ships from foreign interference.105 

In Wildenhus’ Case, the Supreme Court distinguished these cases as less
serious incidents, arguing that criminal prosecution was most justified when an
extreme crime (here, murder) threatened “the peace or dignity of the country [in
whose territorial waters the crime occurred], or the tranquility of the port.”106

Otherwise, “by comity it came to be generally understood among civilized
nations that . . . all things done on board, which affected only the vessel, or those
belonging to her . . . should be left to be dealt with by the authorities of the nation
to which the vessel belonged.”107 

Thus, in the twentieth century, the Supreme Court repeatedly refused to apply
federal regulatory measures to crews of foreign-flagged ships, even when they
regularly entered U.S. ports.108 By then, what the Supreme Court had initially
described as a matter of comity had come to be seen as a matter of customary
international law, obligatory on states (or as much so as anything else in
international law). A version of the rule was ultimately codified in the United
Nations Convention on the Law of the Sea, limiting application of the coastal
state’s criminal law to foreign-flag ships except when the “consequences of the
[ship-board] crime extend to the coastal State” or the “crime is of a kind to disturb
the peace of the [coastal] country.”109 

102. Mali v. Keeper of the Common Jail (Wildenhus’ Case), 120 U.S. 1, 2 (1887).

103. Id. at 13.

104. Id. at 13.

105. Id. at 13-14.

106. Id. at 12.

107. Id.

108. See, e.g., Lauritzen v. Larsen, 345 U.S. 571 (1952) (rejecting application of the Jones Act

provisions on tort liability for ship-board injuries to crew members); Benz v. Compania Naviera

Hidalgo, 353 U.S. 138 (1957) (rejecting application of Labor Management Relations Act);

McCulloch v. Sociedad Nacional de Marineros de Honduras, 372 U.S. 10 (1962) (rejecting

application of National Labor Relations Act to crews of foreign-flagged ships). 

109. United Nations Convention on the Law of the Sea, art. 27, pt. 1, Dec. 10, 1982, 1833

U.N.T.S. 397. The United States has signed but not ratified this convention but accepts this provision

(with many others) as an expression of customary international law, which the United States is eager

to claim against other coastal states for protection of its own ships. See Law of the Sea Convention,

NAT’L OCEANIC & ATMOSPHERIC ADMIN. (Jan. 5, 2023), https://www.noaa.gov/law-of-sea-

convention [https://perma.cc/UVT9-CL2U].



2023] COMMERCE WITH THE INDIAN TRIBES 299

Such analogies are subject to obvious objections. Indian tribes are not
sovereign to the same full extent as foreign nations and cannot so readily retaliate
in kind against federal over-reach (at least, since the last Indian wars in the late
nineteenth century). Rules of international law, moreover, do not necessarily
correspond to rules of constitutional construction, since the latter fully bind U.S.
courts in ways the former do not.1 10 Still, the United States simultaneously
asserted a doctrine of sovereign authority over coastal waters broader than what
others claimed while accepting limitations in practice to an extent that allowed
them to be generally recognized, including by the U.S., as international
obligation.111

Apart from legal formulas, there was thought to be an inescapable need for
supervening federal authority to protect Americans from violence or crime in
Indian country. But it is one thing to claim (or assume) a residual security power
in the federal government, beyond powers that may be conferred by even a
broadly conceived “power to regulate commerce with the Indian tribes.” It is
something else to claim this residual power is “plenary”—if that means (as one
might think) unbounded. Kagama, itself, upheld the “Major Crimes Act” which
extended federal jurisdiction over only a handful of violent crimes but did not
purport to be exclusive of Indian jurisdiction and included various exceptions.11 2

If Congress does have an unlimited power to exercise “sovereign authority”
throughout the United States, that would seem to undermine any constitutional
grounding to our federal system. The Supreme Court in recent decades has tried
to assert limits on the congressional power to regulate commerce among the

110. Background assumptions regarding customary international law do sometimes affect the

interpretation of U.S. constitutional guarantees. For notable example, Justice Thomas’s opinion for

the Court in Franchise Tax Board of California  v. Hyatt examined traditional international practice

regarding respect for sovereign immunity of foreign states, as indication of whether the Constitution

was understood (in 1788) as forbidding state courts to assert jurisdiction over governments of other

U.S. states. 139 S. Ct. 1485 (2019). See also Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561 (1832)

(explaining the status of Indian tribes with a citation to Vattel’s treatise on the law of nations,

regarding the status of “dependent nations” in European diplomatic practice outside North America).

111. See Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2511 (Gorsuch, J., dissenting),

(suggesting the continuing relevance of the coastal waters analogy). Justice Gorsuch’s dissent cites

the emphatic affirmation of sovereignty in the Marshall Court’s ruling in Schooner Exchange v.

McFaddon, a decision which nonetheless acknowledged an accepted limit on national jurisdiction

in dealing with foreign warships based on “consent of nations” (i.e., not the unilateral preference of

the U.S. government). Id.; see Schooner Exchange v. McFaddon, 11 U.S. (7 Cranch) 116, 136 (1812).

In United States v. California, the Supreme Court held that the federal government, not the state, had

authority over off-shore oil and gas reserves, partly on the ground that responsibility for off-shore

waters might often be affected by obligations to foreign nations under international law. 332 U.S. 19

(1947).

112. United States v. Kagama, 118 U.S. 375, 376-77 (1886); see also Major Crimes Act of 1885,

23 Stat. 362 (codified as amended at 18 U.S.C. § 1153) (originally covering only seven major crimes)

(emphasis added to first word in title, as given in the text). For further background on the statute’s

limited reach, see WILKINS, supra note 88, at 69-71.



300 INDIANA LAW REVIEW [Vol. 56:279

states113 and to enforce the guarantees of the Fourteenth Amendment against state
and local governments.1 1 4 If there is also a completely unlimited power of
inherent sovereignty in the federal government, unrelated to traditional necessities
of preserving order,115 then such efforts to limit the reach of particular
constitutional powers were so much wasted effort. In this respect, as perhaps
others, federal controls on the tribes are not so much (as some have claimed)
outside the Constitution as markers or boundary posts of how far the Constitution
can (or cannot reasonably) be extended. 

On the other hand, if one thinks federal authority over Indian tribes does draw
on a reservoir of inherent national authority (apart from what the Indian
commerce clause on its own may confer), many areas of federal regulation
affecting tribes could still be readily justified. An important example might be the
imposition of federal environmental law on tribal governments. The effect of
environmental harms can readily spill over boundaries. There is a recognized
international claim to protest environmental spillovers. Before the national
environmental statutes of recent decades, disputes between states over water
rights and water pollution were sometimes pursued as common law claims before
the Supreme Court. The results have been cited in international arbitration over
parallel issues.116 Somewhat consistently with this approach, federal legislation
in recent decades has offered tribal authorities the opportunity to participate—on
the same basis as state governments—in implementing measures to contain
pollution hazards that might drift or flow across tribal boundaries.117

Statutory regulation of common law harms—such as the destructive effect of
pollution—might be considered only a step beyond prohibition of the most severe
common law crimes (affecting peace and property). By contrast, regulation
simply seeking to deal with localized or second-level safety concerns may be in
a different category, as with statutes aiming to stabilize labor-management
relations (rather than protect common law tort or property claims). Thus,

113. See United States v. Lopez, 514 U.S. 549 (1995) (Gun-Free School Zone Act

impermissibly intrudes on policy reserved for states); United States v. Morrison, 529 U.S. 598 (2000)

(Violence Against Women Act cannot be enforced against intrastate violence); Nat’l Fed’n of Indep.

Bus. v. Sebelius, 567 U.S. 519 (2012) (Commerce Clause does not allow Congress power to regulate

non-activity such as failure to buy insurance). 

114. City of Boerne v. Flores, 521 U.S. 507 (1997) (Congressional power to “enforce”

Fourteenth Amendment does not go beyond requirements of the Amendment, as adjudged by courts).

115. For resonant example of such claims at the margin, see Cunningham v. Neagle, 135 U.S.

1 (1890) (recognizing executive authority to use deadly force to protect federal officials even in

absence of statutory authorization, preempting murder charge under state law). 

116. See, e.g., UNITED NATIONS: REPORTS OF INTERNATIONAL ARBITRATION AWARDS: TRAIL

SMELTER CASE (UNITED STATES, CANADA) VOL. 3, 1905-1982 (2006), available at https://legal.un.

org/riaa/cases/vol_III/1905-1982.pdf [https://perma.cc/J2EK-EGD3].

117. Clean Water Act, Pub. L. No. 92-500, 86 Stat. 816 (1972) (codified as amended at 33

U.S.C. §§ 1251-1387); Safe Drinking Water Act, Pub. L. No. 93-523, 88 Stat. 1660 (1974) (codified

as amended at 42 U.S.C. § 300f); Clean Air Act, 91 Pub. L. No. 604, 84 Stat. 1676 (1970) (codified

as amended at 42 U.S.C. §§ 7401-7671q).



2023] COMMERCE WITH THE INDIAN TRIBES 301

Congress has hesitated to extend the full range of regulatory standards to the
operations of state governments. The National Labor Relations Act (NLRA), for
example, includes exemptions for employees of state government.118 

Since the NLRA does not include an explicit exemption for Indian tribes,
lower courts are divided on whether it should be applied to commercial concerns
owned or conducted by tribes.119 Courts have also divided on whether regulations
of the Occupational Safety and Health Administration should apply to tribal
owned or tribal conducted establishments.120 Courts that have hesitated to apply
federal standards invoke a presumption against federal interference—requiring,
in effect, that Congress express a clear intention to reach tribal businesses.121

While these rulings do not expressly acknowledge a constitutional limit on what
Congress can reach, they certainly echo rulings of the Rehnquist Court, asserting
a presumption against applying federal statutes to state governments (unless there
is clear indication of congressional intent).122

The Supreme Court in recent decades has affirmed other doctrines seeking
to protect state governments from excessive federal interference. Here, too, there
is inescapable logic to applying such doctrines to tribal authorities. 

One such doctrine is that conditions on federal grants cannot coerce states to
comply with conditions not reasonably related to the purpose of the grant.1 2 3 A
related doctrine is that new and substantially more demanding conditions cannot
be added to grants, after states have come to rely on earlier, more accommodating

118. 29 U.S.C. §152(2) (“The term ‘employer’ . . . shall not include the United States . . . or any

State or political subdivision thereof . . . .”). No court has thought to anticipate the logic of Castro-

Huerta by finding that an Indian reservation, as “a part of the State,” could be seen as a “subdivision

thereof” and consequently claim this exemption for its employees.

119. For review of the cases, see Riley Plumer, Overriding Tribal Sovereignty by Applying the

National Labor Relations Act to Indian Tribes in Soaring Eagle Casino and Resort v. National Labor

Relations Board, 35 LAW & INEQ. 131 (2017). 

120. Donovan v. Navajo Forest Prods. Indus., 692 F.2d 709 (10th Cir. 1982) (finding against

application of OSHA regulation); Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113 (9th Cir.

1985) (finding OSHA does apply); Reich v. Mashantucket Sand & Gravel, 95 F.3d 174 (2d Cir. 1996)

(finding OSHA does apply); Scalia v. Red Lake Nation Fisheries, 982 F.3d 533 (8th Cir. 2020)

(finding OSHA regulations do not apply to tribal fishery). 

121. William v. Poarch Band of Creek Indians, 839 F.3d 1312 (11th Cir. 2016) (holding Age

Discrimination in Employment Act does not apply to tribal employers, even though ADEA does not

include a specific exemption, given presumption against application of federal regulation without

clear indication Congress meant to apply it to tribes).

122. BFP v. Resolution Tr. Corp., 511 U.S. 531 (1994) (holding federal statute does not preempt

foreclosure procedure under state law because such displacement of traditional state jurisdiction

requires explicit statutory warrant); Gregory v. Ashcroft, 501 U.S. 452 (1991) (finding the federal

Age Discrimination in Employment Act not applicable to state employees because courts should

presume against such reach without clear statement of congressional intent); English v. Gen. Elec.,

496 U.S. 72 (1990) (finding the federal statute does not preempt state tort claims where not explicit). 

123. South Dakota v. Dole, 483 U.S. 203 (1987). 



302 INDIANA LAW REVIEW [Vol. 56:279

terms.124 The point of these restraints is to prevent the federal government from
leveraging its funding power to coerce the states into activities their own
legislatures—and their own voters—might not favor. In short, these doctrines try
to prevent federal bullying of states, even where states might, in form, seem to be
giving consent to the policy. Some courts have, in fact, acknowledged that the
same reasoning can apply to federal grants to tribal authorities.125

The federalism cases of recent decades emphasize limits on federal power,
even where there are broad powers conferred in the text of the Constitution. This
reflects an effort to move the federal balance closer to what was envisioned in
earlier times. But states are not alone in their claims. Indian tribes have their own,
very considerable claims to protection from overreaching federal interference.
They have stronger claims against interference from state governments. 

IV. INTERSTATE AND INTERTRIBAL CLAIMS TO THE FREE FLOW OF COMMERCE

The original understanding was that Indian tribes were more independent
than states. If the majority opinion in Castro-Huerta is right, they are much less
independent than states—they are essentially subdivisions of states which for
inexplicable reasons (if one accepts that premise) can be beneficiaries of special
federal solicitude, when federal authorities choose to exercise it. But states are
much better positioned to seek favor from Congress. States have the benefit of
constitutional representation in the U.S. Senate. Courts and commentators have
therefore reasoned that legislation which passes Congress can be presumed
acceptable to most states, since states could otherwise have raised objections in
the Senate.126 That argument does not work for tribes, which are not, of course,
represented (as such) in Congress. Nor are they represented (as such) in state
legislatures. So, there is no constitutional grounding for the assumption that the
absence of federal legislation somehow licenses states to assert their own claims
against Indians. 

Whatever might follow from seeing “Indian country”127 as part of the United

124. Nat’l Fed’n of Indep. Bus. v. Sebelius, 467 U.S. 519 (2012) (ruling against adding new

conditions to federal grants compelling states to adopt new programs).

125. Chippewa Cree Tribe v. U.S. Dep’t of Interior, 900 F.3d 1152, 1160 (2018)

(acknowledging tribe receiving federal grants was entitled to resist funding conditions if they were

not “clear and unambiguous” and did not “bear some relationship to the purpose of the federal

spending”).

126. Garcia v. San Antonio Metro. Transit Auth., 469 U.S. 528, 552 (1985) (“the Framers chose

to rely on a federal system in which special restraints on federal power over the States inhered

principally in the workings of the National Government itself [by “representing” states “in one branch

of the legislature”] rather than in discrete limitations on the objects of federal authority.”); see also

JESSE H. CHOPER, JUDICIAL REVIEW AND THE NATIONAL POLITICAL PROCESS 175-84 (1980); Herbert

Wechsler, The Political Safeguards of Federalism: The Role of the States in the Composition and

Selection of the National Government, 54 COLUM. L. REV. 543 (1954).

127. The term “Indian country” is not pejorative. It frequently appears in the U.S. Code, starting

with its definition at 18 U.S.C. §1151.



2023] COMMERCE WITH THE INDIAN TRIBES 303

States, residents should have the same claims as other Americans to the benefits
of the free flow of commerce over jurisdictional lines. In this respect, surely,
tribal territories should not be less protected than states. Since they are not
represented in Congress (or state legislatures)—as tribes—their claims in this
respect are more in need of judicial protection. 

Ensuring free transit across jurisdictional lines was not at all an arcane or
peripheral concern at the Founding. One of the prime inducements for small states
to adhere to the new Constitution in 1788 was to secure protection against
discriminatory treatment from large states. In particular, states without deep water
ports open to ocean-borne commerce—such as Connecticut and New
Jersey—found themselves at the mercy of neighbors (such as New York and
Pennsylvania) which did have such ports. The states with good ports felt free to
impose special tariffs on exports from neighboring states, both to gouge extra
revenue and to secure competitive advantage for their own commerce.128 The
Constitution laid down a firm barrier to such self-dealing by prohibiting states
from imposing “any Duty of Tonnage” without congressional consent, while
simultaneously prohibiting Congress from imposing any “Tax or Duty” on
“Articles exported from any State” and prohibiting “Preference . . . by any
Regulation of Commerce or Revenue to the Ports of one State over those of
another.”129

What if commerce between states goes by land? If “tonnage” applies only to
taxes on ship-board commerce,130 the Framers seem to have banned interference
with commerce across state land borders through a parallel provision, prohibiting
states to “lay any Imposts or Duties on Imports or Exports” without congressional
consent.131 A famous decision by Chief Justice Marshall asserted (in dicta) that
the provision would apply to traffic across state lines, as well as to “imports or
exports” from outside the United States.132 The Taney Court endorsed the same
view on the eve of the Civil War.133 But soon after the war, the Supreme Court
held that the “imposts or duties” clause did not apply to traffic across state
lines—a ruling questioned by one Justice at the time and a committed originalist
Justice in our time.134 The Court has seen less need to reconsider its interpretation

128. ArtI.S10.C3.1.2 Historical Background on Duties of Tonnage, CONST. ANNOTATED,

h ttps://con st it u t io n . c o n g r e s s . g o v /brow se/essay/artI-S1 0 -C 3 -1 -2 /ALD E _ 0 0 0 0 0 0 2 9 /

[https://perma.cc/A4FB-7A57] (last visited Feb. 17, 2023).

129. U.S. CONST. art. I, § 10, cl. 3; art. I, § 9, cls. 5, 6. 

130. The clause does apply to interstate trade delivered by sea, as confirmed in Polar Tankers

v. City of Valdez. 557 U.S. 1, 6 (2009) (holding invalid a local tax affecting delivery of goods by ships

from ports in other states).

131. U.S. CONST. art. I, § 10, cl. 2. 

132. Brown v. Maryland, 25 U.S. (12 Wheat.) 419, 449 (1827) (“It may be proper to add, that

we suppose the principles laid down in this case, to apply equally to importations from a sister

State.”). 

133. See generally Almy v. California, 65 U.S. (24 How.) 169 (1861).

134. Woodruff v. Parham, 75 U.S. (8 Wall.) 123, 138-39 (1868) (holding “imposts or duties”

clause applies only to sea-borne cargo imported from foreign countries into the United States). But



304 INDIANA LAW REVIEW [Vol. 56:279

of the “imposts or duties” clause, however, because it has found that the
congressional power to regulate “commerce . . . among the several States”135

precludes states from interfering with interstate commerce, including by attempts
to tax trade in out-of-state products.136 

Yet no case has yet held that the “imposts or duties” clause does not apply to
Indian reservations. It can well be argued that “commerce with . . . the Indian
tribes”137 has a special status, akin to commerce with foreign nations, so states
should be excluded from imposing their own controls on such commerce (at least
when not explicitly authorized by federal statute).138 

If the Court does not embrace that interpretation, it can achieve a similar
result in this area as it has with interstate commerce. There is, after all, much solid
historical grounding for the conclusion that the congressional power to regulate
“commerce . . . with the Indian tribes”139 was intended to exclude state regulation.
It is at least as well-grounded as the Marshall Court doctrine that federal power
over “commerce among the states” excludes state interference with interstate

see id. at 140-47 (Nelson, J., dissenting) (arguing for application of the clause to all cross-border trade

among states). For the most recent endorsement of this latter view, see Camps Newfound v. Town

of Harrison, 520 U.S. 564, 621-35 (1997) (Thomas, J., dissenting) (arguing “imposts or duties” clause

should apply to commerce across state lines).

135. U.S. CONST. art. 1, § 8, cl. 3.

136. See Welton v. Missouri, 91 U.S. 275 (1875) (holding invalid, as violation of Commerce

Clause, a state license fee required for importing goods from out of state). For some modern

applications, see Complete Auto Transit v. Brady, 430 U.S. 274 (1977) (prohibiting imposition of

state sales tax on autos brought into state after purchase outside); J. D. Adams Mfg. Co. v. Storen, 304

U.S. 307 (1938) (holding a state tax on gross income unconstitutional for not offsetting share of

corporate income generated outside the state). 

137. U.S. CONST. art. 1, § 8, cl. 3.

138. The Court has sometimes emphasized the need for greater scrutiny of state laws affecting

foreign commerce. In Japan Line, Ltd. v. Los Angeles County, it admonished that “a state tax on the

instrumentalities of foreign commerce may impair federal uniformity in an area where federal

uniformity is essential.” 441 U.S. 434, 448 (1979). So, it is highly doubtful that a state having a land

border with Canada would be allowed to tax imports from there just because the tax would not qualify

as an “impost or duty” as interpreted by the Supreme Court in Woodruff. Apart from the dormant

foreign commerce power (excluding state interference with power reserved to Congress, even when

it is “dormant”), an actual federal statute will usually preempt state interference with foreign trade.

Almost all imports are now covered by international trade agreements of one kind or another—for

example, 164 states (including the United States) now adhere to the tariff limitations sponsored by

the World Trade Organization. Trade agreements are implemented within the United States by

federal legislation. Courts could easily see federal treaties or legislation on Indian affairs as

preempting state tax interference. See Washington State Dep’t of Licensing v. Cougar Den, Inc., 139

S. Ct. 1000 (2019) (holding a reservation was exempted from special highway usage tax on the basis

of an 1855 treaty). Absent such special treaty provisions, as discussed below, courts have often

adopted a “balancing” of state and tribal interests in which the latter are judged to be outweighed by

state claims. 

139. U.S. CONST. art. 1, § 8, cl. 3.



2023] COMMERCE WITH THE INDIAN TRIBES 305

commerce.140 Federal appellate courts have repeatedly held that when Congress
imposes a ban on interstate trade in particular commodities (notably, untaxed
cigarettes), that should apply as well to intertribal commerce.1 4 1 It is very hard to
see why Indian tribes should be treated as equivalent to states when it comes to
bearing the burdens of regulation, but receive none of the protection for free
exchange that accrues to states.

As it is, if states do have full control over their borders with Indian territory,
they do not even need to collect “imposts or duties” on articles flowing into or out
of Indian territory. They can simply demand that tribal authorities collect special
taxes at the point of sale in Indian territory and transfer this revenue back to the
states—or else face interference with shipments from the demanding state to the
targeted Indian territory.142

The threat is not at all hypothetical. This is the precise way that Washington
State enforced a cigarette tax on the Colville Indian Reservation.143 To enforce its
demand for tax collection by tribal retailers, Washington State officials set up
roadblocks to prevent delivery of cigarettes to the Indian reservation until tribal
officials agreed to have the tribe act as tax collectors for the state.144 This
arrangement strikes at the heart of any meaningful scheme of tribal sovereignty.
It assumes that commerce into tribal territory depends on the consent of the state,
so the state can impose a trade blockade on an adjoining reservation— even
though it is clearly prohibited from doing that to a neighboring state of the United

140. The Supreme Court has said it is a “fundamental principle” that “No State, consistent with

the Commerce Clause, may ‘impose a tax which discriminates against interstate commerce . . . by

providing a direct commercial advantage to local business.” Bos. Stock Exch. v. State Tax Comm’n,

429 U.S. 318, 329 (1977). Protection from competition arising in neighboring jurisdictions would

seem to be just a discriminatory scheme for “providing a direct commercial advantage to local [in-

state] business.” Id. The doctrine has been challenged: see Tyler Pipe Indus., Inc. v. Wash. State

Dep’t of Revenue, 483 U.S. 232, 265 (1987) (Scalia, J., concurring in part and dissenting in part)

(expressing skepticism toward “dormant power” reading of the Interstate Commerce Clause as not

consistent with text or original meaning of the Constitution)); see also West Lynn Creamery v. Healy,

512 U.S. 186, 209-10 (1994) (Scalia, J., concurring). But this skeptical view about the “dormant

power” reach of the Commerce Clause has only persuaded one other justice in the decades since: see

Dep’t of Revenue v. Davis, 553 U.S. 328, 361-62 (2008) (Thomas, J., concurring in judgement).

141. See Ho-Chunk, Inc. v. Sessions, 894 F.3d 365 (D.C. Cir. 2018) (holding Contraband

Cigarette Trafficking Act (CCTA) applies to tribal commerce because CCTA’s reference to “State”

implies inclusion of tribal territory); New York v. Grand River Enters. Six Nations, Ltd, No. 1:14-cv-

00910, 2019 U.S. Dist. LEXIS 21558 (W.D.N.Y. Feb. 11, 2019) (transactions between tribal

reservations in different states qualify as commerce among the states for purposes of Prevent All

Contraband Trafficking Act); Big Sandy Rancheria Enters. v. Bonta, 1 F.4th 710 (9th Cir. 2021)

(tribe-to-tribe cigarette sales qualify as commerce between states); New York v. Mountain Tobacco

Co, 942 F.3d 536 (2d Cir. 2019) (federal Prevent All Cigarette Trafficking Act applies to intertribal

sales).

142. See Washington v. Confederated Tribes of Colville Indian Rsrv., 447 U.S. 134 (1980).

143. See id.

144. Id. at 142.



306 INDIANA LAW REVIEW [Vol. 56:279

States (or to a foreign country, for that matter, since the power to regulate
commerce with foreign nations belongs to the federal government).145

The Supreme Court has, in recent decades, rejected federal “commandeering”
of state officials. In Printz v. United States, the Court struck down a federal law
which required local law enforcement officials to perform background checks to
implement a federal gun control measure.146 The Court insisted that the
Constitution implicitly creates a dual system of authority to assure separate lines
of accountability: “The Constitution thus contemplates that a State’s government
will represent and remain accountable to its own citizens.”147 A jumble of
intermingled authorities would undermine this logic. 

But the same reasoning applies as much to Indian territory. Tribes have their
own governments, accountable to tribal members. It would undermine this
scheme if tribal governments were forced to undertake chores at the behest of
outside governments.148 The separate sovereignty principle that protects state
governments against federal commandeering should, for the same reasons, protect
tribal governments against state commandeering.

It is true, of course, that states can impose duties on localities within the state,
including duties related to tax collection. But county, town, and city governments
are creations of the state, whose powers can be delegated or rescinded, granted
on condition or superseded by direct state involvement. On no plausible
understanding is the relation between tribal territories and states analogous to that
between states and their local governments. Forcing a tribe to collect state taxes
is much more like Massachusetts demanding that New Hampshire impose a sales
tax and share the proceeds with Massachusetts, on threat of preventing taxable
merchandise passing from Massachusetts to New Hampshire by truck or train.

From this perspective, the state’s blockading capacity against Indian
reservations is the counterpart of the commandeering demand. It is not just that
the first is used to coerce acceptance of the second. They work as inter-locking
arms of coercion, like jaws of a vice. They are both extensions of the same
(highly objectionable) premise, that Indian reservations are inherently exposed
to demands of state governments, because there is no constitutional doctrine to
protect their independence if Congress declines to exert explicit federal
protection. This appears so contrary to the background constitutional scheme—so
contrary to elements of tribal sovereignty still accepted by the Supreme
Court—that it is, at first, quite disorienting to find the same Court endorsing this
twisted logic. 

145. U.S. CONST. art. 1, § 8, cl. 3.

146. 521 U.S. 898, 933 (1997); see also New York v. United States, 505 U.S. 144 (1992)

(against compelling states to adopt legislation to provide nuclear waste sites within their own

borders).

147. Printz, 521 U.S. at 920. 

148. The doctrine does not forbid states to participate in federal programs, including federal

regulatory programs, if they agree to do so without undue coercion. Tribes also have been offered the

opportunity to implement environmental regulations (as states are authorized to do), if they do not

leave these standards to be enforced by federal authorities EPA. 



2023] COMMERCE WITH THE INDIAN TRIBES 307

Central to the explanation is the Court’s gradual reconceptualization of tribal
sovereignty from authority over a defined territory to authority over a defined
population. A string of cases has held that, while states cannot impose direct taxes
on Indian land holdings or on tribal members operating there, the states can still
insist that their own state citizens who are not Indians must pay state taxes when
buying from tribal retailers in tribal territory.149 Otherwise, the Court has held,
states would face economic harm from consumers ducking into Indian country
to avoid state taxes. Therefore, the Court concludes, there must be a “balancing”
of competing state claims to economic protection and Indian claims to self-
government.150 

Massachusetts cannot, of course, claim such protection against New
Hampshire (which has no sales tax) because New Hampshire is assumed to be in
full control of its own territory, not merely of its own citizens. Massachusetts
cannot demand that New Hampshire collect Bay State sales tax on Massachusetts
citizens, when they happen to slip over the border to make purchases in New
Hampshire. Citizenship is not the issue. Each state imposes its own taxes in its
own territory and the Constitution prohibits states from reaching across state lines
to interfere with the tax policy of other states—or to block transit of commerce
across state lines.1 5 1 It would undermine the entire scheme to say New
Hampshire’s taxing authority should be limited to its own citizens so
Massachusetts can make tax claims on transactions involving citizens of
Massachusetts as long as they take place in New Hampshire. New Hampshire
would lose valuable business opportunities. Meanwhile, citizens of both states
would lose some of the liberty-enhancing (and commerce-fostering) benefits of
competition between jurisdictions.152 

Why is the rule different in relation to Indian reservations? In many
situations, the Court still recognizes that reservations retain the right to maintain
different policies on their own territories.153 That is how tribal territories in many
places came to be hosts of casino gambling. The Court ruled that states could not
impose close regulation of such commercial activity on tribal lands.154 It did not
matter that most of those enjoying the betting were non-Indians (along with many
of those employed at the casinos).155 The site of the activity (within Indian
territory) was what mattered—not the citizenship of those engaged in it or their
status as tribal members or outsiders.156 

149. For analysis of relevant cases, see COHEN’S HANDBOOK OF FEDERAL INDIAN LAW, supra

note 5, at §8.03(1)(d). 

150. For analysis of leading cases, emphasizing shifting emphases from case to case, see

CANBY, supra note 77, at 169-81.

151. See U.S. CONST. art. IV, § 1, cl. 1.

152. For compelling exposition of the principles at work in the Court’s interstate tax holdings,

see MICHAEL S. GREVE, THE UPSIDE-DOWN CONSTITUTION 169-73, 356-72 (2012).

153. See, e.g., California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987).

154. Id.

155. Id. at 205.

156. Id. at 219-22.



308 INDIANA LAW REVIEW [Vol. 56:279

The next section will consider the somewhat tortured path by which court
rulings came, in dealing with Indian reservations, to embrace a sort of medieval
law-of-the-person instead of modern territorial jurisdiction. The point to
emphasize here is that the cases which have developed these strange distinctions
are exceptional and peripheral to the original understanding and to the practice
of the generations closest to the Founding. The original understanding was that
tribal territory should be self-governing and the tribes would not need approval
of surrounding states to set their own policy. That applied not only to their own
members but to others who entered their territory. Tribes were like states in
having claims to near exclusive territorial control—only more so than states. The
exceptions for criminal prosecution that emerged in the nineteenth century were,
even then, exceptional. These exceptions cannot plausibly form the basis for a
whole broad rule of construction when it comes to tribal authority and outside
law. 

V. FROM PRESERVING ORDER TO PROTECTING STATE REVENUES

In Castro-Huerta, the Court’s opinion insisted that in allowing Oklahoma to
prosecute a non-Indian for a crime against an Indian victim, it was not deciding
whether the state could prosecute such a crime if committed by an Indian
perpetrator against an Indian victim.157 The cautious parsing of such distinctions
might seem inexplicable, if it were simply true that Indian reservations are “part
of the State,” as the majority opinion claimed.158 

There is some historical basis for treating criminal justice as a special
category. But it is a very big leap to extend such precedents from criminal
prosecution to taxing and regulatory power. In recent decades, the Supreme Court
has sometimes spoken as if it were aware of the distinction—but at times ruled
as if crossing from one category to the other were a mere hop, skip or jump rather
than a perilous, acrobatic leap over a perilous chasm. The Court has thus allowed
its rulings on tribal authority to drift very far from the original understanding.

When Chief Justice Marshall looked at the claims of the Cherokee Nation, he
emphasized the territorial aspect of its status: “The Cherokee nation, then, is a
distinct community occupying its own territory, with boundaries accurately
described, in which the laws of Georgia can have no force, and which the citizens
of Georgia have no right to enter, but with the assent of the Cherokees themselves
. . . .”159 Georgia’s legislation would not apply, by this account, even to non-
Indians who might be present in Cherokee lands. That is what Georgia attempted
to do in Worcester—in a criminal prosecution of a white missionary, Samuel

157. Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2495 n.2 (2022) (stating that whether “a State

lacks prosecutorial authority over crimes committed by Indians in Indian country [is] a question not

before us”); id. at 2504 n.9 (stating that as to “crimes committed by Indians against non-Indians in

Indian country . . . we do not take a position on that question”). 

158. Id. at 2493 (“To begin with, the Constitution allows a State to exercise jurisdiction in Indian

country. Indian country is part of the State, not separate from the State.”).

159. Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561 (1832) (emphasis added).



2023] COMMERCE WITH THE INDIAN TRIBES 309

Worcester.160 The Supreme Court emphatically rejected Georgia’s claims.161 
The realities of life on the frontier introduced complications, however. When

white settlers attacked or robbed Indians, tribes were likely to retaliate—not
always with scrupulous focus on the precise individuals responsible for the
attack.162 Settlers could be equally impulsive in retaliating for attacks by
particular Indians. They often resorted to indiscriminate punitive raids on the
nearest tribal community. In an effort to repress such incidents before they ignited
all-out war, early treaties promised to assert federal power to punish Americans
responsible for crimes against Indians, even within Indian territory.163 As
President Washington later explained, “[u]nless the murdering of Indians can be
restrained by bringing the murderers to condign punishment, all the exertions of
the [federal] Government to prevent destructive retaliations by the Indians will
prove fruitless . . . .”164

For similar reasons, early treaties also provided that the federal government
would punish Indians who attacked settlers or their property. The treaties were
so respectful of tribal territorial claims, however, that they left tribes to their own
devices in ousting white interlopers who unlawfully tried to settle within lands
reserved for Indians.165 Even where treaties promised that the federal government
would punish Americans who launched attacks on Indians, federal courts for
some time declined jurisdiction for attacks that took place on Indian territory.166

160. Id. at 528-30.

161. See id. at 534-35.

162. See ANGIE DEBO, AND STILL THE WATERS RUN: THE BETRAYAL OF THE FIVE CIVILIZED

TRIBES 92-125 (1940).

163. For examples during the Confederation period, see Treaty with the Cherokee, Cherokee

Nation-U.S., Nov. 28, 1785, 7 Stat. 18; Treaty with the Choctaw, supra note 14; Treaty with the

Chickasaw, supra note 78; Treaty with the Shawnee, Shawnee Nation-U.S., Jan. 31, 1786, 7 Stat. 26;

Treaty with the Wyandot, Etc., Wyandot Nation-U.S., Jan. 9, 1789, 7 Stat. 28. Similar provisions

appear in the Treaty with the Creeks, Creek Nation-U.S., supra note 78. For more background, see

PRUCHA, supra note 48, at 188-212. 

164. George Washington, Seventh Annual Address, December 8, 1795, in 1 A COMPILATION OF

THE MESSAGES AND PAPERS OF THE PRESIDENTS 1789-1897, 185 (James Daniel Richardson ed.,

1903).

165. See, e.g., Treaty with the Choctaw, supra note 14, at IV (“If any citizen of the United

States, or other person not being an Indian, shall attempt to settle on any of the lands hereby allotted

to the Indians to live and hunt on, such person shall forfeit the protection of the United States of

America, and the Indians may punish him or not as they please.”); Treaty of Greenville art. VI., Aug.

3-Dec. 2, 1795, 7 Stat. 49 (“If any citizen of the United States, or any other white person or persons,

shall presume to settle upon the lands now relinquished by the United States, such citizen or other

person shall be out of the protection of the United States; and the Indian tribe, on whose land the

settlement shall be made, may drive off the settler, or punish him in such manner as they shall think

fit . . . .”).

166. PRUCHA, supra note 48, at 193-95 (describing disclaimed jurisdiction over crimes

committed by Indians who murdered whites in Indian territory). Federal courts would still have

jurisdiction over covered crimes if they occurred in federal territory not yet incorporated as states



310 INDIANA LAW REVIEW [Vol. 56:279

It was not until 1817 that Congress, for the first time, clarified the matter with
legislation that, with slight adjustments in 1834, provided the terms of the
General Crimes Act, still in force today—providing federal jurisdiction over
crimes committed by American citizens and other outsiders in Indian territory.167

The statutes took care to specify that the jurisdiction did not cover crimes by
Indians against other Indians. Such crimes did not seem to threaten general peace.

Even for crimes in tribal lands which it did reach, this legislation did not
authorize federal officials to enter tribal territory to make an arrest but merely
authorized them to seek to have individual perpetrators delivered up by the
tribe—in effect, a frontier version of extradition.168 There was still a sense that
boundaries mattered as between Indian territories and land under federal or state
control. The prosecution of crimes within Indian territory by federal authorities
was seen as exceptional and justified only by the need to prevent large-scale
violence. 

As late as 1883, the Supreme Court insisted that federal prosecutors lacked
jurisdiction to try an Indian for murder of another Indian on tribal lands,
protesting that such a prosecution against “aliens” would “subject them to . . .
rules and penalties of which they could have no previous warning.”169 Congress
then enacted the Major Crimes Act to reach a few of the most violent or
dangerous crimes by Indians against Indians on Indian lands.170 The Supreme
Court upheld this law, as we saw in Part III, as an exercise of background federal
sovereignty.171 Meanwhile, the Supreme Court held in several cases that states
could sometimes exert criminal jurisdiction over crimes occurring on tribal lands
if neither perpetrators nor victims were Indians.172 In the early 1950s, Congress
added special authorization for a small set of other states to exert criminal
jurisdiction over tribal lands but later insisted that states must secure tribal
consent before prosecuting crimes that occurred in tribal territory.173 

(and not within lands recognized as Indian territory). See id. at 198-99. Congress may have expected

federal courts to retain jurisdiction over crimes committed against visiting Indians on territory within

a state. 

167. Act of Mar. 3, 1817, ch. 92, 3 Stat. 383; Act of June 30, 1834, ch. 161, 4 Stat. 729 (codified

as amended at 18 U.S.C. § 1152).

168. On political context, see PRUCHA, supra note 48, at 195 (noting Indian frustration at “the

complexity and length of the proceedings” under this legislation and preference of some locals for

abbreviated military justice, which Washington officials (and legislators) opposed). 

169. Ex Parte Crow Dog, 109 U.S. 556, 571 (1883).

170. 18 U.S.C. § 1153.

171. United States v. Kagama, 118 U.S. 375 (1886).

172. United States v. McBratney, 104 U.S. 621 (1881); Draper v. United States, 164 U.S. 240

(1896). These rulings purported to be based on provisions in the federal legislation accepting

Colorado (McBratney) and Montana (Draper) as states of the Union. McBratney, 104 U.S. at 622;

Draper, 146 U.S. at 242. The opinions have been criticized as unpersuasive. See CANBY, supra note

77, at 167-68. But it is notable that they rested on particularized claims about individual states rather

than a general doctrine of state authority over adjacent tribal territories. 

173. COHEN’S HANDBOOK OF FEDERAL INDIAN LAW, supra note 5, at §6.04. By Public Law 280,



2023] COMMERCE WITH THE INDIAN TRIBES 311

Even such limited state claims were seen as exceptional. In the frequently
cited 1959 ruling in Williams v. Lee, the Supreme Court rejected efforts by
Arizona to enforce repossession of goods on the Navajo reservation (based on a
dispute over payment), even though the store involved was run by a non-
Indian.174 “It is immaterial,” explained Justice Black, “that respondent is not an
Indian. He was on the Reservation and the transaction with an Indian took place
there. The cases in this Court have consistently guarded the authority of the
Indian governments over their reservations.”175 

In 1975, the Court upheld the right of Wind River Indians in Wyoming to
order the closing of a bar on their reservation, even though the owners were non-
Indians and the adjoining county had authorized liquor sales by the bar.1 76 The
Tenth Circuit had denied the authority of the tribe to assert control over non-
members: “It is difficult to see how such an association of [U.S.] citizens [i.e., the
tribe] could exercise any degree of governmental authority or sovereignty over
other citizens who do not belong, and who cannot participate in any way in the
tribal organization.”177 The Supreme Court firmly rejected this reasoning. Justice
Rehnquist’s opinion insisted that the “tribes are unique aggregations possessing
attributes of sovereignty over both their members and their territory.”178 In
support of this characterization, the decision cited the Warren Court’s ruling in
Williams v. Lee and Chief Justice Marshall’s opinion in Worcester v. Georgia.179

But already, by the early 1970s, the Justices were expressing qualms about
encompassing recognition of tribal sovereignty claims. In McClanahan v. State
Tax Commission of Arizona, the Court rejected Arizona’s efforts to tax the
income earned by Navajo employees of the tribe on their reservation.180 But along

Congress authorized the states of California, Minnesota, Nebraska, Oregon, and Wisconsin to apply

their own criminal law on Indian reservations and withdrew federal jurisdiction under the General

Crimes Act (for crimes by non-Indians) and the Major Crimes Act (for crimes by Indian perpetrators).

Act of Aug. 15, 1953, Pub. L. No. 83-280, 67 Stat. 588 (codified as amended at 18 U.S.C. § 1162).

Alaska was later added to the states on this short list. Act of Aug. 8, 1958, Pub. L. No. 85-615, 72 Stat.

545. Others were authorized to apply their criminal law if tribal authorities consented to the

jurisdiction. Act of July 10, 2010, Pub. L. No. 111-211, 124 Stat. 2272. The fact that Congress

thought to authorize such selective state jurisdiction might seem to cut against the conclusion in

Castro-Huerta that such jurisdiction has been available to all states since the late nineteenth century

(a point urged by Justice Gorsuch’s dissent). See Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2517-

18 (2022) (Gorsuch, J., dissenting).

174. 358 U.S. 217, 217, 223 (1959).

175. Id. at 223 (emphasis added). 

176. United States v. Mazurie, 419 U.S. 544 (1975).

177. United States v. Mazurie, 487 F.2d 14, 19 (10th Cir. 1973), rev’d, 419 U.S. 544 (1975).

Legislation adopted in 1924 conferred U.S. citizenship on all Indians born within the United States,

as discussed in the concluding section infra. 

178. 419 U.S. 544, 557 (1975) (citing Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 557 (1832))

(emphasis added).

179. Id. at 557-58.

180. 411 U.S. 164 (1973).



312 INDIANA LAW REVIEW [Vol. 56:279

the way, Justice Marshall’s opinion cautioned that “the trend has been away from
the idea of inherent Indian sovereignty as a bar to state jurisdiction and toward
reliance on federal pre-emption”—the doctrine that congressional preference
(rather than inherent Indian sovereignty) would settle disputes about state
jurisdiction in Indian territory.181 “The modern cases thus tend to avoid reliance
on platonic notions of Indian sovereignty and to look instead to the applicable
treaties and statutes which define the limits of state power.”182 The metaphor was
bizarre. There is no Platonic dialogue in which Socrates discourses on an eternal
“form” or “idea” of “sovereignty.” The term only came into general use in
Western languages in the seventeenth century and was never a theme of legal
analysis in antiquity.183 But the phrasing of the disclaimer well reflected the
Court’s ambivalence. It was not prepared to resolve claims of tribal authority on
the basis of a general principle. The implication seemed to be that courts must
instead engage in case-specific balancing of competing claims. 

Only a few years later, the Court demonstrated the concerns behind the
cautions expressed in McClanahan. In Oliphant v. Suquamish Indian Tribe, the
Court faced rulings by the tribal court of a reservation on Puget Sound in
Washington State.184 The penalties were for recklessly endangering another
person, resisting arrest, injuring tribal property, and assaulting a tribal officer.185

The fines in this case were less than $500, and the two individuals accused were
residents of the reservation—though non-Indian.186 The U.S. Court of Appeals for
the Ninth Circuit upheld the sentences on the grounds that Indian tribes “retain
those powers of autonomous states that are neither inconsistent with their status
nor expressly terminated by Congress.”1 8 7 Yet the Supreme Court’s ruling, also
by Justice Rehnquist, rejected the authority of tribal courts to try non-members.188

181. Id. at 172.

182. Id. 

183. The French jurist Jean Bodin claimed to be the first writer to elucidate the term

“sovereignty” in his treatise, first published in 1576. See JEAN BODIN, LES SIXE LIVRES DE LA

RÉPUBLIQUE (1576), Liv. I, Ch. 8, §1 (“[I]l est ici besoin de former la définition de souvernité parce

qu’il n’y a ni jurisconsute, ni philosophe politique, qui l’ait définie” translating to “It is necessary

here to define sovereignty because neither jurists nor political philosophers have defined it”). A

passionate contemporary advocate for tribal sovereignty asked: “since when did sovereignty,

democratically deriving from those over whom it is exercised, become ‘platonic?’” Richard A.

Monette, A New Federalism for Indian Tribes: The Relationship Between the United States and

Tribes in Light of Our Federalism and Republican Democracy, 25 U. TOL. L. REV. 617, 670 (1994)

(arguing tribal governments should be treated in most respects as state governments are in the federal

system). 

184. 435 U.S. 191 (1978).

185. Id. at 194.

186. Id. at 194; see id. at 203 n.14.

187. Oliphant v. Schlie, 544 F.2d 1007, 1009 (9th Cir. 1976) (citing Worcester v. Georgia, 31

U.S. (6 Pet.) 515, 560-61 (1832)), rev’d sub nom. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191

(1978).

188. Suquamish, 435 U.S. at 195.



2023] COMMERCE WITH THE INDIAN TRIBES 313

It cited no actual federal restriction on this jurisdiction nor any court cases
squarely grounding this conclusion. It was certainly not based on any general
principle recognized in American law at the Founding or for many decades
thereafter.189 

So, tribes were left with some claim to “sovereign” authority for some
purposes but not for the most fundamental aspect of sovereignty—the authority
to enforce their own law in their own territory. Or to be more precise, tribes were
left to enforce their own laws on their own members, but outsiders might have
special status, exempting them from tribal jurisdiction, even if they had decided
to live within the territorial bounds of the reservation.

This sort of arrangement has never been accepted as between states within the
United States. States have never claimed authority to prosecute crimes committed
by their own citizens in other states, let alone claimed that their own citizens were
exempt from punishment under the law of another state where they were accused
of committing a crime.19 0 The arrangement is not unknown in international
practice. But it is associated with the heyday of Western domination of non-
Western countries.

On the eve of the First World War, Lassa Oppenheim’s International Law,
then the leading English-language treatise, explained that “capitulation” treaties
were required because non-Christian countries had “not developed their ideas of
justice in accordance with Christian ideas” so they could not “preserve the life,
property and honour of foreigners before native courts.”191 The alternative that
developed was for charges against foreigners—most notably in the Ottoman
Empire and in China—to be tried by consuls from their home states, which did
not offer juries, lawyers, appellate review, or other procedural safeguards, even
if oaths might be taken on Christian Bibles. A late nineteenth century decision of
the Supreme Court, Ross v. McIntyre, found the practice acceptable, reasoning
that the Bill of Rights did not apply overseas.192 But as Oppenheim’s treatise

189. See Peter C. Maxfield, Oliphant v. Suquamish Tribe: The Whole Is Greater than the Sum

of the Parts, 19 J. CONTEMP. L. 391 (1993).

190. The Constitution requires states to extradite those charged with “Treason, Felony or other

Crime” on the “Demand” of the executive authority in the charging state, which might imply that

outside states have no authority to prosecute for crimes committed elsewhere. U.S. CONST. art. IV,

§ 2, cl. 2. That has, at any rate, been the prevailing view on criminal jurisdiction. See JOSEPH STORY,

COM M ENTARIES ON CONFLICTS OF LAWS, FOREIGN AND DOMESTIC §620 (3d ed. 1846) (“The

common law considers crimes as altogether local, and cognizable and punishable exclusively in the

country, where they are committed.”) Almost all cases Story cites to illustrate this general rule are

from U.S. states declining jurisdiction over offenses occurring in another U.S. state. For continuing

adherence to this doctrine in recent decades, see Jeremy A. Rabkin & Craig S. Lerner, Criminal

Justice Is Local: Why States Disregard Universal Jurisdiction for Human Rights Abuses, 55 VAND.

J. TRANSNAT’L L. 375, 401-10 (2022).

191. 1 L. OPPENHEIM, INTERNATIONAL LAW: A TREATISE §442 (2d ed. 1912).

192. 140 U.S. 453, 464 (1891). The ruling was expressly repudiated regarding application of the

Bill of Rights to overseas criminal proceedings under U.S. authority by Reid v. Covert. 354 U.S. 1,

18-19 (1957) (rejecting jurisdiction of U.S. military courts over civilian dependents of U.S. service



314 INDIANA LAW REVIEW [Vol. 56:279

acknowledged, even by the standards of international law in that era, this was a
quite irregular practice: “There is no doubt that the present position of consuls in
non-Christian States is in every point an exceptional one, which does not agree
with the principles of International Law otherwise universally recognized.”193 In
fact, it was almost universally abandoned in international practice, even by
Western states, by the mid-twentieth century.194 

Diplomats, by agreement, are still exempt from local jurisdiction, but may be
punished by their home states for criminal conduct in the host state.195 For
somewhat similar reasons, countries hosting U.S. military bases allow U.S. troops
to be punished by U.S. military proceedings rather than local courts.196 These
exemptions from local justice can be waived in particular cases (by the home state
of diplomats or by the U.S. government in regard to its own military
personnel).197 The arrangement defers to the special function performed by those
in the protected category (that is, diplomatic and military personnel). That is why
the home state can decide, in a particular case, that this special function will not
be compromised (or is outweighed by other considerations in a particular
situation) and so waive the normal claim of immunity. The arrangement does not
turn on the fact that foreign offenders happen to be nationals of this or that state.

The prevailing rule for extra-territorial jurisdiction over non-Indians looks
much more “exceptional” today. It turns on sheer communal affiliation—whether
a person does or does not happen to be classified as Indian. There is no
recognized procedure to waive the exemption in particular cases (to consign non-
Indian offenders to Indian justice). For all that, it no longer has any basis in the
historic concern that inadequate judicial proceedings might spark war on the
frontier. It does not even purport to rest on doubts about the capacities of
contemporary Indian courts to respect due process. Justice Rehnquist’s opinion
in Suquamish acknowledged that tribal courts “resemble in many respects their
state counterparts,” with “basic procedural rights” guaranteed by federal law “to
anyone tried in Indian tribal court.”198 Thus, he conceded, “many of the dangers

members on overseas bases).

193. OPPENHEIM, supra note 191, at § 442.

194. Japan persuaded Western powers to abandon the practice as early as the 1890s, after

introducing “modern” procedures into its judicial system based on European models. Post-Ottoman

Turkey insisted on Western repudiation of extra-territorial jurisdiction after World I in the peace

treaty of Lausanne. Treaty of Peace with Turkey Signed at Lausanne, Jul. 24, 1923, 28 L.N.T.S. 11

(1924). With China, Britain and the United States agreed to abandon such claims in 1943 to

strengthen their wartime alliance. The post-war Communist government refused to honor any

remaining treaties with this provision. 

195. See Vienna Convention on Diplomatic Relations art. 31, Apr. 18, 1961, 23 U.S.T. 3227,

U.N.T.S. 95.

196. See, e.g., Agreement Under Article VI of the Treaty of Mutual Cooperation and Security

Between Japan and the United States of America, Regarding Facilities and Areas and the Status of

United States Armed Forces in Japan, Japan-U.S., Jan. 19, 1960, 11 U.S.T. 1652.

197. See Vienna Convention on Diplomatic Relations, supra note 195, at art. 32.

198. Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 211-12 (1978).



2023] COMMERCE WITH THE INDIAN TRIBES 315

that might have accompanied the exercise by tribal courts of criminal jurisdiction
over non-Indians only a few decades ago have disappeared.”199 

Justice Rehnquist’s opinion also acknowledged the warnings of Indian tribes
about “the prevalence of non-Indian crime on today’s reservations,” bound to be
aggravated by denial of local criminal jurisdiction over such perpetrators.200 But
he insisted it was for Congress to decide whether to restrict the jurisdiction of
tribal courts by race or national origin, rather than apply it on a territorial basis.201

Despite continuing protest from tribal leaders, Congress has so far responded only
in modest ways.202 

For present purposes, two other points should be emphasized in the
comparison with international practice. The first is that when foreigners have
been exempted from the jurisdiction of local courts (as in China or Ottoman
Turkey in the nineteenth century or diplomats or U.S. military personnel today),
that exemption has been secured by a particular treaty between the hosting state
and the home state of the exempted foreigners.203 In principle, the policy has
rested on the mutual consent of the two states involved. It was never a generally
accepted practice that protections could be claimed without negotiating such an
agreement.204 

Some treaties between the U.S. government and particular Indian tribes may
have relevant provisions on the treatment of non-tribal offenders. But, as the
Court acknowledged in the Suquamish case, that tribe specifically rejected a
proposed treaty inviting it to relinquish criminal jurisdiction over non-Indians.205

199. Id. at 212 (invoking the Indian Civil Rights Act of 1968). 

200. Id. 

201. Id. 

202. When the Court followed up Suquamish by denying the jurisdiction of tribal courts over

Indians from other tribes, Congress did restore tribal criminal jurisdiction over Indians of other tribes.

See Duro v. Reina, 495 U.S. 676 (1990) (holding that an Indian tribe lacks criminal jurisdiction over

an Indian from other tribe), superseded by statute, Department of Defense Appropriations Act of

1991, Pub. L. No. 101-511, 104 Stat. 1856, as recognized in United States v. Lara, 541 U.S. 193

(2004). This response might seem to reinforce the notion that the underlying concern was not about

communal authority but ancestry, per se. Extension of the Violence Against Women Act to tribal

jurisdiction may provide some basis for tribal courts to claim further ancillary jurisdiction, as argued

by Adam Crepelle. Adam Crepelle, Tribal Courts, The Violence Against Women Act and

Supplemental Jurisdiction: Expanding Tribal Court Jurisdiction to Improve Public Safety in Indiana

Country, 81 MONT. L. REV. 59 (2020). 

203. See, e.g., Vienna Convention on Diplomatic Relations, supra note 195.

204. Diplomatic privilege has long been recognized in customary international law, itself

understood as flowing from the consent of states to the practice. But the development of a formal

international convention in 1961 acknowledged uncertainty, even in this field, about the exact reach

and limits of customary practice. See id. Ratification of a formal treaty was designed to clarify state

obligations. Still, the treaty applies only to those states which ratify it (though virtually all states have

done so). 

205. Suquamish, 435 U.S. at 206 n.16. “For some unexplained reason,” says the Court, the treaty

with this tribe omitted to say that the tribe would not have jurisdiction over outsiders. Advocates for



316 INDIANA LAW REVIEW [Vol. 56:279

So, too, the decision in Castro-Huerta purports to rest on a general legal doctrine,
not the consent of any particular tribe in Oklahoma to the assertion of state
jurisdiction.206 The reasoning seems to posit a background norm that excludes
tribal authority from operating on non-tribal members—except when (for reasons
not explained in Castro-Huerta) tribal authority may, after all, be allowed to
prevail.207 

The second point to emphasize is that extra-territorial jurisdiction agreements
were focused on prosecution for crime. They recognized that criminal prosecution
is particularly sensitive because it can result in loss of liberty, perhaps even loss
of life. In the nineteenth and early twentieth centuries, western governments
claimed a right to protest abuse of their nationals by foreign governments—even
to deploy force to retaliate for such abuse. So, extra-territorial justice could be
seen as a safeguard of peace.208 Even today, governments routinely express
concern about prosecution of their nationals by a foreign government, even when
there is no dispute about jurisdiction but merely a concern that the foreign
government may be acting with bias or vindictive excess.209 Even when

the tribe claimed this was “because of tribal opposition to relinquishment of criminal jurisdiction over

non-Indians” but the Court found no definite “evidence to support this view of the matter.” Id.

206. Oklahoma v. Castro-Huerta, 142 S. Ct. 2486 (2022). Castro-Huerta does not mention

treaty claims, which had already been analyzed in McGirt—to the dissatisfaction of all justices in the

Castro-Huerta majority (except newly-appointed Justice Barrett), but the Castro-Huerta majority

still did not challenge the previous McGirt holding in this respect. Id. McGirt found the state lacked

authority to prosecute Indian perpetrators of crimes against Indian victims (the situation in that case)

based on treaty commitments. McGirt, 142 S. Ct. at 2478. The Castro majority did not claim the

treaties in this case authorized state prosecutions of crimes by non-Indians but rested its conclusions

on supposed general principles of law regarding the status of reservations. Castro-Huerta, 142 S. Ct.

at 2502-03.

207. The decision speaks of intrusions that limit tribal self-government, as if punishing crime

were something minor or peripheral to the purposes of government. 

208. Elihu Root, The Basis of Protection to Citizens Residing Abroad, 4 AM. J. INT’L L. 517, 521

(1910) (arguing that foreign nationals, when charged with some offense by a host country, must be

accorded due process that accords with the world standard or “standard of civilization” but arguing

for compensation to the home state as remedy). But quite often, such demands for compensation were

enforced—by Western states against governments in Latin America or Asia—by naval guns (a

practice inspiring the ironic phrase, “gunboat diplomacy”). So, extra-territorial jurisdiction could be

seen as a way to avoid such conflict. See CHARLES LIPSON, STANDING GUARD: PROTECTING FOREIGN

CAPITAL IN THE NINETEENTH AND TWENTIETH CENTURIES (1985).

209. On July 19, 2022, President Biden issued an Executive Order “Bolstering Efforts to Bring

Hostages and Wrongfully Detained United States Nationals Home.” Exec. Order No. 14,078, 87 Fed.

Reg. 43,389 (July 19, 2022). It seems to equate actions by “[t]errorist organizations, criminal groups,

and other malicious actors who take hostages for financial, political or other gain” with “foreign

states that engage in the practice of wrongful detention, including for political leverage or to seek

concessions from the United States . . .” and reinforces the government’s ability to pursue relief from

both sets of threats. Id. At the State Department Press Briefing on September 26, 2022, Spokesperson

Ned Price said: “In just about every single one of our engagements around the world at senior levels,



2023] COMMERCE WITH THE INDIAN TRIBES 317

governments negotiated agreements on exemption from local criminal justice,
they did not, however, claim that their nationals could also claim exemption from
local taxation or regulatory requirements. These are quite different. 

Somehow, the Supreme Court followed this transition when it came to tribal
authority over outsiders. Limits on tribal criminal jurisdiction implied the need
for outside assistance. Outside authority might compensate itself with tax
claims—at least against non-Indians. In its 1980 ruling in White Mountain
Apache Tribe v. Bracker, Justice Marshall’s opinion for the Court acknowledged
that “state law is generally inapplicable” to “on-reservation conduct involving
only Indians,” but “[m]ore difficult questions arise where . . . a State asserts
authority over the conduct of non-Indians engaging in activity on the
reservation.”210 Such disputes “called for a particularized inquiry into the nature
of the state, federal and tribal interests at stake.”211 Subsequent cases invoked this
so-called “Bracker balancing test” in ways that gave increasing weight to the
state’s interest in revenue, while reducing the tribal claim to excluding direct
interference with its own members (rather than the tribe’s claim to set policy for
its own territory).212 

State claims for revenue readily extended into claims to be shielded against
the commercial effects of lower taxation by Indian authorities. The Court has, in
effect, endorsed the notion that tribal territories must not host commercial
competition with the commerce of states. 

Recall Colville Indian Reservation from the previous section, where
Washington State was allowed to require Indians to collect state taxes on sales of
cigarettes by tribal vendors on tribal land.213 It is not a unique case.214 Justice
Brennan’s partial dissent responded with the dismayed acknowledgement that the
ruling makes “clear that Indian reservations do not partake of the full territorial
sovereignty of States or foreign countries.”215 Subsequent cases confirmed that
the Court considered actual states to have a constitutionally protected “interest”
in reducing competition from lower-tax jurisdictions—if the lower-tax

we raise cases of American detainees, Americans who are wrongfully detained . . . .” Ned Price, Dep’t

Spokesperson, U.S. Dep’t State, Press Briefing (Sept. 26, 2022), available at https://www.state.gov/

briefings/department-press-briefing-september-26-2022/ [https://perma.cc/HQ9Y-9Y8Y]. 

210. 448 U.S. 136, 144 (1980).

211. Id. at 145.

212. See, e.g., Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 175 (1989) (allowing state

tax on oil development on tribal land “even though the financial burden of the tax may fall on the .

. . tribe” because the immediately taxed entity was non-Indian).

213. Washington v. Confederated Tribes of Colville Indian Rsrv., 447 U.S. 134 (1980).

214. See, e.g., Muscogee (Creek) Nation v. Pruitt, 669 F.3d 1159 (10th Cir. 2012) (holding, on

similar facts, that Oklahoma’s practice of seizing cigarette shipments without state tax stamp outside

Indian country did not infringe tribal sovereignty, as Indians could still buy taxed cigarettes for their

own use). 

215. Confederated Tribes of Colville Indian Rsrv., 447 U.S. at 165 (Brennan, J., concurring in

part and dissenting in part). 



318 INDIANA LAW REVIEW [Vol. 56:279

jurisdiction was an Indian reservation.216 
So, in Wagnon v. Prairie Band Potawatomi Nation, the Court held that a

tribal owned and operated gas station on tribal territory was required to collect
Kansas state motor fuel tax because customers were largely non-Indians from
outside the reservation.217 It is revealing of the tangle in the case law that the
majority opinion, by Justice Thomas, acknowledged that the accumulated
precedents by then (2005) required an “interest-balancing” assessment which “is
not only inconsistent with the special geographic sovereignty concerns that gave
rise to [the balancing] test, but also with our efforts to establish ‘bright-line
standard[s]’ in the context of tax administration.”218 

Justice Ginsburg’s dissent sought to defend the tribal claim to make its own
tax determinations. But, it did so by conceding that, depending on the relevant
facts, the state could have special claims to object and, so, demand a “balancing”
of its “interest” to be free from competition against the tribe’s interest in
determining rules for its own territory.219 “Kansas argues that, were the
[Potawatomi] Nation to prevail in this case, nothing would stop the Nation from
reducing its tax in order to sell gas below the market price.”220 But, if the tribe did
that, soothed Justice Ginsburg, “it would be marketing an exemption [from state
taxes], much as the smoke shops did in Colville, and hence, interest balancing
would likely yield a judgment for the State.”221

Cases of this sort are by no means outliers.222 They concede that tribal
authorities can impose their own taxes on commerce within their territories—but
only after accommodating taxation claims of surrounding states, which often
means accepting a burden of double taxation which is bound to suppress their
own commerce and fundamentally undermine their supposed authority to
determine their own rate of taxation. Yet preventing such double taxation has
been a persistent rule of decision in cases involving state taxation of revenues
earned in other states.223

The logic of Indian tax cases is not merely a limitation of Indian sovereignty
but almost a repudiation of sovereignty. It is to make tribal communities into
something like religious sects which retain the right to prescribe practices for
their voluntary adherents. But it is to deny—or at least, greatly abridge—the usual
right of sovereigns to settle rules for the territory they control. The logic of these
cases is that while outsiders may enjoy the benefits of commerce on Indian
territory, the home states of the outsiders have the right to follow them into Indian

216. See, e.g., Wagnon v. Prairie Band Potawatomi Nation, 546 U.S. 95 (2005).

217. Id. at 115.

218. Id. at 113 (quoting Ariz. Dep’t of Revenue v. Blaze Const. Co., 526 U.S. 32, 37 (1999)).

219. Id. at 121-22 (Ginsburg, J., dissenting).

220. Id. at 130.

221. Id. 

222. For other examples, and vigorous criticism, see Adam Crepelle, Taxes, Theft, and Indian

Tribes: Seeking an Equitable Solution to State Taxation of Indian Country Commerce, 122 W. VA.

L. REV. 999 (2020). 

223. See, e.g., Comptroller of Treasury of Md. v. Wynne, 575 U.S. 542 (2015). 



2023] COMMERCE WITH THE INDIAN TRIBES 319

territory and demand that Indian authorities conform to the rule that the outside
states wish to impose. 

There are a number of grounds on which the result in Castro-Huerta might
be defended—that Oklahoma could assert jurisdiction to prosecute a non-Indian
accused of child neglect against an Indian minor.224 As noted above, the practice
of allowing states to enforce basic criminal law, at least on non-Indian offenders,
goes back to the late nineteenth century, and it would not have been a great
stretch to apply the somewhat elusive reasoning of earlier cases to the special
circumstances of Oklahoma. The Court has previously acknowledged that states
have some claim to impose their most fundamental criminal prohibitions: states
cannot regulate casino gaming on Indian territory, for example, unless they have
a blanket criminal prohibition on gambling, as Utah does.225 In Castro-Huerta,
the majority opinion invoked—somewhat vaguely—the state’s claims of
sovereignty, which might be extended to suppressing basic crimes that may affect
order within the state.226 Federal law imposes penalties for U.S. citizens who
commit sexual acts with children in foreign countries, without regard to whether
the victims are U.S. citizens (usually they are not)227—and as it happens,
Oklahoma was prosecuting actual child abuse in McGirt and a perhaps not
altogether unrelated charge of extreme child neglect in Castro-Huerta.228 The
state claim to prosecute non-Indian perpetrators may draw weight from the
inability (under current law) of tribal authorities to prosecute crimes committed
by non-Indians. 

In sum, a finding that Oklahoma could prosecute crimes committed against
Indian victims in Indian lands did not require the Court to rule that the Indian
territory there is a part of the state—let alone the general claim that all Indian
reservations are parts of the states in which they exist. The complications
regarding criminal jurisdiction have their roots (or continuing validity) in the
notion that outside powers have some claim to preserve order. None of that
explains the larger ambivalence displayed in the tax cases. 

The idea that reservations in America need to compensate neighboring states

224. Oklahoma v. Castro-Huerta, 142 S. Ct. 2486, 2491 (2022).

225. California v. Cabazon Band of Mission Indians, 480 U.S. 202, 209 (1987) (“if the intent

of a state law is generally to prohibit certain conduct, it falls within . . . [its] criminal jurisdiction, but

if the state law generally permits the conduct at issue, subject to regulation . . . [federal law] does not

authorize its enforcement [by the state] on an Indian reservation”).

226. See Castro-Huerta, 142 S. Ct. at 2493 (documenting a practice of allowing state

prosecutions of offenses on Indian territory) (citing New York ex rel. Cutler v. Dibble, 62 U.S. (21

How.) 366, 370 (1858)). As the Court’s quotation indicates, Dibble held that states “retain ‘the power

of a sovereign over their persons and property, so far as’ ‘necessary to preserve the peace of the

Commonwealth.’” Id. (quoting Dibble, 62 U.S. (21 How.) at 370). But (as the Court fails to note)

Dibble involved a very limited, specialized intrusion by state law—imposing criminal penalties on

non-Indians trying to settle or reside in land reserved for Indians. Dibble, 62 U.S. (21 How.) at 368.

227. See 18 U.S.C. §§ 2251, 2253-2257.

228. McGirt v. Oklahoma, 140 S. Ct. 2452, 2482 (Roberts, C.J., dissenting); Castro-Huerta, 142

S. Ct. at 2491.



320 INDIANA LAW REVIEW [Vol. 56:279

for lower prices seems to rest on the unstated premise that states are a real part of
America while Indian reservations are tolerated as a courtesy or a mere
antiquarian curiosity—which must not make trouble for those around them. They
somehow went from being “Indians untaxed” to Indian territory especially taxed.
States do not protect their own local governments from tax competition from
nearby local governments with lower taxes. States (as we have seen) are not
allowed to protect retailers in their territory from products made in other states,
even if the latter have lower taxes.229 While the Castro-Huerta majority
proclaimed that “reservations are ‘part of the surrounding State,’” they remain
subject to special liabilities as outsiders to the state.230 

Tribes cannot realize the promise of self-government if their own policies are
trammeled by outside authorities. The claim to tribal sovereignty is a claim of
tribal authority to decide how best to develop the potential of the tribal territory
for the tribal community. Tribes are not colonies to be regulated for the
convenience of the surrounding “metropolitan” state. 

To see this logic clearly, courts may need to rethink the status of tribal
authority. Perhaps that effort requires rethinking the larger aims and ends of
constitutional government in America. 

VI. DIVERSITY AND INCLUSION—THE ORIGINAL MEANING

Arguments regarding original meaning may seem particularly remote when
it comes to the constitutional status of Indian tribes. On this subject, the concerns
of the Founding era may seem as remote as tomahawks and flintlock rifles. But
this view is short-sighted in a number of ways.

To start with, brutal methods of warfare were not the only thing early
Americans associated with the Indian tribes. In the debates over the proposals that
emerged from the Philadelphia Convention, Antifederalists warned against
entrusting too much power to a remote government with a menacing military
establishment and voracious demands for revenue.231 Wasn’t this simply
recreating all that was onerous and oppressive in the British Empire? Was all this
really necessary?

Such critics occasionally pointed to the example set by the Indians. They
depicted them as among the freest people in America because they were free from
the ambitions of European empire builders.232 Thus, a Maryland Antifederalist

229. See generally Tenn. Wine & Spirits Retailers Ass’n v. Thomas, 139 S. Ct. 2449, 2459

(2019) (noting that “‘this “negative” aspect of the Commerce Clause’ [referred to as the dormant

commerce clause] prevents the States from adopting protectionist measures”).

230. Castro-Huerta, 142 S. Ct. at 2493 (quoting Organized Vill. of Kake v. Egan, 393 U.S. 60,

72 (1962)).

231. See generally Ugonna Eze, The Anti-Federalists and Their Important Role During the

Ratification Fight, NAT’L CONST. CTR. (Sept. 27, 2017), https://constitutioncenter.org/blog/the-anti-

federalists-and-their-important-role-during-the-ratification-fight [https://perma.cc/TLY3-7L4M].

232. See, e.g., A Farmer V (Part 2), Baltimore Maryland Gazette, 28 March 1788, in THE

DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, VOL. XII, RATIFICATION OF



2023] COMMERCE WITH THE INDIAN TRIBES 321

invoked the model of “the native Indians, who are free and happy, and who prove
that self-government is the growth of our soil.”233 A Massachusetts Antifederalist
offered a similarly idyllic vision: “With [the Indians] the whole authority of
government is vested in the whole tribe. . . . Their government is genuinely
democratical.”234 

These were not metaphors spun out in the spur of the moment by polemical
pamphleteers. There was already a tradition of viewing Indians as symbols of
freedom. At the start of the colonial resistance to British taxation, the “Sons of
Liberty” staged a “tea party”—dumping chests of tea into Boston Harbor to
protest the new tax on tea, imposed without the consent of the colonial
legislatures.235 The protestors “covered their faces with lamp black and red ochre,
[and] dressed themselves as Indians,” as Indians were recognized as “the symbol
of American freedom in the 18th century.”236

Indian warriors were taken as symbols of freedom because they were thought
to be single-minded in their tribal loyalties, indifferent to the corrupting
temptations of European society, with its luxuries, titles, and hierarchies. So in
1789, a new political club in New York gave itself the name of an Indian
chief—Tammany—and called its leader the “Sachem.”237 A few decades later,
Ohio lawyer Charles Sherman, a veteran of the campaign against the Shawnee
tribe, “caught a fancy for [their] great chief . . .‘Tecumseh’” and bestowed that
name on his son, William Tecumseh, who won subsequent renown as one of the
greatest military commanders in the Civil War.238

THE CONSTITUTION BY THE STATES: MARYLAND 454 (John P. Kaminski et al. eds., 2015).

233. Id.

234. Agrippa XV, Massachusetts Gazette, 29 January, in THE DOCUMENTARY HISTORY OF THE

RATIFICATION OF THE CONSTITUTION, VOL. V, RATIFICATION OF THE CONSTITUTION BY THE STATES:

MASSACHUSETTS 823 (John P. Kaminski et al. eds., 1998).

235. DAVID HACKETT FISCHER, PAUL REVERE’S RIDE 25 (1995).

236. Id.

237. Alan Leander MacGregor, Tammany: The Indian as Rhetorical Surrogate, 35 AM. Q. 391,

398 (1983). The name is an adaptation of a chief of Lenape Indians in the Delaware Valley in the

seventeenth century. There were Tammany clubs in Philadelphia and a number of other cities in the

mid-Atlantic region in the late eighteenth century. New York’s Tammany Club grew into the

Tammany Hall organization that controlled the city’s Democratic Party throughout the nineteenth

century and well into the twentieth. It started by depicting itself as the voice of honest tradesmen

against corrupt elites and retained a populist tinge throughout its long history. See GUSTAVUS MYERS,

THE HISTORY OF TAMMANY HALL (2d 1917) (ebook), available at https://www.gutenberg.org/

cache/epub/53115/pg53115-images.html [https://perma.cc/ZY7Y-QPWM]; Tammany Hall:

American Political History, BRITANNICA (Sept. 14, 2022), https://www.britannica.com/topic/

Tammany-Hall [https://perma.cc/KF2A-94GX]. It had at least this much in common with its

supposed Indian forebear: its emphasized communal (or party) loyalty.

238. WILLIAM TECUMSEH SHERMAN: MEMOIRS OF GENERAL W.T. SHERMAN 11 (Charles

Royster ed., 1990). By some accounts, “William” was only added later, when he was baptized as an

11-year-old. Id. at 1085. His family always called him “Cump.” Id. The lawyer who gave that name

to his son was not seen as a whimsical eccentric. He was appointed to the Ohio Supreme Court shortly



322 INDIANA LAW REVIEW [Vol. 56:279

Life on Indian reservations today may not look quite so free-spirited or
heroic. But Indian tribes still seek something they claimed—and were
acknowledged to have of right—at the time of the Founding: a local right to
govern themselves. For “many members of tribal nations,” as a scholar of Indian
law observes, “‘sovereignty’ is as common and heartfelt a term as ‘rights’ is to
most other Americans.”239 In 1974, on the eve of the bicentennial of the U.S.
Declaration of Independence, the National Congress of American Indians
released an “American Indian Declaration of Sovereignty,” demanding that the
federal government “fully recognize inherent aboriginal American Indian
sovereignty and the rights and powers of self-government and self-
determination.”240

That claim is not at all anachronistic. More than 500 tribal governments are
now recognized by the federal government.241 They exist because tribal members
have clung to their identity, their communal loyalties, central elements of their
traditional cultures. Their tenacity is remarkable. It is now officially encouraged,
in various ways, by federal policy. But tribal loyalties had to endure half a
century of federal efforts to suppress them. 

Starting in the late nineteenth century, the federal government openly sought,
often by brutal methods, to compel Indians to abandon traditional ways and
assimilate to the American mainstream.242 Children were removed from parents
and sent to boarding schools to learn modern ways.243 Reservations were
forbidden to conduct traditional ceremonies.244 Tribal lands were “allotted” to

after the birth of the future general. Id. General Sherman’s “March to the Sea” through the interior

of Georgia in the fall of 1864 aimed at driving home to Georgians the dangers of resisting federal

authority—a lesson not imparted thirty years earlier, when the state was allowed to defy the Supreme

Court’s ruling in Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). As Sherman wrote to his

commander in Washington at the end of this march: “we are not only fighting hostile armies, but a

hostile people, and must make old and young, rich and poor, feel the hard hand of war . . . . I know that

this recent movement of mine through Georgia has had a wonderful effect in this respect. Thousands

who had been deceived . . . now realize the truth, and have no appetite for a repetition of the same

experience.” Letter to H.W. Halleck (Dec. 24, 1864), in SHERMAN, supra note 238, at 705.

239. Sarah Krakoff, A Narrative of Sovereignty: Illuminating the Paradox of the Domestic

Dependent Nation, 83 OR. L. REV. 1109, 1111 (2004). 

240. Nat’l Cong. of Am. Indians Gen. Assembly, American Indian Declaration of Sovereignty,

October 24, 1974, reprinted in SOVEREIGNTY, COLONIALISM AND THE INDIGENOUS NATIONS: A

READER 12-14 (Robert Odawi Porter ed., 2005). The National Congress of American Indians is an

advocacy organization, not a governmental structure, and its nine-point Declaration seems to take

for granted a relationship of federal assistance and legal guarantees in the background.

241. Federally Recognized Indian Tribes and Resources for Native Americans, USA.GOV,

https://www.usa.gov/tribes#:~:text=for%20Native%20Americans-,Federally%20Recognized%

20Indian%20Tribes,contracts%2C%20grants%2C%20or%20compacts [https://perma.cc/JEK2-

YUWH] (last visited Feb. 10, 2023).

242. See COHEN’S HANDBOOK OF FEDERAL INDIAN LAW, supra note 5, at § 1.04.

243. See id.

244. See id.



2023] COMMERCE WITH THE INDIAN TRIBES 323

individual farmers, who often ended up succumbing to pressures to sell their
allotments to outsiders, diminishing the total of lands under tribal control by more
than half.245 In 1889, the federal Commissioner of Indian Affairs boasted to
Congress that by such measures, “[t]he American Indian is to become the Indian
American.”246 

In 1924, at the culmination of this trend, Congress conferred U.S. citizenship
on all Indians born in the United States—without asking whether they wanted it
or accepted it.247 In fact, some tribes objected, fearing the new status would
compromise claims to separate tribal authority.248 During the Second World War,
Indians were subject to military conscription on the same terms as other
American citizens (and many served with great distinction on battlefields in
Europe and the Pacific).2 4 9 They also came to be subject to federal income taxes
on the same terms as other Americans.250 

But in the 1930s, federal policy had already begun to move in a different
direction, with legislation encouraging tribes to build their own governmental
institutions and take on more governing responsibility. Despite some episodes of
regression and confusion, the general policy of encouraging Indian self-
government has been embraced by successive administrations of both political
parties. It was given a particular forward push by both the Nixon administration
in the 1970s and the Obama administration more recently.251

245. See id.

246. Id. (citing Comm. Ind. Aff., Ann. Rep., H.R. Exec. Doc. No. 51-1, at vi (1890)). The

handbook comments on this and similar pronouncements: “These policies outlawed almost all

conduct that was traditionally Indian and sought to substitute conduct that was decidedly white.” Id.

The policies were not implementing prohibitions enacted by Congress but administrative initiatives,

imposed as conditions on federal delivery of food and other supplies to highly dependent Indian

reservations. See id.

247. U.S. citizenship had already been given to those who accepted individual land allotments

or established permanent residence outside tribal territory or served in the U.S. military. So, by the

time of its enactment, this general legislation changed the status of only a minority of Indians. For

review of the successive stages of “naturalization,” see Theodore H. Haas, The Legal Aspects of

Indian Affairs from 1887 to 1957, 311 ANNALS AM. ACAD. POL. & SOC. SCI. 12-22 (1957).

248. See, e.g., Joseph Heath, The Citizenship Act of 1924: An Integral Pillar of the Colonization

and Forced Assimilation Policies of the United States in Violation of Treaties, ONONDAGA NATION

(June 7, 2018), https://www.onondaganation.org/news/2018/the-citizenship-act-of-1924/ [https://

perma.cc/4PXA-ZUDX].

249. ALISON R. BERNSTEIN, AMERICAN INDIANS AND WORLD WAR II: TOWARD A NEW ERA IN

INDIAN AFFAIRS 159-75 (1999). Bernstein claims participation in the U.S. Army helped generate a

“new era in Indian affairs,” by providing many young men with experience of life outside their

reservations. 

250. Choteau v. Burnet, 283 U.S. 691, 696-97 (1931) (holding that Indian status does not exempt

earnings from federal income tax).

251. ALAN R. PARKER, PATHWAYS TO INDIGENOUS NATION SOVEREIGNTY: A CHRONICLE OF

FEDERAL POLICY DEVELOPMENTS 6-9, 23-24, 81, 121, 134 (2018) (praising both Nixon and Obama

initiatives). 



324 INDIANA LAW REVIEW [Vol. 56:279

In part, this trend may reflect more general sensitivity to the claims of racial
and ethnic minorities that gathered momentum in the late-twentieth century.
Indians might be seen as one of many minority communities whose past abuse
had come to be regretted by later generations of Americans. But no other ethnic
groups have been allowed to maintain territorial enclaves where authority is
explicitly grounded on formal, legal authority of ethnic self-government. The
status of the Indian tribes remains unique.

Still, it is an extreme case of something that was, in fact, more understandable
to the Founding generation than to over-confident American leaders in the
decades after the Civil War. In that later period, it seemed reasonable for federal
authorities to deploy legal coercion to impose a common way of life. There were
also, for example, sustained efforts to coerce Catholic immigrants (or their
children) to adopt what were seen as mainstream American ways.252

In the era of the Founding, American leaders were much more cautious. That
is evident from the constitutional scheme they established at the outset. In
contrast to the parliamentary systems that developed in other countries, the U.S.
Constitution balances the majority in the House against a Senate with equal
authority but a separate scheme of election and apportionment.253 There is also a

252. See Ulysses S. Grant, December 7, 1875: Seventh Annual Message, UNIV. OF VA. MILLER

CTR., https://millercenter.org/the-presidency/presidential-speeches/december-7-1875-seventh-

annual-message [https://perma.cc/67VY-8FT7] (last visited Feb. 9, 2023) (proposing to exclude tax

exemptions for church property); see also Blaine Amendment (U.S. Constitution), BALLOTPEDIA,

https://ballotpedia.org/Blaine_Amendment_(U.S._Constitution) [https://perma.cc/XPT8-W7KJ]

(last visited Feb. 9, 2023) (proposed amendments prohibiting state financial support for religiously

affiliated schools). State versions of the Blaine Amendment (added to state constitutions after the

failure of the proposed federal amendment) have been found unconstitutional in recent Supreme

Court decisions for invidious treatment of religion. See Carson v. Makin, 142 S. Ct. 1987 (2022),

Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246 (2020), Trinity Lutheran Church of Columbia,

Inc. v. Comer, 137 S. Ct. 2012 (2017). For the culture-shaping ambitions of reformers who backed

such measures in the nineteenth century, see PHILIP HAMBURGER, LIBERAL SUPPRESSION: SECTION

501(C)(3) AND THE TAXATION OF SPEECH 60-70 (2018).

253. U.S. CONST. art. I. Britain’s House of Lords can force reconsideration of bills passed by

the House of Commons but not impose a permanent veto if the measure is reenacted by the

Commons. See What Does the House of Lords Do?, UNIV. COLL. LONDON, THE CONST. UNIT,

h t t p s : / / w w w . u c l. a c . u k / c o n s t it u t io n -u n i t / e x p l a i n e r s / w h a t - d o e s - h o u s e - l o r d s - d o

[https://perma.cc/S7M9-JBVU] (last visited Feb. 9, 2023). Germany’s Bundesrat (representing

länder—constituent states of the federal republic) has a veto only on bills directly affecting the

interests of länder. See The Passage of Legislation in the Bundesrat, DEUTSCHER BUNDESTAG,

h t t p s :/ / w w w . b u n d e s t a g . d e / e n / p a r l i a m e n t / f u n c t io n / le g is la t io n / 1 4 le g r a t -2 4 5 8 7 6

[https://perma.cc/YQ95-RDW8] (last visited Feb. 9, 2023). In Canada and Australia, the “upper

house” (“Senate”) must consent to bills approved by the “lower house” (“Commons” in Canada,

“Representatives” in Australia), but the Cabinet is sustained only by support in the lower house. See

Legislative Process, PARLIAMENT CAN., https://www.ourcommons.ca/procedure/our-procedure/

LegislativeProcess/c_g_legislativeprocess-e.html [https://perma.cc/4A3J-8K2L] (last visited Feb.

9, 2023); Canadian Parliamentary System, PARLIAMENT CAN., [https://perma.cc/CGX4-5RVZ] (last



2023] COMMERCE WITH THE INDIAN TRIBES 325

chief executive, wielding a veto on legislation, whose tenure is not dependent on
approval in the House.254 Power is again divided between state and federal
governments: federal authority cannot simply displace the separate political
authority of state governments. The system is not merely de-centralized but de-
centered. No one organ of government can readily claim on its own to speak for
“the people.” Despite the rhetoric of the Preamble, the actual governing
arrangements in the Constitution recognize that “the people” are actually many
different communities which may not readily agree on what government should
do. 

The Founders defended this scheme as protection against impulsive
majorities.255 But the delegates at the Philadelphia Convention knew they could
not gain approval for a more centralized scheme.256 There was too much distrust
between different regions of the country and too much determination to keep
most governing authority close to the governed—meaning, to different
communities, with different priorities. 

The constitutional claims for tribal authority are, in some ways, a legacy of
a very different America. But they also reflect a fundamental American
commitment—above all, to letting different people pursue their happiness in
different ways. It is part of what federalism, separation of powers, and the
guarantees of the First Amendment sought to assure. Recognizing and protecting
tribal authority is a very concrete, tangible, and historic confirmation of a
Founding era commitment that retains enduring resonance today. 

That is the ultimate rationale for limiting federal power to coerce state
governments. It is the rationale for limiting federal—and state—power to coerce
tribal authorities, beyond some basic ground rules. Honoring historic
commitments to tribal self-determination is a way to recognize the actual promise
of American life—a country which can protect and respect very different
communities. It is not a new idea. It was disregarded for a substantial part of our
history. But it was there at the start. 

And it was remembered for some time as the Constitution settled into
practice. In the early 1820s, the United States was approaching the fiftieth
anniversary of its independence. A participant in the Founding (James Monroe)
held the presidency, another (John Marshall) presided over the Supreme Court.
They would be succeeded by men who had grown up under the Constitution. The

visited Feb. 9, 2023); About the House of Representatives, PARLIAMENT AUSTL., https://www.aph.

gov.au/About_Parliament/House_of_Representatives/About_the_House_of_Representatives

[https://perma.cc/VE4G-D9CL] (last visited Feb. 9, 2023). So, by far, the bulk of new legislation is

first introduced there. 

254. U.S. CONST. art. I, § 7, cl. 2; art. II, § 1, cl. 1. 

255. See, e.g., defense of the executive veto in THE FEDERALIST NO. 71 (Alexander Hamilton),

supra note 47, at 430-31: “The republican principle . . . does not require an unqualified complaisance

to every sudden breeze of passion, or to every transient impulse which the people may receive from

the arts of men, who flatter their prejudices . . . .”

256. On the disappointed hopes of nationalists at Philadelphia, see PAULINE MAIER,

RATIFICATION: THE PEOPLE DEBATE THE CONSTITUTION, 1787-1788, at 35-39 (2010). 



326 INDIANA LAW REVIEW [Vol. 56:279

new nation seemed to be securely established. 
In this moment, Congress approved four sculpted panels to decorate the

Capitol rotunda. One shows Indians greeting Pilgrims at the site of the Plymouth
Colony in Massachusetts; one shows Pocahontas intervening to protect John
Smith at Jamestown in Virginia; one shows William Penn negotiating a treaty of
peace with Indians in Pennsylvania; and the last depicts Daniel Boone fighting
with an Indian (presumably in what became Kentucky)—but depicted in a
personal contest of (roughly equal) individuals.257 

Needless to say, these depictions omitted a great deal of more bloody and
terrible history, skating over brutal and rapacious displacement of Indian tribes
that had already occurred in most eastern states. But the panels still suggest how
that generation wanted to think of relations with the Indian tribes: not as a
triumphant conquest, not even as a tragic, inescapable conflict. Instead, they
wanted to depict refugees from the Old World, welcomed by the original
inhabitants of the New World. The depictions did not deny cultural differences
but affirmed the possibility—or the hope—of sharing the American continent in
mutual respect. In effect, these sculpted panels sought to trace the origins of the
United States to the first English encounters with much older Americans. They
depicted these encounters as the first acts in the separation of Americans from
Europe. Before the struggle against the British and the debates over new
constitutions, there had been a necessary coming to terms with the original
inhabitants—made to seem promising and momentous, not simply fearful.
Aboriginal peoples helped to define the distinctiveness of America. 

That was already obvious within decades of the Founding. The encounter left
its mark on the map. The original states had, as colonies, generally been given
names taken from notable people or places in Britain. The states formed after the
adoption of the Constitution almost all had local Indian names as did major rivers
and mountains and other geographical features. To a large extent, America was
what tribes had called it. The encounter with Indian tribes also left a mark on
understandings embodied in the federal Constitution. 

Contemporary appeals to the Constitution’s original meaning are often driven
by fear that judges will otherwise spin out new rights from their own imagination.
But “originalism” also reflects a background assumption that the original
Constitution offers good guidance, because it rests on sensible premises,
reasonably balanced.258 Honoring tribal claims is not more anachronistic than

257. For background on how they came to be there—and photographs of each—see Vivien

Green Fryd, Imagining the Indians in the United States Capitol During the Early Republic, in NATIVE

AMERICANS AND THE EARLY REPUBLIC 297-330 (Frederick E. Hoxie et al. eds., 1999). They are still

there in the Capitol rotunda, though perhaps less eye-catching, amidst the many paintings and statutes

added later. For views of them in context today, see Explore the Capitol Campus: The Art Collection,

ARCHITECT CAPITOL, https://www.aoc.gov/explore-capitol-campus/art?search=&artist=All&type%

5B53%5D=53&state=All&location=All&page=3 [https://perma.cc/5ZML-NU8F] (last visited Feb.

9, 2023).

258. ILAN WURMAN, A DEBT AGAINST THE LIVING: AN INTRODUCTION TO ORIGINALISM 47-65

(2017) (arguing the Constitution responds to natural rights claims, to popular sovereignty claims, to



2023] COMMERCE WITH THE INDIAN TRIBES 327

upholding limits on federal authority (and state authority) in other ways. It is a
more emblematic or resonant instance of a more general constitutional vision. A
Constitution that creates space for tribal self-government is a Constitution
acknowledging that the central government is not the fount of all wisdom and that
a common life need not be uniform or standardized. 

This is more obvious today than it was in the late nineteenth or early
twentieth centuries. But it was quite evident to John Marshall and Joseph Story.
The Constitution, as its original interpreters saw it, made room for the separate
status of the Indian tribes.

democratic responsiveness claims, thus, satisfying theories of legitimacy from different

perspectives).