Article 1, Section 8, Clause 3 — Restrictions On State Powers Indian Tribes And Commerce Clause

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Article I, Section 8, Clause 3:

[The Congress shall have Power . . . ] To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes; . . .

Although in 1871, Congress forbade making further treaties with the tribes,[1](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/restrictions-on-state-powers-indian-tribes-and-commerce-clause#fn1art1 " Act of March 3, 1871, 16 Stat. 544, 566 (codified at 25 U.S.C. § 71). ") cases disputing the application of old treaties, and especially their effects upon attempted state regulation of on-reservation activities, continue to appear on the Supreme Court’s docket.[2](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/restrictions-on-state-powers-indian-tribes-and-commerce-clause#fn2art1 " E.g., Puyallup Tribe v. Wash. Game Dep’t, 433 U.S. 165 (1977); Washington v. Wash. State Com. Passenger Fishing Vessel Ass’n, 443 U.S. 658 (1979); McGirt v. Oklahoma, No. 18-9526 (U.S. July 9, 2020). With regard to tribal regulation of on-reservation activities of non-Indians, see generally Montana v. United States, 450 U.S. 544 (1981) (articulating the so-called “Montana Doctrine” ). ") Given the broad federal power to legislate on tribal affairs, the Court has generally used a preemption-like doctrine as the analytical framework with which to judge the permissibility of assertions of state jurisdiction over tribes:

[T]he traditional notions of tribal sovereignty, and the recognition and encouragement of this sovereignty in congressional Acts promoting tribal independence and economic development, inform the pre-emption analysis that governs this inquiry. As a result, ambiguities in federal law should be construed generously, and federal pre-emption is not limited to those situations where Congress has explicitly announced an intention to pre-empt state activity.[3](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/restrictions-on-state-powers-indian-tribes-and-commerce-clause#fn3art1 " Ramah Navajo Sch. Bd., Inc. v. Bureau of Revenue of N.M., 458 U.S. 832, 838 (1982). See also New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983). ")

Accordingly, state regulation of tribal activities is preempted by federal law if the state scheme is incompatible with federal and tribal interests, unless the state’s interests are substantial enough to justify the assertion of its authority.[4](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/restrictions-on-state-powers-indian-tribes-and-commerce-clause#fn4art1 " California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987); White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980). ") If a detailed, federal regulatory framework exists and would be compromised by incompatible state regulation, the state action may be preempted by federal law.[5](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/restrictions-on-state-powers-indian-tribes-and-commerce-clause#fn5art1 " Three Affiliated Tribes of Fort Berthold Rsrv. v. Wold Eng’g, 476 U.S. 877 (1986). ") Tribal gaming, for instance, is subject to a detailed federal regulatory scheme that preempts state law for certain types of gaming on tribal land, but preserves state regulation of tribal gaming on non-tribal land.[6](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/restrictions-on-state-powers-indian-tribes-and-commerce-clause#fn6art1 " Indian Gaming Regulatory Act (IGRA), Pub. L. No.

, 102 Stat. 2467 (1988) (codified at 25 U.S.C. §§ 2701–2721; 18 U.S.C. §§ 1166–1168). ")

100-497

, 102 Stat. 2467 (1988) (codified at 25 U.S.C. §§ 2701–2721; 18 U.S.C. §§ 1166–1168). Notably, just as federal statutes are generally construed to the benefit of Native Americans, the preemption doctrine will not be applied strictly to prevent states from aiding tribes.[7](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/restrictions-on-state-powers-indian-tribes-and-commerce-clause#fn7art1 " Three Affiliated Tribes of the Fort Berthold Rsrv., v. Wold Eng’g, P.C., 467 U.S. 138 (1984) (upholding state-court jurisdiction to hear claims of Native Americans against non-Natives involving transactions that occurred in Indian Country). Attempts by states to retrocede jurisdiction favorable to tribes, however, may be held to be preempted. Three Affiliated Tribes of the Fort Berthold Rsrv., 476 U.S. at 877. ")

The Supreme Court has also clarified that “States have no authority to reduce federal reservations lying within their borders.” [8](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/restrictions-on-state-powers-indian-tribes-and-commerce-clause#fn8art1 " McGirt v. Oklahoma, No. 18-9526, slip. op. at 7 (July 9, 2020) (emphasis added). ") In a leading case involving settlement of Native land claims, the Court ruled in County of Oneida v. Oneida Indian Nation[9](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/restrictions-on-state-powers-indian-tribes-and-commerce-clause#fn9art1 " Oneida Cnty. v. Oneida Indian Nation of New York State, 470 U.S. 226 (1985). ") that a tribe could obtain damages for wrongful possession of land conveyed in 1795 without federal approval, as required by the Nonintercourse Act.[10](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/restrictions-on-state-powers-indian-tribes-and-commerce-clause#fn10art1 " Act of Mar. 1, 1793, Pub. L. No. 2-19, § 8, 1 Stat. 329, 330. ") The Act reflected the accepted principle that extinguishment of title to Native American land requires the United States’ consent. The Court reiterated the rule that enactments are construed liberally in favor of Native Americans; Congress may abrogate Native treaty rights or extinguish aboriginal land title only if it does so clearly and unambiguously. Consequently, federal approval of land-conveyance treaties containing references to earlier conveyances that violated the Nonintercourse Act do not constitute ratification of the invalid conveyances.[11](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/restrictions-on-state-powers-indian-tribes-and-commerce-clause#fn11art1 " Oneida Indian Nation of New York State, 470 U.S. at 246–48. ")

In addition to federal preemption, the impact on tribal sovereignty is a determinant of relative state and tribal regulatory authority.[12](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/restrictions-on-state-powers-indian-tribes-and-commerce-clause#fn12art1 " E.g., New Mexico v. Mescalero Apache Tribe, 462 U.S. 324 (1983). ") A tribe has the power to regulate its members and, unless so provided by Congress, a state may not regulate in a manner that would infringe upon this tribal authority.[13](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/restrictions-on-state-powers-indian-tribes-and-commerce-clause#fn13art1 " Three Affiliated Tribes of Fort Berthold Rsrv., 476 U.S. at 877. ") In other words, the “semi-autonomous status” of tribes is an “independent but related” barrier to the exercise of state authority over commercial activity on a reservation.[14](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/restrictions-on-state-powers-indian-tribes-and-commerce-clause#fn14art1 " White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142–43 (1980); Ramah Navajo Sch. Bd., Inc. v. Bureau of Revenue of N.M., 458 U.S. 832, 837–38 (1982). The Ramah Court stated: “The two barriers are independent because either, standing alone, can be a sufficient basis for holding state law inapplicable to activity undertaken on the reservation or by tribal members.” Id. at 837 (quoting White Mountain Apache Tribe, 448 U.S. at 143). ") If state regulation of activities on tribal lands would interfere with the tribe’s sovereignty and self-governance, the state is generally divested of jurisdiction under federal law.[15](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/restrictions-on-state-powers-indian-tribes-and-commerce-clause#fn15art1 " Iowa Mut. Ins. Co. v. LaPlante, 480 U.S. 9 (1987). Notably, this protective rule is inapplicable to state regulation of liquor because there is no tradition of tribal sovereignty with respect to that subject. Rice v. Rehner, 463 U.S. 713 (1983). Similarly, the Supreme Court has repeatedly held that the Indian Commerce Clause “affords Congress the power to prohibit or regulate the sale of alcoholic beverages to tribal Indians, wherever situated, and to prohibit or regulate the introduction of alcoholic beverages into Indian country.” United States v. Mazurie, 419 U.S. 544, 554 (1975) (citing United States v. Holliday, 3 Wall. 407, 417–18 (1866); United States v. Forty-Three Gallons of Whiskey, 93 U.S. 188, 194–95 (1876); Ex parte Webb, 225 U.S. 663, 683–84 (1912); Perrin v. United States, 232 U.S. 478, 482 (1914); Johnson v. Gearlds, 234 U.S. 422, 438–39 (1914); United States v. Nice, 241 U.S. 591, 597 (1916)). ") Substantial tribal interests in on-reservation activities could outweigh the state’s interests in the off-reservation effects of on-reservation activities.[16](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/restrictions-on-state-powers-indian-tribes-and-commerce-clause#fn16art1 " California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987). ") However,a tribe may not offer on-reservation activities to avoid state off-reservation law.[17](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/restrictions-on-state-powers-indian-tribes-and-commerce-clause#fn17art1 " Washington v. Confederated Tribes of Colville Indian Rsrv., 447 U.S. 134 (1980). ")

In sum, there are two independent barriers to state regulation of tribal reservations and members, either of which can independently bar the application of a state law: (1) preemption by federal law and (2) tribal sovereignty.[18](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/restrictions-on-state-powers-indian-tribes-and-commerce-clause#fn18art1 " Cabazon Band of Mission Indian