Article 1, Section 8, Clause 3 — Scope Of Commerce Clause Authority And Indian Tribes

prev | next

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; . . .

Jurisdiction over matters in “Indian Country” [1](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/scope-of-commerce-clause-authority-and-indian-tribes#fn1art1 " “Indian Country” is statutorily defined in 18 U.S.C. § 1151 as: (a) “all land within the limits of any Indian reservation under the jurisdiction of the United States Government” ; (b) “all dependent Indian communities within the borders of the United States” ; and (c) “all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.” ") “is governed by a complex patchwork of federal, state, and tribal law.” [2](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/scope-of-commerce-clause-authority-and-indian-tribes#fn2art1 " Duro v. Reina, 495 U.S. 676, 680 (1990) (citing United States v. John, 437 U.S. 634, 648–49 (1978)), superseded by statute as recognized in United States v. Lara, 541 U.S. 1931 (2004). ") Since Worcester v. Georgia in 1832,[3](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/scope-of-commerce-clause-authority-and-indian-tribes#fn3art1 " 31 U.S. (6 Pet.) 515 (1832). See also Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). Under this doctrine, tribes possess sovereign immunity from suit in the same way as the United States and the states. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978); United States v. U.S. Fid. & Guar. Co., 309 U.S. 506, 512–13 (1940). The Supreme Court has repeatedly rejected arguments to abolish or curtail tribal sovereign immunity. See, e.g., Oklahoma Tax Comm’n v. Citizen Band Potawatomi Indian Tribe, 498 U.S. 505, 510 (1991). ") the Supreme Court has recognized that Native American “tribes are unique aggregations possessing attributes of sovereignty over both their members and their territories.” [4](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/scope-of-commerce-clause-authority-and-indian-tribes#fn4art1 " United States v. Wheeler, 435 U.S. 313, 323 (1978) (internal quotation marks and citation omitted), superseded by statute as recognized in Lara, 541 U.S. 1931. ") They are no longer “possessed of the full attributes of sovereignty,” [5](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/scope-of-commerce-clause-authority-and-indian-tribes#fn5art1 " United States v. Kagama, 118 U.S. 375, 381 (1886) ( “[T]he Indian tribes residing within the territorial limits of the United States are subject to their authority, and where the country occupied by them is not within the limits of one of the States, Congress may by law punish any offense committed there, no matter whether the offender be a white man or an Indian.” ). ") however, having relinquished some part of it by “[t]heir incorporation within the territory of the United States and their acceptance of its protection.” [6](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/scope-of-commerce-clause-authority-and-indian-tribes#fn6art1 " Wheeler, 435 U.S. at 323. ") Accordingly, “[t]he sovereignty that the Indian tribes retain is of a unique and limited character. It exists only at the sufferance of Congress and is subject to complete defeasance.” [7](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/scope-of-commerce-clause-authority-and-indian-tribes#fn7art1 " Id. See also South Dakota v. Bourland, 508 U.S. 679 (1993) (discussing abrogation of tribal treaty rights and reduction of sovereignty). Congress may also remove restrictions on tribal sovereignty. The Supreme Court has held, however, that absent authority from federal statute or treaty, tribes possess no criminal authority over non-Natives (with some limited exceptions). Montana v. United States, 450 U.S. 544 (1981); see also Oliphant v. Suquamish Indian Tribe, 435 U.S. 191 (1978). In United States v. Cooley, No. 19-1414, slip op. at 1 (U.S. June 1, 2021), the Court applied the Montana Doctrine to hold that a “tribal officer possesses the authority . . . to detain temporarily and to search a non-Indian on a public right-of-way that runs through an Indian reservation.” As to members of other tribes, the Court held in Duro v. Reina, that a tribe has no criminal jurisdiction over members of other tribes who commit crimes on the reservation. Congress, however, later enacted a statute recognizing the inherent authority of tribal governments to exercise criminal jurisdiction over non-member Natives; the Court subsequently upheld congressional authority to do so in United States v. Lara. ")

While previously “the subject of some confusion,” the source of federal authority over tribal matters is generally recognized to “derive[ ] from federal responsibility for regulating commerce with Indian tribes and for treaty making.” [8](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/scope-of-commerce-clause-authority-and-indian-tribes#fn8art1 " McClanahan v. State Tax Comm’n of Ariz., 411 U.S. 164, 172 n.7 (1973) (citing U.S. Const. art. I, § 8, cl. 3; art. II, § 2, cl. 2; Williams v. Lee, 358 U.S. 217, 219 (1959); Perrin v. United States, 232 U.S. 478 (1914). Article II, Section 2, Clause 2 of the Constitution gives the President the “Power, by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur . . . .” For more on the treaty-making power, see . ") The Constitution’s so-called “Indian Commerce Clause” explicitly authorizes Congress to regulate commerce with the tribes.[9](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/scope-of-commerce-clause-authority-and-indian-tribes#fn9art1 " U.S. Const. art. I, § 8, cl. 3. See also Williams v. Lee, 358 U.S. 217, 220 n.4 (1959) ( “The Federal Government’s power over Indians is derived from Art. I, s. 8, cl. 3, of the United States Constitution, and from the necessity of giving uniform protection to a dependent people.” (citing Perrin v. United States, 232 U.S. 478 (1914))). ") Congress’s authority to regulate commercial activity in “Indian Country” is plenary,[10](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/scope-of-commerce-clause-authority-and-indian-tribes#fn10art1 " Michigan v. Bay Mills Indian Cmty., 572 U.S. 782 (2014); United States v. Jicarilla Apache Nation, 564 U.S. 162 (2011). ") exclusive,[11](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/scope-of-commerce-clause-authority-and-indian-tribes#fn11art1 " Montana v. Blackfeet Tribe of Indians, 471 U.S. 759 (1985); Oneida Cnty. v. Oneida Indian Nation of New York State, 470 U.S. 226 (1985); Howard v. Ingersoll, 54 U.S. 381, 410 (1851) ( “Constitutionally [the United States] could alone regulate commerce with the Indian tribes.” ). ") and broad,[12](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/scope-of-commerce-clause-authority-and-indian-tribes#fn12art1 " United States v. Lara, 541 U.S. 193 (2004); Ramah Navajo Sch. Bd., Inc. v. Bureau of Revenue of N.M., 458 U.S. 832 (1982); White Mountain Apache Tribe v. Bracker, 448 U.S. 136 (1980). ") and persists even though such activity may occur within a state’s territorial boundaries.[13](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/scope-of-commerce-clause-authority-and-indian-tribes#fn13art1 " United States v. Jackson, 280 U.S. 183 (1930). ")

Using its Indian Commerce Clause authority, Congress may determine with whom and in what manner the tribes engage in commercial activity.[14](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/scope-of-commerce-clause-authority-and-indian-tribes#fn14art1 " Perrin v. United States, 232 U.S. 478 (1914); Tinker v. Midland Valley Mercantile Co., 231 U.S. 681 (1914). ") Major areas where Congress has exercised its power to regulate include: tribal land; tribal gaming; hunting, fishing, and wildlife; and natural resources, such as minerals, oil and gas, and timber. Congress has also attempted to promote tribal political and economic development[15](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/scope-of-commerce-clause-authority-and-indian-tribes#fn15art1 " 25 U.S.C. §§ 1451 et seq. ") through legislation such as the Indian Reorganization Act of 1934[16](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/scope-of-commerce-clause-authority-and-indian-tribes#fn16art1 " Id. §§ 461 et seq. ") and the Native American Business Development, Trade Promotion, and Tourism Act.[17](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/scope-of-commerce-clause-authority-and-indian-tribes#fn17art1 " Id. §§ 4301 et seq. Other examples include the Indian Revolving Loan Fund, id. §§ 1461 et seq.; 25 C.F.R. §§ 101.1 et seq., Indian Loan Guaranties and Insurance, 25 U.S.C. §§ 1481 et seq.; 25 C.F.R. §§ 103.1 et seq., and Indian Business Grants, 25 U.S.C. §§ 1521 et seq. ")

The Supreme Court has increasingly recognized Congress’s power under the Indian Commerce Clause as a source of authority to regulate tribal rights and obligations beyond matters of mere commerce.[18](https://www.law.cornell.edu/constitution-conan/article-1/section-8/clause-3/scope-of-commerce-clause-authority-and-indian-tribes#fn18art1 " In an early case, the Supreme Court rejected the Commerce Clause as a basis for congressional enactment of a system of criminal laws for Native Americans living on reservations. United States v. Kagama, 118 U.S. 375 (1886). Nonetheless, the Court sustained the laws on the grounds that the Federal Government had the obligation and thus the power to protect a “weak and diminished” people. Id. at 384. Cf. United States v. Holliday, 70 U.S. (3 Wall.) 407 (1866)</