Commerce with Indian Tribes: Original Meanings, Current Implications

Abstract

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.