Sparks Commentary: Some parts of the Constitution mention “Indians” or “Indian tribes” …

“[The Congress shall have the power] To regulate commerce with foreign nations, and among the several states, and with the Indian tribes … ”

– Article 1, Section 8, Paragraph 3 of the United States Constitution

When people today talk about the original Constitution, they often mention specific clauses that are relevant to black history. These include the Slave Importation Clause, the Fugitive Slave Clause, and the Three-Fifths Clause. When people today talk about the civil rights amendments, they often mention the abolition of slavery by the Thirteenth Amendment (and rightfully so). But when they talk about minority history, they seldom discuss the clauses specific to Native American history, even though the words “Indians” and “Indian tribes” are mentioned in three different clauses from either the original Constitution or its amendments.

Constitution of the United States

It is important to be clear on this point: there are actually no clauses in the Constitution that mention Hispanic Americans, Asian Americans, or Pacific Islander Americans by any of their specific names. There are clauses specifically about African Americans, but none that mention them by name (even by names like “blacks”). However, three clauses from either the original Constitution or its amendments mention “Indians” or “Indian tribes” by these names. Thus, I would like to go over all of these clauses here, and show what the “supreme law of the land” has said about the legal status of Native Americans.

Charles Curtis (the 31st Vice President of the United States),

who was of Kaw, Osage, Potawatomi, French and British ancestry – served 1929–1933

The Three-Fifths Clause said “excluding Indians not taxed” …

First of all, there is the Three-Fifths Clause, which is known more for its indirect mention of African Americans than for anything else. Nonetheless, Native Americans are mentioned more directly there than are African Americans. Specifically, this clause said that “Representatives and direct taxes shall be apportioned among the several States which may be included within this Union, according to their respective numbers, which shall be determined by adding the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons.” (Source: Article 1, Section 2, Paragraph 3) The operative clause for Native Americans is, of course, “excluding Indians not taxed.” This meant, on the one hand, that the federal government could not levy direct taxes on the states for “Indians not taxed” that were living within their borders. This might seem to be a powerful incentive for the states not to tax “Indians” as they did. But this clause also meant that the states could have more representatives in Congress when they did tax these “Indians” in this way. This was a much more powerful incentive to go ahead and tax them. For the states of this time, it far outweighed the disadvantages of the increased taxation that thus resulted from it. I should also note that this could be done even when the taxed “Indians” were being denied the vote in these states, and so they seldom had a say in the added power and representation that their presence brought to the state. Thus, from the point of view of the white majorities that really controlled these states, taxing Native Americans seldom had even the perceived disadvantage of making them legal “equals,” with all the accorded rights of citizenship. The whites could still oppress them at this time, even when they were actually counting these “Indians” towards their state's population in the process. Moreover, the white majorities actually gained more political power in Congress by counting the taxed “Indians” in this way. This was because it was the white majorities that really controlled the political power that the taxed “Indians” brought to the states when counted.

The Constitutional Convention – Philadelphia, 1787

… and so did the Fourteenth Amendment (ratified 1868)

Parts of this clause were later modified by the Fourteenth Amendment in 1868 – most specifically, the notorious language saying “three-fifths of all other persons.” (More about that in a separate post.) But even the Fourteenth Amendment included the phrase “excluding Indians not taxed.” Specifically, it said that “Representatives shall be apportioned among the several States according to their respective numbers, counting the whole number of persons in each State, excluding Indians not taxed.” (Source: Section 2 of the amendment) Thus, the same incentives to tax unwilling Native Americans unfortunately still exist today to some degree, although they are not as strong as they once were.

United States Capitol

The Commerce Clause mentioned regulating commerce “with the Indian tribes” …

The other clause that mentioned Native Americans by name was the clause known to us as the “Commerce Clause.” Specifically, this clause said that the Congress shall have the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes” (Source: Article 1, Section 8, Paragraph 3). This clause gives unfortunate insight into the Founders' mindset about the “Indian tribes” at this time. They listed them separately from “foreign nations” and the “several states.” This suggests that they did not consider “Indian tribes” to be in either one of these major categories. For them, Indian tribes were neither domestic states nor foreign nations. This had major legal ramifications for the legal status of these tribes. On the one hand, it meant that the Indian tribes did not enjoy the legal rights afforded to domestic American states – such as having representation in Congress, and the electoral college that elected the president. But on the other hand, it meant that they did not have the independence accorded to entities that the Founders considered “foreign nations.” This interfered greatly with their independence from the federal government, and made them subject to Washington D. C. in many ways – an unfortunate situation that still exists today to some degree. This may be why we have a separate “Bureau of Indian Affairs,” which is thus considered different from the “State Department” sending ambassadors to (and receiving ambassadors from) “foreign nations.” Incidentally, we also have a separate “Bureau of Indian Education” as well.

Ely S. Parker, the first Native American to be appointed as Commissioner of Indian affairs (served 1869–1871)

The original Constitution mentioned citizenship status, and so did the Fourteenth Amendment …

Indirectly, the Native Americans were affected by another clause from the Constitution, about immigration from foreign nations. This is known more for its effect on Hispanic immigrants (and other immigrant groups), but it also opened up the floodgates to further encroachment on Indian lands. Specifically, the original Constitution said that the federal Congress shall have the power to “establish an uniform rule of naturalization” (Source: Article 1, Section 8, Paragraph 4). “Naturalization” is just a word that means “becoming a citizen.” This put the creation of immigration laws under federal control, rather than under state control. But one of the reasons that I mention this is to transition into discussing another part of the Fourteenth Amendment, which is related to this. In 1868, the Fourteenth Amendment said that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” (Source: Section 1 of the amendment) Since many Native Americans were thus born within the states and territories that were then controlled by the United States, this would have a huge effect on the citizenship laws regarding Native Americans – including the one that I will discuss in my next paragraph.

Choctaw removal in the Trail of Tears, 1831

… and a citizenship act in 1924

Long before this amendment, the federal government had actually recognized the citizenship of some Native Americans, such as the Cherokees. The Cherokees became the first Native Americans to be admitted as citizens in 1817. But the most significant development in this area may have come in the twentieth century, which was the “Indian Citizenship Act of 1924.” This was signed into law by President Calvin Coolidge. This law said specifically that “all noncitizen Native Americans born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided, That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Native American to tribal or other property.” (Source: Indian Citizenship Act of 1924) This would have a massive effect on Native American history.

Osage men with President Calvin Coolidge, who signed the bill granting Native Americans U. S. citizenship

The mixed legacy of the Fourteenth Amendment in some ways …

Other parts of the Fourteenth Amendment also had direct effects on Native American history, even if they did not mention them by name as other clauses did. Specifically, the Fourteenth Amendment said that “when the right to vote at any election for the choice of Electors for President and Vice-President of the United States, Representatives in Congress, the executive and judicial officers of a State, or the members of the legislature thereof, is denied to any of the male inhabitants of such State, being twenty-one years of age, and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such State.” (Source: Section 2 of the amendment) The use of the very gender-specific word “male” was undoubtedly a major weakness in the amendment, and one that hindered the women's suffrage movement for decades. But time does not permit us to go deeper into this clause here, so I will thus content myself with mentioning two other clauses that have special relevance for Native Americans.

Fourteenth Amendment, in the national archives

The positive legacy of the Fourteenth and Fifteenth Amendments …

Another clause from the Fourteenth Amendment said that “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor to deny to any person within its jurisdiction the equal protection of the laws.” (Source: Section 1 of the amendment) Another amendment that affected Native Americans was the Fifteenth Amendment, which is as follows: “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude. The Congress shall have the power to enforce this article by appropriate legislation.” (Source: Fifteenth Amendment, ratified 1870). This protected the voting rights of all ethnic groups (including Native Americans), and made it illegal to deny them votes on account of “race” or “color.”

Chief Joseph, an influential Native American civil rights leader, often likened to Martin Luther King

Conclusion: The United States Constitution had a massive effect on Native Americans

Thus, the United States Constitution had a massive effect on Native Americans. Two clauses from the original Constitution, plus one in the Fourteenth Amendment, actually mentioned “Indians” or “Indian tribes” by those names. Others had more general effects on all ethnic groups, among them the Native Americans.

Footnote to this blog post:

There is also a mention of Native Americans in the Declaration of Independence, although this mention is somewhat unflattering. The clause in question says that King George III has “excited domestic insurrection among us, and has endeavored to bring on the inhabitants of our frontiers the merciless Indian savages, whose known rule of warfare is an undistinguished destruction of all ages, sexes, and conditions.” (Source: The Declaration of Independence, 1776)

This is the only reference to Native Americans in the Declaration of Independence.

If you liked this post, you might also like:

A review of Ken Burns' “The West”

The Slave Importation Clause (which expired in 1808)

African Americans and the “Three-Fifths Clause”

Abolitionists and the Fugitive Slave Clause

Who can vote in the United States?: The voting rights amendments

Part of a series about

The Constitution