The power to regulate commerce with the Indian Tribes was placed in the Constitution to clarify and continue a power over Indian commerce and to generally manage Indian affairs, a power that was already in the Articles of Confederation but had not stopped some states from dealings with Indians in ways detrimental to the national interest. As a means to give the federal government power to deal with the then–still numerous and powerful prior inhabitants of the land, in addition to the treaty and military powers and the power to dispose of and make rules for federal territory, this power was seen primarily as a limit on the states. By placing the Indian tribes on the same level as foreign nations and the states, this power is thought to recognize the tribes as semi sovereign—as “third sovereigns” in our system. It is sometimes difficult to separate the different constitutional sources of power over the Indians underlying policy, but the power over Indian commerce is very important, especially after 1871, when the United States ceased making treaties with the Indians. The power over Indian commerce, including a dormant component and the capacity to preempt state law even in the absence of congressional legislation, then assumed greater importance after 1871, and is now the main way that the national government exerts its sovereignty over the Indians. This branch of the power over commerce has a broader reach than the other two, especially the power over commerce among the states. Unlike that power, which is limited in a number of ways in favor of state sovereignty, the Indian commerce power has long been regarded as a source of absolute control over all manner of Indian affairs, not limited by any narrow definition of commerce or limits that the Tenth Amendment may place on commerce among the states.
The foundational concepts supporting federal power over Indians were laid down in a trilogy of decisions by Chief Justice John Marshall. In Johnson v. McIntosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832), Marshall designated the Indians as “domestic dependent nations,” something akin to wards of the federal government, which also controlled the land they were on, but remaining a distinct people with the right to rule themselves within the larger framework of federal law, free from interference from the states. Over the years there have been numerous changes in the direction of what have often been detrimental policies toward the Indians, but the basic constitutional framework and assumptions laid down by Marshall have remained, at least until recently.
By the New Deal, an attempt to give some meaningful recognition to Indian independence and self-governance began, but recent years have seen an increase of state power relative to that of both the Indian tribes and the power of Congress to regulate them, especially under the Rehnquist Court’s federalism jurisprudence, which has asserted the power of the Court over application of the Indian commerce power. In Seminole Tribe of Florida v. Florida (1995), the Court ruled that Congress’s Indian Commerce Clause power does not extend to infringing the inherent sovereignty of the states by forcing them to negotiate in good faith with Indians over Indian gambling enterprises, an emerging area of great activity for Indian tribes that Congress had tried to structure in a balanced way. This decision had far broader effects than merely on the regulation of Indian commerce, becoming a basis of the emerging Eleventh Amendment inherent state sovereignty decisions of the Court, which have also limited the reach of the power over commerce among the states and the Section 5 enforcement power of the Fourteenth Amendment.
Robert N. Clinton, “Sovereignty and the Native American Nation: The Dormant Indian Commerce Clause,” Connecticut Law Review 27 (1995): 1055; “Native Americans,” in The Oxford Companion to the Supreme Court of the United States, ed. Kermit Hall (New York: Oxford University Press, 1992), 577–81; and Alex Tallchief Skibine, “The Dialogic of Federalism in Federal Indian Law and the Rehnquist Court: The Need for Coherence and Integration,” Texas Forum on Civil Liberties & Civil Rights 8 (2003): 1.