The Commerce Clause grants Congress power to regulate commerce between the United States and three forms of sovereign entities: the states, foreign nations, and the Indian tribes. The Supreme Court has long assumed that the Indian Commerce Clause, along with the Treaty Clause (Article II, Section 2, Clause 2) granted Congress “plenary and exclusive power” over Indian affairs, a position recently affirmed in United States v. Lara (2004). For Justice Joseph Story, the power to regulate trade and commerce with the Indian tribes passed naturally from the Crown to the federal government after the Revolution and, he argued in his Commentaries on the Constitution of the United States (1833), this clause con-firmed that proposition. In Worcester v. Georgia (1832), Chief Justice John Marshall confirmed the supremacy of federal authority over the states in regard to the Indians. In the late nineteenth century, the Supreme Court went even further. It asserted that the power over the Indian tribes was an attribute of sovereignty, unencumbered by the delegated powers doctrine of the Constitution. See, e.g., United States v. Kagama (1886).

But recent scholarship has cast serious doubt upon the proposition that the Framers intended the power to be exclusively in the hands of Congress.

At the Constitutional Convention, there were several different drafts describing how the Indians should be incorporated into the Constitution. Finding a single formula was not easy, because Indians resided within the states as well as within the United States. To begin with, during the colonial era, it is evident that the Colonies exercised concurrent jurisdiction with the Crown over Indians. During the drafting of the Articles of Confederation, the delegates had difficulty drawing an acceptable line between state and national jurisdiction over Indian affairs, but all seemed to agree that there had to be some degree of concurrency. The final formulation read: “The United States, in Congress assembled, shall also have the sole and exclusive right and power of regulating the trade and managing all affairs with the Indians not members of any of the States; provided that the legislative right of any State within its own limits be not infringed or violated.”

The drafting of the Indian Commerce Clause was no less difficult. The Framers did not take up the regulation of Indians until August 18, when James Madison proposed Congress “regulate affairs with the Indians as well within as without the limits of the U. States.” The Committee of Detail revised Madison’s proposal to grant Congress the power “to regulate Commerce with foreign Nations, and among the several States, and with Indians, within the Limits of any State, not subject to the laws thereof,” an echo of the Articles of Confederation. Working out the final details, the Committee of Eleven simply added “and with Indian Tribes” to the Commerce Clause, shunting aside the wording of previous proposals. Neither the final formulation, nor previous drafts, asserted exclusive congressional power in so many words.

Robert Natelson argues that the entire drafting history and the debate in the Convention demonstrate that the Framers intended the power over Indians to be concurrent with the states. Elsewhere in the Constitution, exclusive federal jurisdiction is sometimes declared in explicit terms, as in Article I, Section 8, Clause 17 (Enclave Clause), or through prohibitions placed upon the states (Article I, Section 10). Nonetheless, the Constitution contains other provisions, such as the Treaty Clause (Article II, Section 2, Clause 2) and the Property Clause (Article IV, Section 3, Clause 2) granting significant power over Indian affairs. And in case of any conflict with state law, there remains the force of the Supremacy Clause (Article VI, Clause 2).

Notwithstanding what might have been the understanding of the Framers, Congress has asserted plenary jurisdiction over the Indians. For the first century following the ratification of the Constitution, Congress regulated Indian affairs through the Trade and Intercourse Acts and through treaties. Tribes had juridical existence, not as foreign states, but as “domestic dependent nations,” Cherokee Nation v. Georgia (1831), and were entitled to rights in property and self-rule, subject to the will of Congress, Johnson v. McIntosh (1823). The Supreme Court declared Indians as “wards” in a trust relationship with the United States government. Cherokee Nation v. Georgia; United States v. Kagama (1886).

Federal policy toward the Indians has developed through a number of phases, punctuated by treaties (until 1871), legislation, and conflict, but it has sought to reject state incursions into federal authority. Expansion of lands for settlement and Indian removal from east of the Mississippi dominated congressional attention until 1850. Thereafter, the government attempted to move the western tribes to reservations, which it followed, beginning in 1887, with a policy of assimilation. In 1924, Congress granted citizen-ship to all Indians born in the United States who had not been made citizens under a prior treaty. In the Indian “New Deal” beginning in 1934, the government ended the assimilation policy and sought to reorganize and maintain tribal structure. In the 1950s, however, federal policy veered again, this time toward ending tribal status and integrating the Indians into the political structure as individuals. In 1953, Congress began allowing some states to extend their jurisdiction to Indian areas within their borders, but beginning in 1968, policy once again reversed when the Indian Civil Rights Act extended constitutional guarantees to Indians in relation to their own tribal governments. At the same time, Congress sought to expand the areas of Indian local self-rule. Under the Indian Gaming Regulatory Act (1988), Indian tribes throughout the country have been able to establish gambling institutions on their lands under compacts entered into with the states.

The Supreme Court has been highly deferential to congressional control of relations with the Indian tribes, and the Court closely monitors under the Supremacy Clause any state legislation affecting the Indians. Furthermore, the Court has increasingly required the executive to abide by specific undertakings found in the laws and treaties dealing with the Indians, particularly in upholding Indian monetary claims.

There were few hesitations in Supreme Court opinions according deference to Congress until United States v. Lara (2004), a case in which the Court rejected a double jeopardy claim by an Indian, who had been convicted in a tribal court of violence against a policeman and was subsequently charged for the same offense in a federal court. In concurring, Justice Clarence Thomas declared that he could not locate congressional plenary authority over Indian affairs in the Treaty Clause or the Indian Commerce Clause.