U.S. Constitutionalism and Native American Sovereignty

Summary

Jurists in the Early Republic developed federal Indian law as a solution to problems they were facing in constituting the new American nation. As seen in the Articles of Confederation and then the Constitution, Native nations were inescapably a part of the emergent federalist system that emerged. Indian affairs were a core piece of federal policy formation in and around subsequent treaties and diplomatic engagements during the early years of the Republic, such as Jay’s Treaty and the Louisiana Purchase Treaty. In addition, the Northwest Ordinance and the Naturalization Act of 1790 both considered the role of Native Americans in the new Republic.  

Treaties continued to be central to Federal Indian policy, especially after the Civil War. The Treaty of Fort Laramie in 1868 with the Lakota and the Medicine Lodge Treaty of 1867 normalized the relocation of Native tribes. In the 1870s, Congress stopped making treaties, instead passing new laws to determine federal Indian policy. In Ex parte Crow Dog, Lone Wolf v. Hitchcock and other cases, Native Americans pushed back on these new standards, arguing that the federal government could not take tribal lands without permission or treaties.  

Native Americans continue to use the legal system to negotiate their rights. In 2015, the Mississippi Band of Choctaw Indians sued Dollar General on the basis that tribal courts had authority over Dollar General on reservation land, which was upheld by both the Court of Appeals and Supreme Court.  

Suggested Readings 

Blackhawk, Ned. The Rediscovery of America: Native Peoples and the Unmaking of U.S. History. Yale University Press, 2023.