In the Baby Veronica case, Associate Supreme Court Justice Thomas writes that the Indian Child Welfare Act is unconstitutional because it is not “commerce” in the sense of “trade.” Domestic relations, he says, are left to the states. When it comes to American Indians, Native Nations and the Constitution, Thomas is wrong. The Constitution’s Treaty, Commerce, Supremacy, Apportionment and Property Clauses, the War Powers, and the 14th Amendment are the foundation for the Indian affairs powers and the United States’ nation-to-nation relations with Native Nations.
The starting point for analysis is always: Indian nations and tribes were independent, sovereign nations prior to the formation of the United States. Indian nations managed native justice systems, economies, education, health care, and domestic relations. In the earliest Indian treaties, the United States extended its protection to Indian nations—for example, the Cherokee Nation Treaty of 1785 provides that: “[t]he Indians for themselves and their respective tribes … do acknowledge all the Cherokees to be under the protection of the United States of America, and of no other sovereign whosoever.” The United States intended this provision to oust the British from North America, yet it must be read as the Cherokee Nation would have understood it—a pledge of protection for the Native Nation, not U.S. dictatorship, tyranny or despotism. Thomas Jefferson recognized that Native Nations were governed by native traditions, customs, and laws.