Indian Country and the Territory Clause: Washington’s Promise at the Framing

Indian Country and the Territory Clause: Washington’s Promise at the Framing

68 Am. U. L. Rev. 205 (2018).

*Distinguished Practitioner in Residence, Fall 2016, Cornell Law School; Adjunct Professor, Northwestern School of Law of Lewis & Clark.  I am grateful to Howie Arnett, Gerald Torres, Virginia Davis, Stephanie Parent, Riyaz Kanji, Matthew Fletcher, Katie Jones, David Mullon, Reid Chambers, Derrick Beetso, Sam Hirsch, Gregory Ablavsky, Bethany Berger, Kim Gottschalk, Brigit Rollins, Elizabeth Reese, and Katie Klass for their thoughtful comments, and to participants in the Harvard Law School Indigenous Peoples Conference.  Thank you to Cornell Law School for supporting this research.

This Article explores the Territory Clause, Article IV, Section 3, as a source of power for federal laws in “Indian country,” as defined at 18 U.S.C § 1151.  In contrast to plenary power doctrine, the Territory Clause offers a textual source of authority to regulate matters unrelated to commerce, such as criminal jurisdiction, in Indian country.  Intended to constitutionalize the Northwest Ordinance of 1787, the Territory Clause provides a principled rather than plenary basis for congressional initiatives in Indian policy and a constitutional source of authority tempered by the duty of “utmost good faith.”  This renewed understanding of the Territory Clause makes certain the source of federal authority in Indian country, and provides a stronger interpretive lens for matters of tribal sovereignty, land rights, taxation, and criminal justice.