ABSTRACT
Two cases in the 1830’s involving the Cherokee Nation laid the foundation for what has become the puzzle of constitutional law for Indians. In the spring of 1838, 7,000 United States (US) soldiers began dragging Indians to stockades. In the chaos that ensued, some families were divided, never to be reunited. Indian tribes are nations, but not foreign nations. The US government made more than 600 treaties with the tribes. The tribes’ special sovereignty stops at the door of Congress. Its power over Indian commerce has grown into “plenary power,” which means Congress can do anything it wants with Indian land, including break the treaties. The Constitutional language excluding “Indians not taxed” from representation in Congress meant most Indians were not citizens. In 1968, the Indian Civil Rights Act gave defendants, even in tribal courts, most protections of the federal Bill of Rights.
