US Constitution & Alaska Native & Native American Tribes
By
Terrance H. Booth, Sr. – Tsimshian Tribe
Very recently Congress has refreshed itself by the reading of the US Constitution it was read by 112th Congress on January 6, 2011. Under Powers of Congress: ‘The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for thecommon Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States….” Specific to Natives of Alaska and USA: To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.
This was the very first time that members of Congress for the US House of Representatives ever read the US Constitution.
http://latimesblogs.latimes.com/washington/2011/01/united-states-constitution-full-text.html
“The idea of reading the Constitution in Congress is simple: To remind those lawmakers what should guide all of their work. As Goodlatte explained it: One of the resounding themes I have heard from my constituents is that Congress should adhere to the Constitution and the finite list of powers it granted to the federal government. The Constitution has never been read aloud on the floor of the House of Representatives. This historic and symbolic reading is long overdue and shows that the new majority in the House truly is dedicated to our Constitution and the principles for which it stands.”
http://latimesblogs.latimes.com/washington/2011/01/united-states-constitution-full-text.html
The door of the tribes is now open for Congress itself has read to them the US Constitution and giving themselves a full reminder of our government-to-government relationship and how they are to handle commerce for the tribes. Felix S. Chohen’s Handbook of Federal Law needs to be revisited and Section 3. Congressional Power-Commerce with Indian Tribes, page 91 “The Power of Congress to regulated commerce with Indian tribes has for its field of action the entire nation, not just Indian country. Commerce with tribal members anywhere, even wholly within a state, may be the subject of congressional regulation. While Congress has not usually exercised suich sweeping regulation, it powr has completely demonstrated in rhw Indian liquor laqws, which constituted one of the arly examples of federal control over Indians. The commerce clause ( Page 91, Citation (21) Article I, sec. 8, cl. 3 of the Constitution empowers Congress “To regulate commerce with foreign nations, and among the several States, and with Indian tribes.”) is the only granto of power in Federal Constitution which mentions Indians. The Congressional power over commerce with the Indian tribes plus the treaty-making power I smuch broader than the power over commerce between states. ( Citation pages 91-92, (22) See Op. A. G. 645 (1898) Prentice and Egan in The Commerce Clause of th eFederal Constitution (1898) describe the purpose of this commerce clause: **** The purpose with which this power was given to Congress wast not merely to prevent burdensome, conflicting or discriminating Atate legislation, but to prevent fraud and injustice open to the frontier, to protect an uncilized people from wrongs by unsrupulous whites, and to guard the white population from danger of savage outbreaks.
A grant made with such purpose must convey a different power from one whose purpose was to insure the freedom of commerce. Congress has, in the case of Indians , prohibited trade in certain articles, it has limited the right to trade persons licensed under Federal Laws, an inmay ways asserted a greater control than would be possible over other branches of commerce.)
The “commerce clause” is one of the most far-reaching grants of power to Congress. Interstate commerce covers all movement of people and things across state lines, and every form of communication and transportation. The commerce clause has permitted a wide variety of federal laws, from the regulation of business to outlawing of racial segregation. The “Indian commerce clause” has become the main source of power for congressional legislation dealing with Native Americans.
http://www.senate.gov/civics/constitution_item/constitution.htm
Since the Constitution was ratified in 1789, the Commerce Clause has become the central element of the Constitution in determining the reach of federal power. It has gone through three periods of Supreme Court understanding. While the Supreme Court is the ultimate arbiter of the meaning of the Constitution, the understanding of the Commerce Clause as an enumerated power held by the President and the Congress also have a great impact upon the actions they take.
Read more at Suite101: The Commerce Clause, the Butterfly Effect and the 2010 Elections http://www.suite101.com/content/the-commerce-clause-the-butterfly-effect-and-the-2010-elections-a303911#ixzz1DRcfQSDW
The Commerce Clause: Article I, Section 8, Clause 3:
“The Congress shall have Power: To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;”
The Commerce Clause Power has been amplified by the Necessary and Proper Clause which states this Commerce Clause power, and all of the other enumerated powers, may be implemented by the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." The Necessary and Proper Clause is the final clause of Article I, section 8.
This clause emerged as a response to the existence of individual state legislation, which was discriminatory toward other states in our union. The "New Deal Court" drastically changed the focus of the Court's inquiry in determining whether legislation fell within the scope of the Commerce Clause, and in some sense returned to the concept articulated in Gibbons (1824).
The Court began to defer to the Congress on the theory that determining whether legislation impacted commerce appropriately was a legislative, not a judicial decision. When examining whether some activity was considered "Commerce" under the Constitution, the Court would aggregate the total effect the activity would have on actual economic commerce. Intrastate activities could fall within the scope of the Commerce Clause, if those activities would have any rational effect on Interstate Commerce.
The court established precedence “if it exerts a substantial economic effect on interstate commerce and this irrespective of whether such effect is what might at some earlier time have been defined as ‘direct’ or ‘indirect.’ A Rehnquist court opinion pointed out that prior decisions had identified three broad categories of activity that Congress may regulate under its commerce power.
• First, Congress may regulate the use of the channels of interstate commerce;
• Second, Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in Interstate Commerce, even though the threat may come only from intrastate activities:
• Finally, Congress's commerce authority includes the power to regulate those activities having a substantial relation to interstate commerce (i.e., those activities that substantially affect interstate commerce).
The court held Congress may regulate a non-economic good, which is intrastate, if it does so as part of a complete scheme of legislation designed to regulate Interstate Commerce.
The evolving level of scrutiny applied by Federal courts to Commerce Clause cases should be considered in the context of rational basis review. The idea behind rational basis review is that the judiciary must show deference to the elected representatives of the people.
A respect for the democratic process requires that the Courts uphold legislation if there are rational facts and reasons that could support Congressional judgment, even if the Justices would come to different conclusions. Throughout the 20th century, in a variety of contexts, courts sought to avoid second-guessing the legislative branch, and Commerce Clause jurisprudence can be seen as a part of this trend. Lawrence Tribe states: Rational basis review begins with establishing the factual predicate upon which the exercise of Congressional power is based. This factual basis might come from a variety of sources.
It might come from factual determinations made by Congress, passed in the legislation itself, or found in the Congressional Reports issued to accompany the legislation. It might come from the record of testimony complied in Committee Hearings. It might come from facts posited by proponents in their briefs in support of the legislation. The Court wrote: "Of course, the mere fact that Congress has said when particular activity shall be deemed to affect commerce does not preclude further examination by this Court. But where we find that the legislators, in light of the facts and testimony before them, have a rational basis for finding a chosen regulatory scheme necessary to the protection of commerce, our investigation is at an end."
Courts have said: "In assessing the scope of Congress' authority under the Commerce Clause, we stress that the task before us is a modest one. We need not determine whether respondents' activities, taken in the aggregate, substantially affect interstate commerce in fact, but only whether a “rational basis” exists for so concluding.”
Since its decision in Gibbons, the Supreme Court has recognized that judicial limitations on Congressional exercise of its Commerce Clause powers represent an invasion of the democratic process.
Of course, in some sense, by its very nature, the Constitution represents a constraint on the democratic process, because the Constitution represents a set of rules, which may not be overturned through ordinary democratic means.
Nevertheless, the Court regularly points out that the primary limitation on unwise exercise of Congressional Commerce Clause must be found at the ballot box.” http://tinyurl.com/5sgqavk
In State of Indian Nations Address: “Sovereign Indian Nations at the Dawn of a New Era” Jefferson Keel, National Congress of American Indians stated in part of his speech:
The promise of the Constitution
”I was encouraged when the House of Representatives read aloud the U.S. Constitution earlier this month. America’s founders recognized the inherent sovereignty of Indian tribes and the special relationship between tribes and the federal government, and they affirmed it by putting it into words in our Constitution.
Like all American people, we are afforded basic Constitutional rights. Moreover, we carry a special recognition, that tribes are inherently nations with in a nation, that tribes as stated in Article 1, Section 8, are in the company of “foreign nations” and “the several states.”
These basic rights, these inherent rights, are what we seek together to bring to all American people: “justice,…domestic tranquility,…general welfare, and…the blessings of liberty to ourselves and our posterity.”
The preamble to the Constitution speaks of a more perfect union. The new era for Indian nations is a profound step toward that more perfect union.”
US Senator Lisa Murkowski, of Alaska in responding to President Keel’s speech portion of her comments were: The federal Indian programs that we fight hardest to fund were created to fulfill the trust responsibility between this Nation and its first people. Authority to fund these programs derives from three distinct provisions of the Constitution – the Indian Commerce Clause, the Treaty Clause and the Property Clause. This is not “nice to have” spending. That is “must have” spending to fulfill the trust responsibility founded in the Constitution.
So as you visit the offices of my colleagues this year, I invite you to keep your copy of the Constitution handy and bookmark the provisions I’ve discussed.
So this writer wants the Alaska Native and Native American Tribes to now be armed with why our Native Programs should have 100% funding for all programs. We have the backing constitutionally and listed in this paper are several interpretations of the Indian Commerce Clause, the Treaty Clause and Property Clause. So it is a new era for Indian Country, USA lets work Congress to yield to our social and economic needs for we know have the US Constitution giving us Native People what rightfully is due to us and the political doors of the Office of the President and Congress have given us the keys to our social and economic needs. It appears we have a spirit of cooperation for our Native People lets work together to make history of poverty from our midst and preserve our next generation of youth be given assurances that we do care and hold them high among all tribes.
