Congressional authority under the Indian Commerce Clause

Here's some useful historical/legal background and context for the Akaka bill hearings and discussions that was posted a few years ago by Keanu Sai, but is still just as relevant today:

Akaka Bill Update
By Keanu Sai from the Living Nation Network

Aloha,

I would like to make some comments on the following quote by Linda Lingle in the Star-Bulletin 7-25-03. "My understanding now is, it's an issue of whether or not Congress has the authority under the Indian Commerce Clause of the Constitution to grant this type of recognition to native Hawaiians," Lingle said.

This quote sheds some light on a very important piece of the Akaka puzzle that i think has not been properly addressed, this being Congressional "authority under the Indian Commerce Clause." The Indian Commerce Clause can be found in the US Constitution. Article I, Sec. 8, Cl. 3 of the the Constitution empowers Congress "to regulate commerce with foreign nations, and among the several States, and with Indian tribes." The basis of this authority can be summed up through treaties or contracts. In the case of "foreign nations" you have international treaties. In the case of the "several States" you have the Constitution that was framed by a convention of delegates from all thirteen states. And in the case of the "Indian Tribes," you have domestic treaties.

Professor Rice, author of "The Position of the American Indian in the Law of the United States" (1934), p. 80, answers the question as to "the consitutional basis of Congressional power to implement by legislation the treaties made." What this means is that the US Congress cannot be empowered under the Indian Commerce Clause unless it is authorized to do so by treaty or bi-lateral agreement.

Native Hawaiians, as an ethnic group, have no treaties with the United States, but as part of the nationals of the Hawaiian Kingdom, their country has international treaties with the United States. And these treaties, as well as the Hawaiian Kingdom, are protected under international law.

Read the rest in the extended entry...

So the main issue here is not what the Congress can or cannot do, but rather the question of who or what was the instrument that delegated "authority" to the Congress in the first place. Regarding the so-called annexation of Hawaii in 1898 by a Congressional action and not a treaty, the US Dept. of Justice (Office of Legal Counsel), concluded, "It is therefore unclear which constitutional power Congress exercised when it acquired Hawaii by joint resolution. Accordingly, it is doubtful that the acquisition of Hawaii can serve as an appropriate precedent for a congressional assertion of sovereignty over an extended territorial sea." Here's the link to the portion of the legal opinion from the Dept. of Justice that concerns Hawaii: http://hawaiiankingdom.org/legal-opinion-1988.shtml.

Even though the so-called 1993 apology law cites Congress as a party for reconciliation, it doesn't mean Congress is empowered to reconcile. Without a treaty or instrument of delegation, the statements by the Congress are self-serving, but not self-executing, especially when the US Constitution defines the power of its Congress. However you look at it, it always comes back full circle--US President John Tyler's recognition of Hawaii as an independent State in 1842, US intervention in 1893, and occupation since 1898. No one can change history.

Here's more information on the background of the 1971 Alaska Native Claims Settlement Act and where Congress obtained authority under the Indian Commerce Clause.

In the Alaskan case, the Congress could exercise plenary powers under the Indian Commerce Clause because it was authorized by the 1867 Russian-American Treaty. Russia held the Alaskan territory since 1741 and agreed to sell it to the US for $7.2 million. The terms of the treaty were settled between each of the governments on March 30, 1867, and the US Senate ratified the treaty on April 9, 1867 by vote of 37-2.

On May 17, 1884, the US Congress acted upon its acquired authority by enacting an Organic Act called, "An Act Providing a Civil Government for Alaska." The Organic Act's preamble acknowledged the 1867 Treaty, which vested Congress as the authority to legislate. It stated, "Be it enacted by the Senate and House of Representatives of the United States of American in Congress assembled, that the territoy ceded to the United States by Russia by the treaty of March thirtieth, eighteen hundred and sixty-seven and known as Alaska, shall constitute a civil and judicial district, the government of which shall be organized and administered as hereinafter provided. The temporary seat of government of said district is hereby established at Sitka."

The entire 1884 Organic Act can be accessed at: http://www.asakool.org/projects/native_gov/legislation/organic_act/organic_act_1884/jt.htm

The reason why the Alaska Native Claims Settlement Act extinguished aboriginal title was because Congress did acquire plenary power over the Alaskan Natives through the 1867 treaty. Also, the Alaskan Native tribes were not recognized as independent States when Russia sold the territory to the US. Similar treaties that vested the US Congress with the authority under the Indian Commerce Clause over other Native American tribes were the 1848 Mexican-American Treaty (Treaty of Conquest) transferring all lands Mexico formerly held north of the Rio GRande River (California, Arizona, New Mexico, and Texas); and the 1803 French-American Treaty (Louisiana Purchase) transferring 820,000 square miles west of the Mississippi River from the Gulf of Mexico to the Canadian border. Thirteen states were carved from the Louisiana Territory. In both treaties the US paid $15 million in gold.

In Hawaii's case, there is no authority Congress can point to that authorizes legislation for native Hawaiians, let alone over the Hawaiian Islands as a whole.

Genealogy of Congressional actions concerning Hawaii:
1898 Congress enacted a joint resolution purporting to annex the Hawaiian Islands as a foreign country
1900 Congress enacted the Organic Act creating a government for the Territory of Hawaii
1921 Congress amended the 1900 Organic Act creating a Hawaiian Homes Commission and defining a native Hawaiian person by blood quantum
1959 Congress enacted Public Law 87-3 creating the Territory of Hawaii into a State of the Union
1993 Congress enacted a joint resolution apologizing for the illegal overthrow and asserts that Congress is a party for reconciliation

Nowhere in this genealogy of events can you find anything like the 1803 French-American Treaty, the 1848 Mexican-American Treaty, or the 1867 Russian-American Treaty.

Posted: Fri - August 24, 2007 at 05:22 AM

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Congressional authority under the Indian Commerce Clause

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