Also known as: Indian-commerce power · Indian Commerce Clause
Written by attorneys · grounded in primary & secondary sources — see below
The constitutional authority granted to Congress to regulate commerce with Indian tribes. This power forms part of the broader Article I commerce authority and has historically been understood to support extensive federal oversight of relations with Native nations.
The Red River Tribe sued the State of Danton in federal district court to recover unpaid amounts due under a revenue-sharing compact required by a federal statute enacted pursuant to the Indian commerce power. Danton moved to dismiss, asserting Eleventh Amendment immunity. The court granted the motion because the statute rested solely on Article I authority and could not validly abrogate the state's sovereign immunity.
Island Manufacturing, a non-Indian logging company operating on the White Mountain Apache Reservation under a tribal permit, challenged Arizona's motor fuel and use taxes as applied to its reservation activities. The tribe intervened to support the challenge. The Court examined whether the state taxes were preempted by federal law governing Indian commerce and tribal sovereignty.
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No. The Indian commerce power is an Article I authority that does not permit Congress to abrogate a state's Eleventh Amendment immunity. Valid abrogation requires reliance on the enforcement power of the Fourteenth Amendment.
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Congress must both clearly express its intent to abrogate immunity and act under Section 5 of the Fourteenth Amendment. Legislation resting only on the Indian commerce power fails the second requirement.
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No. Waiver must be clear and unmistakable. Participation in a compact required by an Indian commerce statute does not by itself constitute consent to suit in federal court.
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…1, 14 (plurality opinion). Pp. 47–49. (b) Congress did not have the power to abrogate the States’ sovereign immunity under the Indian Commerce Clause, U. S. Const., Art. I, § 8, cl. 3. The Eleventh Amendment restricts the judicial power under Article III, and Article I cannot be used to circumvent the constitutional limitations placed…