Power in Phrases
Three constitutional words decide criminal jurisdiction, voting rights, and sovereignty.
There is an important story buried in the language we use to talk about power. It is a story of three simple words in some dusty document.
"Indians," "tribes," and "taxed"
These words continue to decide who gets to govern whom. To hear it, you need to listen to what the United States Constitution actually says, and what courts and politicians keep trying to make it say.
The document speaks of "Indians" in only three places. The first is Article I, Section 2, the apportionment clause. It directs that "Indians not taxed" shall not be counted for determining representation in Congress. The second is Article I, Section 8, the commerce clause, granting Congress the power "to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes." The third is the Fourteenth Amendment, Section 2, which repeats the "Indians not taxed" language for apportionment after the Civil War.
These are not throwaway lines. They are the architectural blueprints for a relationship. The "Indian Commerce Clause" is the recognized bedrock of federal Indian law. But it is the phrase "Indians not taxed" that holds a quieter, more profound key. It was never about race. It was, and is, a marker of political geography. It identified those citizens of Native Nations who lived under the jurisdiction of their own governments, on their own lands, and were therefore outside the taxing authority of the states or the federal government. Their exclusion from the census count was a recognition of a separate political existence.
This distinction is the entire ballgame. It is the difference between a racial category and a political status. Between a person and a citizen of a nation. Yet this is the distinction that gets blurred, often intentionally, whenever sovereignty becomes inconvenient.
I listened to the arguments in Castro-Huerta in 2022, the case that followed the landmark McGirt decision affirming the Muscogee Nation’s territory in Oklahoma. The state’s lawyers and some justices talked of "racial sovereignty" as if it were a real concept. They framed the issue as one of race-based special treatment, not of the solemn promises made in treaties that exchanged vast lands for a guarantee of self-governance. When you confuse political status for race, the next logical step is to call tribal sovereignty an unconstitutional racial preference. That idea now circulates in briefs and political speeches.
We see it in tax cases like the one involving the Utah-based artist and activist Alicia Stroble, whose work on state tax law for tribal citizens underscores how this confusion creates real economic chaos. We see it in fights over voting rights in states like Montana and North Dakota, where officials argue that using tribal ID for voter registration is a racial accommodation rather than a recognition of a government-issued document. We see it in child welfare cases, in water rights disputes, in every arena where tribal authority meets state ambition.
The history is not a separate lesson. It is the through line. In 1832, Chief Justice John Marshall, in Worcester v. Georgia, called tribes "distinct, independent political communities" with which the United States had made treaties. The political relationship was the point. The "plenary power" Congress later claimed was rooted in that commerce clause authority, not in racial supremacy. Even the detestable blood quantum rules propagated by the federal government were bureaucratic tools for allocating resources under a political trust relationship, not a constitutional definition of identity. The Constitution itself is silent on blood.
Yet here we are. The force of the current moment is a push to shrink sovereignty by redefining it. To take the political relationship described in the Constitution and reduce it to a mere ethnic characteristic. When that happens, the foundation of federal Indian law doesn’t just get a new coat of paint. It gets undermined.
The story is not about words on parchment. It is about the gravitational pull those words exert on power. To call a tribal citizen an "Indian" in the constitutional sense is to acknowledge a jurisdiction, a government, a history of nation-to-nation negotiation. To call that same identity merely "racial" is to suggest it is a private matter, a demographic footnote with no claim to land or law.
The Constitution’s framework was never about what people are. It was about which nations exist.