Indians in Madison's Constitutional Order
JAMES MADISON AND THE FUTURE OF LIMITED GOVERNMENT, p. 121, John Samples, ed., Cato Institute, June 2002
16 Pages Posted: 11 Dec 2011
Date Written: June 10, 2002
This essay examines James Madison's thought and politics with respect to American Indian nations, demonstrating that he recognized their sovereignty and land rights, aiming to keep them insulated from interference by the states and denying the main theoretical justifications for exercising rule over them or taking their lands. It ties together his normative writings and constitutional work, and closes with a little-known episode from his presidency, in which he tried (and failed) to protect Indian allies of the United States from the depredations of Andrew Jackson.
The eventual constitutional settlement, that Indian tribes are "domestic dependent nations" subject to plenary legislative authority of Congress, is alien to Madison's constitutional vision; the Indian commerce clause was not a grant of such authority, any more than the authority to regulate commerce with other nations granted plenary legislative authority over them. For originalists, this should count as evidence against the compatibility of current Indian law with the meaning of the Constitution; and for students of Madison's thought, it shows that the Federalist 10 analysis of factions was not the only way in which he thought about group pluralism.
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