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Rh Confederation was marred by significant conflict, driven by state and individual intrusions on tribal land. But the Constitution that followed reflected an understanding that Tribes enjoy a power to rule themselves that no other governmental body—state or federal—may usurp.

Several constitutional provisions prove the point. One sure tell is the federal government’s treaty power. See Art. II, §2, cl. 2. Because the United States “adopted and sanctioned the previous treaties with the Indian nations, [it] consequently admit[ted the Tribes’] rank among those powers who are capable of making treaties.” Worcester, 6 Pet., at 559. Similarly, the Commerce Clause vests in Congress the power to “regulate Commerce with foreign Nations,” “among the several States,” and “with the Indian Tribes,” Art. I, §8, cl. 3—conferrals of authority with respect to three separate sorts of sovereign entities that do not entail the power to eliminate any of them. Even beyond that, the Constitution exempts from the apportionment calculus “Indians not taxed.” §2, cl. 3. This formula “ratified the legal treatment of tribal Indians [even] within the [S]tates as separate and sovereign peoples, who were simply not part of the state polities.” R. Clinton, The Dormant Indian Commerce Clause, 27 Conn. L. Rev. 1055, 1150 (1995) (Clinton 1995). (The Fourteenth Amendment would later reprise this language, Amdt. 14, §2, confirming both the enduring sovereignty of Tribes and the bedrock principle that Indian status is a “political rather than racial” classification, Morton v. Mancari, 417 U. S. 535, 553, n. 24 (1974).)

Given these express provisions, the early conduct of the political branches comes as little surprise. From the beginning, the “Washington Administration acknowledged considerable Native autonomy.” G. Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L. J. 1012, 1067 (2015) (Ablavsky 2015). Henry Knox, President Washington’s Secretary of War, described the Tribes as akin to “foreign nations, not as the subjects of any particular [S]tate.” Letter