American Indians and Indigenous Peoples in State Constitutions 

Recent U.S. Supreme Court cases have put the spotlight on the enduring legal triad of American Indians, states, and the federal government. In 2020’s McGirt v. Oklahoma, the Court limited Oklahoma’s ability to prosecute major crimes committed on the Muscogee (Creek) Nation Reservation. Two years later, in Oklahoma v. Castro-Huerta, the Court clarified that concurrent state and federal jurisdiction exists over certain criminal prosecutions in American Indian country. And in 2023’s Haaland v. Brackeen, the Court upheld the federal Indian Child Welfare Act in the face of a challenge joined by several states claiming that the law violated the 10th Amendment.

For the most part, these cases confirm the federal government’s broad authority over American Indian affairs, based on constitutional provisions such as the Indian Commerce Clause, the Treaty Clause, and the Supremacy Clause. Yet American Indians are state citizens, too, and each of these cases assumes the continued need to balance the interests of state and tribal governments. As a result, both advocates and scholars are reconsidering what obligations states have to their American Indian citizens and how state constitutions might be enlisted to protect American Indians’ interests.

State constitutional provisions of general applicability are certainly available to American Indians along with other state citizens. For example, 2023’s landmark environmental case Held v. Montana included youth plaintiffs from the Fort Peck Assiniboine and Sioux Tribes, who highlighted the disproportionate impact of climate change on Indigenous communities. But some state constitutions go farther, with provisions that explicitly address American Indian affairs. Provisions fall into roughly six categories: land, taxation, gaming, voting, culture, and governance. 

Because of the legal complexity of tribal, state, and federal relations, the summary below should be considered a starting place for further research, rather than a definitive statement of the law. 

Provisions Governing Land

The status of American Indian lands is addressed in several state constitutions, often in language derived from the state’s original Enabling Act, which secured admission to the United States. These provisions make clear that the lands of federally recognized tribes located within the state’s boundary are under federal control. An example of such a state constitutional provision is Idaho’s Article XXI, Section 19, which provides in pertinent part:

The people of the state of Idaho do agree and declare that we forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to all lands lying within said limits owned or held by any Indians or Indian tribes; and until the title thereto shall have been extinguished by the United States, the same shall be subject to the disposition of the United States, and said Indian lands shall remain under the absolute jurisdiction and control of the congress of the United States.

Similar provisions appear in the state constitutions of Alaska, Arizona, Montana, New Mexico, Oklahoma, South Dakota, Utah, Washington, and Wyoming, with some state-specific variations. For example, Article XII, Section 12 of Alaska’s constitution, addressing federal land within the state, indicates that “fishing rights” are included in the definition of “property . . . held by or for any Indian, Eskimo, or Aleut, or community thereof.” Article XII, Section 1 of Oklahoma’s constitution includes a provision preserving Native American rights under the state’s unique homestead laws.

Native Hawaiians have legal recognition as indigenous people, but they are not members of recognized tribes as defined by the federal government. In contrast to other states’ land provisions, Hawaii’s constitution provides that specified lands in the state — amounting to approximately 200,000 acres — “shall be held by the State as a public trust for native Hawaiians and the general public.”

Nebraska’s constitution addresses American Indian land rights in a particularly narrow way: It restricts corporate acquisition of farmland in the state but specifically exempts Indian tribal corporations that might engage in commercial farming. In contrast, Kansas’s agreement with the federal government establishing the state, incorporated into the state constitution, imposes a restriction on use of American Indian land by specifying that a portion of each township, including “Indian reservations and trust lands, shall be granted to the state for the exclusive use of common schools.”

Taxation and Other Finances

Some state constitutions specify that American Indian lands shall be exempt from state taxation. For example, Alaska’s constitution provides that no taxes will be imposed upon any federal property including American Indian lands, “until otherwise provided by the Congress.” New Mexico’s “Compact with the United States,” which governed its accession to the country and was incorporated as Article XXI of the state constitution, includes a similar provision, as do the constitutions of Arizona, South Dakota, Utah, and Washington. Some of these state constitutional provisions clarify that a Native American who has severed his or her tribal relationship may be subject to state taxation. (Of course, state constitutional language is a small piece of the taxation puzzle. More detailed information about federal taxation is available here, while information about state and local taxation, which varies from place to place, requires state-specific research.) 

Beyond tax law, Article IX of Maine’s constitution specifies that the state may not use “funds held in trust for any Indian tribe” in conjunction with issuance of bonds on behalf of the state. At the same time, the constitution authorizes the legislature to provide mortgage loan assistance to “members of the 2 tribes on the several Indian reservations.” (Note, however, that there are now four federally recognized American Indian tribes in Maine — Maliseet, Micmac, Penobscot, and Passamaquoddy, known collectively as the Wabanaki.)

Voting Rights

Nondiscrimination in voting on the basis of race was a key part of many states’ Enabling Acts when they joined the Union. Any lack of clarity regarding American Indian’s voting rights should have been eliminated in 1924, when Congress passed the Indian Citizenship Act, granting citizenship and the right to vote to all Native Americans born within the United States. 

A few state constitutions also speak directly to American Indians’ status as voters. The Maine Constitution provides that “every Indian, residing on tribal reservations and otherwise qualified, shall be an elector in all county, state and national elections.” The New Mexico Constitution addresses voter access in the context of an amendment to the state constitution, stating that “the secretary of state shall also make reasonable efforts to provide notice of the content and purpose of legislatively approved constitutional amendments in indigenous languages and to minority language groups to inform electors about the amendments.” Michigan’s constitution specifies that a prospective voter may use photo identification issued by a tribal government to establish their identity for purposes of voting.

Gaming, Lottery, and Liquor

Gaming on American Indian lands is governed by the federal Indian Gaming Regulatory Act of 1988. The act recognizes tribes’ sovereignty over their lands but requires tribes to negotiate tribal-state compacts in order to offer casino-style games. State governments have a role in setting these parameters, and several state constitutions acknowledge tribal gaming rights. For example, the California Constitution spells out that “machines, lottery games, and banking and percentage card games are . . . permitted to be conducted and operated on tribal lands” subject to compacts negotiated between the governor and American Indian tribes and approved by the legislature. The constitutions of Colorado, Florida, and Michigan specifically exempt Indian lands from the states’ generally applicable gaming laws, clearing the way for the federal gaming act’s application. Because of federal authority in this arena, the act and tribal-state compacts are the primary source of tribal gaming arrangements in every state regardless of these state constitutional provisions. 

New Mexico’s constitution retains an antiquated provision referencing long-repealed federal laws that barred the introduction of liquor on Indian reservation lands. Federal prohibition of alcohol on Native American lands was lifted in 1953, though those lands remain subject to state liquor laws.

Protecting American Indian and Indigenous Culture

The Hawaii Constitution, Article XII, Section 7, speaks directly to native Hawaiian culture, pledging protection of “all rights, customarily and traditionally exercised for subsistence, cultural and religious purposes and possessed by ahupua’a tenants,” referring to the descendants of native Hawaiians. Though it joined the United States in 1959, only a few months before Hawaii’s accession, and also has a large indigenous population, the Alaska Constitution contains no such recognition of traditional customs. Some authors attribute this omission to the fact that the indigenous people of Alaska had little voice in the state constitutional drafting process.

While no other state constitution recognizes native rights as broadly as Hawaii, several include provisions recognizing Native American educational and language rights. Notably, some of these provisions appear, by their terms, to extend beyond federally recognized tribes.

The Montana Constitution, adopted in 1972, includes a provision addressing American Indian education: “The state recognizes the distinct and unique cultural heritage of the American Indians and is committed in its educational goals to the preservation of their cultural integrity.” The 1999 passage of Montana’s Indian Education for All statute made clear that this education goal “extends to every Montanan, whether Indian or non-Indian.”

Two states that have adopted “English only” state constitutional provisions include exceptions for American Indian languages. Oklahoma’s English language law states that “nothing in this Article shall be construed to diminish or impair the use, study, development, or encouragement of any Native American language in any context or for any purpose.” Arizona’s law mandating exclusive use of English by state government exempts government activities that involve “using or preserving Native American languages.”

Governance

At least two state constitutions address the relationship between tribal and state governance. New York’s constitution, for example, exempts “peacemaker courts or other Indian courts” from the state constitution’s provisions on the judiciary. Hawaii’s establishes an Office of Hawaiian Affairs to administer the real and personal property held in trust for native Hawaiians. Further, the state constitution clarifies that any state legislation enacted to comply with federal mandates may not “diminish or limit the benefits of native Hawaiians” under the trust. 

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Many state constitutional provisions addressing Indian affairs remain trapped in amber, reflecting historical contexts that are not pertinent today. They also largely fail to provide a platform for addressing fundamental questions of state law regarding Indigenous peoples’ experiences of historic and contemporary discrimination and efforts to protect cultural rights. As Professor Matthew Fletcher has observed, states “have yet to catch up to their obligations to their American Indian citizens.” Developments on the federal level, ranging from challenges to diversity initiatives to the expanded recognition of states’ role in the federal-state-tribe dialogue, provide the impetus for new attention to state constitutional provisions addressing Indigenous rights.

Martha F. Davis is a university distinguished professor at the Northeastern University School of Law.

Suggested Citation: Martha F. Davis, American Indians and Indigenous Peoples in State Constitutions, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Aug. 5, 2025), https://statecourtreport.org/our-work/analysis-opinion/american-indians-and-indigenous-peoples-state-constitutions