Jack Fiander has posted “The Melding of International Law and the Customary Law of Tribal Nations; The Constitutional Origin of Federal-Tribal Relations” on SSRN.

Here is the abstract:

To seek understanding of the basis for the relationship of the government of the United States with tribal nations it is necessary to examine not only the intent of the “Founding Fathers” but also that of the tribal nations with whom those framers of the United States Constitution dealt at the time of America’s founding. To do otherwise is ethnocentric, at best, and omits half the equation. Establishing a Constitutional relationship requires the perspective of both sides, not only that of those acting on behalf of the fledgling United States. At the time this nation’s founding, tribal nations were mighty in number and therefor treated by Colonists as sovereign nations to be dealt with in conformity with respect for their respective forms of customary and international law. Recognizing tribal sovereignty required adherence to what might be described as tribal laws of nations to manage their own internal affairs, as is evident in the framers’ deferential dealings with Tribal Nations in the founding era and thereafter. Because Colonists understood the need to gain alliances with the powerful tribal nations to secure protection against foreign powers, the Framers appropriated concepts from Tribal nations, which paralleled those in the international Law of Nations, to which much Constitutional authority for the relationship of the United States with tribal nations is traceable.