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.86 The cen-tral government under this arrangement was clearly at the mercy of the states.In addition, the Articles of Confederation did not establish any indepen-dent executive branch or any federal judiciary, with the exception of a complexscheme to resolve disputes between states.All of this was further complicatedat the fiscal level because the central government possessed no direct power totax and had to rely on the willingness and ability of each individual state to raiseits share of the needed revenues.The central government was at the mercy ofthe states not only structurally but also fiscally.In the structural mishmash of the articles, there was, however, expressreference to congressional authority to deal with Indian tribes.Article IX pro-vided that Congress should have sole and exclusive right [of ].regulating thetrade and managing all affairs with the Indians not members of any of theStates, provided that the legislative right of any State within its own limitsbe not infringed or violated. 87 What looks like an express sole and exclusive delegation to Congress was, of course, severely compromised by the dual pro-viso concerning Indians not members of any state 88 and the much moreproblematical notion that the legislative right of any State within its own limitsbe not infringed or violated. 89 This severely compromised language was quitein line with the other structural deficits of the Articles of Confederation.Whatwas apparently delegated to the federal government with one hand was reservedto the states by the other.This very problem was expressly referred to in Worcester v.Georgia.90Chief Justice Marshall noted: The ambiguous phrases which follow the grantof power to the United States, were so construed by the states of NorthCarolina and Georgia as to annul the power itself. 91 This impotency of thearticles in Indian affairs was overcome, according to Chief Justice Marshall, 30 the early encounterby the Indian Commerce Clause and the treaty-making power in the Consti-tution such thatThese powers comprehend all that is required for the regulation ofour intercourse with the Indians.They are not limited by any restric-tions on their free actions.The shackles imposed on this power, inthe confederation, are discarded.92For our present purposes, it is enough to note that from the very beginningof the attempt to form something known as the United States, the processrequired engagement with the question of how to deal with Indians and Indiantribes.Although the articles were short-lived and the provision dealing withIndians was hopelessly contradictory in apportioning authority between thefederal and state governments, they do contain valuable lessons that form abaseline from which to examine the text of the Constitution as it addressed thesame questions.At the time of the adoption of the Articles of Confederation, it was abso-lutely clear that Indians and Indian tribes were not part of the perpetualunion. 93 Individual Indians were not citizens, and their tribes were not part ofthis Confederation between States. The language of Article IX is quite preciseon this issue.The authority described in Article IX is not authority over Indians or even concerning Indians but with the Indians. This languagewhatever its other shortcomings locates Indians outside the Confederationand seeks to distribute authority (however unsuccessfully) between the sover-eigns within (Congress and the states) the articles structure.According toRobert Clinton, this reflected a nascent federal view of its relationship withIndian tribes as being one side of a bilateral political, diplomatic, economic,and social relationship. 94 Yet as with many treaties despite the language ofbilateral respect there was very little evidence of subsequent actions match-ing such commitments.In this instance, of course, time was short, and theArticles of Confederation proved almost totally ineffective.Their failure pro-vided the backdrop for consideration and adoption of the U.S.Constitution.YetIndians were clearly present as legally recognized sovereigns at the very begin-ning of the first attempt to establish a federal union.There were two other documents in circulation at this time that revealrelated thinking concerning the relationship of Indian tribes to the young postRevolutionary War republic.In a 1775 speech to the Six Nations that wasprepared by the Second Continental Congress, there was a pervasive call to the brothers in the Six Nations Iroquois Confederacy to provide support to thecolonists in the Revolutionary War against Britain
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