The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
Blackfeet Nation Indians File Lawsuit Challenging Trump's Canada Tariffs
They argue the tariffs violate the constitutional separation of powers and their tribal treaty rights.
I missed this when the case was first filed. But two members of the Blackfeet Nation, a Native American tribe, have filed a lawsuit challenging Donald Trump's Canada tariffs on constitutional grounds, and also because they violate tribal treaty rights:
Two citizens of the Blackfeet Nation on April 4 filed a lawsuit against the federal government, alleging tariffs the Trump administration is imposing on Canada violate the U.S. Constitution and tribal treaty rights.
State Sen. Susan Webber, D-Browning, and Jonathan St. Goddard, a rancher on the Blackfeet Reservation, named the U.S. Department of Homeland Security, Secretary Kristi Noem and the United States of America in the suit, which was filed in Montana federal district court. The plaintiffs are represented by Monica Tranel, who ran as a Democrat for Montana's western congressional seat in 2022 and 2024….
This lawsuit specifically pertains to several Executive Orders, including one Feb. 1 that expanded an emergency declaration to include "the flow of illicit drugs" across the U.S.-Canada border and one April 2 that announced global "reciprocal tariffs." The lawsuit also regards two Feb. 10 proclamations that impose tariffs on steel and aluminum products.
Plaintiffs allege the orders violate the U.S. Constitution, which gives Congress, not the president, the power to regulate commerce. Trump declared several national emergencies (due to U.S. trade deficits and to the flow of illegal drugs over the Northern border) and invoked the International Emergency Economic Powers Act to issue tariffs. But the two Blackfeet citizens say the president had no legal basis to do so, arguing the IEEPA statute does not include the power to tariff….
Complainants in the Montana case further allege the Canada tariffs violate the Jay Treaty, which was signed in 1794 by the U.S. and Great Britain to ease Revolutionary War tensions. While the treaty primarily focused on the two countries, it also recognized the rights of Native Americans to freely cross over the U.S.-Canada border. It also stipulated that American Indians were not to pay duties or taxes on their own goods when crossing the border.
The plaintiffs' complaint in Webber v. Department of Homeland Security is available here.
This lawsuit targets only various tariffs imposed on Canadian goods, and is therefore much narrower than the case the Liberty Justice Center and I are about to file challenging the entirety of Trump's "Liberation Day" tariffs. But there are important overlaps between the arguments in the two cases, most notably with respect to executive usurpation of congressional authority, and the issue of whether the IEEPA authorizes the imposition of tariffs at all (we say not).
I think the Blackfeet plaintiffs would also do well to raise the issue of whether the major questions doctrine applies to the various tariffs against Canadian goods. I have previously argued that imposing massive new tariffs on one of our biggest trading partners does so qualify, even if it is not quite as obviously a "major" economic and political issue as the global trade war started by the "Liberation Day" tariffs.
I lack the expertise needed to assess the argument that the Trump tariffs violate Native American treaty rights. But it does strike me as highly plausible, at the very least.
I wish the Blackfeet plaintiffs every success with this case. It is not just Native American tribes, but all Americans who have an interest in preventing the executive from imposing massive unconstitutional tariffs on goods imported from our northern neighbor and major trading partner.
UPDATE: The original version of this post had an incorrect link to the complaint in the case. I apologize for the mistake, which has now been fixed.
