Debates over Founding Era constitutional understandings proliferate in scholarship and litigation. The understandings examined, however, are almost exclusively those of the white men who either drafted the constitution or could vote on its ratification. In We the (Native) People?, Professor Gregory Ablavsky and doctoral candidate Tanner Allread broaden this focus, uncovering what Indigenous people said and thought about the Constitution’s meaning. Like Mary Bilder’s recent article on the influence of Cherokee, Chickasaw, and Choctaw delegations’ visits to the constitutional convention in 1787,1 and earlier works by Robert Clinton, Maggie Blackhawk, and Ablavsky himself,2 the article confirms the influence of tribal actions on the Constitution and its interpretation. But in foregrounding Indigenous people’s perspectives, Ablavsky and Allread open a new window on those actions as well as on constitutional history and law.
The first contribution of the article is to identify pre-constitutional tribal-settler diplomacy as an important backdrop against which the Constitution was drafted and understood. As scholars like Robert Williams and Colin Calloway have shown, established rules, shaped by both Indigenous and English traditions, governed this diplomacy. These practices included both accepted rituals and norms of negotiation, reciprocity, and ongoing relationships that the English violated at their peril. Ablavsky and Allread dub this body of rules the “diplomatic constitution,” invoking the times’ definition of constitution as the practices, institutions, and discourses that disciplined governmental power. Influential founders, they show, like George Washington, Ben Franklin, James Madison, James Monroe, and Thomas Jefferson, would all have been familiar with this diplomatic constitution from their own experiences at negotiations with tribal nations.
Although the early documents of the fledgling United States seemed to continue these rules of diplomacy, white settlers, states, and loosely organized militias defied its precepts, refusing negotiation and clear channels of communication. In response, tribal leaders repeatedly invoked the diplomatic constitution and chided the federal government on its inability to control its subjects. As Chickasaw leaders informed Congress, “We are told that you are the head Chief of a grand Council which is above these Thirteen Councils…[I]f so, why have we not had talks from you? We are head Men and Chiefs and Warriors also, and I have always been accustomed to speak with great Chiefs and Warriors.” (P. 265.) At the time, federal officials were torn on whether to maintain the diplomatic constitution or to treat tribal nations as conquered peoples to whom no further concessions need be made. Tribal influence pushed these officials to restore existing norms.
Ablavsky and Allread also show that Native people were an important external audience for the U.S. Constitution. Federal actors had drafted the Constitution with tribal demands in mind, and “aggressively sold and promoted the new document to Native audiences as a restoration of the core principles of the diplomatic constitution.” (P. 269.) As officials informed the Muscogee, “Our Unions, which was a child, is grown up to manhood[]….One great council is established, with full powers to promote the public good,” and ensure “that justice shall be done to the nations of Indians….” Native leaders were congratulatory but pointed in their official responses. The Haudenosaunee observed that it had always been the custom of their confederacy to “have one Great Council fire kept Burning…and there to do all the public business which respected the five Nations in General,” while the Cherokee Nation complimented Congress on having “become strong,” but expressed its hope that “whatever is done hereafter by the great council will no more be destroyed and made small by any state.” (P. 273.)
Discussions between Indigenous observers were less hopeful. The Mohican sachem Hendrick Aupaumut accepted a federal commission to convince a confederacy of tribal nations that the new government would honor its promises and restrain its citizens. His audience, already suffering under unrestrained settler incursions, doubted his claims. Some tribal nations responded to violations of the diplomatic constitution by warring against those expropriating their land. Others invoked it to secure favorable treaties for their people. The United States violated the faith of the latter, demanding new land concessions and removal instead of preventing illegal settlement.
Ablavsky and Allread present the landmark Cherokee cases as a continuation of Indigenous assertions that the U.S. Constitution incorporated the diplomatic constitution. Even before appealing to the U.S. Supreme Court in Cherokee Nation v. Georgia, 30 U.S. 1 (1831), and Worcester v. Georgia, 31 U.S. 515 (1832), Cherokee and Choctaw delegations made constitutional arguments in response to southern states’ claimed authority over their lands. Their testimonials asserted that the Constitution did not control tribal sovereignty, but their “treaties of relationship are based on the principles of the federal constitution.” The Commerce Clause prohibited states from interfering with those relationships, and those treaties were the “supreme law of the land.” When Congress and the Executive proved unresponsive, the Cherokee Nation brought its arguments to the Supreme Court.
And in Worcester v. Georgia, they succeeded. Chief Justice Marshall’s opinion affirmed tribal sovereignty, federal exclusive authority, and that state actions in violation of these principles were “repugnant to the Constitution, laws, and treaties of the United States.” President Jackson, of course, failed to enforce the decision, and the United States later forcibly removed the Cherokee people under a false treaty. And although Worcester v. Georgia powerfully sustained legal recognition of tribal sovereignty, over time federal law forcibly absorbed tribal governments within the constitutional order.
So how should this history influence our understanding of the Constitution today? Ablavsky and Allread offer their history as a general call for founding histories to look beyond the exclusive (white, male, propertied) group who could formally assent to its ratification. Native peoples, they show, were both an important audience for the Constitution and had an meaningful influence on its implementation. Further, they argue, the diplomatic constitution should be understood, like the works of William Blackstone, as part of the common law backdrop that informs constitutional meaning.
What light might the understandings of enslaved people, free people of color, or white women shed on constitutional meaning? Recovering understanding or influence would not mitigate the original exclusion or manufacture metaphorical consent. As Ablavsky and Allread show, Native nations refused consent and yet were incorporated anyway. But it would broaden the search for understanding and influence beyond the few whose claimed the power to consent on behalf of the many, and allow formally excluded people to claim their role as co-creators of constitutional law. And the results may be as illuminating as those We the (Native) People provide.
Editor’s note: For another review of this article, also published today, see Allison Brownell Tirres, Constitutional History in the Middle Ground and Beyond: Indigenous Perspectives, JOTWELL (July 12, 2023).
- Mary Sarah Bilder, Without Doors: Native Nations and the Convention, 89 Fordham L. Rev. 1707 (2021).
- Robert N. Clinton, The Dormant Indian Commerce Clause, 27 Conn. L. Rev. 1055 (1994); Gregory Ablavsky, The Savage Constitution, 63 Duke L.J. 999, 1009-38 (2014).
