The debate over the United States Constitution did not just take place in the closed-off halls of Pennsylvania State House, 1787. Many groups in the newly formed country had been engaged in complex conversations and nuanced discussions about federal power and individual rights. They also debated slavery and commerce.
The Columbia Law Review published an article entitled We the (Native). In a recent article published in the Columbia Law Review, We the (Native) People?, Greg Ablavsky, Tanner Allread, and others argue that Native Americans did not only engage in their own version ratification debates but also contributed directly to the concepts enshrined within the Constitution.
The Constitution of the United States is a product of their work. Constitutional law. Ablavsky is a history Ph.D. and the Marion Rice Kirkwood professor of law at Stanford Law School. Allread is a history Ph.D. student at Stanford University.
We the (Native) People is a study of the history at the intersection between constitutional law, federal Indian laws, and American History. The authors began researching the book while Allread was still in his last year at Stanford Law School. The article provides a glimpse into a more inclusive history of constitutional law if scholars were to recognize the ways that Native Americans engaged with the Constitution during the founding period. This article examines what happened in the early to mid-1800s when Native Americans were threatened with removal from their land and invoked the Constitution.
Ablavsky & Allread present some of their arguments and findings.
Can it be said that Americans do not give much thought to Native Americans’ role in the United States Constitution
Allread: The majority of people never considered Native Americans as part of the Constitutional conversation. Formally, Native Americans were excluded from the Constitutional Convention debates and state ratification discussions. The sources make it clear that Native Americans had a
They have had a lot to say about the Constitution and their interpretations of it have influenced constitutional laws in many different ways. We are attempting to bring Native Americans back into the conversation as part of an overall narrative which seeks to include other groups who were excluded at the time such as women and African Americans. We acknowledge that constitutional law was used to oppress Native Americans, but we also want to highlight how Native arguments helped lead to important cases like Worcester v. Georgia which recognized tribal sovereignty within constitutional law.
Ablavsky: Traditionally, we have had a very limited conception of constitutional law. We were focused on those who wrote the document. They were influenced by their environment. The problem I see is that we tend to fetishize those who were in the room writing the document. We forget, however, that the world in which they lived was shaped by many others.
One of the hottest topics was the role and power of central government. What was the Native American response to this conversation?
Ablavsky : The Constitution was written in the context of fierce federal-state battles for supremacy on what was called Indian Affairs – the law that governed relations with Native Peoples. Native peoples took sides in the debate. In accordance with the diplomatic constitution they generally accepted centralized authority, and saw it as an effective barrier against state interference in their affairs. They were referring to the Constitution, which they had been told codified federal dominance and addressed the problems they faced due to state interference in Indian affairs. Although they may have been sceptical about the federal government’s ability to accomplish this goal, they understood the message: “The great council will not be destroyed or made smaller by any State,” according to a 1789 letter written by representatives of the Cherokee Nation.
What is meant by the “diplomatic constitution”?
Ablavsky is the term we created to describe and illuminate a pre-revolutionary set norms, practices and principles that governed relations between Native peoples in North America and Euro-Americans. Indigenous people, just like Anglo-Americans, referred to an ancient pre-revolutionary constitution that governed their interactions with European empires. Many historians, scholars and others have studied this hybrid legal system that was created. However, lawyers are often not familiar with the work. We believe that this is a crucial background to understand the ensuing debates and questions about the U.S. Constitution.
Allread: This background is also crucial to understanding what will happen later, in the Removal period, as Native nations assert their sovereignty against the United States. One way they do this, is to write their own constitutions that naturally take inspiration from the U.S. constitution and state constitutions. Native Americans are also integrating their customary law, and notions about sovereignty, into these Euro-American forms of government, just as the diplomatic constitution did.
Could you tell us a bit about the Native leaders, and how they navigated the constitutional debates.
Ablavsky : After the Constitution was adopted, the Chickasaw leader Piominko encouraged his people to join the United States under its new central authority. The Chickasaws, a small nation located in present-day Tennessee, were divided historically between pro-and anti-Spanish groups as part of a bid to maintain balance between competing European Empires. The Chickasaws looked to the United States for support and aid in their conflicts with Muscogees, Cherokees and other nearby tribes. Piominko declared in 1795 that the Chickasaws were “now people of the United States”, a striking echo of the Constitutional preamble. Piominko’s bet on federal authority initially paid off. The United States provided food, weapons, and goods to the Chickasaw Nation over the 1790s. Piominko was so confident in the United States, he joined with other Chickasaws, Choctaws, and other Native Americans in the U.S. Army during the Northwest Indian War. They were the first Native Allies, but not the last to help the U.S. Military in wars fought against other Native Peoples. The Chickasaws were eventually harmed by their white neighbors, and they became another nation that was removed from their land.
Allread: John Ross was the principal Cherokee chief from 1828-1866. He is biracial, bi-cultural and identifies himself as Cherokee. He is very knowledgeable about U.S. Constitutional Law and can translate the rights and arguments of Indigenous peoples around self-government into terms that Anglo-Americans will understand, such as treaties, Supremacy Clauses, Indian Commerce Clauses, etc. He orchestrates the litigation that ends in the Supreme Court. In the article, we want to emphasize that these ideas about federal authority and tribal independence were originally Indigenous ideas. Native Americans are the first to make these arguments, then Euro-American lawyers or Supreme Court justices pick up the ideas. John’s letters and annual messages are what really laid out the case in terms of timing.
Tanner: As a Choctaw Nation member, would you be able to comment on the significance of this article, and the research that underlies it, for you personally?
It’s an incredible opportunity to be able to put my passion into practice. I originally came to Stanford to study federal Indian law, tribe law, and Native American legal history. Stanford has given me many opportunities to learn from great professors, work with the Yurok Tribe and take part in the environmental clinic’s work. The article was the cherry on top. Native people should be involved in these discussions. It is important to me that I can bring my experience as a Ph.D. student and law student to this conversation. There are so few Native legal historians or scholars. I hope that this article will inspire other scholars to do similar research on historically marginalized groups. This broader constitutional discussion should be much more rich.
The scholarship of Professor Gregory Ablavsky focuses primarily on early American law history, especially on sovereignty, territoriality, and property issues in the early American West. His publications cover a wide range of subjects, including the history and importance of Indian Affairs in shaping the U.S. Constitution and the balance between the states and federal government. His book Federal Ground Governing Property & Violence in the First U.S. Territories will be published by Oxford University Press in 2021. His work has won multiple awards from the Law and Society Association and American Society for Legal History.
Tanner Allread, a history Ph.D. student at Stanford University. He has a J.D. He holds a J.D. His research is focused on the 19th century Native American history, and the history Federal Indian Law. He has a special interest in the intersection between tribal state-building during the Removal Era and debates about sovereignty and federalism. He has also assisted many tribes in legal matters. He worked for the Kanji & Katzen P.L.L.C. and Yurok Tribe’s Office of Tribal Attorney. He is a Choctaw Nation citizen.