What did indigenous peoples think of the Constitution at the time of its drafting and in the first decades following ratification? This is the intriguing question at the heart of a compelling new article by Gregory Ablavsky and W. Tanner Allread. The answers they provide to this question turn constitutional history in a new direction: rather than considering the relationship of Native peoples to the Constitution through the perspectives of Anglo-American drafters, we are asked to listen to the voices of Native peoples themselves as they scrutinized and debated the new Constitution and then eventually utilized it, despite their misgivings, to try to defend their rights to property and sovereignty. The article makes a strong case for expanding our definition of constitutional discourse to include the reactions and engagement of Native peoples, many of whom were well aware of the legal sea changes afoot during the Founding Era and were concerned about the impact of those changes on their communities.
Ablavsky and Allread are straightforward about their aims. They are interested not only in shedding light on the evidence of constitutional discourse – which they draw primarily from research on several well-known Native nations in the South, Midwest and Northeast – but also convincing readers of the broader theoretical and methodological payoff. As they write, “The goal is less to offer a definitive account than to provide proof of concept: to show that we can, in fact, incorporate these voices into our constitutional histories.” (P. 248.) Ultimately, the authors deliver on their promise, encouraging us to move outside of rigid formulations and consider the wider reach of constitutional discourse.
The article begins with a persuasive description of what the authors call the “diplomatic constitution,” a set of syncretic legal practices developed over two centuries of encounter between European colonists and Native peoples that predated the Revolutionary Era. To paraphrase Daniel Hulsebosch, this constitution “was not a thing” the way we think of constitutions today, but was instead a set of agreed-upon norms, practices and discourses that structured power and defined lines of authority between colonizers and indigenous peoples.1 At its heart were the widely adopted practices of diplomacy and negotiation that were vital to ensuring peace in a hybrid legal zone. While not always observed consistently, these principles and practices were generally acknowledged as the fabric governing relations between indigenous and colonial powers. All sides relied on it; as the authors note, “Native and Anglo-American leaders alike recognized it as a binding body of law that governed how their distinct communities were supposed to interact.” (P. 263.) The authors make a striking claim here, that will be of interest to historians and theorists alike: that the diplomatic constitution should be read alongside other sources of law, like English common law, natural law, and the law of nations, as informing our understandings of the U.S. Constitution.
The article next turns to the “native ratification debates,” describing the efforts of federal officials to convince Native leaders of the soundness of the new Constitution and the varying opinions of Native peoples who, like those involved in state ratification debates, sometimes had divergent views. Even though they could not vote to ratify the Constitution, indigenous peoples were nevertheless a key audience for those in the new federal government who sought to build support. The authors show how the diplomatic constitution directly influenced the ways that federal officials promoted the Constitution and Native peoples conceptualized it. The fear among Native skeptics was not that the federal government would be too strong – a common concern voiced in the state ratification debates – but that it would be too weak. Federal officials hastened to reassure Native leaders that the Constitution ensured a centralized federal government that would be able to protect them from incursions on their land and sovereignty by individual settlers and state governments.
After the Constitution’s adoption, Native peoples actively participated in promoting a vision of strong federal power and strong tribal sovereignty, qualities that were a direct reflection of principles enshrined in the diplomatic constitution. This interpretation became a matter of life or death in the years following ratification, as state governments sought to exterminate indigenous peoples or to banish them from their territory. Native leaders were active participants in challenging these actions in the courts. The Cherokee Nation, for example, made a concerted and successful attempt to protect their sovereignty before the Supreme Court using the Constitution as their primary source.
These legal efforts were hampered by President Andrew Jackson’s refusal to interfere with state plans for mass deportation, but they should not be discounted on that account. As the authors show, Native defenses of their own autonomy – as guaranteed by the Constitution – gained traction in later decades, informing a reevaluation of indigenous rights in the modern era.
The article concludes with a discussion of the possible theoretical and doctrinal implications of these historical findings. As Ablavsky and Allread make clear, including Native peoples in their rightful place as “co-creators of constitutional law” has the potential to upend constitutional history as well as legal theory. They sound a cautionary note for originalists, whose work often assumes an artificial and inaccurate closed world of legal thought during the Founding Era. How we think about the “original public meaning” of the Constitution changes profoundly, for example, if we take seriously the capaciousness of “the public,” acknowledging that even those who were formally marginalized in society had an influential voice in the interpretation of law. Surfacing these voices enables us to see constitutional history and legal discourse in an entirely new light.
Editor’s note: For another review of this article, also published today, see Bethany Berger, Expanding the Constitutional Lens, JOTWELL (July 12, 2023).
- Daniel Joseph Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1883, at 40 (2005).
