Debate over the United States Constitution didn’t just happen inside the cloistered halls of the Pennsylvania State House in 1787. Complex conversations and nuanced debates about federal power, individual rights, commerce, and slavery had swirled for years among many groups of people in the new country—including those who originally owned the land.
In a recently published Columbia Law Review article, We the (Native) People?: How Indigenous Peoples Debated the U.S. Constitution, co-authors Greg Ablavsky and Tanner Allread argue that Native Americans not only engaged in their own version of ratification debates, they contributed directly to concepts enshrined in the Constitution and should be rightfully recognized as co-creators of U.S. Constitutional law. Ablavsky, who holds a Ph.D. in history, is the Marion Rice Kirkwood Professor of Law at Stanford Law School and Allread, JD ’22, is a Ph.D. candidate in history at Stanford University and a member of the Choctaw Nation.
We the (Native) People, which the authors started researching while Allread was in his final year at Stanford Law School, takes a deep dive into the historical record at the intersection of constitutional law, federal Indian law, and American history. It provides a window into what a more inclusive constitutional history might look like if scholars recognized the ways in which Native peoples engaged with the Constitution in the founding period. The article also looks at what transpired in the early- to mid-1800s, when Native Americans invoked and critiqued the Constitution as they faced removal from their land.
Here, Ablavsky and Allread discuss some of their findings and arguments.
Is it fair to say that most Americans have not given much thought to the role Native Americans played with regard to the United States Constitution?
Allread: Most people have never even thought about Native people being part of the constitutional conversation. Of course, formally, they were excluded from the Constitutional Convention and state ratification debates. But it is clear from the sources that Native people had a lot of things to say about the Constitution, and their interpretations have influenced constitutional law in many ways. So we are trying to insert Native people back into that conversation, as part of a larger narrative that seeks to do the same for other groups that were excluded from the conversation at the time, including women and African Americans. Yes, constitutional law has been used to oppress Native people, but at the same time, we want to bring to the fore how Native arguments led, for example, to seminal cases such as Worcester v. Georgia, which enshrined tribal sovereignty as something that is recognized within constitutional law.
Ablavsky: We have traditionally had a very narrow conception of constitutional law, focused on the people who wrote the document. But of course, they were heavily shaped by the world they found themselves in. I think the problem is we fetishize the people who were literally in the room, writing the document, but we forget that this was happening in a world populated by so many other people who were profoundly shaping what happened there.
The role and power of a centralized government was certainly one of the hot topics of the day. How did that conversation play out amongst Native Americans?
Ablavsky: The Constitution was drafted against the backdrop of intense federal-state struggles for supremacy over what was known as Indian affairs–the law governing relations with Native peoples. And Native peoples absolutely took sides in this debate. Consistent with the diplomatic constitution, they generally embraced centralized authority and saw it as a bulwark against the individual states’ interference in their affairs. Of course they were invoking the Constitution as it had been explained to them, as a document that codified federal supremacy and remedied the challenges they faced from state meddling in Indian affairs. They may have been skeptical about whether the federal government could actually accomplish this, but they understood what they were being told: that “the great council will no more be destroyed and made small by any State,” as stated in a letter from representatives of the Cherokee Nation to George Washington in 1789.
What do you mean by “the diplomatic constitution”?
Ablavsky: It is a term we coined to define and illuminate the pre-revolutionary set of norms, practices, and principles that governed relationships between Native peoples and Euro-Americans. Each Native nation had their own constitutional order, but, like the Anglo-Americans’ vision of the British Constitution, Indigenous people also harkened back to a pre-revolutionary ancient constitution to govern interactions between them and European empires. Many historians and other scholars have investigated this fascinating hybrid legal order that was created, but lawyers often are not reading that work. We argue that it is a critical backdrop to understanding the ensuing questions and debate over the U.S. Constitution.
Allread: And this backdrop is also critical to understanding what happens later, during the Removal period, when Native nations are asserting their sovereignty against the United States. Interestingly, one of the ways they do this is by writing their own constitutions, which naturally draw from what they are surrounded by: the U.S. Constitution and state constitutions. Yet, at the same time, Native peoples are incorporating their own customary law and notions of sovereignty into these Euro-American political forms, much like the diplomatic constitution did.
Can you speak a little about some of the Native leaders and how they were navigating the constitutional debates?
Ablavsky: After the Constitution’s adoption, the Chickasaw leader Piominko pushed his people to ally with the United States and its new centralized authority. The Chickasaws were a relatively small nation in what is present-day Tennessee and had historically been divided between pro- and anti-Spanish factions as part of an effort to maintain a balance between competing European empires. The Chickasaws hoped for U.S. aid and support in their frequent conflicts with neighboring Muscogees and Cherokees. By 1795, Piominko was proclaiming that the Chickasaws “are now people of the United States”—a fascinating echo of the Constitution’s preamble. Piominko’s gamble on federal authority did initially bring benefits. Over the course of the 1790s, the United States poured goods, arms, and food into the Chickasaw Nation. Piominko had such confidence in the United States that he and a number of other Chickasaws and Choctaws joined the U.S. Army in the campaigns of the Northwest Indian War—the first, although not the last, Native allies to aid the U.S. military in wars against other Native peoples. But eventually, the Chickasaws encountered hostility from their white neighbors and became yet another of the nations removed—the more accurate word would be deported—from their land.
Allread: Then we have John Ross, the principal chief of the Cherokees from 1828 to 1866. He is bi-racial and bi-cultural, but he very much identifies as Cherokee. He has a very deep knowledge of U.S. constitutional law and is able to take the arguments and rights of the Indigenous people around self-government and translate them into constitutional terms that the Anglo-Americans understand: treaties, the Supremacy Clause, the Indian Commerce Clause and so forth. He is the one who orchestrates all this litigation that ends up reaching the Supreme Court. Something we try to stress in the article is how these ideas surrounding federal authority over Indian affairs and surrounding tribal independence are ultimately Indigenous ideas. The Native people are the ones who make these arguments first, and then the ideas are picked up by Euro-American lawyers and Supreme Court justices. If you look at the timing of everything, it’s John and his letters and his annual messages that really lay out this case first.
Tanner, as a member of the Choctaw Nation, could you comment on what this article and the research underpinning it has meant to you personally?
I came to Stanford specifically to work on federal Indian law, tribal law, and Native legal history and so it’s been an amazing opportunity to get to put that into action. I’ve had many opportunities at Stanford to take great courses, work with the Yurok Tribe, and participate in the environmental law clinic’s work with tribal nations. This article has been the cherry on top of all of that. It is very important for Native people themselves to be a part of these conversations. There are still so few Native legal scholars and historians and so it means a lot to me to be able to bring what I’ve gained as a law student and Ph.D. candidate to the conversation. My overall hope for this piece is that our work can inspire scholars who study other historically marginalized or excluded groups to undertake similar work on their constitutional arguments and interpretations. The goal is to make this broader constitutional conversation much richer.
Professor Gregory Ablavsky’s scholarship focuses on early American legal history, particularly on issues of sovereignty, territory, and property in the early American West. His publications explore a range of topics including the history of the Indian Commerce Clause, the importance of Indian affairs in shaping the U.S. Constitution, and the balance of power between states and the federal government. His book Federal Ground: Governing Property and Violence in the First U.S. Territories was published in 2021 by Oxford University Press. His work has received multiple prizes from the Law and Society Association and the American Society for Legal History.
Tanner Allread is a Stanford University Ph.D. candidate in history. He holds a J.D. from Stanford Law School. His research focuses on 19th-century Native American history and the history of Federal Indian Law, with a particular interest in the intersection of tribal state-building and debates over sovereignty and federalism during the Removal era. In addition to his historical work, he has assisted tribes with numerous legal matters, working for the law firm of Kanji & Katzen, P.L.L.C., and the Yurok Tribe’s Office of the Tribal Attorney. He is a citizen of the Choctaw Nation of Oklahoma.