How Diverse Inhabitants’ Competing Demands Built Federal Law in the Early West

A new book by a Stanford Law School legal historian shows how imposing federal jurisdiction on a contested continent to create the United States was riven by contradictions that have plagued us since.

Gregory Ablavsky, Associate Professor of Law

In 1791, as congressional lawmakers in the nation’s then-capital of Philadelphia gazed West from the edge of North America, they optimistically saw a continent ripe for national expansion. It appeared to be empty land to be subdivided and sold, offering promise, not problems.

Secretary of State Thomas Jefferson knew better, after carefully cataloging for Congress the confusion of competing ownership claims by those already populating the territories on the far side of the Appalachians: Native peoples, land companies, French villagers, Revolutionary War veterans and 40,000 Anglo-American migrants.

The seeds of the nation’s westward push grow in contested soil in Gregory Ablavsky’s compelling new account of the U.S. origin story, “Federal Ground,” whose subtitle conveys the challenge Congress confronted: “Governing Property and Violence in the First U.S. Territories” (Oxford).

Ablavsky, Helen L. Crocker Faculty Scholar, associate professor of law and, by courtesy, of history, shows how the roots of persistent national conflict grew from disputes over chattel slavery and Indigenous nationhood. Jefferson at first “set aside” the question of Native rights to their land, Ablavsky writes, and Congress left to Secretary of War Henry Knox the task of governing Indian affairs.

The goal, of course, was conquest. “Both Jefferson and Knox thought it inevitable that whites would displace Native peoples in most of the West,” Ablavsky says. “They differed, though, on the question of federal authority.  Knox embraced robust federal power, whereas Jefferson generally favored local control.  But I also think it’s important to stress that many white residents in the territories rejected both Jefferson and Knox in favor of the views of the young Andrew Jackson—that is, they embraced federal power, but only insofar as federal military and funds were used to dispossess Native peoples from their homelands.”

The first great swathes of land the Congress set out to govern—the region that would become Tennessee and another destined to be Ohio—belonged to the Cherokee and the Shawnee and others. Fatefully compounding our nascent, unreconciled national strife, federal lawmakers banned chattel slavery in the latter but left legal the enslavement of Indigenous and African peoples in the south.

Greg Ablavsky writes about D.C. Statehood and History in this The Hill opinion piece

Ablavsky notes that scholars have sometimes downplayed the troubled dynamic at work in our founding efforts to draft and deploy the law.

“I recently saw a legal scholar describe histories that encompass race or gender as ‘narrow,’ which seems both bizarre and ignorant.  Bizarre, because, of course, legal scholars are famous for going on for pages and pages about the meaning of a single word.  Ignorant, because how ‘narrow’ a topic is depends very much on one’s perspective,” he says.

George Washington, for instance, probably wouldn’t have found historians’ current focus narrow, Ablavsky observes.  He notes that Washington spent little time on questions that preoccupy legal scholars today, like the scope of the Commerce Clause.  By contrast, Ablavsky says, “Washington in his correspondence was obsessed with what was then called ‘Indian affairs,’ and he was also very focused on managing his plantation, including the enslaved people he held in bondage.”

Historians avoid “presentism,” the fallacy of projecting now on then,

“yet, at points, writing this book did feel a bit uncanny given some of the parallels with the present: I was especially struck by white territorial residents’ constant denunciation of Native peoples as dependents living on federal largesse”—even as whites “were incredibly effective at extracting federal money,” he says.

But Ablavsky finds what’s gone before endures. “We so often talk about ‘federal policy’ or ‘federal law,’ but the early federal government was really just a place where people fought intensely over whose views should prevail.  And that aspect of law and governance is, I think, even truer today than in the past.”

John Roemer is a legal journalist who has covered the California Supreme Court, the 9th Circuit, and general assignments during a long career at the Daily Journal. He now regularly writes for the Daily Journal, the ABA Journal, Stanford Magazine, and Stanford Lawyer.