WE THE (NATIVE) PEOPLE?: HOW INDIGENOUS PEOPLES DEBATED THE U.S. CONSTITUTION

The Constitution was written in the name of the “People of the United States.” And yet, many of the nation’s actual people were excluded from the document’s drafting and ratification based on race, gender, and class. But these groups were far from silent. A more inclusive constitutional history might capture marginalized communities’ roles as actors, not just subjects, in constitutional debates.

This Article uses the tools of legal and Native history to examine how one such group, Indigenous peoples, argued about and with the U.S. Constitution. It analogizes Native engagement to some of the foundational frames of the “Founding” to underscore the significance of such engagement for current constitutional discourse. Like their Anglo-American neighbors, Native peoples, too, had a prerevolutionary constitutional order—what we here dub the “diplomatic constitution”—that experienced a crisis during and after the Revolution. After the Constitution’s drafting, Native peoples engaged in their own version of the ratification debates. And then, in the Early Republic, Native peoples both invoked and critiqued the document as they faced Removal.

This Article’s most important contribution is proof of concept, illustrating what a more inclusive constitutional history might look like. Still, some of the payoffs are doctrinal: broadening the “public” in original public meaning, for instance. But the more significant stakes are theoretical. As this Article contends, by recognizing Indigenous law and constitutional interpretations as part of “our law”—in other words, the pre- and postconstitutional legal heritage of the United States—Native peoples can claim their role as co-creators of constitutional law.

The full text of this Article can be found by clicking the PDF link to the left.

* Marion Rice Kirkwood Professor of Law, Stanford Law School; Professor of History (by Courtesy), Stanford University.
** J.D., 2022, Stanford Law School; Ph.D. Candidate in History, Stanford University; Citizen, Choctaw Nation of Oklahoma. Thanks to Maggie Blackhawk, Ned Blackhawk, Nathan Chapman, Jonathan Gienapp, Peter Hoffer, Emma Kaufman, Elizabeth Reese, Angela Riley, Elena Telles Ryan, Adam Samaha, Jed Shugerman, and Rebecca Tsosie for comments on this Article. This Article benefited from feedback at the Gathering of Indigenous Scholars at Arizona State University, the American Founding Group at the University of Georgia, the Fordham Law School Faculty Workshop, the New York University Furman Fellows Seminar, the Princeton Colonial and Revolutionary Americas Workshop, the Stanford Law School Faculty Workshop, and the 2022 Institute for Constitutional Studies at Yale University.

Introduction

Writing in the name of the “People of the United States,” white men drafted the U.S. Constitution in 1787. 1 U.S. Const. pmbl.; see The Delegates, Digit. Hist., https://www.digitalhistory.uh.edu/
disp_textbook.cfm?smtid=2&psid=3233 [https://perma.cc/HE33-KDAW] (last visited Oct. 4, 2022). The following year, white men, chosen by an almost exclusively white, male, property-holding electorate, voted to ratify the Constitution. 2 See Jamal Greene, Originalism’s Race Problem, 88 Denv. U. L. Rev. 517, 518 (2011) [hereinafter Greene, Originalism’s Race Problem].

These historical facts have important implications for constitutional law. They have led many commentators to question or reject the authority of the Constitution because it rests on such an undemocratic conception of the people. 3 Many of these works have focused on the implications of the Constitution’s subordination and exclusion of Black people. See, e.g., Jerome McCristal Culp, Jr., Toward a Black Legal Scholarship: Race and Original Understandings, 1991 Duke L.J. 39, 67–77; Greene, Originalism’s Race Problem, supra note 2, at 517–22; Thurgood Marshall, Reflections on the Bicentennial of the United States Constitution, 101 Harv. L. Rev. 1, 2–4 (1987); Dorothy E. Roberts, The Meaning of Blacks’ Fidelity to the Constitution, 65 Fordham L. Rev. 1761, 1762–67 (1997). Some works have also considered the theoretical consequences of the exclusion of women. See, e.g., Mary Anne Case, The Ladies? Forget About Them. A Feminist Perspective on the Limits of Originalism, 29 Const. Comment. 431, 431–33 (2014). Other works have considered the implications of Native peoples’ forcible and nonconsensual inclusion within the United States. See, e.g., Vine Deloria, Jr. & David E. Wilkins, The Legal Universe: Observations on the Foundations of American Law 8 (2011); Maggie Blackhawk, Federal Indian Law as Paradigm Within Public Law, 132 Harv. L. Rev. 1787, 1800–03 (2019); Robert N. Clinton, There Is No Federal Supremacy Clause for Indian Tribes, 34 Ariz. St. L.J. 113, 159–62 (2002); Seth Davis, American Colonialism and Constitutional Redemption, 105 Calif. L. Rev. 1751, 1765–67 (2017); Robert B. Porter, The Demise of the Ongwehoweh and the Rise of the Native Americans: Redressing the Genocidal Act of Forcing American Citizenship Upon Indigenous Peoples, 15 Harv. BlackLetter L.J. 107, 110–12 (1999). They also mean that present efforts to discern the Constitution’s historical meaning have focused almost exclusively on the views of the document’s drafters and elite interpreters. 4 Cf. United States v. Bullock, No. 3:18‐CR‐165‐CWR‐FKB, 2022 WL 16649175, at *1 (S.D. Miss. Oct. 27, 2022) (suggesting that the Court’s approach to constitutional history privileges “what white, wealthy, and male property owners thought about” the Constitution).

Yet the actual “People of the United States” were far less homogenous than the circumscribed group who claimed to represent them. Like the nation today, the United States in 1787 was strikingly diverse, polyglot, and pluralistic. The nation’s more than three million residents of European descent 5 These numbers are based on the 1790 census. See 1 Historical Statistics of the United States: Earliest Times to the Present 1-48 tbl.Aa146 (Susan B. Carter, Scott Sigmund Gartner, Michael R. Haines, Alan L. Olmstead, Richard Sutch & Gavin Wright eds., millennial ed. 2006) [hereinafter 1 Historical Statistics]. —who had only recently begun to conceive of themselves as a cohesive “white people”—encompassed a startling array of nationalities, faiths, and languages. 6 See Peter Rhoads Silver, Our Savage Neighbors: How Indian War Transformed Early America, at xix–xxiii (2008) (describing the rise of the category of “white people” in the mid-eighteenth-century American colonies to encompass a strikingly diverse array of ethnicities and communities). For an overview and critique of the scholarship exploring the construction of whiteness, see Peter Kolchin, Whiteness Studies: The New History of Race in America, 89 J. Am. Hist. 154, 154–55 (2002). Even those white people excluded from the franchise—most women, poor men, and laborers 7 See Alexander Keyssar, The Right to Vote: The Contested History of Democracy in the United States 5–21 (2000) (noting that the “lynchpin of both colonial and British suffrage regulations was the restriction of voting to adult men who owned property” and observing that states largely retained, although sometimes loosened, these requirements after the Revolution). —could, and did, actively participate in what was known as politics “out of doors.” 8 On politics out of doors, see Gordon S. Wood, The Creation of the American Republic, 1776–1787, at 319–28 (2d ed. 1998). On the active political role of women, see Rosemarie Zagarri, Revolutionary Backlash: Women and Politics in the Early American Republic 2–9 (2007). Roughly 750,000 people whom Anglo-Americans labeled “Black” also lived within the United States. 9 1 Historical Statistics, supra note 5, at 1-48 tbl.Aa147–Aa149. This number included nearly 700,000 enslaved peoples from throughout Africa—some recently arrived, others descended from long-standing enslaved communities—alongside a small, though growing, free Black population of 50,000 people. 10 Id. For a synthesis exploring the enslaved and free Black communities in the early United States, see Ira Berlin, Many Thousands Gone: The First Two Centuries of Slavery in North America 109–91 (1998). Meanwhile, roughly half the purported territory of the new nation was legally “Indian country,” the homelands of at least 150,000 Indigenous people organized into powerful, loosely centralized confederacies like the Haudenosaunee and Muskogee. 11 On the Native population of the new United States, see James H. Merrell, Declarations of Independence: Indian–White Relations in the New Nation, in The American Revolution: Its Character and Limits 197, 201 (Jack P. Greene ed., 1987). On Native confederacies in the early United States, see, e.g., Robbie Franklyn Ethridge, Creek Country: The Creek Indians and Their World 26–31 (2003) (describing the Muscogee Confederacy); Alan Taylor, The Divided Ground: Indians, Settlers, and the Northern Borderland of the American Revolution 119–28 (2006) [hereinafter Taylor, Divided Ground] (describing the Mohawk Nation, which was part of the Haudenosaunee Confederacy). On “Indian country,” see Act of July 22, 1790, ch. 23, § 3, 1 Stat. 137, 137–38.

At the core of the new Constitution, then, was a contradiction: a narrow political elite attempting to govern, in the name of the people and popular sovereignty, a much more diverse nation. That elite sought to resolve this hypocrisy through exclusion. As scholars have amply shown, the Constitution placed most of the actual people of the United States outside the bounds of the body politic and sought to limit their access to political power. 12 For works exploring the antidemocratic implications of the Constitution, see generally Terry Bouton, Taming Democracy: “The People,” the Founders, and the Troubled Ending of the American Revolution 4 (2007) (“[M]uch of the revolutionary generation was convinced that, during the postwar decade, the elite founding fathers had waged—and won—a counter-revolution against popular democratic ideals.”); Woody Holton, Unruly Americans and the Origins of the Constitution (2007) (arguing that the Framers sought to curtail the embrace of democracy in the aftermath of the Revolution); Michael J. Klarman, The Framers’ Coup: The Making of the United States Constitution (2016) (arguing that the Constitution was the result of interest group politics and overwhelmingly reflected elite interests). Moreover, the increasing democratic inclusion of white men further entrenched whiteness and maleness as the defining boundaries of political participation. 13 See Gerald Leonard & Saul Cornell, The Partisan Republic: Democracy, Exclusion, and the Fall of the Founders’ Constitution, 1780s–1830s, at 212 (2019) (“[T]he rise of democracy rested openly on the declaration that America belonged to the white, male democracy and no one else.”); cf. Daniel Walker Howe, What Hath God Wrought: The Transformation of America, 1815–1848, at 5 (2007) (“The consequences of white male democracy, rather than its achievement, shaped the political life of this period.”).

Recent literature captures how thoroughly such exclusionary efforts succeeded. Racialized and gendered exclusion entrenched itself throughout much of antebellum constitutional law, which vindicated chattel slavery, Native dispossession, and women’s supposed subservience. 14 The literature on these topics is large and rapidly growing. For important recent explorations, see generally Mark A. Graber, Dred Scott and the Problem of Constitutional Evil (2006); Alan Taylor, American Republics: A Continental History of the United States, 1783–1850 (2021); George Van Cleve, A Slaveholders’ Union: Slavery, Politics, and the Constitution in the Early American Republic (2010); David Waldstreicher, Slavery’s Constitution: From Revolution to Ratification (2009); Zagarri, supra note 8; Blackhawk, supra note 3; K-Sue Park, Self-Deportation Nation, 132 Harv. L. Rev. 1878 (2019). The protests of those deemed political outsiders could be, and were, brutally suppressed through state-sanctioned and state-sponsored violence. 15 For some prominent examples, see generally Walter Johnson, The Broken Heart of America: St. Louis and the Violent History of the United States 58–65 (2020); Christopher Tomlins, In the Matter of Nat Turner: A Speculative History 120–24 (2020).

But these exclusionary efforts also failed. The United States never was, nor could be, a solely white or male nation. Despite efforts to suppress their voices, those excluded from whiteness and maleness nonetheless engaged with the law, including constitutional law. Historians have recently and effectively reconstructed the legal consciousness of many marginalized groups and their impact on Anglo-American law, including constitutional law. 16 Key recent works in this vein include Laura F. Edwards, Only the Clothes on Her Back: Clothing and the Hidden History of Power in the Nineteenth-Century United States (2022) (studying how marginalized peoples used textiles and the property rights attached to them as an entrée into the U.S. legal system); Sam Erman, Almost Citizens: Puerto Rico, the U.S. Constitution, and Empire (2019) (recounting Puerto Rican activists’ efforts to secure U.S. citizenship in the early twentieth century); Martha S. Jones, Birthright Citizens: A History of Race and Rights in Antebellum America (2018) (arguing that free Black Americans articulated and advocated for a concept of birthright citizenship that was eventually affirmed in the Fourteenth Amendment); Kelly Kennington, In the Shadow of Dred Scott: St. Louis Freedom Suits and the Legal Culture of Slavery in Antebellum America (2017) (examining enslaved Black Americans’ suits for freedom); Kate Masur, Until Justice Be Done: America’s First Civil Rights Movement, From the Revolution to Reconstruction (2021) (contending that free Black Americans’ civil rights activism in the early nineteenth century influenced the Fourteenth Amendment and Reconstruction legislation); Anne Twitty, Before Dred Scott: Slavery and Legal Culture in the American Confluence, 1787–1857 (2016) (arguing that enslaved Black Americans used their understanding of formal law to pursue freedom suits); Kimberly M. Welch, Black Litigants in the Antebellum American South (2018) (studying Black Americans’ use of courts and property law to protect their interests against whites); Dorothy E. Roberts, The Supreme Court, 2018 Term—Foreword: Abolition Constitutionalism, 133 Harv. L. Rev. 1, 56–71 (2019) (examining how Black abolitionists and antislavery activists interpreted the Reconstruction Amendments).

Yet little of this work has focused on the so-called “Founding,” the period surrounding the drafting, ratification, and early interpretation of the Constitution. 17 One important potential exception is Leonard & Cornell, supra note 13. Professors Gerald Leonard and Saul Cornell acknowledge that a “full understanding of early American constitutional development” requires an expansive “narrative” that integrates diverse voices and perspectives into the “same cast of characters.” Id. at 4. But their initial and broad synthesis addresses these perspectives only briefly, as they themselves have acknowledged. Gerry Leonard, An Elusive Constitution, Balkinization (May 11, 2020), https://balkin.blogspot.com/2020/05/an-elusive-constitution.html [https://perma.cc/7BKR-VCTV]. Another very recent exception is Mary Sarah Bilder, Female Genius: Eliza Harriot and George Washington at the Dawn of the Constitution (2022) (discussing women’s inclusion in constitutional history through the story of educator and advocate Eliza Harriot). This omission is surprising, partly because this era has become ever more legally important in constitutional interpretation with originalism’s ascendance 18 See Jamal Greene, On the Origins of Originalism, 88 Tex. L. Rev. 1, 63–66 (2009) (describing the lionization of “the ideas and historical figures of the Founding Era” with the passage of time). and partly because constitutional history itself has already shifted to encompass popular constitutionalism. 19 See generally Larry D. Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (2004) (examining the interpretive authority of ordinary citizens in implementing the Constitution); Saul Cornell, The People’s Constitution vs. The Lawyer’s Constitution: Popular Constitutionalism and the Original Debate Over Originalism, 23 Yale J.L. & Humans. 295 (2011) [hereinafter Cornell, People’s vs. Lawyer’s Constitution] (describing how expanding the range of sources construing constitutional meaning exposes a conflict between elite and popular approaches to constitutional interpretation). Nonetheless, though we know quite a bit about how marginalized groups were talked about in the period’s constitutional discourse, we know little about what they said; they are presented as objects, not creators, of constitutional ideas. 20 See supra note 14 and accompanying text. This absence has come to be interpreted as evidence of silence rather than, more accurately, of silencing. 21 See, e.g., Akhil Reed Amar, The Words that Made Us: America’s Constitutional Conversation, 1760–1840, at 634 (2021) [hereinafter Amar, The Words that Made Us] (“American Indians largely remained, and in future decades would continue to remain, outside the conversational circle.”).

This Article seeks to counter this absence by recovering just one of many such suppressed constitutional discourses: the debates and engagement by some Native peoples over the U.S. Constitution during the Founding. 22 The terms “Native” and “Indigenous” are favored in this Article to describe the Indigenous peoples of the United States. The term “Indian” is used in its historical context and as part of key historical terms of art like “Indian affairs” and “Indian country.” See Michael Yellow Bird, What We Want to Be Called: Indigenous Peoples’ Perspectives on Racial and Ethnic Identity Labels, Am. Indian Q., Spring 1999, at 1, 7–11. Its 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. We should not, in other words, use past exclusion to justify continued exclusion from constitutional history today.

What do we discover when we do this work? In one sense, this history shows the challenge in expanding our conventional narratives using current frames. Even the idea of a “Native” perspective on the Constitution posits something that never existed: The many Native peoples within the United States have had all their own distinct histories with, and views on, the document. This Article focuses on the debates of some particularly prominent Native nations in what became the U.S. Northeast, Midwest, and South during the Founding Era without claiming to universalize their experiences. In doing so, it recognizes that Indigenous peoples have always had their own, separate legal systems that rested on fundamentally different principles, worldviews, authorities, and forms of recordation than Anglo-American law. 23 See infra Part II. Scholars in Native American and Indigenous Studies (NAIS) have emphasized the significance of Indigenous ways of knowing, including in law, and have done important work on Indigenous constitutional law—with much more work still to be done. 24 For examples of such works, see generally Noelani Arista, The Kingdom and the Republic: Sovereign Hawai’i and the Early United States (2019) (examining the transformation of Hawaiian law from oral pronouncements to published form); Duane Champagne, Social Order and Political Change: Constitutional Governments Among the Cherokee, the Choctaw, the Chickasaw, and the Creek (1992) (analyzing the rise of stable constitutional governments among Native nations across the nineteenth century); Keith Richotte Jr., Claiming Turtle Mountain’s Constitution: The History, Legacy, and Future of a Tribal Nation’s Founding Documents (2017) (studying the process by which the Turtle Mountain Band of Chippewa Indians adopted their constitution in the early twentieth century); Robert A. Williams, Jr., Linking Arms Together: American Indian Treaty Visions of Law and Peace, 1600–1800, at 3 (1997) [hereinafter Williams, Linking Arms Together] (exploring the influence of Indigenous legal traditions on “relations with the West during the North American Encounter era”). There is a very large literature on NAIS approaches. For an overview, see generally Alyssa Mt. Pleasant, Caroline Wigginton & Kelly Wisecup, Materials and Methods in Native American and Indigenous Studies: Completing the Turn, 75 Wm. & Mary Q. 207 (2018) (focusing on materials and methods rather than traditional sources); Robert Warrior, 2010 NAISA Presidential Address: Practicing Native American and Indigenous Studies, Native Am. & Indigenous Stud., Spring 2014, at 3, 9 (discussing how “Native and Indigenous studies needs to see itself in dialectical relationships to the Indigenous communities, educational institutions, and scholarly constituencies we seek to serve or participate in through our work, and that in that relationship we exist as a key alternative space within the Indigenous world”).

This Article, however, opts for a different path. It narrates this history using the conventional categories and periodizations of U.S. constitutional history. This version of the story runs like this: Like their Anglo-American neighbors with the British constitution, Indigenous peoples harkened back to a prerevolutionary ancient constitution—what we here dub the “diplomatic constitution,” the set of practices, norms, and expectations that governed interactions between Native nations and European empires. 25 See infra section I.A. Also like their neighbors, Natives resisted when the principles of that diplomatic constitution were challenged—although the constitutional threats here came mostly from the new United States—and they, too, experienced a postrevolutionary era of turmoil and contention, an Indigenous “critical period.” 26 See infra section I.B. After the Constitution’s drafting, its Federalist proponents sought to persuade Native peoples as well as U.S. citizens of the document’s merits. The result was that Indigenous communities had their own internal deliberations over the Constitution—what this Article terms the “Native ratification debates”—where, like their white neighbors, Natives split over the document’s merits. 27 See infra Part II. Moreover, just as constitutional meaning and authority continued to be contested throughout the Early Republic during the nation’s “long Founding,” Native peoples continued to engage with and fight over the Constitution’s implications for them, especially during the constitutional crisis of forced deportation euphemized as Indian Removal. 28 See infra Part III.

The purpose behind this narrative choice is not to argue that categories grounded in Anglo-American experiences with the Constitution are the best way to craft a more inclusive constitutional history. Hopefully, as constitutional history engages with more diverse histories, it will follow scholarship on U.S. history more broadly, and new categories and periodizations will emerge. Rather, this Article’s choice to use conventional categories is strategic. Partly, this approach offers the proverbial spoonful of sugar: It seeks to make the history recounted here more legible to legal audiences unfamiliar with this past. This account also hopes to rebut the counterargument that inclusive constitutional history, while all very interesting, is not relevant to constitutional meaning because it does not fit within carefully policed traditional frameworks. Of course, scholars should query whether, when “relevance” is thus wielded as a weapon to validate some stories and exclude others, the fault might rest with the category itself. 29 Cf. Charles L. Barzun, Inside-Out: Beyond the Internal/External Distinction in Legal Scholarship, 101 Va. L. Rev. 1203, 1286 (2015) (“[A]ny judgment of relevance implies some normative criterion as to what matters.”). But this Article takes a different tack: It seeks to reclaim and reconceive such categories, long used to naturalize a narrow conception of the past, to facilitate a broader historical vision.

A similar point holds for historical methodologies. There should be, and hopefully will be, constitutional histories that draw from ethnohistory and take seriously Indigenous oral traditions and languages. But we can work to partially recover the perspectives of marginalized communities using written English-language historical sources, too. By the late eighteenth century, many Native leaders, well-familiar with written texts, spoke and wrote in English; in other instances, Native voices were translated and recorded by government officials. 30 For works exploring Native uses of writing in the early United States, see generally Lisa Brooks, The Common Pot: The Recovery of Native Space in the Northeast, at xxii, xxx–xxxiii (2008) (“This book . . . is a mapping of how Native people in the northeast used writing as an instrument to reclaim lands and reconstruct communities, but also a mapping of the instrumental activity of writing . . . .”); Frank Kelderman, Authorized Agents: Publication and Diplomacy in the Era of Indian Removal (2019) (exploring literary collaborations between Native and non-Native individuals as influenced by Native diplomacy); Mark Rifkin, Speaking for the People: Native Writing and the Question of Political Form (2021) (demonstrating how nineteenth- and twentieth-century Indigenous intellectuals used their writings to represent modes of Indigenous governance to a non-Native public); Phillip H. Round, Removable Type: Histories of the Book in Indian Country, 1663–1880, at 48–72 (2010) (uncovering the various ways in which Native peoples produced and utilized printed books). Their constitutional views appear throughout the period’s official and informal correspondence, narratives, and minutes of treaty negotiations. Like all historical evidence, such intermediated texts should be read carefully and contextually, and historians of Native America have developed a skilled repertoire to interpret these documents. 31 For a discussion of such methodological explorations, see generally James H. Merrell, “I Desire All that I Have Said . . . May Be Taken Down Aright”: Revisiting Teedyuscung’s 1756 Treaty Council Speeches, 63 Wm. & Mary Q. 777 (2006); Mt. Pleasant et al., supra note 24. In many ways, then, recovering the constitutional arguments of Native peoples—and potentially other marginalized communities—simply calls for doing what constitutional scholars have long urged: expanding our constitutional histories beyond a limited set of canonical texts to encompass the records of the multiple sites in the Early Republic where constitutional meaning was made and debated. 32 See Hendrik Hartog, The Constitution of Aspiration and “The Rights that Belong to Us All”, 74 J. Am. Hist. 1013, 1032–33 (1987) (advocating for a “vision of constitutional history” that employs “perspective wide enough to incorporate the relations between official producers of constitutional law, and those who at particular times and in particular circumstances resisted or reinterpreted constitutional law”).

What, then, is the purpose of writing inclusive constitutional histories? In one sense, incorporating Native voices into constitutional history should be—and is—unsettling. This Article does not seek to redeem or defend originalism or offer a Panglossian celebration of the Founding by providing a more democratic veneer against critiques of its exclusionary history. 33 Cf. Christina Mulligan, Diverse Originalism, 21 U. Pa. J. Const. L. 379, 381, 401–02 (2018) (attempting to “resolve originalism’s race and gender problem” by “incorporating more diverse populations into the corpus of evidence of founding-era meaning”). The constitutional history of Native peoples is not a multicultural pageant of progress by which even marginalized communities came to claim the Constitution. On the contrary, most Native peoples decided to reject the Constitution and the political system it offered them—and yet they were nonetheless forcibly and unwillingly included within the nation. Recovering their forceful and repeated refusals of the United States vividly and concretely undercuts our happy Founding story that our government rests on the “consent of the governed.” 34 The Declaration of Independence para. 2 (U.S. 1776).

Yet this Article also suggests that inclusive constitutional history helps move the conversation beyond arguments over “taint” and “original sin” surrounding the U.S. Constitution’s entanglements with colonialism. The value of more inclusive constitutional history is not to relitigate the past but to help build more inclusive law now. In particular, this Article’s recovery of the importance of Indigenous law and constitutional debates during the Founding shows us how the contributions of Native peoples should be recognized as “our law.” 35 Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World 240 (2011) [hereinafter Balkin, Constitutional Redemption]; Jack M. Balkin, Living Originalism 59–70 (2011) [hereinafter Balkin, Living Originalism]; William Baude & Stephen E. Sachs, Originalism and the Law of the Past, 37 Law & Hist. Rev. 809, 811–13 (2019) [hereinafter Baude & Sachs, Originalism and the Law of the Past]. As a source of eighteenth-century law that bound both Anglo-Americans and Native peoples, the diplomatic constitution serves as an essential component of the law of the past, providing a “backdrop” to our constitutional order, akin to the common law. 36 Stephen E. Sachs, Constitutional Backdrops, 80 Geo. Wash. L. Rev. 1813, 1881 (2012) [hereinafter Sachs, Constitutional Backdrops]. And both the diplomatic constitution and Native interpretations of the Constitution alter our narrative of who the Constitution belongs to. Although this reconstruction cannot remedy the violence and harm of Native peoples’ forcible inclusion into the United States, it nonetheless affirms the role that Native peoples played as co-creators of American constitutional law. In this sense, too, this constitutional history is part of “our law,” the shared constitutional narrative that all Americans identify with.

In exploring these ideas, this Article proceeds in four Parts. The first three provide a historical account of Native peoples’ engagement with American constitutionalism, revealing how Native peoples both constructed and interpreted colonial legal practices and the U.S. Constitution. Part I introduces the concept of the diplomatic constitution—the prerevolutionary set of norms, practices, and principles that governed relationships between Native peoples and Euro-Americans—and discusses its crisis during and after the American Revolution as federal weakness failed to restrain the land hunger and violence of state officials and white settlers. Part II examines the aftermath of this crisis: the Native ratification debates of the 1790s. It explores how Native peoples discussed federal officials’ attempts to sell them on the new Constitution as a continuation of the diplomatic constitution and how they then, in a sense, “voted” on its merits. Part III discusses the renewed Native ratification debates, when, in the 1820s and 1830s, some Native nations that had bet on the Constitution and its promises for protecting Native autonomy and land challenged Removal but ultimately found their hopes disappointed. Part IV then offers some broader implications for this history, including recognizing the diplomatic constitution as part of the law of the past, broadening out the “public” considered in original public meaning, and addressing questions surrounding the Constitution’s legitimacy.