The savage Constitution.
Yet if Madison's goal was to create a federal government that could pursue national interests free from state parochialism, he achieved imperfect success. Despite frequent talk of abolishing states altogether during the Convention, (282) the thirteen states retained independence and sovereignty under the Constitution. And through the creation of the Senate, the supermajority requirement for treaties, and the Electoral College, the states could exert considerable influence over federal policy even when the Constitution explicitly limited state authority.
This was certainly true in Indian affairs, where, despite the Madisonians' reforms, states retained significant control. Although the Constitution sharply restricted states' treaty powers, it did little to constrain states' authority over lands within their borders. And those borders remained capacious. Toward the end of the Convention, delegates from states without claims to western territory demanded that the Constitution guarantee national ownership of western lands, requiring that North Carolina and Georgia cede their claims. (283) North Carolina's delegation objected that "attempts at compulsion was not the policy of the U.S.," and Abraham Baldwin of Georgia argued in favor of adding explicit language to protect state claims. (284) In the end, the delegates agreed to a proviso to the Property Clause specifying, "[N]othing in this Constitution shall be so construed as to Prejudice any Claims of the United States, or of any particular State." (285) The Constitution also barred the dismemberment of these gargantuan states by prohibiting the formation of a new state within the jurisdiction of an existing state without legislative consent. (286) In short, the territory of Georgia and North Carolina, still extending to the Mississippi River, was now constitutionally guaranteed, and the federal government's Property Clause power could not reach south of the Ohio River until cession occurred. The most important Native nations remained within states' external borders and arguably under state jurisdiction.
The expansionist states won another significant concession in the Guarantee Clause, which promised that the "United States ... shall protect each [state] against Invasion." (287) More definitive than its predecessor in the Articles, (288) the Guarantee Clause mandated, in the later words of treatise writer St. George Tucker, that "every state which may be invaded must be protected by the united force of the confederacy." (289) The Clause had initially specified that the invasion must be "foreign," but the Convention subsequently removed this qualifier. (290) This constitutional commitment abrogated the Continental Congress's earlier refusal to intervene in Georgia's military struggles. (291) The language of the provision instead required federal military intercession if Indians attacked, even when the state had instigated the conflict.
But the greatest success for land-hungry states and speculators was the pervasive assumption throughout the Convention that the country would expand inexorably westward. The delegates regarded this prospect with attitudes ranging from anticipation to alarm. The southern states consistently favored admitting new western states on principles of equality. (292) By contrast, some of the northern states viewed the "rage for emigration ... to the Western Country" with trepidation. (293) Western expansion, they believed, would be "suicide on the old States," (294) and they proposed various methods to restrain the West's political and economic power in the Union. (295) None passed. But even the Convention's most outspoken proponent of limiting western power, Pennsylvania delegate Gouverneur Morris, (296) did not intend to repeat the Proclamation of 1763 and attempt to halt western expansion altogether. (297) At the Convention, Morris acknowledged that such a move would be "impossible." (298) He subsequently reminisced: "I knew as well then, as I do now, that all North America must at length be annexed to us." (299)
In part, the Constitution's commitment to expansion stemmed from its republican nature: the inclusion of democratic elements as well as the process of ratification required negotiating with the views of the "people out of doors" (300) who were infected with "lust of dominion." (301) "It would, therefore, have been perfectly Utopian," Morris later explained, "to oppose a paper restriction [on settlement] to the violence of popular sentiment in a popular government." (302) But the Constitution did not merely acquiesce in expansion, for, unlike Morris, most delegates celebrated westward growth. (303) Many agreed with South Carolina delegate Charles Pinckney's comment at the Convention that there would be "more equality of rank and fortune in America than in any other country under the sun ... as long as the unappropriated western lands remain unsettled." (304) Others had more personal reasons to support expansion. North Carolina delegate Hugh Williamson later wrote, "[H]aving claims to a considerable Quantity of Land in the Western Country I am fully persuaded that the Value of those Lands must be increased by an efficient federal Govt." (305) Though few would have put it so baldly, many other delegates also had substantial western investments. (306)
For most delegates, then, securing westward expansion, far from a source of anxiety, was one of the most important purposes of a strengthened federal government. (307) This faith in inevitable expansion made no mention of the Native nations who owned and governed this vast territory. Only the Northwest Ordinance, consistent with its paternalist approach, acknowledged that "from time to time ... [I]ndian titles shall have been extinguished." (308) But the Convention's vision of continental supremacy entailed an unspoken commitment to colonizing and dispossessing Native peoples. (309)
Williamson's hope for an "efficient" government hinted at how this would be accomplished. The Constitution provided the United States with powerful new tools for dominating the borderlands that reflected the document's wartime context. It authorized Congress to create a standing national army (310) and to organize, arm, and command the state militias. (311) It also created an executive with substantial power over military and diplomatic affairs, including as commander in chief over the national military and state militias. (312) Even more importantly, given the constant lack of funds under the Articles, Congress could now tax directly to "provide for the common Defence." (313)
These provisions remedied the weaknesses that had plagued the United States in its earlier dealings with Natives. The federal government could purchase Indian lands if necessary, and could supply tribes with "presents" that might wean them from British and Spanish influence. Most significantly, the government could now support the high-handed demands and threats it made to Native nations. Rather than constantly placating Indians to avoid wars it could not afford, the United States could turn to arms if necessary. The new national government would be a much strengthened fiscal-military state (314) capable of instilling the "fear" and "terror" necessary to control the borderlands. (315)
In short, the Constitution created a national state that was simultaneously weak and strong--too dependent on the states and the people to resist "the violence of popular sentiment" (316) but capable of organizing and sustaining a military far more daunting than any state militia. This was precisely what the expansionist states and Anglo-American settlers wanted. Their libertarian streak ran only as far as self-interest, for they welcomed a strengthened federal state as long as it was an imperialist one, focused on projecting power against the Indians rather than against its citizens. (317) The Hamiltonians would solve the problem of Indian affairs by committing the federal state to empowering, not restraining, the inexorable westward tide.
III. THE RATIFICATION DEBATES
The Constitution submitted to the states for ratification proposed two distinct solutions for Indian affairs. The Madisonian perspective restrained states by ensuring the supremacy of federal diplomacy. The Hamiltonian approach embraced expansion and considered the federal military a powerful tool to defeat Native nations. This Part traces the course of these discourses during the nation's hard-fought ratification contests, "the first national election" that engaged the public in debating the Constitution through a torrent of print and popular politics. (318) Unlike at the Convention, discussions of the Constitution's likely effect on Indian affairs figured prominently in ratification, appearing in newspaper articles, pamphlets, letters, speeches, and even public toasts. (319)
In this wide-ranging debate, the two constitutional perspectives fared differently. As Part III.A traces, James Madison and other Federalists occasionally argued in favor of the centralization of Indian affairs, but their arguments served primarily as fodder for Anti-Federalist critiques of constitutional overreach. By contrast, as detailed in Part III.B, the invocation of federal military power as a check on the "savages" became a standard part of Federalist rhetoric. This proved successful: in Georgia, Part III.C suggests, the prospect of federal military aid against the Creeks secured ratification. But this process also ensured that the Hamiltonian construction would become the dominant understanding of the Constitution in the ensuing years, as Part III.D explores.
A. Madisonian Ratification
For many Federalists, the "mighty difference" between the Articles and the Constitution lay not in Congress's constitutionally enumerated powers, many of which mirrored those in the Articles, but in the means granted to accomplish those ends. (320) As Madison wrote in Federalist No. 45, "If the new Constitution be examined with accuracy and candor, it will be found that the change which it proposes consists much less in the addition of NEW POWERS to the Union than in the invigoration of its ORIGINAL POWERS." (321)
One of the powers the Articles had granted Congress was "that they shall regulate Indian affairs." (322) But experience had underscored that this authority alone was insufficient, "there being no sanctions to it." (323) States had routinely flouted federal jurisdiction, with disastrous results. "Not a single Indian war has yet been produced by aggressions of the present federal government, feeble as it is," John Jay argued in Federalist No. 3. (324) "[B]ut there are several instances of Indian hostilities having been provoked by the improper conduct of individual States, who, either unable or unwilling to restrain or punish offenses, have given occasion to the slaughter of many innocent inhabitants." (325)
Federalist No. 42 presented Madison's solution. There, he examined constitutional provisions intended to "provide for the harmony and proper intercourse among the States," (326) one of which was the Indian Commerce Clause. The Clause, he argued, was "very properly unfettered from two limitations in the Articles of Confederation, which render the provision obscure and contradictory." (327) First, the Clause was no longer limited to Indians "not members of any of the States," a vague restriction whose scope had "been a question of frequent perplexity and contention in the federal councils." (328) Second, the Clause contained no language reserving states' legislative rights. "[H]ow the trade with Indians," Madison wrote, "though not members of a State, yet residing within its legislative jurisdiction can be regulated by an external authority, without so far intruding on the internal rights of legislation, is absolutely incomprehensible"--a glaring instance, to Madison, of how the Articles had sought "to accomplish impossibilities; to reconcile a partial sovereignty in the Union, with complete sovereignty in the States." (329) Federalist No. 42 thus read Madison's qualified success in recasting the Indian Commerce Clause as a clear endorsement of federal supremacy.
A far more negative assessment of federal power over Indian affairs appeared in a New York Journal article by Anti-Federalist Abraham Yates, Jr. under the pseudonym Sydney. (330) Yates argued ratification would "render nugatory" much of New York's constitution, including provisions granting it authority over Indian affairs. (331) Yates condemned "the whole history of ... the measures taken by Congress respecting the Indian affairs in this state" as "a series of violations" of the state's constitution and the restrictions of the Articles. (332) He particularly attacked the Treaty of Fort Stanwix, including the commissioners' "defiance [of] the civil authority of the county of Montgomery." (333) Yates continued:
If this was the conduct of Congress and their officers, when possessed of powers which were declared by them to be insufficient for the purposes of government, what have we reasonably to expect will be their conduct when possessed of the powers "to regulate commerce with foreign nations, and among the several states, and with the Indian tribes," when they are armed with legislative, executive and judicial powers, and their laws the supreme laws of the land ... and all such laws subject to the revision and controul of Congress. It is therefore evident that this state, by adopting the new government, will enervate their legislative rights, and totally surrender into the hands of Congress the management and regulation of the Indian affairs.... (334)
Yates and Madison agreed that ratification would result in federal supremacy over Indian affairs. Yates also understood, perhaps better than Madison, the broad panoply of powers given the new government, particularly the Supremacy Clause, that would yield this result. But Yates, an "extreme" Anti-Federalist, (335) construed Madison's centralizing scheme for Indian affairs as a fundamental attack on New York's autonomy. And he evidently believed other New Yorkers would feel similarly.
But neither Madison's nor Yates's discussion of federal supremacy and Indian affairs was representative. They were the only two authors to mention the Indian Commerce Clause or seriously consider the broader issue of federal authority over relations with the Indians. Part of this silence stemmed from the agreement by at least some Anti-Federalists that the new federal government should have power over external matters, including Indian affairs. (336) But it also reflected the fact that, as at the Convention, ratification debates over Indians focused on the question of treaties.
The Federalists repeatedly bemoaned treaties' ineffectiveness under the Articles. As Alexander Hamilton noted, "The treaties of the United States under [the Articles] are liable to the infractions of thirteen different legislatures." (337) This view extended to those on the frontier. The inhabitants of Schenectady, New York, despaired of the collapse of their once booming Indian trade and blamed the continued British occupation of the western posts. "The tracing the Cause of our Wretchedness, points out the Remedy: Give Powers to your own Representatives which will be sufficient to compel the Performance of Treaties as well as to make them." (338)
For Federalists, one important solution to the problem of state interference was the creation of federal courts, particularly the Supreme Court, which would avoid contradictory interpretations and local bias in enforcing treaties. (339) Another was to include federal treaties within the Supremacy Clause, thereby compelling compliance. "Is it not necessary that [treaties] should be binding on the States?" delegate Francis Corbin asked at the Virginia ratifying convention. (340) "Fatal experience has proved, that treaties would never be complied with, if their observance depended on the will of the States; and the consequences would be constant war.... Do not Gentlemen see the infinite dangers ... if a small part of the community could drag the whole Confederacy into war?" (341)
The inclusion of treaties within the Supremacy Clause was particularly contentious in Virginia, where the state's western residents were deeply hostile to the Jay-Gardoqui Treaty of 1786, which closed the Mississippi River to American navigation. (342) This debate quickly expanded to include Indian treaties. Arthur Campbell, a delegate to the House of Burgesses from backcountry Virginia, (343) questioned in print why "treaties should be made the supreme law of the land." (344) He singled out for attack the treaties made by the congressional commissioners with "different nations of Savages" since 1776. (345)
[S]ome of them if considered as law, will destroy the private rights of individuals without an hearing; infringe the sovereignty of States, are contradictory one with another; and in not a few instances manifestly unjust.... What embarrasments must the Judges of the foederal courts be under, when they come to pronounce, what is the supreme law of the land. They are either to be accessaries to a multiplicity of wrongs, or endure the imputation of trifling with the obligations of a solemn oath. (346)
Campbell also proposed revisions to the Constitution on behalf of a nebulous Society of Western Gentlemen, which advocated approval of treaties by two-thirds of both houses and the removal of treaties previously "made" by the United States from both the Supremacy Clause and federal judicial jurisdiction. (347) The Society also argued for deleting the Property Clause altogether. (348)
Campbell claimed to speak for a coalition of westerners who feared that the combination of federal Indian treaties, the Supremacy Clause, and federal court enforcement would undermine the security of western land title. These issues reappeared at the Virginia ratifying convention, at which earlier Indian purchases were, according to Madison, one of the "principal topics of private discussion & intrigue, as well as of public declamation," alongside British debts and navigation of the Mississippi. (349) Leading Anti-Federalist Patrick Henry (350) raised this specter of land purchases in a speech on the federal judiciary; he feared that "citizens ... who have made large contracts under our present Government" would later be "called to a Federal Court, and tried under retrospective laws." (351) "[W]hat is to become of the purchases of the Indians?" he queried pointedly. (352) "Those unhappy nations who have given up their lands to private purchasers--who by being made drunk, have given a thousand--nay, I might say 10,000 acres, for the trifling sum of six pence?" (353) Like Campbell, Henry feared that earlier land transactions would not withstand careful scrutiny in the new federal courts.
Henry's Federalist opponents mocked this specter of "Indian purchases" as a "bugbear and hobgobling." (354) One seized the opportunity to discourse at length on "the Indian countries," and ended by mockingly suggesting that, if Henry did "not like this this Government, let him go and live among the Indians; I know of several nations that live very happy." (355) Federalist delegate George Nicholas noted that, although the Virginia Assembly had already resolved land companies' Indian claims, there were nonetheless "Gentlemen who have come by large possessions, that it is not easily to account for." (356) Henry, an extensive speculator in western lands, (357) viewed this statement as a thinly veiled jab and interrupted that he hoped Nicholas "meant nothing personal"; Nicholas replied, "I mean what I say, Sir." (358) The two delegates bickered until the convention president instructed the delegates to "not be personal" and cooperate "in a peaceable manner"; after the two men exchanged halfhearted apologies, the convention moved on. (359)
As this outburst underscored, little of the debate over federal supremacy over Indian affairs occurred on the high-minded territory Madison and Yates marked out. Madison's brief for centralization gained little traction; proponents of the Constitution subsumed the issue into the larger question of treaties' status under the new regime. The Constitution's critics shared this perspective, but latched onto Indian treaties as a compelling argument against granting the national government the power to make and enforce treaties as the supreme law of the land. Federalists regarded this objection as mere venality, but, though significant financial interests were at stake, these complaints also reflected the widespread commitment to western expansion that pervaded Anglo-American society. Federalists appealed to this commitment as well, but they invoked a different set of concerns.
B. Hamiltonian Ratification
The Federalists recognized that ratification would be a difficult and hard-fought struggle. The Federalists' desire for a state with expanded military and financial powers confronted a powerful antistatist tradition hostile to centralized authority. But Secretary at War Henry Knox argued at the close of the Convention that success would be assured if the "majority of the people ... reflect[ed] maturely on their present situation," and recognized "[t]hat the gover[n]ment at home is ... without money & without credit--unable either to resist the smallest faction within [or] to chastise the despicable bands of murdering savages on the frontiers." (360)
Knox's invocation of "murdering savages" to justify a stronger federal government became a common trope in Federalist arguments for ratification. (361) This rhetoric of savagery gained currency for two reasons. First, the most effective counterargument to Anti-Federalists was the seriousness of external threats that required a more powerful state to meet them. As recent histories have underscored, the Constitution's advocates were keenly aware of and anxious about American status on the international stage. (362) Convinced that the Articles' weaknesses had undermined American credibility abroad, they looked to a strengthened federal government to establish the country as a "respectable nation" in the eyes of the world. (363)
Although focused on European scrutiny, this anxiety extended to the powerful Native nations on the borderlands watching the failure of the American experiment. "[I]f we are to be much longer unblessed with an efficient national government, destitute of funds and without public credit, either at home or abroad," New Hampshire Federalist Nicholas Gilman wrote, "I fear we shall become contemptible even in the eyes of savages themselves." (364) A Pennsylvanian Federalist similarly lamented the nation's "weak and shattered government, which brings on us the contempt of every surrounding tribe and the reproach and obloquy of every nation." (365) The outward-looking Federalists thus recognized that American success required impressing Native as well as European nations with strengthened national power.
The second reason was more cynical. Ratification faced substantial hurdles in the West, where Anglo-American settlers were well aware that many Federalists despised them as "white Savages."(366) They were thus deeply suspicious that a strengthened federal government designed to ensure rule by a political and cultural elite would privilege eastern interests at their expense. (367) As evidence, many pointed to the abortive Jay-Gardoqui Treaty of 1786, which had bargained away rights to navigate the Mississippi River that westerners, particularly Kentuckians, relied on to export their goods. (368) The treaty and its seemingly naked betrayal of western interests gave westerners little confidence that the new government would benefit them.
But the West was also engulfed in ceaseless cycles of violence between Indians and white settlers, and Federalists could portray the strengthened federal government as the savior of Anglo-American victims of Native violence. Invoking the horrors of Indian attack to criticize political opponents for their purported complicity was a well-worn tack in early America, one that historians have labeled the "anti-Indian sublime." (369) Observers at the time recognized this: as Abraham Yates, Jr. wrote in critiquing the Federalists, "The Dread of an Indian war, from the Barbarous Manner it is carried on, has ever been alarming, and as such a great handle for sinister purposes to politicians, both under the former and the present government." (370) Thus, though Federalist horror over Indian "cruelties" and "devastations" was likely sincere, the decision to embrace the rhetoric of "savagery" also reflected political expediency. Although most Federalists felt little kinship with backcountry settlers, pandering to their hatred of Indians provided a compelling argument in a bitter and divisive political contest.
This strategy meant that the specter of "murdering savages" took its place among the parade of dangers Federalist delegates routinely rehearsed at state ratification conventions. At the Pennsylvania convention, Thomas McKean insisted that only the federal government was "capable of collecting and directing the national strength against foreign force, Indian depredations, or domestic insurrection." (371) Robert Livingston saw enemies all around New York during that state's debates; to the northwest he feared "the British posts and hostile tribes of savages." (372) Virginia Governor Edmund Randolph similarly outlined numerous "point[s] of weakness" to argue that the new government was "necessary" for the state's safety. (373) "Cast your eyes to the Western Country," he urged the state's delegates, "that is inhabited by cruel savages, your natural enemies; besides their natural propensity to barbarity, they may be excited by the gold of foreign enemies to commit the most horrid ravages on your people." (374) And in Massachusetts, John Carnes observed that "the probability of an Indian war, &c. evinced the great necessity of the establishment of an efficient federal government, which will be the result of the adoption of the proposed Constitution." (375) As one Virginian delegate succinctly stated, "Much has been said on the subject of war by foreigners, and the Indians...." (376)
Anti-Federalists dismissed this rhetoric as mere fear mongering. Virginian Anti-Federalist delegate William Grayson tired of these "imaginary" and "ludicrous" dangers (377) "Horrors have been greatly magnified since the rising of the Convention," he argued. (378) In the rhetorical world of the Federalists, Barbary pirates would sail up the Chesapeake, South Carolinians "mounted on alligators" would come "and eat up our little children," and "[t]he Indians [would] invade us with numerous armies on our rear, in order to convert our cleared lands into hunting grounds." (379) Patrick Henry also objected to Federalists' claims that "the savage Indians are to destroy us," arguing that, in light of superior Anglo-American numbers, "we have nothing to fear from them." (380)
But Indians were different from alligator-mounted South Carolinians; Indian war was real. Many agreed with the pseudonymous writer Agricola that "the recent hostilities of the savages ... evince the necessity of a spirited, energetic government, to ward off the calamities of war." (381) "[S]hould the constitution be rejected," one South Carolinian wrote, "how long can we flatter ourselves to be free from Indian cruelties and depredations ... if at this moment warded off from us, 'tis principally owing to the dread of an efficacious union of the states by the adoption of the federal constitution." (382) James Madison echoed these points when he noted that the "new Govt and that alone" would be able to end British and Spanish "instigat[ion]" and "encourage[ment]" of the Indians, "considerations" Madison thought would carry "great weight with men of reflection." (383)
These views resonated with Anglo-American settlers on the frontier. Inhabitants of the frontier towns of Schenectady and Pittsburgh lamented the "weakness of Congress" to prevent British and Spanish intrigues, on which they blamed "the incursions of the savages." (384) Pro-Constitution forces in Kentucky welcomed the Fourth of July, 1788, with the toast, "May the Savage enemies of America, be chastised by Arms." (385)
In short, war with the Indians, far from an imaginary threat, was a potent reminder of the Articles' failings. As one French diplomat observed, "[The] hostilities carried out by the Savages of Ohio support the efforts of Federalists and favor Consolidation." (386) He suggested that clever Federalists should instigate more conflicts against "these turbulent neighbors" out of self-interest. (387) "[T]he noise of guns," he dryly noted, "would stifle the powerless cries of Democrats [that is, the Anti-Federalists]." (388)
Invoking the Indian threat proved particularly valuable in debates over the creation of a standing army. (389) Republican ideology regarded standing armies as a prerequisite for tyranny, and so the Anti-Federalists harped on this provision as evidence of the corruption lurking behind the Constitution. (390) Many Federalists countered that standing armies were "essentially necessary" not because of the threat of "an European war"--"[t]his I think is not very probable, provided the Foederal Government is established," wrote one Federalist--but because of the "peculiar situation of the United States," surrounded by Indian nations? (391) The early American frontier had always been violent. As one commentator noted, because of Indian wars, Anglo-Americans had not had "six years of peace since the first settlement of the country, or shall have for fifty years to come." (392)
This was a central theme in Federalist Nos. 24 and 25, in which Alexander Hamilton defended the Constitution's provision for a standing army. He acknowledged that a "wide ocean" divided the country from Europe, but counseled against "an excess of confidence or security." (393) "The territories of Britain, Spain, and of the Indian nations ... encircle the Union from Maine to Georgia." (394) From their western footholds, the British and Spanish would be constantly intriguing against the United States. In this struggle, "[t]he savage tribes on our Western frontier ought to be regarded as our natural enemies, their natural allies, because they have most to fear from us, and most to hope from them." (395) These threats warranted a national military under federal authority. At the very least, "there has been a constant necessity for keeping small garrisons on our Western frontier." (396) These posts would "continue to be indispensable, if it should only be against the ravages and depredations of the Indians." (397) And the states were inadequate for that task, for they could neither afford nor be trusted with maintaining separate armed forces. (398)
Opponents of ratification balked at these claims. Although some Anti-Federalists, unlike Grayson and Henry, were willing to concede the threat of Indians, (399) they argued that present arrangements were adequate to address it. Pennsylvania Anti-Federalists rebutted Federalist claims that existing forces along the Ohio River demonstrated "the propriety of a standing army" by insisting that these soldiers were "a mere occasional armament for the purpose of restraining divers hostile tribes of savages" (400) and would be disbanded "[a]s soon as the danger is over." (401) Another Anti-Federalist opined that it was not "prudent for Congress ever to raise an army merely to subdue Wabash Indians or any one single tribe. Should there be a general combination of all the tribes ... Congress by our present Articles of Confederation are vested with full powers to draw out the military force of the states." (402)
The Federalists were less sanguine about the Indian threat and the adequacy of the Articles to redress it. To counter Anti-Federalist arguments, they stressed that, even as Indian war threatened, "we are destitute, of the means of defence, without an army ... without money to raise and maintain an armament, and without that credit which might enable us to make use of foreign resources." (403) The frontier must be garrisoned, and only Congress could adequately raise forces for this purpose. (404) A writer in the Virginia Chronicle insisted, in florid prose, on the need "to protect our defenceless frontiers from indiscriminating cruelties and horrid devastations of the savages, to which, from its extent, it is so peculiarly exposed." (405) "Let a man reflect a moment on the promiscuous scenes of carnage committed by Indians in their midnight excursions," the author continued, "and he must have a heart callous indeed, if he would object to an army supported for the benevolent purpose of preventing them." (406) According to Federalists, then, Anti-Federalists' opposition to a standing army made them complicit in the inhumane violence of the "savages" on the frontier.
The dominance of Federalist arguments based on Indians' purported savagery demonstrates how ratification--which was, at base, a populist political campaign rather than a high-minded exposition of constitutional theory--shaped constitutional meaning. Hamilton, Randolph, and other, lesser-known Federalists who invoked the terrors of Indian war likely also shared Madison's views that the abuses of expansionist states and squatters were equally to blame for frontier violence. (407) Yet they were also seasoned politicians who recognized the potency of anti-Indian rhetoric in early America, and so carefully selected their arguments in selling the Constitution. Unlike the speculative horrors of European invasion or internecine violence among the states--which ratification's opponents easily mocked--Indian warfare was happening even as ratification was debated. Anti-Federalist attempts to downplay the Indian threat thus rang hollow, a fact Federalists recognized and exploited by portraying their opponents as complicit in Indian violence.
The Federalists' choices had consequences. Their approach abandoned any consideration of the causes of Indian violence, instead depicting Natives as perpetual enemies of the United States who would always be aggressors on the frontier. This narrative of Anglo-American victimization provided a powerful justification for western expansion. The rhetoric also had political effects. Many were seemingly unpersuaded by Federalist invocations of the Indian threat: western Pennsylvania, Kentucky, and North Carolina remained largely and stubbornly anti-Federalist.' (408) But several prominent backcountry representatives--including William Blount, the one-time opponent of the Treaties of Hopewell--cast their lot with the new government. (409) And in one instance, the Federalists' self-serving rhetoric succeeded, perhaps too well, and became an important part of the Constitution's meaning for expansionist states.
C. The Lesser of Two Evils: Ratification in Georgia
Georgia was an unlikely place to support ratification. Delegates to the Continental Congress regarded it as such an "unworthy ... State ... that had not taken a single foderal measure" that they "very seriously talked of" voting the state "out of the Union" altogether. (410) Abraham Baldwin, one of the state's delegates at the Convention, observed that Georgia had little to gain from any new government. (411) North Carolina, demographically and economically similar to Georgia and one of the last states to consider the Constitution, initially rejected adoption by a margin of over two to one. (412) Yet Georgia not only ratified but did so unanimously, only three months after the end of the Convention. This sudden and dramatic conversion in favor of federal power was due largely to the threat of Indian war. (413)
By the time Georgians began debating ratification, the state's governor was convinced that war with the Creeks was "unavoidable." (414) The state, the governor lamented, was woefully unprepared. (415) The Creeks could field an estimated six thousand riflemen, well supplied with ammunition by the Spanish. (416) By contrast, the Georgians, hobbled with a rapidly depreciating paper currency, struggled to recruit soldiers (417) The state assembly called for three thousand troops, but could not afford to arm them. (418) Acknowledging that the "aid of the Union will be required," Georgia appealed to the national government it had earlier spurned. (419)
Like the legislature, elite Georgians turned to the stronger government proposed in the Constitution as their potential savior. Baldwin believed war would hasten resolution of "the great political question" of ratification. (420) Joseph Clay, an influential Savannah merchant, wrote:
We have too much reason to apprehend we are involved in a general Indian war. Many have been killed on both sides. Should it continue it must be attended with the most ruinous consequences to this state.... The new plan of government for the Union I think will be adopted with us readily; the powers are great, but of two evils we must chose the least. Under such a government we should have avoided this great evil, an Indian war. (421)
Outside commentators agreed that calamity would convert the Georgians into acolytes of federal power. George Washington believed Georgia's precarious situation assured ratification: "[I]f a weak state, with powerful tribes of Indians in its rear and the Spaniards on its flank, do not incline to embrace a strong general government, there must, I should think, be either wickedness or insanity in their conduct." (422) A visiting French diplomat observed, "The troubles that Georgia has to fear from the restless nature and ferocity of these Savages will make it fervently desire the establishment of a more effective Government." (423)
These predictions proved right. Georgia became the fourth state to ratify when its convention unanimously endorsed the Constitution on December 31, 1787, after merely three days of discussion. One delegate speculated that the convention refrained from ratifying the first day only to avoid appearing overhasty. (424)
Scholars have debated whether Georgia's easy ratification should be attributed to the looming Indian war, as the evidence would seem to suggest. (425) For Georgians, the answer was clear. Three years after ratification, the Georgia House of Representatives wrote:
Exposed to the depredations of the Indians, and suffering under many other inconveniences from being a frontier state, it was the policy of Georgia at an early period to adopt the foederal Government--And we not only find her among the foremost, but Unanimous in acceeding to the Confederation anticipating those advantages which would naturally be derived from an efficient General Government.... (426)
Georgia representative James Jackson echoed these sentiments when, demanding federal assistance against the Creeks, he informed Congress that, "[i]n full confidence that a good, complete, and efficient Government would succor and relieve them, [the Georgians] were led to an early and unanimous adoption of the Constitution under which we deliberate." (427) For Georgians, then, arguments about the Indian threat were more than rhetorical hobgoblins, as Anti-Federalists claimed. As Georgia reaped what it had sown, Creek power and state weakness transformed it from a stubborn opponent of Congress into one of the "foremost" proponents of a strengthened federal government.
Georgia's decision had important national consequences. Ratification, which required nine votes, (428) was hard fought and highly contingent. Proponents and critics alike knew how much rested on events in other states, which they followed closely: one common image represented the states as a series of domino-like pillars reflecting the progress of ratification. (429) Georgia's early ratification built momentum. If Georgia had followed North Carolina's lead and refused to ratify the Constitution as written, the results would have been unpredictable, particularly for two crucial states--Virginia and New York--that held late conventions. (430) In both states, the weight of prior ratifications played a critical role in securing approval; nonetheless, in both states, the vote in favor of ratification was extremely closer (431) Absent Georgia's ratification, Anti-Federalists' arguments to condition ratification on a second constitutional convention to adopt proposed amendments would have had a much better chance for success. (432)
Georgian ratification also demonstrated the effect of the Federalists' arguments. By emphasizing the power of the federal government to counter the Indian threat and downplaying federal supremacy over Indian affairs, the Federalists secured ratification by offering the Georgians all carrot and no stick. As one French diplomat wrote, "Attacked by Indians, it was in [Georgia's] interest to appear federally inclined in order to obtain help from the present Union. But if Georgia preceded the other Southern States in the adoption of the new Constitution, it can hardly be expected from eagerness to execute it." (433) Ratification on these terms meant that Georgia's support for the federal government extended only as far as self-interest dictated.
D. Ratification as Compact and Its Legacy
Many western settlers, particularly south of the Ohio River, shared Georgia's attitude toward the newly created federal government. They viewed the national state instrumentally: they were willing to offer loyalty and obedience as long as the government fulfilled what they considered its most basic function of protection. (434) And although some settlers had flirted with secession or alliance with Spain, the strengthened federal government was the region's most promising guardian. (435) Many backcountry leaders, then, supported the new Constitution based on the self-interested calculation that the new federal government would fulfill the Federalists' promises and defend them against "murdering savages." (436)
This strain of thinking, in short, interpreted ratification as quid pro quo: allegiance in return for military support to eradicate the Indian threat. (437) Soon after George Washington was sworn in as president, appeals arrived from western settlers professing their loyalty, decrying state protection as insufficient, and "implor[ing]" the federal government to send "an army ... into the heart of [Indian] Country Sufficient to extirpate their whole Savage race." (438) Georgia had similar expectations. One congressional delegate sardonically observed, "[A]ltho the USA have already expended as much to defend Georgia, as the whole State upon a fair valuation would sell for, She ... expects the USA go on conquering, more Indian Lands for her emolument." (439)
In one sense, Georgia's strategic ratification worked. "[T]he new government," Creek leader Alexander McGillivray reported, "is established on a basis which renders it capable of making war on us in a fashion that would assure them a complete success." (440) Rather than confront this strengthened federal military, McGillivray opted to negotiate. (441) The resulting Treaty of New York, the first treaty ratified under the new Constitution, promised an end to hostilities. (442)
But by invalidating several state purchases and guaranteeing Creek lands, (443) the treaty outraged the Georgians, who regarded the Washington administration's decision to negotiate with rather than fight the Creeks as a betrayal of their understanding of ratification as a reciprocal bargain. Infuriated Georgians turned on the federal government they had recently supported; hostile newspaper articles questioned whether the administration had breached the "compact which makes Georgia a part of the Union," thereby releasing the state from its obligations. (444)
For the next forty years, Georgia fought the federal government for control over Indian affairs. "[T]he United States are at peace with all the world except the state of Georgia," Washington reportedly exclaimed in the face of such intransigence. (445) In flagrant violation of federal treaties, statutes, (446) and, in Thomas Jefferson's opinion, the provisions of the Constitution, (447) the state sold speculators land guaranteed to the Creeks and Cherokees. (448) Subsequent treaty negotiations replayed earlier farces at Fort Stanwix and Hopewell, with open hostility between federal and Georgian commissioners. (449) One informant wrote Washington that frontier Georgians "now consider the troops and servants of the United States ... nearly as great Enemies as they do the Indians and for no other reason than that they recommend moderation and a compliance with the laws of the land." (450) In 1802, Georgia became the last state to cede its lands to the national government, in return for a federal promise to extinguish Indian title as quickly as possible. (451) But the federal government did not act quickly enough to satisfy the Georgians, who resumed open defiance of federal treaties; in the 1820s, the state's governor even mobilized the militia to forestall a federal threat to use the army to enforce a federal Indian treaty. (452)
This struggle culminated with Indian removal and Chief Justice John Marshall's decision in Worcester v. Georgia, (453) where the Supreme Court invalidated the state's unilateral effort to assert jurisdiction over the Cherokee Nation. (454) Marshall read the war power, the treaty power, and the Indian Commerce Clause to create exclusive federal authority over Indian affairs. (455) The ruling went famously unenforced, as President Andrew Jackson implicitly endorsed Georgia's refusal to comply with the Court's decision. (456) But the crisis represented more than the rejection of the rule of law or the judicial supremacy of the Supreme Court, as it is usually read. (457) It was a clash between two divergent constitutional strains of thought. Marshall embraced the Madisonian emphasis on federal supremacy and restraint, but the Georgians, as well as many southern state supreme courts, could justly point to an alternate constitutional tradition committed to expansion and dispossessing Indians. (458) Notwithstanding the cries of Whigs and later commentators, their resistance to the Court was not simple lawlessness. (459) Instead, they insisted on the sanctity of the bargain they believed ratification represented. Indian removal, Jackson informed Congress in 1830, was "a duty which this Government owes" the states, as it "was substantially a part of the compact which made them members of our confederacy." (460) In the end, this interpretation prevailed and the Indians were removed. In the antebellum United States, it proved to be the Georgians, not Marshall, who determined what the Constitution meant. (461)
IV. LEGACIES AND IMPLICATIONS
Soon after ratification, word of the new Constitution spread throughout Indian country. "Our Union, which was a child, is grown up to manhood," federal commissioners told the Creeks. (462) Now that "[o]ne great council is established, with full powers to promote the public good," the United States would ensure "justice" for the Native nations within its borders. (463) The Indians took them at their word. "We rejoice much to hear that the great Congress have got new powers, and have become strong," the Cherokees wrote the new federal government. (464) "We now hope that whatever is done hereafter by the great council will no more be destroyed and made small by any State." (465) The Six Nations expressed similar sentiments in a letter to George Washington' (466); when New York emissaries demanded yet another land cession, Iroquois leaders waved copies of the federal statute barring state purchases of Indian lands in front of them. (467)
The sale happened anyway, a recurring pattern that quickly dashed Native hopes for the new government. (468) Federal officials spoke the Madisonian language of paternalism, but their efforts at restraint were halfhearted and ineffectual. (469) Georgia's defiance of federal authority was especially brazen, but not unique: many states claimed and exercised a constitutional right to govern Indians until well after the Civil War. (470) By contrast, the Hamiltonian Constitution functioned as the Federalists had promised. Indians turned out to be the substantial threat they invoked: the first military expeditions against the western Indian confederacy, in 1790 and 1791, suffered the worst defeat "Indians ever inflicted on the U.S. Army in its entire history." (471) But, after tripling the size of its army and spending $5 million--five-sixths of all federal expenditures from 1790 to 1796 (472)--the United States ultimately prevailed, seizing most of present-day Ohio. (473) War between the United States and Native nations remained a near constant for the next century, but the outcome was never again SO close. (474) The fiscal-military state the Constitution created proved its most enduring legacy in Indian country, and made Natives among the biggest losers of ratification. (475)
This is not to suggest that Native dispossession was the simple result of federal military conquest. Just as significant as federal financial and military support for expansion was the entrenchment of a militaristic paradigm that cast Anglo-American settlers as victims and force against "savages" as both justified and necessary. Although Madisonians had hoped the new government would keep "both [whites and Natives] in awe by a strong hand, and compel them to be moderate and just," in practice the constitutional structures of popular sovereignty and federalism ensured that the federal government's "legal coercive power" ran largely one way. (476) The specter of the "sword of the Republic" undergirded all laws and treaties regulating Native interactions with the United States, often obviating actual bloodshed. (477) Through this alchemy, "lawless" violence was refined into the purer stuff of constitutional liberty and order. (478)
This postratification history of Indian affairs was neither inevitable nor accidental; it was, in a certain sense, the deliberate choice of the Constitution's proponents. Though the Madisonians should not be anachronistically valorized as racial egalitarians--their paternalism reflected their own imperialist aims and disdain for Natives (479)--they were sincerely committed to using the new government to secure Indians what they repeatedly termed justice. But the Federalists, though they likely shared Madison's humanitarian impulses, nonetheless prioritized the heightened power of the United States to control the borderlands and defeat Native nations when selling the Constitution's virtues. Their implicit bargain helped ensure that, instead of checking expansionist states and settlers, the federal government proved their valuable ally, engendering a perverse form of cooperative federalism at Natives' expense. (480) As French observer Alexis de Tocqueville perceptively noted in the era of Indian removal,
The Union treats the Indians with less cupidity and violence than the several States, but the two governments are alike deficient in good faith.... [T]he tyranny of the States obliges the savages to retire; the Union, by its promises and resources, facilitates their retreat; and these measures tend to precisely the same end. (481)
The history presented here revises some of our understandings of the Constitution. For certain constitutional provisions, the context of Indian affairs is critical. As this Article has demonstrated, relations with Indians were a central site for early debates over federalism. Moreover, works that purport to expound the original understanding of the treaty or war power--without acknowledging that in its first decade the federal government entered six "foreign" and eleven Indian treaties, (482) or that the U.S. Army fought two "foreign" and at least ten Indian wars before the Civil War (483)--present a partial perspective. (484) As one example, some scholars have argued that the drafters of the Constitution anticipated that "treaties that sought to have a domestic, legislative effect" would require subsequent legislative enactment. (485) But this conclusion is difficult to reconcile with the reality that Indian treaties--perhaps the paradigmatic instance of treaties having domestic legislative effects, as resistance under the Articles underscores--were considered self-executing. (486) Yet even scholars who have used constitutional history extensively to critique this position and advance a nationalist interpretation of the treaty power have similarly ignored Indian treaties, even though the history recounted here powerfully supports their arguments, and even when the sources they cite specifically mention Indians. (487)
More fundamentally, focusing on Indian affairs challenges traditional conceptions of what the Constitution was. Legal scholars understandably privilege a view of the "Founding" as a legal and intellectual event: a serene gathering of statesmen, well-versed in European political philosophy and English legal thought, who translated these abstractions into the foundation of a new government intended to curb past abuses through a new American "science of politics." (488) This vision stresses the document's restraining function through the mechanistic "checks and balances" (489) that have become shibboleths of our constitutional culture: limited government, federalism, enumerated powers, and separation of powers. (490)
This perspective, though valid, is partial. Integrating Indians into our constitutional histories helps reveal how the Constitution was also made outside Independence Hall--in the violent, pluralist borderlands, where the United States contested with Native nations, European empires, and states and squatters to assert sovereignty over vast spaces of the continent. In 1783, the United States's triumph in this "Long War for the West" was, in words of one scholar, "the most unlikely scenario of all," a reality underscored by the disasters of the Articles. (491) Yet less than seventy years later, the federal government--having expanded its jurisdiction to the Pacific, incorporated seventeen new states, and forcibly removed most Indian nations from east of the Mississippi River--was the contest's undisputed victor. (492) This improbable success owed much to the conscious designs of the Constitution's drafters. All inhabited a world marked by a seemingly perpetual crisis of authority on the frontier, and they crafted a national government with formidable powers to address this challenge: to create the extended republic envisioned by Madison by expanding the nation and governing the West. (493) From this perspective, the Constitution was not a document of restraint, but the foundation of what historians have increasingly recognized as a powerful early national state, whose authority was strongest on its peripheries. (494) "[T]he American spirit, assisted by the ropes and chains of consolidation, is about to convert this country into a powerful and mighty empire," warned Patrick Henry at the Virginia ratification convention. (495) Henry's prescience foretold much Native suffering.
Natives were among the first subjects of this empire, but they were not the last. In the creation of the Constitution, as in much of early American history, Indian affairs were a central site of American state formation, prefiguring later imperial projects. (496) The Federalists' strategic deployment of the rhetoric of savagery anticipated future debates, as Indians became the stock template for America's subsequent cross-cultural encounters, their supposed primitiveness evolving into a free-floating discourse to justify rule over other purportedly inferior peoples. (497) At the same time, the legal and constitutional structures created to dispossess Natives and control the West--the national fiscal-military state, federal territorial plenary power, the exclusion of subject peoples from the privileges of representation and citizenship--became the bases of America's later global empire. (498) Unwittingly and unwillingly, Natives were the handmaidens of the United States's imperial Constitution.
As this narrative suggests, including Indians in constitutional histories also raises questions about the Constitution's complicity in historical injustice. Most scholarship on this issue, unsurprisingly, has addressed the Constitution's paradigmatic moral failure: its entrenchment of chattel slavery. (499) There are important similarities, for the issues of Natives and slavery were closely intertwined. Southern states' land hunger stemmed from the plantation complex's imperative for ceaseless expansion, as Georgia and other states rapidly populated formerly Creek and Cherokee land with enslaved Africans. (500) Moreover, like its entanglement with slavery, the Constitution's commitment to the expropriation of Native lands enshrined a practice many at the time considered morally abhorrent to secure the more immediate goal of union. (501) The delegates themselves made a connection: at the Convention, Charles Pinckney of South Carolina deflected a heated attack on the Three-Fifths Compromise with the contention that "the Western frontier [is] more burdensome to the U.S. than the slaves." (502)
But the constitutional history of Indian affairs also presents different challenges for the contemporary Constitution than slavery. (503) Unlike the document's frequent (albeit oblique) references to slavery, nothing in the constitutional text explicitly mandates an imperialist Indian policy. For a textualist, this may absolve the document from its unpleasant historical associations. Yet in practice this absence has made the effects of this history all the more insidious. Although slavery's legacy persists in profound ways, its appearance in the Constitution forced the nation to confront African-Americans' status as a constitutional issue; the struggle to repudiate that history yielded powerful tools to further an antiracist constitutional agenda. The Constitution remains silent, however, on Native struggles to overcome our nation's historical injustices. Even as views on Indians have shifted dramatically, (504) Native nations remain legally a quasi-conquered people, subject to the plenary power of a sovereign created in part to dispossess them. (505) The idea of the "savage" as an enemy justifying expansive federal military power survives, too: the U.S. Justice Department has claimed that precedent from nineteenth-century Indian wars legitimizes current practices in the War on Terror and the U.S. military codenamed Osama bin Laden "Geronimo," after the nineteenth-century Apache chief. (506) The problem is not that federal Indian policy has not changed; prompted by Native activism, the federal government has made significant, if incomplete, strides toward respecting Native nations as separate, self-governing sovereigns. (507) But considering the history of Indian conquest and dispossession as incidental to the Constitution has allowed doctrines crafted to justify this process to endure, as if they could be abstracted from their imperial origins. (508) These doctrines' persistence underscores that, for Natives, the history traced here has not yet ended.
The other contrast is at the level of constitutional theory. Originalists reassure themselves that the Constitution's entanglement with slavery represented a concession to the unfortunate realities of the time that has since been expunged from the text, and so need not trouble their normative conclusion that the original meaning of the Constitution ought to continue to govern. (509) This Article does not delve into the dense and tangled thicket of constitutional theorizing concerning interpretive methods, nor does it examine this account's merits as a description of slavery's historical and constitutional implications. Nonetheless, the history presented here questions the empirical foundation for this originalist argument. Slavery was not an island of oppression in a sea of liberty. Rather, the creation of a democratic republic necessarily rested on the exclusion and marginalization of others. (510) Particularly in Indian affairs, the enforcement of racial and other hierarchies, and the expansion of white "civilization" across the American continent, were among the fundamental purposes of both the national and local state in early America. (511) By offering too-easy answers derived from a blinkered focus on slavery, then, originalists have failed to grapple with these deeper normative questions about their project to employ eighteenth-century meanings to govern a twenty-first-century nation.
Expanding focus beyond slavery to include Indian affairs also troubles understandings of constitutional history that privilege federal power to remedy injustice. The fundamental protection of slavery in the Constitution was the protection of state sovereignty and the adoption of a limited federal government of enumerated powers. (512) In a similar vein, conventional accounts posit that federal indifference undid the promise of Reconstruction and allowed Jim Crow to flourish until the civil-rights movement, when federal power became a critical tool for combating racial injustice. (513) This narrative elides deep federal involvement in perpetuating discrimination against African-Americans, (514) but it is particularly inapposite in the realm of Indian affairs, where the federal government was the primary actor in marginalizing and dispossessing Native nations. Natives' experience underscores that our racial and constitutional injustices were not simply a product of national acquiescence in local prejudices, and cannot always be solved by enforcing a national consensus on recalcitrant states.
In August 1788, Josiah Harmar commanded the entire federal military--a little over five hundred men, strung out in a series of isolated forts along nearly eight hundred miles of the Ohio and Wabash Rivers. (515) Reduced to eating spoiled bread and short on funds, Harmar and his men watched in impotent fury as Natives attacked surveyors and squatters who ventured into Indian country. (516) Anxious for relief, Harmar closely followed political events further east. On August 7, he wrote his aide that news had at last reached his remote outpost: "New Hampshire has adopted the new Constitution, which makes the tenth state. I am in hopes the wheels of government will now be soon put in motion, in order that we may be enabled to extirpate these perfidious savages if they continue committing hostilities." (517)
Harmar's hopes were never quite realized. Natives survived, and, for the past half century, have turned to the federal courts to hold the government to the treaty promises it made long ago--have invoked, in other words, the Madisonian Constitution to remedy injustice. But for much of American history, the "wheels of government" proved remarkably effective at dispossessing Natives of the continent. In this respect, the Constitution functioned just as Harmar, and many others, had envisioned.
(1.) A note on terminology: I use the words "Indian" and "Native" interchangeably to describe the indigenous peoples of North America. I also use the terms "tribe" and "nation" to describe Native polities of the late eighteenth century. Native political organization was diverse and complex, and Anglo-American abstractions often fit poorly onto "a world of villages, bands, and clans." COLIN G. CALLOWAY, THE AMERICAN REVOLUTION IN INDIAN COUNTRY: CRISIS AND DIVERSITY IN NATIVE AMERICAN COMMUNITIES 8-9 (1995); see RICHARD WHITE, THE MIDDLE GROUND: INDIANS, EMPIRES, AND REPUBLICS IN THE GREAT LAKES REGION, 16501815, at 1-49 (1991). But I nonetheless use these terms both because they correspond with how Anglo-Americans viewed Natives at the time and because long-standing Native interaction with Europeans had helped construct Native nations that were more than simply European inventions. CALLOWAY, supra, at 8-9. See generally STEVEN C. HAHN, THE INVENTION OF THE CREEK NATION, 1670-1763 (2004) (describing the historical construction of concepts of Creek nationhood). When possible and clear, I use the term "Anglo-American" to refer to the non-Native inhabitants of the United States, even though many were not English; as Daniel Richter has observed, the fact that "in the new nation Whites were the ones entitled to be called 'Americans'" rejected earlier practice and implicitly erased the continent's Native past. DANIEL K. RICHTER, FACING EAST FROM INDIAN COUNTRY: A NATIVE HISTORY OF EARLY AMERICA 2-3, 252 (2003). Finally, I use the terms "national government" and "federal government" interchangeably to describe the government created by the Articles and, later, the Constitution. This is consistent with historical usage, although these terms were not uncontested, and early Americans most frequently used the now archaic-sounding "general government." For instances of these usages, see infra notes 3, 324, 336, 422, 426, 447, 470 and accompanying text.
(2.) 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, at 326 (Max Farrand ed., 1911).
(3.) 4 THE PAPERS OF ALEXANDER HAMILTON 198 (Harold Coffin Syrett ed., 1961). Hamilton's speech, which proposed an elective monarch who would serve for life, had little subsequent impact on the Convention; the delegates described it "praised by every body" but "supported by none." 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, at 363; see also RON CHERNOW, ALEXANDER HAMILTON 230-35 (2004) (describing Hamilton's speech as one of the "flagrant errors" of Hamilton's career).
(4.) 4 PAPERS OF ALEXANDER HAMILTON, supra note 3, at 198.
(5.) W.S. CONST. art. I, [section] 2, cl. 3. The Fourteenth Amendment repeats this language in its repeal of the Three-Fifths Clause. Id. amend. XIV, [section] 2.
(6.) Id. art. I, [section] 8, cl. 3.
(7.) See infra Part II.A.
(8.) For instance, a comprehensive recent narrative history of the Convention contains no index entries for either Indians or Native Americans--although it does contain eight entries for the "Indian Queen," the tavern where many delegates stayed. RICHARD R. BEEMAN, PLAIN, HONEST MEN: THE MAKING OF THE AMERICAN CONSTITUTION 503 (2009). The most recent work on ratification mentions Indians five times in the course of a nearly five hundred page narrative. PAULINE MAIER, RATIFICATION: THE PEOPLE DEBATE THE CONSTITUTION, 17871788, at 570 (2010). Professor Akhil Amar's "biography" of the Constitution contains brief and scattered references to Indians, primarily in the context of western expansion, the Commerce Clause, and Fourteenth Amendment debates over citizenship. AKHIL REED AMAR, AMERICA'S CONSTITUTION: A BIOGRAPHY 107-08, 270-72, 430, 439 (2005). For arguments that Indians were largely absent from constitutional history, see DANIEL J. HULSEBOSCH, CONSTITUTING EMPIRE: NEW YORK AND THE TRANSFORMATION OF CONSTITUTIONALISM IN THE ATLANTIC WORLD, 1664-1830, at 217 (2005); DAVID ANDREW NICHOLS, RED GENTLEMEN & WHITE SAVAGES: INDIANS, FEDERALISTS, AND THE SEARCH FOR ORDER ON THE AMERICAN FRONTIER 93 (2008); 1 JOHN R. VILE, THE CONSTITUTIONAL CONVENTION OF 1787: A COMPREHENSIVE ENCYCLOPEDIA OF AMERICA'S FOUNDING 363-65 (2005).
(9.) For works advancing this claim, see DONALD A. GRINDE, JR. & BRUCE E. JOHANSEN, EXEMPLAR OF LIBERTY: NATIVE AMERICA AND THE EVOLUTION OF DEMOCRACY (1991); Robert J. Miller, American Indian Influence on the United States Constitution and Its Framers, 18 AM. INDIAN L. REV. 133 (1993); Gregory Schaaf, From the Great Law of Peace to the Constitution of the United States: A Revision of America's Democratic Roots, 14 AM. INDIAN L. REV. 323 (1989). For works critical of the "Iroquois Influence" hypothesis, see Erik M. Jensen, The Imaginary Connection Between the Great Law of Peace and the United States Constitution: A Reply to Professor Schaaf, 15 AM. INDIAN L. REV. 25 (1991); Elisabeth Tooker, The United States Constitution and the Iroquois League, 35 ETHNOHISTORY 305 (1988); Gordon S. Wood, Federalism from the Bottom Up, 78 U. CHL L. REV. 705,705-06 (2011) (book review). An entire forum in the William and Mary Quarterly was devoted to this question, with two critiques of the evidence, followed by a rebuttal by Professors Donald Grinde and Bruce Johansen. See Philip A. Levy, Exemplars of Taking Liberties: The Iroquois Influence Thesis and the Problem of Evidence, 53 WM. & MARY Q. 588 (1996); Samuel B. Payne, Jr., The Iroquois League, the Articles of Confederation, and the Constitution, 53 WM. & MARY Q. 605 (1996); Donald A. Grinde, Jr. & Bruce E. Johansen, Sauce for the Goose: Demand and Definitions for "Proof' Regarding the Iroquois and Democracy, 53 WM. & MARY Q. 621 (1996). In my view, the critics come out the stronger in this exchange: Professors Philip Levy and Samuel Payne convincingly demonstrate that Grinde and Johansen present partial, distorted, and misleading readings of the historical evidence.
(10.) For works in this vein, see VINE DELORIA, JR. & DAVID E. WILKINS, TRIBES, TREATIES, AND CONSTITUTIONAL TRIBULATIONS (1999); EXILED IN THE LAND OF THE FREE: DEMOCRACY, INDIAN NATIONS, AND THE U.S. CONSTITUTION (Oren R. Lyons & John C. Mohawk eds., 1992); FRANK POMMERSHEIM, BROKEN LANDSCAPE: INDIANS, INDIAN TRIBES, AND THE CONSTITUTION (2009); Robert N. Clinton, The Dormant Indian Commerce Clause, 27 CONN. L. REV. 1055 (1995); Matthew L.M. Fletcher, Preconstitutional Federal Power, 82 TUL. L. REV. 510 (2007); Matthew L.M. Fletcher, The Original Understanding of the Political Status of Indian Tribes, 82 ST. JOHN'S L. REV. 153 (2008); Miller, supra note 9; Robert G. Natelson, The Original Understanding of the Indian Commerce Clause, 85 DENY. U. L. REV. 201 (2007); Nell Jessup Newton, Federal Power over Indians: Its Sources, Scope, and Limitations, 132 U. PA. L. REV. 195 (1984); Saikrishna Prakash, Against Tribal Fungibility, 89 CORNELL L. REV. 1069 (2004); Mark Savage, Native Americans and the Constitution: The Original Understanding, 16 AM. INDIAN L. REV. 57, 62 (1991).
(11.) See Philip P. Frickey, Marshalling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law, 107 HARV. L. REV. 381, 383 (1993) (describing the widespread view of Indian relations as "a tiny backwater of law inhabited by impenetrably complex and dull issues"). Professor Philip Frickey also cites purported comments from Supreme Court Justices describing Indian law cases as "peewee" and "chickenshit." Id. (quoting BOB WOODWARD & SCOTT ARMSTRONG, THE BRETHREN: INSIDE THE SUPREME COURT 58, 359 (1979)).
(12.) The Treaty of Paris ending the American Revolution transferred all British territory east of the Mississippi River to the United States, yet only the land along the eastern seaboard had been purchased from the Indians. In 1787, nearly all territory west of the Appalachians (except portions of present-day Kentucky and eastern Tennessee) remained Indian country, both de facto and de jure. See REGINALD HORSMAN, EXPANSION AND AMERICAN INDIAN POLICY, 1783-1812, at 4-15 (1967); see also infra notes 60-62 and accompanying text.
(13.) See, e.g., COLIN G. CALLOWAY, NEW WORLDS FOR ALL: INDIANS, EUROPEANS, AND THE REMAKING OF EARLY AMERICA 196 (1997) ("[T]he Indian presence in America's past profoundly shaped the ways in which early American history unfolded. Europeans had to take account of Indians in their wars, diplomacy, and daily lives. They lived alongside Indians and had to know something about them."); JILL LEPORE, THE NAME OF WAR: KING PHILIP'S WAR AND THE ORIGINS OF AMERICAN IDENTITY (1998) (emphasizing how struggles against the Indians in seventeenth-century New England helped create an American identity); RICHTER, supra note 1, at 252 (stressing that the United States "was born in a revolution against Indians as well as against the crown, that its prosperity was based on the expropriation of Native land, [and] that its participatory politics rested on racial exclusion"); PETER SILVER, OUR SAVAGE NEIGHBORS: HOW INDIAN WAR TRANSFORMED EARLY AMERICA xviii (2008) (describing how Indian wars in the mid-Atlantic helped produce "a democratic revolution and the dignifying of ordinary people; a commitment to toleration, or at least a deep hostility to bigotry between Europeans; and, in time, most of the American republic's institutional beginnings"). See generally CARROLL SMITH-ROSENBERG, THIS VIOLENT EMPIRE: THE BIRTH OF AN AMERICAN NATIONAL IDENTITY 191-287 (2010) (relating how portrayals of Natives were "[e]ssential to the production of an American national identity").
(14.) See The Articles of Confederation of the United Colonies of New England--1643-1684, in 1 THE FEDERAL AND STATE CONSTITUTIONS, COLONIAL CHARTERS, AND OTHER ORGANIC LAWS OF THE STATES, TERRITORIES, AND COLONIES NOW OR HERETOFORE FORMING THE UNITED STATES OF AMERICA, at 77, 77-81 (Francis Newton Thorpe ed., 1909) (establishing an agreement between the New England colonies "for offence and defence, mutual advice and succor" because "the natives have formerly committed sundry insolence and outrages upon several Plantations of the English and have of late combined themselves against us"); Plan of a Proposd Union of the Several Colonies of Masachusets-bay, New Hampshire, Coneticut, Rhode Island, New York, New Jerseys, Pensilvania, Maryland, Virginia, North Carolina, and South Carolina, For their Mutual Defence and Security, and for Extending the British Settlements in North America (July 10, 1754), in 5 PAPERS OF BENJAMIN FRANKLIN 387, 387-92 (Leonard W. Labaree & Whitfield J. Bell, Jr. eds., 1962) [hereinafter Albany Plan of Union] (proposing a colonial union to "hold or direct all Indian treaties" and "make all purchases ... from Indians for the crown"); see also TIMOTHY J. SHANNON, INDIANS AND COLONISTS AT THE CROSSROADS OF EMPIRE: THE ALBANY CONGRESS OF 1754 (2000) (describing the creation of the Albany Plan of Union in the context of Indian diplomacy).
(15.) WOODY HOLTON, FORCED FOUNDERS: INDIANS, DEBTORS, SLAVES, AND THE MAKING OF THE AMERICAN REVOLUTION IN VIRGINIA 5-40 (1999); RICHTER, supra note 1, at 216-20.
(16.) See, e.g., BRIAN BALOGH, A GOVERNMENT OUT OF SIGHT: THE MYSTERY OF NATIONAL AUTHORITY IN NINETEENTH-CENTURY AMERICA 11, 197-200, 205-11 (2009) ("Relations with Indians for much of the nineteenth century demonstrated the integral connection between the federal government, national security, territorial expansion, and the economy."); STEPHEN J. ROCKWELL, INDIAN AFFAIRS AND THE ADMINISTRATIVE STATE IN THE NINETEENTH CENTURY 2 (2010) ("[I]n each major era of Indian policy, and in each region into which the United States moved, 'the Indian question' existed near the center of concerns about the nation's future. Indian affairs were absolutely critical to virtually all calculations of interest, of politics, of economy, of social situation, and of national survival and future development."); GORDON S. WOOD, EMPIRE OF LIBERTY: A HISTORY OF THE EARLY REPUBLIC, 1789-1815, at 123-32 (2009) ("Nothing preoccupied the Federalist [Washington] administration more than having to deal with ... native peoples.").
(17.) Numerous constitutional conflicts arose from Indian affairs. One such conflict was the Yazoo land fraud. See Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810); C. PETER MAGRATH, YAZOO: LAW AND POLITICS IN THE NEW REPUBLIC: THE CASE OF FLETCHER V. PECK (1966). Another involved questions of state sovereign immunity. See Hollingsworth v. Virginia, 3 U.S. (3 Dall.) 378 (1798). And Indian removal occasioned one of the most significant constitutional confrontations in the antebellum United States. See Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); see also LISA FORD, SETTLER SOVEREIGNTY: JURISDICTION AND INDIGENOUS PEOPLE IN AMERICA AND AUSTRALIA, 1788-1836, at 108-20 (2010) ("[T]he new federal constitution lodged Indian diplomacy and Indian land rights at the center of contests over state's rights."). See generally JILL NORGREN, THE CHEROKEE CASES: THE CONFRONTATION OF LAW AND POLITICS (1996); Gerard N. Magliocca, The Cherokee Removal and the Fourteenth Amendment, 53 DUKE L.J. 875 (2003) (arguing for the influence of Worcester on the drafting of the Fourteenth Amendment).
(18.) A number of recent works have emphasized the international context for the Constitution. See generally, e.g., ELIGA H. GOULD, AMONG THE POWERS OF THE EARTH: THE AMERICAN REVOLUTION AND THE MAKING OF A NEW WORLD EMPIRE (2012); DAVID C. HENDRICKSON, PEACE PACT: THE LOST WORLD OF THE AMERICAN FOUNDING (2003); David M. Golove & Daniel J. Hulsebosch, A Civilized Nation: The Early American Constitution, the Law of Nations, and the Pursuit of International Recognition, 85 N.Y.U.L. REV. 932 (2010). There have been fewer works on the question of western expansion and the Constitution. The foundational work remains PETER S. ONUF, THE ORIGINS OF THE FEDERAL REPUBLIC: JURISDICTIONAL CONTROVERSIES IN THE UNITED STATES, 1775-1787 (1983). One important work that places Indians in the context of foreign diplomacy during the era of the Constitution's creation is LEONARD J. SADOSKY, REVOLUTIONARY NEGOTIATIONS: INDIANS, EMPIRES, AND DIPLOMATS IN THE FOUNDING OF AMERICA (2009).
(19.) Letter from James Madison to George Nicholas (May 17, 1788), in 18 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION: COMMENTARIES ON THE CONSTITUTION PUBLIC AND PRIVATE 24, 28 (John P. Kaminski & Gaspare J. Saladino eds., 1995).
(20.) Report of the Secretary of War on the Southern Indians (July 18, 1787), in 18 EARLY AMERICAN INDIAN DOCUMENTS: TREATIES AND LAWS, 1607-1789: REVOLUTION AND CONFEDERATION 449, 450 (Alden T. Vaughan gen. ed., Colin G. Calloway ed., 1994) [hereinafter EARLY AMERICAN INDIAN DOCUMENTS]. Knox's position was labeled as "Secretary at War" under the Articles. See 19 Journals of the Continental Congress, 1774-1789, at 126 (Worthington Chauncey Ford ed., 1912) (establishing under the Articles of Confederation the position of "Secretary at War"). He was appointed to the new position of "Secretary of War" in September 1789. See HARRY M. WARD, THE DEPARTMENT OF WAR, 1781-1795, at 101-02 (1962); see also Act of Aug. 7, 1789, ch. 7, I Stat. 49, 50 (establishing the Department of War and the office of Secretary of War, a position invested with "such duties as shall be enjoined on, or entrusted to him by the President of the United States ... relative to Indian Affairs").
(21.) See Jacob T. Levy, Indians in Madison's Constitutional Order, in JAMES MADISON AND THE FUTURE OF LIMITED GOVERNMENT 121,121-25 (John Samples ed., 2002).
(22.) This concern over state excesses under the Articles characterized much of Madison's thinking at the time of the Constitution's drafting. See Alison L. LaCroix, The Authority for Federalism: Madison's Negative and the Origins of Federal Ideology, 28 LAW & HIST. REV. 451, 462-63 (2010); see also CALVIN H. JOHNSON, RIGHTEOUS ANGER AT THE WICKED STATES: THE MEANING OF THE FOUNDERS' CONSTITUTION (2005); infra notes 202-203 and accompanying text.
(23.) I have borrowed the distinction between the Madisonian and other Federalist views on the Constitution from Professor Max Edling. See MAX M. EDLING, A REVOLUTION IN FAVOR OF GOVERNMENT: ORIGINS OF THE U.S. CONSTITUTION AND THE MAKING OF THE AMERICAN STATE 3-11 (2003). I apply the labels "Madisonian" and "Hamiltonian" to these two perspectives on Indian affairs to reflect their respective roles in propounding these views both at the Convention and in The Federalist. But, although the two views diverged, they were not mutually exclusive; Madison and Hamilton, as well as many other nationalists, embraced elements of both perspectives at various points.
(24.) I also borrow the term "fiscal-military state" from Edling, who adopts it from the historical literature on British state formation, in which the term refers to "a state primarily designed for war." EDLING, supra note 23, at 47-49. As Edling argues, the United States did not adopt the British model wholesale; instead, the Constitution created a national government that was "light, and inconspicuous," but which "held the full powers of the 'fiscal-military state' in reserve." Id. at 47, 227. Historians use the term "borderlands" to describe "the contested boundaries between colonial domains," where sovereignty and authority were ill-defined and uneven. Jeremy Adelman & Stephen Aron, From Borderlands to Borders: Empires, Nation-States, and the Peoples in Between in North American History, 104 AM. HIST. REV. 814, 816 (1999); Pekka Hamalainen & Samuel Truett, On Borderlands, 98 J. AM. HIST. 338, 351-61 (2011).
(25.) See infra notes 55-59 and accompanying text.
(26.) On popular constitutionalism, see generally LARRY D. KRAMER, THE PEOPLE THEMSELVES: POPULAR CONSTITUTIONALISM AND JUDICIAL REVIEW (2004).
(27.) GEORGE WASHINGTON, THE LAST OFFICIAL ADDRESS, OF HIS EXCELLENCY GENERAL WASHINGTON, TO THE LEGISLATURES OF THE UNITED STATES 4 (Hartford, Hudson & Goodwin 1783).
(29.) Determining historical Native population numbers is difficult and imprecise. For an estimate of 150,000, 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); for an estimate of 100,000, see WOOD, supra note 16, at 123; Letter from Col. Arthur Campbell to Gov. Randolph (Dec. 5, 1787), in 4 CALENDAR OF VIRGINIA STATE PAPERS AND OTHER MANUSCRIPTS FROM JAN. 1, 1785, TO JULY 2, 1789, PRESERVED IN THE CAPITOL AT RICHMOND 363, 364 (William P. Palmer ed., Richmond, Rush U. Derr 1884) [hereinafter CALENDAR OF VIRGINIA STATE PAPERS] (projecting a population of 100,000 for the Creeks, Cherokees, Chickasaws, and Choctaws combined). For additional background on Native demographics, see generally 1 HISTORICAL STATISTICS OF THE UNITED STATES: EARLIEST TIMES TO THE PRESENT ch. Ag (Susan B. Carter et al. eds., millennial ed. 2006); RUSSELL THORNTON, AMERICAN INDIAN HOLOCAUST AND SURVIVAL: POPULATION HISTORY SINCE 1492, at 60-90 (1987); Edward Countryman, Indians, the Colonial Order, and the Social Significance of the American Revolution, 53 WM. & MARY Q. 342, 347-48 (1996).
(30.) 1 HISTORICAL STATISTICS, supra note 29, at 1-26 tbl.Aal-5. The population density is best understood visually. See 1790 Population Map, U.S. CENSUS BUREAU, http://www.census.gov/history/www/reference/maps/1790_population_map.html (last visited Nov. 19, 2013).
(31.) The 1790 census recorded roughly 82,500 inhabitants in Georgia and 73,500 inhabitants in Kentucky--then part of Virginia and one of the only areas settled by Anglo-Americans west of the Appalachians. 1 HISTORICAL STATISTICS, supra note 29, at 1-244 tbl.Aa3644-3744, 1-217 tbl.Aa3097-3197. Given the very rapid growth rate of Georgia and Kentucky during this period, the states' populations during the 1780s would have been considerably smaller. Note that Native American populations were not recorded in the census, and, although I refer to Anglo-American settlement, both Georgia and Kentucky contained large numbers of enslaved Africans. See id. (recording 29,662 and 12,544 black inhabitants in Georgia and Kentucky, respectively).
(32.) KATHRYN E. HOLLAND BRAUND, DEERSKINS AND DUFFELS: THE CREEK INDIAN TRADE WITH ANGLO-AMERICA, 1685-1815, at 164-88 (1993); WHITE, supra note 1, at 476-85.
(33.) Letter from George Washington to the U.S. Senate (Aug. 4, 1790), in 6 THE PAPERS OF GEORGE WASHINGTON: PRESIDENTIAL SERIES 188, 189 (Mark A. Mastromarino et al. eds., 1996).
(34.) JOHN C. WEAVER, THE GREAT LAND RUSH AND THE MAKING OF THE MODERN WORLD, 1650-1900, at 96-116 (2003); see ROBERT A. WILLIAMS, JR., THE AMERICAN INDIAN IN WESTERN LEGAL THOUGHT: THE DISCOURSES OF CONQUEST 249-51 (1990).
(35.) On the rise of the land companies, see STUART BANNER, HOW THE INDIANS LOST THEIR LAND: LAW AND POWER ON THE FRONTIER 104-21 (2005); PATRICK GRIFFIN, AMERICAN LEVIATHAN: EMPIRE, NATION, AND REVOLUTIONARY FRONTIER 46-71 (2007); HOLTON, supra note 15, at 3-38. See generally ALFRED P. JAMES, THE OHIO COMPANY: ITS INNER HISTORY (1959).
(36.) See, e.g., Countryman, supra note 29, at 357-60.
(37.) See generally 18 EARLY AMERICAN INDIAN DOCUMENTS, supra note 20 (recording the diplomatic and legal relations of individual states with Indians).
(38.) Clinton, supra note 10, at 1066-79.
(39.) Albany Plan of Union, supra note 14, at 387-92. See generally SHANNON, supra note 14 (providing background on the Albany Congress and the Plan of Union)
(40.) See generally DANIEL K RICHTER, The Plan of 1764: Native Americans and the British Empire That Never Was, in TRADE, LAND, POWER: THE STRUGGLE FOR EASTERN NORTH AMERICA 177 (2013); John R. Alden, The Albany Congress and the Creation of the Indian Superintendencies, 27 MISS. VALLEY HIST. REV. 193 (1940).
(41.) BANNER, supra note 35, at 104-05.
(42.) COLIN G. CALLOWAY, THE SCRATCH OF A PEN: 1763 AND THE TRANSFORMATION OF NORTH AMERICA 92-98 (2006); Robert N. Clinton, The Proclamation of 1763: Colonial Prelude to Two Centuries of Federal-State Conflict over the Management of Indian Affairs, 69 B.U.L. REV. 329, 354-56 (1989).
(43.) See BANNER, supra note 35, at 98-104 (noting the prevalence of illegal settlement and purchase of lands guaranteed to the Indians by the Proclamation); HOLTON, supra note 15, at 30 ("The Proclamation of 1763 was anathema to every Virginia land speculator.... ").
(44.) See 2 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, at 195-98 (Worthington Chauncey Ford ed., 1905).
(45.) See 5 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, at 679-89 (Worthington Chauncey Ford ed., 1906). The exclusive war power remained, but was qualified in the event a state faced imminent Indian attack. See ARTICLES OF CONFEDERATION of 1781, art. VI, para. 5 ("No State shall engage in any war without the consent of the United States in Congress assembled, unless such State be actually invaded by enemies, or shall have received certain advice of a resolution being formed by some nation of Indians to invade such State, and the danger is so imminent as not to admit of a delay till the United States in Congress assembled can be consulted.... ").
(46.) 5 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, supra note 45, at 681-82.
(47.) 6 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, at 1077-79 (Worthington Chauncey Ford ed., 1906). Delegates from Pennsylvania, Connecticut, Georgia, and Maryland spoke in favor of the provision, while delegates from Virginia conditionally endorsed it; only delegates from South Carolina were strongly opposed.
(48.) Id. at 1078-79 (alteration in original).
(50.) 5 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, supra note 45, at 681-82.
(51.) See 9 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, at 844-45 (Worthington Chauncey Ford ed., 1907) (adding "provided, that the legislative right of any State, within its own limits be not infringed or violated" to the congressional power over Indian affairs).
(52.) ARTICLES OF CONFEDERATION of 1781, art. IX, para. 4.
(53.) THE FEDERALIST NO. 42, at 268 (James Madison) (Clinton Rossiter ed., 1961).
(54.) 6 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, supra note 47, at 1079.
(55.) THE DECLARATION OF INDEPENDENCE para. 29 (U.S. 1776); see also John R. Wunder, "Merciless Indian Savages" and the Declaration of Independence: Native Americans Translate the Ecunnaunuxulgee Document, 25 AM. INDIAN L. REV. 65, 65-73 (2000) (discussing Indians' likely responses to the Declaration of Independence).
(56.) For background on the fierce struggles between Anglo-American colonists and Native nations during the Revolution, and the virulent hatred of Indians this fighting engendered among white settlers, see CALLOWAY, supra note 1, at 25-31, 292-301; RICHTER, supra note 1, at 218-23; SILVER, supra note 13, at 230-92.
(57.) See, e.g., CALLOWAY, supra note 1, at 132-33, 292-301 (quoting a Seneca leader's statement that the Americans "wish for nothing more, than to extirpate us from the Earth, that they may possess our Lands"); SILVER, supra note 13, at 263-83 (noting the prevalence of the "language of exterminatory anti-Indianism" during and after the Revolution, and citing several instances when Anglo-Americans demanded Indians' "extirpation"); Merrell, supra note 29, at 199 (reporting one English visitor's comment that "[t]he white American have the most rancorous antipathy to the whole race of Indians and nothing is more common than to hear them talk of extirpating them from the face of the earth, men, women, and children").
(58.) SILVER, supra note 13, at 276.
(59.) Id. at 267-76; Rob Harper, Looking the Other Way: The Gnadenhutten Massacre and the Contextual Interpretation of Violence, 64 WM. & MARY Q. 621 (2007).
(60.) Definitive Treaty of Peace, U.S.-Gr. Brit., art. 2, Sept. 3, 1783, 8 Stat. 80, 81-82.
(61.) CALLOWAY, supra note 1, at 275-91.
(62.) Letter from George Washington to James Duane (Sept. 7, 1783), in 10 THE WRITINGS OF GEORGE WASHINGTON 303, 311 (Worthington Chauncey Ford ed., N.Y., G.P. Putnam's Sons 1891).
(63.) 25 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, at 683 (Gaillard Hunt ed., 1922).
(64.) See Letter from the Pennsylvania Delegates to the Pennsylvania Assembly (Sept. 25, 1783), in 20 LETTERS OF DELEGATES TO CONGRESS, 1774-1789, at 710, 710 (Paul H. Smith ed., 1993) ("It is intended to insist as Part of the Terms of Peace that the Savages should without Compensation abandon Part of their Country to the United States who claim it by Conquest & as a Retribution for the Expence & Damages incurred by the hostile & cruel Conduct of the Savages contrary to the Advice & Injunctions of the United States.").
(65.) 25 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, supra note 63, at 683-94.
(66.) Id. at 684; see also SILVER, supra note 13, at 288--89 (describing the Committee on Indian Affairs report in the context of revolutionary-era anti-Indian rhetoric).
(67.) 25 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, supra note 63, at 686.
(68.) See id. at 682 ("IT]he public finances do not admit of any considerable expenditure to extinguish the Indian claims upon such [western] lands.").
(70.) Letter from Arthur Lee to John Adams (May 11, 1784), in 21 LETFERS OF DELEGATES TO CONGRESS, 1774-1789, at 607, 607--08 (Paul H. Smith ed., 1994); see Letter from William Ellery to Francis Dana (Dec. 3, 1783), in 21 LETFERS OF DELEGATES TO CONGRESS, 1774-1789, supra, at 173, 177 (noting that the value of a land cession may be "sufficient to discharge our whole public debt"); Letter from David Howell to Jabez Bown (Mar. 23, 1784), in 21 LETFERS OF DELEGATES TO CONGRESS, 1774-1789, supra, at 453, 454 ("The Western Country is considered by the present Congress as a capital resource for the payment of our debts--the more it is explored the more it rises in our estimation.").
(71.) 25 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, supra note 63, at 681-94.
(72.) ONUF, supra note 18, at 3-20.
(74.) Id.; see also Peter Onuf, Toward Federalism: Virginia, Congress, and the Western Lands, 34 WM. & MARY Q. 353, 370--73 (1977) (describing the struggles over various company claims to western lands).
(75.) See, e.g., J. David Lehman, The End of the Iroquois Mystique." The Oneida Land Cession Treaties of the 1780s, 47 WM. & MARY Q. 523,533 (1990) (describing New York's policy of granting Indian territory as bounty lands).
(76.) ARTICLES OF CONFEDERATION of 1781, art. IX, para. 2.
(77.) See ONUF, supra note 18, at 19-20 (noting the cumbersome nature of Article IX and stressing that "Congress's record as an active agent in interstate conflict resolution was not distinguished").
(78.) See Onuf, supra note 74, at 369-71 (describing states' resistance of congressional calls for cession).
(79.) Letter from Samuel Osgood to John Adams (Jan. 14, 1784), in 21 LETTERS OF DELEGATES TO CONGRESS, 1774--1789, supra note 70, at 276, 278.
(80.) Letter from Charles Thomson to Hannah Thomson (Oct. 21, 1783), in 21 LETTERS OF DELEGATES TO CONGRESS, 1774-1789, supra note 70, at 86, 87.
(81.) Id. at 87-88.
(82.) 25 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, supra note 63, at 693.
(83.) See GRIFFIN, supra note 35, at 3-16, 181-211.
(85.) Id. at 181-211. See generally SILVER, supra note 13.
(86.) Letter from James Manning to Hezekiah Smith (May 17, 1786), in 23 LETTERS OF DELEGATES TO CONGRESS, 1774-1789, at 293,294 (Paul H. Smith ed., 1995).
(87.) 25 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, supra note 63, at 682.
(88.) Letter from George Washington to James Duane, supra note 62, at 304.
(89.) 25 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, supra note 63, at 689.
(90.) Id. at 602.
(91.) Cf. Peter S. Onuf, Liberty, Development, and Union: Visions of the West in the 1780s, 43 WM. & MARY Q. 179, 181 (1986) ("The challenge [facing Congress] was to regulate the westward thrust of settlement in ways that would strengthen the union, preserve peace with the Indians and neighboring imperial powers, and pay the public debt while permitting enterprising settlers to pursue their own goals.").
(92.) By contrast, Congress's aggressive reading of the Treaty of Paris had considerably less grounding in the law of the time. Its decision to reject Native title and adopt a theory of conquest represented a dramatic break from earlier practice and legal theory, and was soon retracted. BANNER, supra note 35, at 112--49; Merrell, supra note 29, at 200-05.
(93.) See supra notes 89-90 and accompanying text; see also 25 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, supra note 63, at 689.
(94.) Letter from George Washington to Jacob Read (Nov. 3, 1784), in 2 THE PAPERS OF GEORGE WASHINGTON: CONFEDERATION SERIES, 118, 119-20 (W.W. Abbot & Dorothy Twohig eds., 1992).
(95.) Letter from George Washington to James Duane, supra note 62, at 307.
(96.) See 28 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, at 472 (John C. Fitzpatrick ed., 1933).
(97.) See, e.g., Letter from Brigadier-Gen. Harmar to Henry Knox, Sec'y of War (Aug. 7, 1787), in 2 THE ST. CLAIR PAPERS 26, 28 (William Henry Smith ed., Cincinnati, Robert Clarke & Co. 1882) (describing how the posting of the congressional proclamation ordering removal "amazed the inhabitants [of the western territories] exceedingly, particularly those who style themselves Americans").
(98.) Letter from Colonel Harmar to the President of Congress (May 1, 1785), in 2 THE ST. CLAIR PAPERS, supra note 97, at 3, 5.
(99.) Letter from Colonel Harmar to Henry Knox, Sec'y of War (June 1, 1785), in 2 THE ST. CLAIR PAPERS, supra note 97, at 6, 6; see Letter from Colonel Harmar to Henry Knox, Sec'y of War (July 12, 1786), in 2 THE ST. CLAIR PAPERS, supra note 97, at 14, 14.
(100.) Letter from Colonel Harmar to Henry Knox, Sec'y of War (June 1, 1785), supra note 99, at 6.
(101.) FRED ANDERSON, CRUCIBLE OF WAR: THE SEVEN YEARS' WAR AND THE FATE OF EMPIRE IN BRITISH NORTH AMERICA, 1754-1766, at xviii, 11-32, 36-38 (2000).
(102.) CADWALLADER COLDEN, THE HISTORY OF THE FIVE INDIAN NATIONS xxi (Cornell Univ. Press ed. 1958) (1727).
(103.) See generally FRANCIS JENNINGS, THE AMBIGUOUS IROQUOIS EMPIRE: THE COVENANT CHAIN CONFEDERATION OF INDIAN TRIBES WITH ENGLISH COLONIES FROM ITS BEGINNINGS TO THE LANCASTER TREATY OF 1744 (1984); DANIEL K. RICHTER, THE ORDEAL OF THE LONGHOUSE: THE PEOPLES OF THE IROQUOIS LEAGUE IN THE ERA OF EUROPEAN COLONIZATION (1992). I use the term Iroquois rather than Haudenosaunee, which many tribe members use, to assist nonspecialist readers. See COLIN G. CALLOWAY, PEN AND INK WITCHCRAFT: TREATIES AND TREATY MAKING IN AMERICAN INDIAN HISTORY xii (2013) (discussing this question of terminology).
(104.) See BARBARA GRAYMONT, THE IROQUOIS IN THE AMERICAN REVOLUTION 100-01 (1972).
(105.) See generally CALLOWAY, supra note 1, at 108-57; GRAYMONT, supra note 104, at 12956.
(106.) See Lehman, supra note 75, at 533.
(107.) James Duane's Views on Indian Negotiations (July/Aug. 1784), in 18 EARLY AMERICAN INDIAN DOCUMENTS, supra note 20, at 299, 299.
(108.) Lehman, supra note 75, at 533.
(109.) Letter from George Washington to James Duane, supra note 62, at 306.
(111.) See Merrell, supra note 29, at 203 ("The Indian nations insisted that they were sovereign, that American independence did not mean native American dependence, and the United States was unable to make them change their minds.").
(112.) Duane, supra note 107, at 299.
(114.) See ALAN TAYLOR, THE DIVIDED GROUND: INDIANS, SETTLERS, AND THE NORTHERN BORDERLAND OF THE AMERICAN REVOLUTION 111-19 (2006) ("Far from intimidating the Indians, the British troops and their posts were hostages that enabled the Indians to compel concessions.... Interpenetrated and interdependent with the Six Nations, the British could not afford a rupture with their native allies."). See generally COLIN G. CALLOWAY, CROWN AND CALUMET: BRITISH-INDIAN RELATIONS, 1783-1815 (1987).
(115.) Letter from George Washington to James Duane, supra note 62, at 306.
(116.) 25 JOURNALS OFTHE CONTINENTAL CONGRESS, 1774-1789,supra note 63, at 686-87.
(117.) See Letter from Governor Clinton to the U.S. Indian Comm'rs (Aug. 13, 1784), in 18 EARLY AMERICAN INDIAN DOCUMENTS, supra note 20, at 301, 301 ("I... expect however and positively stipulat[e] that no long agreement ... be entered into with Indians residing within the Jurisdiction of this State, with whom only I mean to treat, prejudicial to its rights.").
(118.) Letter from Jacob Read to George Washington (Aug. 13, 1784), in 21 LETTERS OF DELEGATES, supra note 70, at 768, 768-69.
(119.) Id. at 769.
(120.) See Extracts from the Proceedings of the Treaty of Fort Stanwix Between New York and the Six Nations, in 18 EARLY AMERICAN INDIAN DOCUMENTS, supra note 20, at 305, 307; see also HORSMAN, supra note 12, at 17 ("The Six Nations replied shrewdly to [New York's] offer. Joseph Brant, the well-educated, articulate Mohawk chief, attempted to draw the federal government into the negotiations.").
(121.) Proceedings of the United States and the Six Nations at Fort Stanwix, in 18 EARLY AMERICAN INDIAN DOCUMENTS, supra note 20, at 313,313.
(122.) Instructions for Major Peter Schuyler (Sept. 10, 1784), in 18 EARLY AMERICAN INDIAN DOCUMENTS, supra note 20, at 312, 312.
(123.) HENRY S. MANLEY, THE TREATY OF FORT STANWIX: 1784, 82-86 (1932).
(124.) TAYLOR, supra note 114, at 159 (alteration in original); see Proceedings of the United States and the Six Nations at Fort Stanwix, supra note 121, at 315 (finding Schuyler responsible for "various direct and indirect means counteracting [the Commissioners'] negotiations" that were "highly injurious to the service of the United States").
(125.) MANLEY, supra note 123, at 82-86.
(126.) Id.; see TAYLOR, supra note 114, at 158-59. A suit against the congressional commissioner Arthur Lee for confiscating the disputed liquor nonetheless proceeded, dragging on until September 1787. See Letter from Charles Thomson to Robert R. Livingston (Apr. 13, 1786), in 23 LETTERS OF DELEGATES TO CONGRESS, 1774-1789, supra note 86, at 236, 236 & n.2.
(127.) Treaty of Fort Stanwix, U.S.-Six Nations, Oct. 22, 1784, 7 Stat. 15.
(128.) See SADOSKY, supra note 18, at 137-38.
(129.) Letter from Richard Henry Lee to George Washington (Nov. 20, 1784), in 7 LETTERS OF MEMBERS OF THE CONTINENTAL CONGRESS 613, 613 (Edmund C. Burnett ed., Peter Smith reprt. 1963) (1934).
(130.) Letter from James Monroe to James Madison (Nov. 15, 1784), in 8 THE PAPERS OF JAMES MADISON 140, 140 (Robert A. Rutland & William M.E. Rachal eds., 1973).
(133.) Letter from James Madison to James Monroe (Nov. 27, 1784), in 8 THE PAPERS OF JAMES MADISON, supra note 130, at 156, 156 (alteration in original).
(134.) Id. at 157.
(136.) Lehman, supra note 75, at 537-38.
(137.) Extracts from the Proceedings of the Treaty at Fort Herkimer Between New York and the Oneidas and Tuscaroras (June 23, 1785), in 18 EARLY AMERICAN INDIAN DOCUMENTS, supra note 20, at 332, 334-35.
(138.) The Oneidas twice sent delegations to Congress seeking support and protesting New York's seizure of land. TAYLOR, supra note 114, at 161. The Committee on Indian Affairs promised the Oneidas "that congress will preserve inviolate the Treaty of Fort Stanwix" and recommended sending an agent for this purpose, but nothing came of this recommendation. 29 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, at 806 (John C. Fitzpatrick ed., 1933). As historian Alan Taylor notes, "Hamstrung by the weak Articles of Confederation, Congress lacked the funds and the leadership to fulfill its treaty promises to the Oneidas." TAYLOR, supra note 114, at 161.
(139.) TAYLOR, supra note 114, at 162-66; Lehman, supra note 75, at 537-38.
(140.) Lehman, supra note 75, at 543-45.
(141.) See Letter from Colonel Harmar to Henry Knox, Sec'y of War (July 16, 1785), in 2 THE ST. CLAIR PAPERS, supra note 97, at 7, 7-8 & n.4.
(142.) 18 EARLY AMERICAN INDIAN DOCUMENTS, supra note 20, at 280; see NICHOLS, supra note 8, at 31-32; see also Letter from David Howell to William Greene (Aug. 23, 1785), in 22 LETTERS OF DELEGATES TO CONGRESS, 1774-1789, at 586, 588 (Paul H. Smith ed., 1995) (noting that "several of the Sachems of the six nations" had requested "to take back the original instruments of the two late Treaties").
(143.) Treaty of Fort Finney, U.S.-Shawnee Nation, Jan. 31, 1786, 7 Stat. 26; Treaty of Fort McIntosh, U.S.-Wiandot, Delaware, Chippawa and Ottawa Nations, Jan. 21, 1785, 7 Stat. 16; see CALLOWAY, supra note 103, at 102-03.
(144.) Virginia ceded its territorial claims north of the Ohio River to the federal government in 1784. Onuf, supra note 74, at 353. Kentucky remained part of Virginia. See id. at 372-73.
(145.) See, e.g., EBENEZER DENNY, MILITARY JOURNAL OF MAJOR EBENEZER DENNY, AN OFFICER IN THE REVOLUTIONARY AND INDIAN WARS 93-94 (Philadelphia, J.B. Lippincott & Co. 1859) (describing a raid by Kentucky militia that "found none but old men, women and children in the [Indian] towns; they made no resistance; the men were literally murdered"). For background on the raids and counterraids that turned the Ohio River Valley into a "dark and bloody ground" in the 1780s, see STEPHEN ARON, HOW THE WEST WAS LOST: THE TRANSFORMATION OF KENTUCKY FROM DANIEL BOONE TO HENRY CLAY 29-57 (1996); GRIFFIN, supra note 35, at 153-211; NICHOLS, supra note 8, at 37-44, 57-68. On the political debates in Congress over the violence in Kentucky, see Clinton, supra note 10, at 1124-27. One particularly telling incident occurred when Major John Hamtramck, commanding federal forces along the Ohio River, proclaimed to an invading Kentucky militia leader that Congress alone could "order a war with the Indians; in co[n]sequence of which I ordered him in the name of the United States to depart immediatly, and told him I should report him." Letter from John Hamtramck to Josiah Harmar (Aug. 31, 1788), in OUTPOST ON THE WABASH, 1787-1791, at 114, 114-15 (Gayle Thornbrough ed., 1957) (alteration in original). The Kentuckians, insisting on their own independent authority, defied Hamtramck, stole his canoes, and then killed friendly Indians serving the U.S. Army and took their horses, Id. at 115-16. "Never was my feeling so much wonded before," the "humiliat[ed]" Hamtramck reported, "But what could I do? I had but nine men fit for duty." Id. Although this contretemps occurred in 1788, it is indicative of the broader struggle for authority in the region prior to June 1787.
(146.) Letter from Colonel Harmar to Henry Knox, Sec'y of War (Nov. 15, 1786), in 2 THE ST. CLAIR PAPERS, supra note 97, at 18, 19.
(147.) Letter from John Hamtramck to Josiah Harmar, supra note 145, at 119.
(148.) Letter from Captain John Doughty to Henry Knox, Sec'y of War (Oct. 21, 1785), in 2 THE ST. CLAIR PAPERS, supra note 97, at 9, 9-10.
(149.) See, e.g., id.; see also Letter from James Manning to Nicholas Brown (July 15, 1786), in 23 LETTERS OF DELEGATES TO CONGRESS, 1774-1789, supra note 86, at 399, 401 ("The Alarms of an Indian War are growing more & more serious.... ").
(150.) Letter from Rufus King to James Bowdoin (Oct. 20, 1786), in 23 LETTERS OF DELEGATES TO CONGRESS, 1774-1789, supra note 86, at 606, 606.
(151.) Speech of the United Indian Nations to Congress (Dec. 18, 1786), in 18 EARLY AMERICAN INDIAN DOCUMENTS, supra note 20, at 356, 356-58.
(153.) Id. at 357.
(154.) Id. at 358.
(155.) See GREGORY EVANS DOWD, A SPIRITED RESISTANCE: THE NORTH AMERICAN INDIAN STRUGGLE FOR UNITY, 1745-1815, at 90-94 (1992).
(156.) Letter from Captain John Doughty to Henry Knox, Sec'y of War, supra note 148, at 10.
(157.) Letter from James Manning to Nicholas Brown (June 9, 1786), in 23 LETTERS OF DELEGATES TO CONGRESS, 1774-1789, supra note 86, at 345, 345-46.
(158.) Letter from James Manning to Nicholas Brown, supra note 149, at 401. For other comments by delegates that Congress was ill-prepared to fight the looming Indian war, see Letter from William Grayson to Beverley Randolph (June 25, 1787), in 24 LETTERS OF DELEGATES TO CONGRESS, 1774-1789, at 341,341 (Paul H. Smith ed., 1996); Letter from James Manning to Jabez Bowen (June 9, 1786), in 23 LETTERS OF DELEGATES TO CONGRESS, 17741789, supra note 86, at 343, 344; Letter from James Manning to Hezekiah Smith, supra note 86, at 294.
(159.) 33 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, at 388 (Roscoe R. Hill ed., 1936).
(160.) Id. at 388-89.
(161.) Id. at 479-80; see Merrell, supra note 29, at 204.
(162.) See 27 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, at 453-64 (Gaillard Hunt ed., 1928) (describing congressional plans to "establish a boundary line between us and [the Indians]" while taking care "neither to yield nor require too much"); see also HORSMAN, supra note 12, at 27 ("Congress would be content with peace and the status quo in the South....").
(163.) 27 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, supra note 162, at 459.
(164.) Merrell, supra note 29, at 200 (quotation marks omitted).
(165.) E.g., Treaty of Augusta with the Cherokees (May 31, 1783), in 18 EARLY AMERICAN INDIAN DOCUMENTS, supra note 20, at 368, 368-69; Treaty of Augusta with the Creeks (Nov. 1, 1783), in 18 EARLY AMERICAN INDIAN DOCUMENTS, supra note 20, at 372, 372-73.
(166.) Letter from Alexander McGillivray to Governor Estevan Miro (May 1, 1786), in JOHN WALTON CAUGHEY, MCGILLIVRAY OF THE CREEKS 106, 106-07 (1938).
(167.) Act of Apr. 18, 1783, ch. 2, 1783 N.C. Sess. Laws 322, 322-25. The law set aside a small parcel for the Cherokees. Id.
(168.) See, e.g., Treaty of Dumplin Creek (June 10, 1785), in 18 EARLY AMERICAN INDIAN DOCUMENTS, supra note 20, at 386, 386-87. Franklin, located in present-day eastern Tennessee, was created in 1784 when white settlers seceded from North Carolina after it revoked its cession of western lands to the federal government. Franklin tried, and failed, to secure entry as a state from the Continental Congress, and the short-lived separatist movement petered out by 1788, shortly before the region became part of the newly created Southwest Territory under federal control. See generally KEVIN T. BARKSDALE, THE LOST STATE OF FRANKLIN: AMERICA'S FIRST SECESSION (2009).
(169.) See, e.g., Letter from Alexander McGillivray to Andrew Pickens (Sept. 5, 1785), in 18 EARLY AMERICAN INDIAN DOCUMENTS, supra note 20, at 387, 388 (rejecting Georgians' assertions of the Creeks' "supposed distressed situation" and insisting that "we know our own limits.... and, as a free nation ... we shall pay no regard to any limits that may prejudice our claims, that were drawn by an American, and confirmed by a British negotiator").
(170.) For background on McGillivray, see generally CAUGHEY, supra note 166, at 3-53; CLAUDIO SAUNT, A NEW ORDER OF THINGS: PROPERTY, POWER, AND THE TRANSFORMATION OF THE CREEK INDIANS, 1733-1816, at 67-89 (1999).
(171.) Letter from Alexander McGillivray to Andrew Pickens, supra note 169, at 388.
(172.) See Talk from Chickasaw Chiefs to the President of Congress (July 28, 1783), in 18 EARLY AMERICAN INDIAN DOCUMENTS, supra note 20, at 370, 370 ("The Spaniards are sending talks among us and inviting our young men to Trade with them.").
(173.) See Letter from Alexander McGillivray to Andrew Pickens, supra note 169, at 388 (reporting Creek determination to "remove [infringing] people and effects from off the lands in question, in the most peaceable manner possible").
(174.) HORSMAN, supra note 12, at 29-30. Too few Creeks attended to secure an agreement. Letter from Benjamin Hawkins, Andrew Pickens, Joseph Martin & Lachlan McIntosh, U.S. Indian Comm'rs, to Congress (Nov. 17, 1785), in 18 EARLY AMERICAN INDIAN DOCUMENTS, supra note 20, at 392, 392. For further background on the Treaties of Hopewell, see CALLOWAY, supra note 103, at 103-05; NICHOLS, supra note 8 at 46-54. See generally Greg O'Brien, The Conqueror Meets the Unconquered: Negotiating Cultural Boundaries on the Post-Revolutionary Southern Frontier, 67 J. S. HIST. 39 (2001).
(175.) Proceedings of the Treaty of Hopewell with the Cherokees, in 18 EARLY AMERICAN INDIAN DOCUMENTS, supra note 20, at 393, 395-99.
(176.) Treaty of Hopewell, U.S.-Chickasaws, art IV, Jan. 10, 1786, 7 Stat. 24, 25; Treaty of Hopewell, U.S.-Choctaws, art. IV, Jan. 3, 1786, 7 Stat. 21, 22; Treaty of Hopewell, U.S.-Cherokees, art. V, Nov. 28, 1785, 7 Stat. 18, 19.
(177.) Proceedings of the Treaty of Hopewell with the Cherokees, supra note 175, at 401.
(178.) Letter from William Blount to Benjamin Hawkins, Andrew Pickens, Joseph Martin & Lachlan McIntosh, U.S. Indian Comm'rs (Nov. 28, 1785), in 18 EARLY AMERICAN INDIAN DOCUMENTS, supra note 20, at 402, 403.
(179.) Governor Richard Caswell to the Delegates in Congress (Apr. 3, 1786), in 18 EARLY AMERICAN INDIAN DOCUMENTS, supra note 20, at 428, 428.
(180.) Extract from the Minutes of the Georgia General Assembly (Feb. 11, 1786), in 18 EARLY AMERICAN INDIAN DOCUMENTS, supra note 20, at 427, 428.
(181.) 30 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, at 187-95 (John C. Fitzpatrick ed., 1934). The Articles made no provision for treaties' ratification, but a congressional motion by North Carolina's delegates to disavow the Treaty of Hopewell with the Cherokees was tabled and evidently never voted on. 32 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, at 237-38 (Roscoe R. Hill ed., 1936).
(182.) Letter from Alexander McGillivray to Governor Arturo O'Neill (Feb. 10, 1786), in CAUGHEY, supra note 166, at 102, 103.
(183.) See Letter from Benjamin Hawkins, Andrew Pickens, Joseph Martin & Lachlan McIntosh, U.S. Indian Comm'rs, to Congress (Dec. 2, 1785), in 18 EARLY AMERICAN INDIAN DOCUMENTS, supra note 20, at 408, 409.
(184.) Talks from Cherokees to Colonel Martin (Mar. 24, 1787), in 18 EARLY AMERICAN INDIAN DOCUMENTS, supra note 20, at 444, 444; see also Talk from William Elders to General Joseph Martin (Oct. 1788), in 18 EARLY AMERICAN INDIAN DOCUMENTS, supra note 20, at 475, 475 ("We well remember, whenever we are invited into a treaty, as observed by us at that time, and bounds are fixed, that the white people settle much faster on our lands than they did before.").
(185.) Talks from Cherokees to Colonel Martin, supra note 184, at 444, 444.
(186.) Letter from Alexander McGillivray to Generals Richard Winn, Andrew Pickens & George Mathews, U.S. Indian Comm'rs (Sept. 15, 1788), in 18 EARLY AMERICAN INDIAN DOCUMENTS, supra note 20, at 471, 471.
(187.) Letter from Alexander McGillivray to John Habersham (Sept. 18, 1786), in CAUGHEY, supra note 166, at 130, 130-31.
(188.) 31 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, at 747 (John C. Fitzpatrick ed., 1934).
(189.) Letter from Alexander McGillivray to Governor Arturo O'Neill (Apr. 18, 1787), in CAUGHEY, supra note 166, at 149, 149.
(190.) 1 AMERICAN STATE PAPERS: INDIAN AFFAIRS 24 (Walter Lowrie & Matthew St. Clair Clarke eds., D.C., Gales & Seaton 1832).
(191.) Letter from McGillivray to Governor Arturo O'Neill, supra note 189, at 149. White's speech urged the Creeks to reject British and Spanish overtures, 1 AMERICAN STATE PAPERS: INDIAN AFFAIRS, supra note 190, at 22, persuading the Creek chiefs that the possibility they might ally with "some power" was the source of the Anglo-Americans' fear, Letter from McGillivray to Governor Arturo O'Neill, supra note 189, at 149.
(192.) Report of the Secretary of War on the Southern Indians, supra note 20, at 450.
(193.) See id. at 449.
(194.) Id. at 450. Secretary Knox appears to have been quoting, albeit inaccurately, Article IX, paragraph 4 of the Articles of Confederation.
(195.) 33 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, supra note 159, at 457-58.
(196.) Id. at 457.
(197.) Id. at 458.
(199.) Id. at 462.
(200.) Because Georgia made a preemptive motion, a motion to postpone was required in order to take up the Committee on Southern Indians' report. Id. at 463. This motion needed seven state votes to pass. ARTICLES OF CONFEDERATION of 1781, art. IX, para. 6. In practice however, because only seven states were present and able to vote, the motion had to pass unanimously. The motion failed when the Virginia and North Carolina delegations divided. 33 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, supra note 159, at 463. Georgia itself could not vote because it lacked the required two delegates. See id.; cf. ARTICLES OF CONFEDERATION of 1781, art. V, para. 2.
(201.) Letter from Henry Knox, Sec'y of War, to Governor Arthur St. Clair (Dec. 8, 1788), in 2 THE TERRITORIAL PAPERS OF THE UNITED STATES 165, 166 (Clarence Edwin Carter ed., 1934). Although Knox wrote in 1788, the situation that led to his dire warning was little altered from the previous year. See HORSMAN, supra note 12, at 47-52 (observing that the "breakdown of American Indian policy northwest of the Ohio River" continued into 1788-89, and that "Indian affairs in the South were also in a state of chaos from 1787 to 1789").
(202.) James Madison, Vices of the Political System of the United States, in 9 THE PAPERS OF JAMES MADISON 345, 348 (Robert A. Rutland & William M.E. Rachal eds., 1975).
(203.) Id. at 348-57.
(204.) Letter from Henry Lee to James Madison (Feb. 16, 1786), in 8 THE PAPERS OF JAMES MADISON, supra note 130, at 493, 493.
(205.) ARTICLES OF CONFEDERATION of 1781, art. III, para. 1.
(206.) Id. art. IX, para. 1.
(207.) ONUF, supra note 18, at 149-72. Under its cession, Virginia retained control over lands south of the Ohio River known at the time as the "Kentucky District." Id. at 161.
(208.) See PETER S. ONUF, STATEHOOD AND UNION: A HISTORY OF THE NORTHWEST ORDINANCE 21-66 (1987) (discussing the Land Ordinance of 1785); see also Land Ordinance of 1785, reprinted in 28 JOURNALS OF THE CONTINENTAL CONGRESS, supra note 96, at 375,37581.
(209.) See, e.g., Report of the Secretary at War to Congress (July 10, 1787), in 2 THE TERRITORIAL PAPERS OF THE UNITED STATES, supra note 201, at 31, 32 ("[T]he whole western territory, is liable to be wrested out of the hands of the Union, by lawless adventurers, or by the savages....")
(210.) See, e.g., Letter from William Grayson to George Washington (May 27, 1786), in 4 THE PAPERS OF GEORGE WASHINGTON: CONFEDERATION SERIES 81, 82 (W.W. Abbot & Dorothy Twohig eds., 1995) ("[T]he Geographer & surveyers have directions to proceed without delay to carry the Ordinance into execution, which I presume they will execute provided the Indians will permit them, of which however I have very great doubts."); Letter from Colonel Harmar to Henry Knox, Sec'y of War (Oct. 10, 1786), in 2 THE ST. CLAIR PAPERS, supra note 97, at 18, 18 (describing the retreat of surveyors because of the "very just apprehensions of danger" of Indian attack); see also GRIFFIN, supra note 35, at 191 (describing the effects of Indian attacks on surveyors).
(211.) See supra note 62 and accompanying text.
(212.) See, e.g., Madison, supra note 202, at 350 (noting that "the confederation is silent" on the issue of internal state violence).
(213.) Letter from Robert Rutherford to James Madison (Aug. 22, 1789), in 12 THE PAPERS OF JAMES MADISON 350, 351 (Charles F. Hobson & Robert A. Rutland eds., 1979). By "Mony," Rutherford presumably meant the "sole and exclusive right and power" granted Congress in Article IX of the Articles to "regulat[e] the alloy and value of coin struck by their own authority, or by that of the respective States." ARTICLES OF CONFEDERATION of 1781, art. IX, para. 4.
(214.) Letter from Robert Rutherford to James Madison, supra note 213, at 351.
(215.) Madison, supra note 202, at 351.
(216.) Id. at 348.
(217.) See supra notes 192-201 and accompanying text.
(218.) Letter from Adam Stephen to James Madison (Nov. 25, 1787), in 10 THE PAPERS OF JAMES MADISON 271, 271 (Robert A. Rutland & Charles F. Hobson eds., 1977). Although this letter postdates the Convention by two months, it nicely summarizes the views of the Madisonians, which had deeper roots.
(220.) Id.; see also Letter from John Jay to Thomas Jefferson (Dec. 14, 1786), in 10 THE PAPERS OF THOMAS JEFFERSON: MAIN SERIES 596, 599 (Julian P. Boyd ed., 1954) ("In my Opinion our Indian Affairs have been ill managed.... Indians have been murdered by our People in cold Blood and no satisfaction given, nor are they pleased with the avidity with which we seek to acquire their Lands." (footnote omitted)).
(221.) Letter from Virginia Delegates to Edmund Randolph (Dec. 11, 1787), in 10 THE PAPERS OF JAMES MADISON, supra note 218, at 319, 320.
(222.) See THE FEDERALIST NO. 42, supra note 53, at 264 (James Madison) ("[The] limitations in the articles of Confederation ... render the provision [on Indian affairs] obscure and contradictory.... What description of Indians are to be deemed members of a State is not yet settled, and has been a question of frequent perplexity and contention in the federal councils."); Clinton, supra note 10, at 1139 ("Saddled with an ambiguous compromise in the Indian affairs clause of Article 9, the Continental Congress was never really able to assert the sole and exclusive power over al! Indian affairs."); supra notes 195-198 and accompanying text.
(223.) See supra notes 131-135, 192-198 and accompanying text.
(224.) Clinton, supra note 10, at 1110, 1122-24; see supra notes 131-135, 192-198 and accompanying text.
(225.) See supra notes 131-135 and accompanying text; see also Report of the Secretary of War on the Southern Indians, supra note 20, at 449-50.
(226.) Letter from Charles Thomson, Sec'y of Congress, to the States (Apr. 22, 1786), in 23 LETTERS OF DELEGATES TO CONGRESS, 1774-1789, supra note 86, at 250, 250.
(227.) Cf. Letter from Barthelemi Tardiveau to Josiah Harmar (Aug. 6, 1787), in OUTPOST ON THE WABASH, supra note 145, at 26, 30-32 ("[N]o treaty of peace, likely to be lasting, can be made with the Indians except you are invested with powers energetick enough to keep the whites under subjection & call them to a severe account if, by any misconduct of theirs, differences shou'd arise with the savages; and I think that you ought to lay this matter before Congress.").
(228.) Letter from George Washington to the Marquis de Lafayette (May 10, 1786), in 4 THE PAPERS OF GEORGE WASHINGTON: CONFEDERATION SERIES, supra note 210, at 41, 43.
(229.) Letter from Caleb Wallace to James Madison (Nov. 12, 1787), in 10 THE PAPERS OF JAMES MADISON, supra note 218, at 249, 250; see also Letter from Arthur Lee to Thomas Mifflin (Nov. 19, 1784), available at http://wardepartmentpapers.org/docimage.php?id=680& docColID=698&page=2 (reporting from the Fort Stanwix negotiations that "they [the Indians] are Animals that must be subdued [and] kept in awe or they will be mischievous, [and] fear alone will effect this submission").
(230.) Letter from Caleb Wallace to James Madison, supra note 229, at 250.
(231.) Letter from David Howell to William Greene, supra note 142, at 588.
(232.) Letter from Caleb Wallace to James Madison, supra note 229, at 250.
(233.) In the rare instances Hamilton discussed Indians in his correspondence, he largely embraced views similar to Madison's. See, e.g., Letter from Alexander Hamilton to George Clinton (Oct. 3, 1783), in 3 PAPERS OF ALEXANDER HAMILTON 464, 468 (Harold C. Syrett ed., 1962) ("[The] friendship [of the Indian nations] alone can keep our frontiers in peace.... The attempt at the total expulsion of so desultory a people is as chimerical as it would be pernicious.").
(234.) THE FEDERALIST NO. 24, supra note 53, at 157, 161 (Alexander Hamilton); see infra notes 374, 395 and accompanying text.
(235.) See supra notes 159-161 and accompanying text; see also HORSMAN, supra note 12, at 39 ("Congress was deluged with bad news regarding Indian affairs in July and August 1787....").
(236.) See, e.g., Letter from William Blount to Richard Caswell (July 19, 1787), in 1 THE JOHN GRAY BLOUNT PAPERS 321,323 (Alice Barnwell Keith ed., 1952); Letter from James Madison to Edmund Pendleton (Apr. 22, 1787), in 9 THE PAPERS OF JAMES MADISON, supra note 202, at 394, 396; Letter from Edmund Randolph to Virginia Delegates (Apr. 4, 1787), in 9 THE PAPERS OF JAMES MADISON, supra note 202, at 366, 366--67; cf. Letter from John Jay to Thomas Jefferson (July 24, 1787), in 11 THE PAPERS OF THOMAS JEFFERSON: MAIN SERIES 618, 619 (Julian P. Boyd ed., 1955) ("The Convention is sitting, but their Proceedings are secret. Our Indian Affairs in the West still give us Uneasiness, and so I fear they will continue to do for Reasons which you will not be at a Loss to conjecture."). A Cherokee chief actually visited Virginia Governor Edmund Randolph in Philadelphia as he was sitting as a delegate in the Convention. Letter from Edmund Randolph to Beverley Randolph, Lieutenant Governor (July 12, 1787), in 4 CALENDAR OF VIRGINIA STATE PAPERS, supra note 29, at 315, 315.
(237.) Staughton Lynd, Abraham Yates's History of the Movement for the United States Constitution, 20 WM. & MARY Q. 223, 241 (1963) (footnote omitted). Full-text database searches support Yates's assertion: early American newspapers in the Readex American Historical Newspapers database made 345 references to "savages" and 1,978 references to "Indians" during 1787. See America's Historical Newspapers, READEX, http://www.readex.com/ content/americas-historical-newspapers (last visited Nov. 19, 2013). Many of these references stemmed from dispatches from Kentucky, Tennessee, Georgia, and other western locations, reporting on Indian attacks.
(238.) Lynd, supra note 237, at 241.
(239.) 3 ANNALS OF CONG. 343-44 (1834). Four thousand thirty-five Anglo-American soldiers died in the Revolution. 5 HISTORICAL STATISTICS, supra note 29, at 5-350 tbl.Edl-5.
(240.) The first mention of Indians came when Pennsylvania delegate James Wilson proposed on June 11, 1787, that representation in the lower house be based on the number of white and other free inhabitants, as well as "three fifths of all other persons not comprehended in the foregoing description, except Indians, not paying taxes in each State." 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, at 193. Wilson adopted this language directly from a failed proposal to apportion revenue owed by each state under the Articles, which likely explains the reference to taxation. See 24 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, at 214-15 (Gaillard Hunt ed., 1922) ("[A]ll charges of war and all other expences that have been or shall be incurred for the common defence or general welfare, and allowed by the United States in Congress assembled.... shall be defrayed out of a common treasury, which shall be supplied by the several states in proportion to the whole number of free inhabitants, and three-fifths of the number of all other inhabitants of every sex and condition, except Indians not paying taxes in each State...."). "[T]hree fifths of all other persons" referred to slaves and provoked heated arguments lasting over two months. For the most comprehensive recent treatments of this debate, see GEORGE WILLIAM VAN CLEVE, A SLAVEHOLDERS' UNION: SLAVERY, POLITICS, AND THE CONSTITUTION IN THE EARLY AMERICAN REPUBLIC 103-42 (2010); DAVID WALDSTREICHER, SLAVERY'S CONSTITUTION: FROM REVOLUTION TO RATIFICATION 77-90 (2009); Paul Finkelman, The Founders and Slavery: Little Ventured, Little Gained, 13 YALE J.L. & HUMAN. 413, 427-30 (2001). By contrast, the exclusion of "Indians not taxed" from representation was not discussed at all, appearing in each successive draft until becoming part of Article I, Section 2. The Committee of Style subsequently modified the language from Wilson's proposal to read "excluding Indians not taxed, three fifths of all other persons." 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, at 590; see also Savage, supra note 10, at 64-72 (providing a detailed drafting history of this provision).
(241.) Neither the Virginia nor New Jersey plans for the new federal government addressed relations with Indians; only the less prominent Pinckney plan granted the legislature the "exclusive power ... of regulating Indian Affairs." 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, at 607. In mid-July, the Committee of Detail, tasked with creating a constitutional draft from the Convention's resolutions, enumerated congressional powers. In the Committee's first draft, "Indian Affairs" was scrawled in the margin in the hand of John Rutledge, South Carolina delegate and chair of the Committee. See 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, at 143; Committee of Detail Documents, 135 PA. MAG. HIST. & BIOGRAPHY 239, 273 (2011). But the draft the Committee presented to the Convention at the beginning of August omitted this addition. See 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, at 181-82 (reporting the enumerated powers without Indian affairs).
(242.) 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, at 321, 324. Madison included this proposal in a lengthy list of congressional powers he wished included in the Constitution. Id. at 324-25. By explicitly providing federal power within states, Madison's language eliminated the Articles' limitation of federal authority to Indians "not members of any of the States," ARTICLES OF CONFEDERATION of 1781, art. IX, para. 5, a qualification which had led to aggressive claims of state authority over Native nations within states' nominal borders, see supra Part I.C.
(243.) 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, at 325.
(244.) Id. at 367.
(245.) Id. at 181.
(246.) See BEEMAN, supra note 8, at 297-305 (describing the membership and work of the Committee on Postponed Parts).
(247.) 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, at 493, 497, 503.
(248.) Id. at 495.
(249.) Id. at 595.
(250.) Id. at 655,665-66.
(251.) See e.g., Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2565-71 (2013) (Thomas, J., concurring); United States v. Bailey, 24 F. Cas. 937, 939 (C.C.D. Tenn. 1834) (No. 14,495); Natelson, supra note 10, at 215; Prakash, supra note 10, at 1088-89.
(252.) 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, at 548.
(253.) Id. at 546-50.
(254.) Among these restrictions were requiring support from two-thirds of all Senators, not simply those present; requiring at least two-thirds of the Senate to be present; and mandating that no treaty be made "before all the members of the Senate are summoned & shall have time to attend." Id. at 544, 546. New York was absent, so it is impossible to determine whether the state would have also supported these proposals. See id. at 546.
(256.) U.S. CONST. art. VI, el. 2.
(258.) 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, at 417; see also Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 559 (1832) ("The constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations....").
(259.) U.S. CONST. art. VI, cl. 2 (making federal law supreme "any Thing in the Constitution or Laws of any State to the Contrary notwithstanding").
(260.) See supra notes 107-108, 178-180 and accompanying text.
(261.) U.S. CONST. art. VI, el. 3.
(262.) ARTICLES OF CONFEDERATION of 1781, art. VI, para. 1.
(263.) U.S. CONST. art. I, [section] 10, cl. 1.
(264.) It is unlikely that the words "King, Prince or State" were understood to encompass Indian tribes. Although the precise diplomatic status of Native nations remained ambiguous, Anglo-Americans had abandoned the practice of referring to Native leaders as princes or kings, and few would have considered Native polities "states." Cf. GREGORY EVANS DOWD, WAR UNDER HEAVEN: PONTIAC, THE INDIAN NATIONS, AND THE BRITISH EMPIRE 174-212 (2002) (arguing that colonists and British officials regarded Indians as "domestic, dependent nations" in the 1760s (quoting Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831))). Moreover, the drafting history suggests a European focus, as the phrasing originally referred to "the King or Kingdom of Great Britain, or any foreign Prince or State." 5 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, supra note 45, at 675.
(265.) See Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 581 (1832) (McLean, J., concurring) ("Under the constitution, no state can enter into any treaty; and it is believed that, since its adoption, no state, under its own authority, has held a treaty with the Indians."); Duncan B. Hollis, Unpacking the Compact Clause, 88 TEX. L. REV. 741, 769-72 (2009) (attributing the development of the Compact Clause to the difficulties occasioned by state treatymaking with Indian nations). An additional wrinkle is that the Articles gave Congress the sole and exclusive power of "entering into treaties and alliances," ARTICLES OF CONFEDERATION of 1781, art. IX, para. 1, which would seem to overlap with the provision in Article VI. But as Professor Duncan Hollis notes, the creation of a separate Indian affairs power that reserved significant rights to states seemed to supplant this restriction with respect to Indian treaties. Hollis, supra, at 771 n.144. Unlike the equivalent constitutional provision, this clause was evidently never cited to bar state involvement with Indian affairs; on the contrary, even Madison conceded that states had the right to treat with Indians for land under the Articles. See Letter from James Madison to James Monroe, supra note 133, at 156-57.
(266.) 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, at 182.
(267.) Id. at 389-90.
(268.) This is the central argument in ALISON L. LACROIX, THE IDEOLOGICAL ORIGINS OF AMERICAN FEDERALISM (2010). As Professor LaCroix states: "[T]he combined efforts of the delegates at Philadelphia produced a judicial mode of organizing federalism that was altogether different from previous approaches to the problem of multiple authorities.... This judicially driven federalism was a new species of government, embracing multiplicity and giving it an institutional home in the judicial branches...." Id. at 173-74.
(269.) U.S. CONST. art. III, [section] 2, cl. 1.
(270.) Compare U.S. CONST. art. III, [section] 2, with ARTICLES OF CONFEDERATION of 1781, art. IX, para. 2.
(271.) 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, at 321.
(272.) U.S. CONST. art. IV, [section] 3, cl. 2.
(273.) I am indebted to Peter Onuf for drawing my attention to this point.
(274.) Washington had earlier questioned whether Congress possessed this power under the Articles. See supra note 95 and accompanying text.
(275.) U.S. CONST. art. III, [section] 2, cl. 3. Violators could be tried "at such Place or Places as the Congress may by Law have directed." Id.
(276.) See THE FEDERALIST NO. 38, supra note 53, at 239 (James Madison) (describing the Northwest Ordinance as being enacted "without the least color of constitutional authority"). The First Congress subsequently reenacted the Ordinance. Act of Aug. 7, 1789, ch. 8, 1 Stat. 50; see also Strader v. Graham, 51 U.S. (10 How.) 82, 96 (1850) (noting that the provisions of the Northwest Ordinance owed "their legal validity and force, after the Constitution was adopted and while the territorial government continued, to the act of Congress of August 7, 1789, which adopted and continued the Ordinance of 1787").
(277.) See 32 JOURNALS OF THE CONTINENTAL CONGRESS, supra note 181, at 334.
(278.) Id. at 339-40; see also ONUF, supra note 208, at xiii-xxi ("[T]he Ordinance was treated as a constitutional document."); cf. AKHIL REED AMAR, AMERICA'S UNWRITTEN CONSTITUTION: THE PRECEDENTS AND PRINCIPLES WE LIVE BY 258-61 (2012) (describing the Ordinance as part of the "symbolic constitution").
(279.) See 32 JOURNALS OF THE CONTINENTAL CONGRESS, supra note 181, at 340-43 (providing for, among other protections, the writ of habeas corpus, freedom of worship, jury trial, and the prohibition of "cruel or unusual punishments"). See generally Matthew J. Hegreness, Note, An Organic Law Theory of the Fourteenth Amendment: The Northwest Ordinance as the Source of Rights, Privileges, and Immunities, 120 YALE L.J. 1820 (2010) (discussing the Ordinance's effect on subsequent constitutional law, particularly the Fourteenth Amendment).
(280.) See 32 JOURNALS OF THE CONTINENTAL CONGRESS, supra note 181, at 340-43.
(281.) Id. at 340-41.
(282.) E.g., 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, at 24, 136-37, 152-53, 202, 323, 337, 340, 355-57.
(283.) 2 id. at 462.
(284.) Id. at 462-65.
(285.) U.S. CONST. art. IV, [section] 3, cl. 2.
(286.) Id. art. IV, [section] 3, cl. 1; see also Vasan Kesavan & Michael Stokes Paulsen, Is West Virginia Unconstitutional?, 90 CALIF. L. REV. 291, 332-95 (2002) (discussing the text and history of Article IV, Section 3).
(287.) U.S. CONST. art. IV, [section] 4.
(288.) ARTICLES OF CONFEDERATION of 1781, art. III ("The said States ... bind themselves to assist each other, against all force offered to, or attacks made upon them, or any of them, on account of religion, sovereignty, trade, or any other pretense whatever.").
(289.) St. George Tucker, View of the Constitution of the United States, in 1 BLACKSTONE'S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS, OF THE FEDERAL GOVERNMENT OF THE UNITED STATES; AND OF THE COMMONWEALTH OF VIRGINIA app, note D, 140, 367 (St. George Tucker ed., Phila., William Young Birch & Abraham Small 1803).
(290.) 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, at 459, 466. Although this language was omitted because it was "superfluous," id. at 466, its removal also eliminated any doubt whether the clause required intervention in Indian wars, as it was an open question whether an attack by Indians would have been a "foreign" invasion, cf. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 19-20 (1831) (holding that the Cherokee Nation was not a "foreign" nation for the purposes of Article III's case or controversy requirement).
(291.) See 33 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, supra note 159, at 455-62; see also supra note 200 and accompanying text.
(292.) See 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, at 584 (reporting Madison's statement that "[w]ith regard to the Western States, he was clear & firm in opinion that no unfavorable distinctions were admissible either in point of justice or policy"); cf id. at 372 (quoting North Carolina delegate Hugh Williamson arguing that the "new States to the Westward" should not be required "to pay the expences of men who would be employed in thwarting their measures & interests").
(293.) 2 id. at 3.
(294.) Id. at 442.
(295.) See, e.g., 1 id. at 570-71 (proposing that the legislature ought to control the power of apportionment to avoid shifting power to the future western states); id. at 582-84 (proposing that, to diminish western influence, representation be based on property as well as population); 2 id. at 3 (proposing to limit the number of new states to the number of existing "Atlantic States").
(296.) See, e.g., id. at 583 ("[T]he Western Country ... would not be able to furnish men equally enlightened, to share in the administration of our common interests.... If the Western people get the power into their hands they will ruin the Atlantic interests. The Back members are always most averse to the best measures.").
(297.) See Letter from Gouverneur Morris to Henry W. Livingston (Nov. 25, 1803), in 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, app. A at 401 ("I am very certain that I had it not in contemplation to insert a decree de coercendo imperio [restraining settlement] in the Constitution of America.").
(298.) 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, at 454.
(299.) Letter from Gouverneur Morris to Henry W. Livingston, supra note 297, at 401. Morris had contemplated excluding Louisiana and subsequently gained territories from statehood, governing them as imperial provinces instead. See Letter from Gouverneur Morris to Henry W. Livingston (Dec. 4, 1803), in 3 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, app. A at 404 [hereinafter Letter from Gouverneur Morris to Henry W. Livingston (Dec. 4, 1803)].
(300.) Alfred F. Young, The Framers of the Constitution and the "Genius" of the People, 42 RADICAL HIST. REV. 7, 7-47 (1988); see WOODY HOLTON, UNRULY AMERICANS AND THE ORIGINS OF THE CONSTITUTION 200-12 (2007).
(301.) Letter from Gouverneur Morris to Henry W. Livingston, supra note 297, at 401.
(303.) Indeed, Morris stated that, had he expressed his views on expansion more "pointedly," "a strong opposition would have been made." Letter from Gouverneur Morris to Henry W. Livingston (Dec. 4, 1803), supra note 299, at 404.
(304.) 1 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, at 410.
(305.) Letter from Hugh Williamson to James Madison (June 2, 1788), in 11 THE PAPERS OF JAMES MADISON 71, 71-72 (Robert A. Rutland & Charles F. Hobson eds., 1977).
(306.) CHARLES AUSTIN BEARD, AN ECONOMIC INTERPRETATION OF THE CONSTITUTION OF THE UNITED STATES 23, 49-50, 176 (1925).
(307.) See, e.g., 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, at 199 (reporting Connecticut delegate Roger Sherman's statement that frequent legislative meetings would be required because "[t]he Western Country ... will supply objects" requiring legislation).
(308.) 32 JOURNALS OF THE CONTINENTAL CONGRESS, 1774-1789, supra note 181, at 337.
(309.) On the continental vision of the Constitution's drafters and advocates, see generally JAMES D. DRAKE, THE NATION'S NATURE: HOW CONTINENTAL PRESUMPTIONS GAVE RISE TO THE UNITED STATES OF AMERICA 260-316 (2011).
(310.) U.S. CONST. art. I, [section] 8, cls. 13-14.
(311.) Id. cl. 16.
(312.) Id. art. II, [section] 2, cl. 1.
(313.) Id. art. I, [section]8, cl. 1.
(314.) EDLING, supra note 23, at 47-49, 227-29.
(315.) See supra notes 229-232 and accompanying text.
(316.) See supra note 302 and accompanying text.
(317.) Cf. HULSEBOSCH, supra note 8, at 219-20 ("An important manifestation of popular constitutionalism was ... migration beyond existing jurisdictions and into Indian country.... Before, during, and after the ratification campaign, settlers voted with their feet.... [T]he hard fact of mobility conditioned the making of the Constitution.").
(318.) For background on the ratification debates, see generally MAIER, supra note 8; RATIFYING THE CONSTITUTION (Michael Allen Gillespie & Michael Lienesch eds., 1989); Critical Forum, Maier, Ratification: The People Debate the Constitution, 1787-1788, 69 WM. & MARY Q. 361 (2012). Until recently, ratification was an afterthought in most constitutional histories. See MAIER, supra note 8, at ix-xi (noting the overwhelming body of work on the Convention, whereas ratification is neglected or relegated to "a chapter or two that give a quick summary of the ratification process"); Forrest McDonald, Foreword to RATIFYING THE CONSTITUTION, supra, at ix, ix (noting "the paucity of historical accounts of ratification"). The exception to this generalization is The Federalist, which has spawned a "small industry" of interpretation. MAIER, supra note 8, at ix-xi. As Professor Pauline Maier notes, The Federalist is usually examined outside of its ratification context as "a dispassionate, objective analysis of the Constitution" rather than as the "partisan statement written in the midst of a desperate fight in a critical state" that it was. Id. at xi; see also McDonald, supra, at ix (noting that the "The Federalist ... though written as propaganda in support of ratification in New York, is rarely dealt with as such"). This narrow focus obscures the tremendous outpouring of public statements on the Constitution. See KRAMER, supra note 26, at 78 ("Thoughts expressed by the Framers behind closed doors in Philadelphia are ultimately of less interest than the public debate that took place over ratification.... Understandings expressed during the discussions about whether to ratify ... are what matter most."); MAIER, supra note 8, at ix-xvi ("Debate over the Constitution raged in newspapers, taverns, coffeehouses, and over dinner tables as well as in the Confederation Congress, state legislatures, and state ratifying conventions.").
(319.) See infra Parts III.A-B.
(320.) Editorial, CUMBERLAND GAZETTE (Mass.), Nov. 15, 1787, reprinted in 4 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION: MASSACHUSETTS 245,246 (John P. Kaminski & Gaspare J. Saladino eds., 1997).
(321.) THE FEDERALIST NO. 45, supra note 53, at 293 (James Madison); see also Editorial, supra note 320, at 245 ("The Confederation points out what positive powers the Congress ought to have: the foederal Constitution points out what positive powers the Congress actually shall have.').
(322.) Editorial, supra note 320, at 246.
(323.) Id. at 245.
(324.) THE FEDERALIST NO. 3, supra note 53, at 44 (John Jay).
(326.) Id. NO. 42 at 267 (James Madison).
(327.) Id. at 268.
(328.) Id. at 268-69.
(329.) Id. at 269.
(330.) Sydney, To the Citizens of the State of New York, N.Y.J., June 13-14, 1788, reprinted in 20 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION: NEW YORK 1153 (John P. Kaminski et al. eds., 2004). Although earlier scholarship attributed the "Sydney" essays to Robert Yates, the most thorough histories of ratification cite evidence overwhelmingly suggesting that Abraham Yates, Jr. authored the pieces. See id. (citing Abraham Yates's personal correspondence); Sidney, Essay, N.Y.J., Oct. 18, 1787, reprinted in 19 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION: NEW YORK 115, 115 (John P. Kaminski et al. eds., 2003) (citing draft essays in Abraham Yates's hand, contemporary correspondence, and Yates's own claim of authorship); see also MAIER, supra note 8, at 343 (attributing the Sydney essays to Abraham Yates).
(331.) Id. at 1156.
(333.) Id. at 1157; see also supra notes 121-127 and accompanying text.
(334.) Sydney, supra note 330, at 1158. Yates also mentioned the limitation on states' laying of duties on imports and exports. Id.
(335.) Lynd, supra note 237, at 225 n.9.
(336.) See, e.g., Federal Farmer, Letters to the Republican, Letter I (Nov. 8, 1787), reprinted in 14 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION: COMMENTARIES ON THE CONSTITUTION PUBLIC AND PRIVATE 14, 24 (John P. Kaminski & Gaspare J. Saladino eds., 1983) ("Let the general government['s] ... powers extend exclusively to all foreign concerns, causes arising on the seas, to commerce, imports, armies, navies, Indian affairs, peace and war ... leaving the internal police of the community, in other respects, exclusively to the state governments...." (emphasis added)); The Dissent of the Minority of the Pennsylvania Convention, PA. PACKET, Dec. 18, 1787, reprinted in 15 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION: COMMENTARIES ON THE CONSTITUTION PUBLIC AND PRIVATE 7, 21 (John P. Kaminski & Gaspare J. Saladino eds., 1984) (endorsing "a confederation of republics, possessing all the powers of internal government; but united in the management of their general, and foreign concerns").
(337.) THE FEDERALIST NO. 22, supra note 53, at 151 (Alexander Hamilton).
(338.) SCHENECTADY FARMER, TO THE INHABITANTS OF THE DISTRICT OF SCHENECTADY (1788), reprinted in 21 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION: NEW YORK, 1402, 1402 (John P. Kaminski et al. eds., 2005).
(339.) See THE FEDERALIST NO. 22, supra note 53, at 150-51 (Alexander Hamilton).
(340.) Virginia Convention Debates (June 19, 1788), in 10 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION: VIRGINIA 1387, 1392 (John P. Kaminski & Gaspare J. Saladino eds., 1993); see also THE FEDERALIST NO. 22, supra note 53, at 150 ("The treaties of the United States, to have any force at all, must be considered as part of the law of the land.").
(341.) Virginia Convention Debates, supra note 340, at 1392.
(342.) See MAIER, supra note 8, at 276-79; see also infra notes 363-367 and accompanying text. Many of these residents lived in Kentucky, which depended on the Ohio River to transport goods to market. MAIER, supra note 8, at 238, 279. Kentucky remained part of Virginia until it gained statehood in 1792. 1 HISTORICAL STATISTICS, supra note 29, at 1-249.
(343.) See HARTWELL L. QUINN, ARTHUR CAMPBELL: PIONEER AND PATRIOT OF THE "OLD SOUTHWEST" 124 (1990).
(344.) Many, Essay, VA. INDEP. CHRON., June 18, 1788, reprinted in 10 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, Supra note 340, at 1638, 1638-39.
(345.) Id. at 1639.
(347.) Society of Western Gentlemen, The Federal Constitution Amended: Or, an Essay To Make It More Comfortable to the Sense of a Majority of the Citizens of the United States, VA. INDEP. CHRON., Apr. 30 & May 7, 1788, reprinted in 9 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION: VIRGINIA, 769, 777, 779 (John P. Kaminski & Gaspare J. Saladino eds., 1990).
(348.) Id. at 778.
(349.) Letter from James Madison to George Washington (June 13, 1788), in 6 THE PAPERS OF GEORGE WASHINGTON: CONFEDERATION SERIES 329, 329 (W.W. Abbot ed., 1997). Madison refers here to the "Indiana claim," a large tract of western land claimed by a purported Indian sale that had been rejected by the Virginia legislature. Id. at 329 n.2.
(350.) See generally THOMAS S. KIDD, PATRICK HENRY: FIRST AMONG PATRIOTS 183-211 (2011).
(351.) Virginia Convention Debates (June 23, 1788), in 10 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 340, at 1464, 1466.
(354.) Id. at 1467.
(356.) Id. at 1468.
(357.) KIDD, supra note 350, at 72.
(358.) Virginia Convention Debates, June 23, 1788, supra note 351, at 1468.
(359.) Id. at 1468-69.
(360.) Draft Letter from Henry Knox (Sept. 1787), in 4 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 320, at 26, 27 (third and fourth alterations in original).
(361.) Cf. EDLING, supra note 23, at 122 ("The idea that the national government would be able to develop the West by pacifying the Indian tribes in the Ohio country through war or treaty was a very common theme in Federalist rhetoric. So, too, was the claim that Britain and Spain had interests in the American interior and that they supported and stirred up the Indian nations against American settlers.")
(362.) GOULD, supra note 18, at 130-32; SADOSKY, supra note 18, at 119-47. See generally Golove & Hulsebosch, supra note 18.
(363.) See MAIER, supra note 8, at ix.
(364.) Letter from Nicholas Gilman to President John Sullivan (Nov. 7, 1787), in 3 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION: DELAWARE, NEW JERSEY, GEORGIA AND CONNECTICUT 261,261 (Merrill Jensen ed., 1978).
(365.) Pennsylvania Assembly Proceedings (Sept. 28, 1787), in 2 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION: PENNSYLVANIA 65, 77 (Merrill Jensen ed., 1976).
(366.) Letter from John Jay to Thomas Jefferson, supra note 220, at 599; see SMITHROSENBERG, supra note 13, at 214-16.
(367.) Saul Cornell, Aristocracy Assailed: The Ideology of Backcountry Anti-Federalism, 76 J. AM. HIST. 1148, 1156-68 (1990). The long-standing Progressive/neo-Progressive interpretation of the Constitution argues that these settlers' fears were well-grounded. For works representative of this historiographical approach, see BEARD, supra note 306; TERRY BOUTON, TAMING DEMOCRACY: "THE PEOPLE," THE FOUNDERS, AND THE TROUBLED ENDING OF THE AMERICAN REVOLUTION (2007); HOLTON, supra note 300.
(368.) See MAIER, supra note 8, at 276-79; Lance Banning, Virginia: Sectionalism and the General Good, in RATIFYING THE CONSTITUTION, supra note 318, at 261,263-68, 280-83.
(369.) SILVER, supra note 13, at xx. As Professor Peter Silver notes, the most important use of the anti-Indian sublime was as "a standard of loyalty ... nearly always applied to people who were not Indian at all." Id. at xxi-xxii. "[M]any of the bitterest arguments between groups came to depend on tying enemies to Indians," he argues, Id. at xxii. "The mid-Atlantic's Indians were nearly always co-bogeymen: they were seldom discussed as having the initiative to do much harm apart from the aid, comfort, and direction that they were presumably provided by a European villain of the moment." Id. at xxii-xxiii.
(370.) Lynd, supra note 237, at 241 n.41. Thomas Jefferson later expressed a similar understanding of the strategic invocations of the Indian threat. See Letter from Thomas Jefferson to James Monroe (Apr. 17, 1791), in 20 PAPERS OF THOMAS JEFFERSON: MAIN SERIES 234, 236 (Julian Boyd ed., 1982) ("Every rag of an Indian depredation will ... serve as a ground to raise troops with those who think a standing army and a public debt necessary for the happiness of the U.S. and we shall never be permitted to get rid of either.").
(371.) Pennsylvania Convention Debates (Nov. 28, 1787), in 2 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 365, at 382, 415.
(372.) New York Convention Debates (June 19, 1788), in 22 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION: NEW YORK 1681, 1685 (John P. Kaminski et al. eds., 2008) (footnote omitted).
(373.) Virginia Convention Debates (June 6, 1788), in 9 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 347, at 970, 977.
(374.) Id. at 977.
(375.) Massachusetts Convention Debates (Jan. 15, 1788), in 6 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION: MASSACHUSETTS 1187, 1204-05 (John P. Kaminski & Gaspare J. Saladino eds., 2000); see also Harrison Gray Otis Oration (July 4, 1788), in 18 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 19, at 224, 228 ("[T]he union of the entire strength of the several members, is essential to the safety and perfection of a political confederacy.... Hostile tribes of Indians make daily incursions upon our frontier, and are supplied by Spaniards and by Englishmen, with the apparatus of modern war.--Thus the horrours of savage ferocity are increased by the contribution of civilized malice.").
(376.) 3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA, IN 1787, at 640 (Jonathan Elliot ed., Phila., J.B. Lippincott Co. 2d ed. 1891).
(377.) Virginia Convention Debates (June 11, 1788), in 9 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 347, at 1142, 1167.
(380.) 3 THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION, AS RECOMMENDED BY THE GENERAL CONVENTION AT PHILADELPHIA, IN 1787, supra note 376, at 150, 155.
(381.) P. Valerius Agricola, An Essay, On the Constitution Recommended by the Federal Convention to the United States, ALBANY GAZETTE, Dec. 6, 1787, reprinted in 19 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION: NEW YORK, supra note 334, at 361,362.
(382.) Letter to the Publisher, A Steady and Open Republican, ST. GAZETTE OF S.C., May 5, 1788, reprinted in 17 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION: COMMENTARIES ON THE CONSTITUTION PUBLIC AND PRIVATE 387, 387 (John P. Kaminski & Gaspare J. Saladino eds., 1995).
(383.) Letter from James Madison to George Nicholas (May 17, 1788), in 18 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 19, at 24, 29.
(384.) SCHENECTADY FARMER, supra note 338, at 1402; John Gibson, Resolution of the Inhabitants of Pittsburgh, PITTSBURGH GAZETTE, Nov. 17, 1787, reprinted in 2 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 365, at 286, 286.
(385.) Lexington Celebrates the Fourth of July, KY. GAZETTE, July 5, 1788, reprinted in 10 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 340, at 1730, 1731.
(386.) Letter from Louis-Guillaume Otto to Comte de Montmorin (Aug. 16, 1788), in 18 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 19, at 333, 334.
(389.) See Miller, supra note 9, at 155-56 ("The tribes provided the main justification for the federal government's need for armed forces.").
(390.) See SAUL CORNELL, THE OTHER FOUNDERS: ANTI-FEDERALISM AND THE DISSENTING TRADITION IN AMERICA, 1788-1828, at 31 (1999).
(391.) Letter from a Well-Informed Correspondent, to His Friend in this City, on the Subject of the Proposed Foederal Constitution, VA. INDEP. CHRON., Nov. 28, 1787, reprinted in 8 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION 177, 180 (John P. Kaminski & Gaspare J. Saladino eds., 1988).
(392.) Marcus IV, Answers to Mr. Mason's Objections to the New Constitution, Recommended by the Late Convention at Philadelphia, NORFOLK & PORTSMOUTH J. (Va.), Mar. 12, 1788, reprinted in 16 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION: COMMENTARIES ON THE CONSTITUTION PUBLIC AND PRIVATE 379, 387 (John P. Kaminski & Gaspare J. Saladino eds., 1986); see also THE FEDERALIST NO. 25, supra note 53, at 165 (Alexander Hamilton) (noting that "Indian hostilities, instigated by Spain or Britain, would always be at hand," even after ratification).
(393.) THE FEDERALIST NO. 24, supra note 53, at 160 (Alexander Hamilton).
(394.) Id. NO. 25, at 163 (Alexander Hamilton).
(395.) Id. NO. 24, at 161 (Alexander Hamilton).
(398.) Id. No. 25, at 162-63.
(399.) See A Democratic Federalist, Essay, PA. HERALD, Oct. 17, 1787, reprinted in 2 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 365, at 193, 197 (describing the Indians as "inhuman butchers of their species" with whom "we are always ... in a state of war").
(400.) Centinel II, To the People of Pennsylvania, PHILA. FREEMAN'S J., Oct. 24, 1787, reprinted in 13 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION: COMMENTARIES ON THE CONSTITUTION PUBLIC AND PRIVATE 457, 463 (John P. Kaminski & Gaspare J. Saladino eds., 1981). Prominent Federalist James Wilson had pointed to these forces in defending standing armies during an influential early speech defending the Constitution. See James Wilson, Speech at a Public Meeting in Philadelphia, PA. HERALD, Oct. 9, 1787, reprinted in 13 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra, at 337, 337-44.
(401.) A Democratic Federalist, supra note 399, at 197.
(402.) Letter from Massachusetts, CONN. J., Oct. 17 & 24, 1787, in 3 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION supra note 364, at 373, 378 (emphasis omitted).
(403.) Agricola, supra note 381, at 362.
(404.) See ALBANY FED. COMM., AN IMPARTIAL ADDRESS, TO THE CITIZENS OF THE CITY AND COUNTY OF ALBANY: OR, THE 35 ANTI-FEDERAL OBJECTIONS REFUTED (1788), reprinted in 21 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 338, at 1388, 1392-93 ("Our frontiers must be garrisoned in time of peace; and, should Congress not have power to hire men to do this duty, the militia must be dragged from their families for the purpose.").
(405.) Letter from a Well-Informed Correspondent, to His Friend in this City, on the Subject of the Proposed Foederal Constitution, supra note 391, at 180.
(407.) Hamilton, for instance, would later urge federal supremacy and diplomacy with Indian nations to the Governor of Georgia. Letter from Alexander Hamilton to George Mathews (Sept. 25, 1794), in 17 PAPERS OF ALEXANDER HAMILTON 270, 272-75 (Harold Syrett ed., 1972). And both Randolph and Hamilton became prominent members of the Washington administration, which adopted an Indian policy focused on restraining frontier settlers where possible. See NICHOLS, supra note 8, 98-202 (describing the Federalists' vision that "[o]n the Trans-Appalachian frontier, officials would use courts, armies, and regulated land sales to curb white frontiersmen's appetite for Indian land and Indian blood").
(408.) See Terry Bouton, The New and (Somewhat) Improved Frontier Thesis, 35 REVS. AM. HIST. 490, 493-94 (2007) (reviewing GRIFFIN, supra note 35); Cornell, supra note 367, at 1149-50. Professor Patrick Griffin challenges the association between westerners and Anti-Federalism claimed by Professors Terry Bouton and Saul Cornell, arguing that "[g]iven the conditions with which they struggled, westerners tended to view broader issues that affected them and all Americans, such as the debate over the Constitution, through the all-encompassing lens of protection.... [T]he terms 'anti-federalist' and 'federalist,' as they are conventionally understood, made little sense for the West." GRIFFIN, supra note 35, at 195-96.
(409.) Andrew R.L. Cayton, "Separate Interests" and the Nation-State: The Washington Administration and the Origins of Regionalism in the Trans-Appalachian West, 79 J. AM. HIST. 39, 58-59 (1992).
(410.) Letter from William Houstoun to Samuel Elbert (Apr. 2, 1785), in 22 LETTERS OF DELEGATES TO CONGRESS, 1774-1789, supra note 142, at 300, 301; see also MAIER, supra note 8, at 123 ("The state's strong consent to the Constitution stands in stark contrast to its previous disregard for the Confederation: Its delegates to Congress were notable mainly for their absence from its sessions, and Georgia never paid even the relatively small requisitions Congress levied on it.").
(411.) See 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, at 372 ("That State [Georgia] has always hitherto supposed a Gent Govermt to be the pursuit of the central States who wished to have a vortex for every thing--that her distance would preclude her from equal advantage--& that she could not prudently purchase it by yielding national powers.").
(412.) See MAIER, supra note 8, at 422; see also NICHOLS, supra 8, at 95 (arguing that "if Georgians had not faced an emergency," the state might "have taken the same course" as North Carolina and rejected the Constitution). North Carolina did not refuse to ratify altogether, but demanded a bill of rights and a new constitutional convention before it would ratify. MAIER, supra note 8, at 421.
(413.) For discussion of historians' debates over Georgia's motivations to ratify, see infra note 425.
(414.) Letter from Governor George Mathews to the Speaker of the Assembly (Oct. 18, 1787), in 3 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 364, at 225, 226.
(416.) Letter from James White to Thomas Pinckney (May 24, 1787), in 1 AMERICAN STATE PAPERS: INDIAN AFFAIRS, supra note 190, at 20, 21.
(417.) Id.; see also Letter from Governor George Mathews to the Speaker of the Assembly, supra note 414, at 225 ("The want of public faith is so fully shown from the depreciation of our currency....").
(418.) Letter from Governor George Mathews (Nov. 15, 1787), in 1 AMERICAN STATE PAPERS: INDIAN AFFAIRS, supra note 190, at 23, 23.
(419.) Id.; see also Letter from Governor George Mathews to William Pierce (Oct. 16, 1787), in 3 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 364, at 224, 224 (reporting that Matthews, Governor of Georgia, had written to Knox for "arms and military stores" because the state was "engaged in a war without the means requisite to prosecute it").
(420.) Letter from Abraham Baldwin to Nicholas Gilman (Dec. 20, 1787), in 3 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 364, at 262, 262.
(421.) Letter from Joseph Clay to John Pierce (Oct. 17, 1787), in 3 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 364, at 232, 232; see also Letter from Joseph Clay to John Williams (Nov. 13, 1787), in 3 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 364, at 234, 234 ("The want of sufficient energy in our government generally is also no small evil, which (at least a large part of) the considerate part of our community hope the new federal system, if adopted, will in part remove.").
(422.) Letter from George Washington to Samuel Powel (Jan. 18, 1788), in 3 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 364, at 263, 263; see also Letter from George Washington to Henry Knox (Jan. 10, 1788), in 3 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 364, at 263, 263 ("[I]n the situation Georgia is, nothing but insanity, or a desire of becoming the allies of the Spaniards or savages, can disincline them to a government which holds out the prospect of relief from its present distresses.").
(423.) Letter from Comte de Moustier to Comte de Montmorin (June 5, 1788), in 18 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 19, at 151, 152. Even the Anti-Federalist William Grayson, contradicting his later sarcastic comments at the Virginia convention, conceded that Georgian ratification was "highly probable as [Georgia] is at present very much embarrassed with an Indian war, and in great distress." Letter from William Grayson to William Short (Nov. 10, 1787), in 3 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 364, at 262, 262.
(424.) Letter from Joseph Habersham to John Habersham (Dec. 29, 1787), in 3 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 364, at 272, 272-73.
(425.) Compare Edward J. Cashin, Georgia: Searching for Security, in RATIFYING THE CONSTITUTION, supra note 318, at 93, 111-12 ("In his own way, the Creek chieftain Alexander McGillivray may well have been the most important promoter of the cause of the Constitution in Georgia."), and Albert B. Saye, Georgia: Security Through Union, in THE CONSTITUTION AND THE STATES 77, 80 (Patrick T. Conley & John P. Kaminski eds., 1988) ("In essence, Georgia wanted a stronger central government to assist the states ... against the Indians...."), with MAIER, supra note 8, at 124 (questioning whether "Georgia ratif[ied] because it desperately needed federal help in fighting attacks by Creek Indians"). The most nuanced discussion of Georgia's decision to ratify notes that Georgians likely ratified because they were anxious to secure federal military support, but did not thereby endorse federal supremacy over Indian affairs. See Introduction to The Ratification of the Constitution by Georgia, in 3 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 364, at 201,210-11.
(426.) Letter from the Georgia House of Representatives to Governor Edward Telfair (June 10, 1790), in 3 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 364, microfilm supp. no. 59, doc. 50, at 178, 179.
(427.) 1 ANNALS OF CONG. 696 (Joseph Gales ed., 1834) (statement of Rep. Jackson).
(428.) U.S. CONST. art. VII.
(429.) Robert L. Alexander, The Grand Federal Edifice, 9 DOCUMENTARY EDITING, June 1987, at 13, 13-17.
(430.) MAIER, supra note 8, at 255-319, 342-97.
(431.) In Virginia, the vote was eighty-nine to seventy-nine. Id. at 305. In New York, it was even closer; the vote to ratify was thirty to twenty-seven, id. at 396, while the effort to condition ratification on a later convention failed by two votes. Id. at 393.
(432.) This effort retained considerable force even after defeats in New York and Virginia, especially when North Carolina refused to ratify. Id. at 425-29.
(433.) Letter from G.J.A. Ducher to Comte de la Luzerne (Feb. 2, 1788), in 3 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 364, at 283, 283.
(434.) See GRIFFIN, supra note 35, at 166 ("[O]ne idea that ran through all emerging facets of a popular frontier commonwealth vision and lent them all meaning was the hatred of Indians."); id. at 174 ("If government failed to protect and, just as significant, failed to decimate Indians--the form that people insisted sovereignty had to take--the people owed no obedience.").
(435.) See Cayton, supra note 409, at 58 ("The great advantage of the federal Union established by the Constitution of 1787 was that it was the most promising candidate to accomplish those goals [of securing protection]. Clearly, North Carolina was not up to the task; neither was Georgia.").
(436.) See id. at 59 (noting that backcountry leaders "became federalists ... not because they were deeply attached to the Union, not because they had a profound commitment to strong government ... but because, simply put, their interest in finding a protector had intersected with the emergence of a (theoretically) more powerful American government"). On the trope of "murdering savages," see supra Part III.B.
(437.) Cf GRIFFIN, supra note 35, at 241-44 (describing the creation of the Revolution settlement in the West as a Hobbesian "covenant to create commonwealth" in which "Indian hatred ... became a lasting foundation of the nation").
(438.) Letter from the Citizens of Mero District, North Carolina, to George Washington (Nov. 30, 1789), in 4 THE PAPERS OF GEORGE WASHINGTON: PRESIDENTIAL SERIES 345, 347 (W.W. Abbot & Dorothy Twohig eds., 1993); see also id. at 346 (decrying that the citizens of the Mero District--located in present-day central Tennessee--lacked "the most distant prospect of any further assistance from the legislative body of the State" to protect against Indian attacks); Letter from Harrison County, Va., Field Officers to George Washington (Feb. 2, 1790), in 5 THE PAPERS OF GEORGE WASHINGTON: PRESIDENTIAL SERIES, at 93, 94 (Dorothy Twohig, Mark A. Mastromarino & Jack D. Warren eds., 1996) ("[I]n the name and behalf of our Suffering fellow Citizens over whome we preside as field Officers of the militia, [we] pray that Your Excellency would take our distressed Situation under your Parential Care and grant us Such Releife as you in your Wisdom shall think proper.... "); Letter from the Officers of the Mero District (Aug. 1, 1791), in 8 THE PAPERS OF GEORGE WASHINGTON: PRESIDENTIAL SERIES, at 397, 397 (Dorothy Twohig & Mark A. Mastromarino eds., 1999) ("We implore Your interposition, fully hoping to meet with a more ample Protection than we have hertofore receivd from the State of North Carolina--the expectation of which was a Powerful incentive inducing us to use Our utmost influence to obtain the Act of Cession."); Letter from the Representatives of Monongahela, Harrison, and Randolph Counties, Virginia, to George Washington (Dec. 12, 1789), in 4 THE PAPERS OF GEORGE WASHINGTON: PRESIDENTIAL SERIES, supra, at 397, 39798 ("beg[ging]" that defensive measures "be continued in our country until it may be thought necessary to carry on offensive war into the enemy's country as to bring about a lasting peace," and asking President Washington to "suffer us further to assure you, that we, on the behalf of our bleeding country look up to you, and to you only, for that assistance that our necessities require").
(439.) Letter from Samuel A. Otis to James Warren (Feb. 6, 1788), in 24 LETTERS OF DELEGATES TO CONGRESS, 1774-1789, supra note 158, at 636, 636-37.
(440.) Letter from Alexander McGillivray to Carlos Howard (Aug. 11, 1790), in CAUGHEY, supra note 166, at 274.
(441.) See id. ("These motives have led me to agree to ... articles of peace to end our disputes." (footnote omitted)).
(442.) Treaty of Peace and Friendship, U.S.-Creeks, Aug. 7, 1790, 7 Stat. 35, 36 [hereinafter Treaty of New York]; see NICHOLS, supra note 8, at 121-24.
(443.) Treaty of New York, supra note 442, arts. IV-V.
(444.) David A. Nichols, Land, Republicanism, and Indians: Power and Policy in Early National Georgia, 1780-1825, 85 GA. HIST. Q. 199, 216 (2001); see also Cayton, supra note 409, at 61-64 (explaining southern disillusionment in federal power after the failure to commit military forces to the South).
(445.) Introduction to The Ratification of the Constitution by Georgia, supra note 425, at 211 (quoting Marius, Editorial, AUGUSTA CHRONICLE, Dec. 24, 1791).
(446.) Act of July 22, 1790, ch. 33, 1 Stat. 137, enacted by the First Congress, prohibited the sale of Indian lands "unless the same shall be made and duly executed at some public treaty, held under the authority of the United States." Id. [section] 4, 1 Stat. at 138.
(447.) Thomas Jefferson, Opinion on Certain Georgia Land Grants (May 3, 1790), in 16 THE PAPERS OF THOMAS JEFFERSON: MAIN SERIES 406, 407 (Julian P. Boyd ed., 1961) (arguing that Georgia's land grants were invalid because "[t]he paragraphs of the Constitution, declaring that the general government shall have, and that the particular ones shall not have, the rights of war and treaty, are so explicit that no commentary can explain them further, nor can any explain them away"); see also Letter from Thomas Jefferson to Henry Knox (Aug. 10, 1791), in 7 THE WRITINGS OF THOMAS JEFFERSON 226, 226-27 (Albert Ellery Bergh ed., 1907) ("[N]either under the present constitution, nor the ancient confederation, had any State or person a right to treat with the Indians, without the consent of the General Government....").
(448.) MAGRATH, supra note 17, at 2-6.
(449.) See 1 AMERICAN STATE PAPERS: INDIAN AFFAIRS, supra note 190, at 590-94; see also SADOSKY, supra note 18, at 171 ("Within hours of their coming into contact with one another, agents of the state of Georgia and the federal government were engaged in a vitriolic correspondence about Indian treaty protocols.... IT]he key question was, 'Who is in charge?' The Federalists believed that the Constitution gave one answer (the federal government), but Georgia could, and did, claim that they retained a role in the treaty-making process.").
(450.) Letter from James Seagrove to George Washington (July 27, 1792), in 10 THE PAPERS OF GEORGE WASHINGTON: PRESIDENTIAL SERIES 577, 578 (Philander D. Chase, Robert F. Haggard & Mark A. Mastromarino eds., 2002).
(451.) Act of Apr. 24, 1802, No. 35, 1802 Ga. Laws 48; see FORD, supra note 17, at 25: MAGRATH, supra note 17, at 34-36.
(452.) See ULRICH BONNELL PHILLIPS, GEORGIA AND STATES RIGHTS: A STUDY OF THE POLITICAL HISTORY OF GEORGIA FROM THE REVOLUTION TO THE CIVIL WAR, WITH PARTICULAR REGARD TO FEDERAL RELATIONS 15-86 (1902).
(453.) Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832).
(454.) Id. at 561-63.
(455.) Id. at 558-60. In the decision, Marshall delved into the history of Indian affairs under Article IX of the Articles, noting that its "ambiguous phrases ... were so construed by the states of North Carolina and Georgia as to annul the power itself." Id. at 559. But, Marshall continued, the correct construction of Article IX was not before the Court because of the "adoption of our existing constitution." Id. "That instrument," he wrote,
confers on congress the powers of war and peace; of making treaties, and of regulating commerce with foreign nations, and among the several states, and with the Indian tribes. These powers comprehend all that is required for the regulation of our intercourse with the Indians.... The shackles imposed on this power, in the confederation, are discarded.
Id. Marshall thus adopted Madison's reading that the shift in language from the Articles was intended to grant exclusive power over Indian affairs.
(456.) See NORGREN, supra note 17, at 122-30. See generally Anton-Hermann Chroust, Did President Andrew Jackson Actually Threaten the Supreme Court of the United States with Nonenforcement of Its Injunction Against the State of Georgia?, 4 AM. J. LEGAL HIST. 76 (1960).
(457.) See, e.g., STEPHEN BREYER, MAKING OUR DEMOCRACY WORK: A JUDGE'S VIEW 2231, 66-7, 71 (2010) (describing Worcester as exemplifying the limits of Supreme Court power); DANIEL WALKER HOWE, WHAT HATH GOD WROUGHT: THE TRANSFORMATION OF AMERICA, 1815-1848, at 4 (2007) (arguing, in the context of the Cherokee cases and Indian removal, that "It]he rule of law obtained only in places and on subjects where local majorities supported it"); KRAMER, supra note 26, at 182-83 (interpreting the Cherokee cases in the context of contests over the judicial supremacy of the Supreme Court).
(458.) See generally TIM ALAN GARRISON, THE LEGAL IDEOLOGY OF REMOVAL: THE SOUTHERN JUDICIARY AND THE SOVEREIGNTY OF NATIVE AMERICAN NATIONS (2002) (tracing three southern supreme court decisions rejecting Worcester and arguing that they "did not change the law" but "reflected the majority view of American lawyers and legislators and, indeed, the white American public, and that view was that the tribes were not sovereign nations"). Marshall himself had arguably endorsed the expansionist states' reading when he concluded that Indians' right of occupancy did not preclude the sale of underlying title. See Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543, 603 (1823); Fletcher v. Peck, 10 U.S. (6 Cranch) 87, 146 (1810). This position conflicted with the Washington administration's earlier interpretation that grants of Indian land guaranteed by federal treaties were unconstitutional. See supra note 447; see also BANNER, supra note 35, at 150 ("In the early 1790s, American lawyers and government officials considered the Indians the owners of their land. By 1823, however ... the United States Supreme Court declared ... that the Indians were in fact not the owners of the land but had merely a 'right of occupancy.'").
(459.) An increasing body of literature has challenged the elite depiction of backcountry settlers as merely "lawless," and focused on their construction of "quasi-legal" norms, often at odds with state-constructed legal orders. See, e.g., HULSEBOSCH, supra note 8, at 101-04; NICHOLS, supra note 8, at 55-76. Professor Lisa Ford offers a particularly insightful discussion of "legality and lawlessness" on the Georgia frontier. FORD, supra note 17, at 85-107. As she notes, "Settler violence ... was clothed in law--a law which, in important respects, settlers constituted and controlled.... [S]ettlers used their control of legal discourse, legal evidence, and juries to ensure that common law served the interests of plurality in early Georgia.... " Id. at 85-86. For the most influential statement on the meanings of "law" within a pluralist system with competing sources of authority, see generally Hendrik Hartog, Pigs and Positivism, 1985 WIS. L. REV. 899.
(460.) 7 REG. DEB. app. at x (1830).
(461.) Cf. FORD, supra note 17, at 195 ("The juridical solution to Georgia's sovereignty problems lay not in the Supreme Court's pallid defense of Indian sovereignty and jurisdiction ... but in the legislatures and the courts of the South ... [which created] a powerful, efficacious and new practice of sovereignty that harried the Cherokee over the Mississippi.... "). Long after what Ford terms "perfect settler sovereignty,"/d, at 183, had been established over the trans-Appalachian West--after, that is, the federal government had largely dispossessed and removed the region's Natives--Marshall was arguably vindicated, as Worcester's "broad principles ... came to be accepted as law." Williams v. Lee, 358 U.S. 217, 219 (1959). Indeed, Whigs-cum-Republicans cited Worcester to justify the reshaping of federalism in the Fourteenth Amendment. See Magliocca, supra note 17, at 929-37. Now, however, the case's canonical status is often honored largely in the breach. See Nevada v. Hicks, 533 U.S. 353, 361 (2001) (observing while citing Worcester that "it was 'long ago' that 'the Court departed from Chief Justice Marshall's view that "the laws of [a State] can have no force" within reservation boundaries'" (alteration in original) (quoting White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 141 (1980))); Cnty. of Yakima v. Confederated Tribes & Bands of the Yakima Indian Nation, 502 U.S. 251, 257 (1992) (noting, in discussing Worcester, that "[t]he 'platonic notions of Indian sovereignty' that guided Chief Justice Marshall have, over time, lost their independent sway" (quoting McClanahan v. Ariz. State Tax Comm'n, 411 U.S. 164, 172 (1973))); see also Frickey, supra note 11, at 418-26 (arguing that the Supreme Court has "moved away from Chief Justice Marshall's model [in Worcester] in dramatic fashion").
(462.) Abortive Negotiations at Rock Landing (Sept. 1789), in 18 EARLY AMERICAN INDIAN DOCUMENTS, supra note 20, at 547, 550.
(464.) Letter from Representatives of the Cherokee Nation to George Washington, President of the U.S. (May 19, 1787), in 1 AMERICAN STATE PAPERS: INDIAN AFFAIRS, supra note 190, at 56, 57.
(466.) Letter from the Five Nations at Buffalo Creek to George Washington (June 2, 1789), in 18 EARLY AMERICAN INDIAN DOCUMENTS, supra note 20, at 517, 517.
(467.) See TAYLOR, supra note 114, at 231-34, 302-07.
(469.) This is the dominant theme in the works of Father Francis Paul Prucha, whose two-volume study on federal Indian policy remains foundational. See generally FRANCIS PAUL PRUCHA, THE GREAT FATHER: THE UNITED STATES GOVERNMENT AND THE AMERICAN INDIANS (1984). Prucha argues that federal officials "sought to treat the Indians honorably, even though they acted within a set of circumstances that rested on the premise that white society would prevail. The best term for this persistent attitude is paternalism.... " 1 id. at xxviii.
(470.) See, e.g., Letter from George Washington to Alexander Hamilton (Apr. 4, 1791), in 8 THE PAPERS OF GEORGE WASHINGTON: PRESIDENTIAL SERIES, supra note 438, at 57, 58 (complaining in the context of Indian affairs that "the States individually are omitting no occasion to interfere in matters which belong to the general Government," and that "the interferences of States, and the speculations of Individuals will be the bane of all our public measures"); see also GARRISON, supra note 458, at 103-24, 151-68, 198-247; LAURENCE M. HAUPTMAN, CONSPIRACY OF INTERESTS: IROQUOIS DISPOSSESSION AND THE RISE OF NEW YORK STATE 61-64, 209-12 (1999); DEBORAH A. ROSEN, AMERICAN INDIANS AND STATE LAW: SOVEREIGNTY, RACE, AND CITIZENSHIP, 1790-1880, at 51-79 (2007); TAYLOR, supra note 114, at 231-34, 302-07. See generally Cynthia Cumfer, Local Origins of National Indian Policy: Cherokee and Tennessean Ideas About Sovereignty and Nationhood, 1790-1811, 23 J. EARLY REPUBLIC 21 (2003).
(471.) WOOD, supra note 16, at 130. Other accounts of the war may be found in HORSMAN, supra note 12, at 84-95; RICHARD H. KOHN, EAGLE AND SWORD: THE FEDERALISTS AND THE CREATION OF THE MILITARY ESTABLISHMENT IN AMERICA, 1783-1802, at 91-127 (1975); WHITE, supra note 1, at 454-55 (1991).
(472.) TAYLOR, supra note 114, at 238. See generally Gerard Clarfield, Protecting the Frontiers: Defense Policy and the Tariff Question in the First Washington Administration, 32 WM. & MARY O. 443 (1975) (describing the vituperative political battles over the financing of the Northwest Indian Confederacy War). I am indebted to Andrew Fagal for bringing the Clarfield citation to my attention.
(473.) WOOD, supra note 16, at 130-31.
(474.) R. DOUGLAS HURT, THE INDIAN FRONTIER, 1763-1846, at 103-36, 164-88 (2002).
(475.) See, e.g. EDLING, supra note 23, at 140 ("The army had been brought into existence to deal with western expansion and to coerce the Indians."); ERIC HINDERAKER, ELUSIVE EMPIRES: CONSTRUCTING COLONIALISM IN THE OHIO VALLEY, 1673-1800, at 226 (1997) ("In the end, national leaders and western settlers established a complicated pattern of mutual support, which served as the foundation for a new relationship between state and society in the west--one that sapped, with remarkable speed, Native American autonomy and power."); NICHOLS, supra note 8, at 199 ("[T]he federal government, which [Henry] Knox had hoped would shield the Indians from the ill effects of American expansion, was instead becoming the foremost agent of their dispossession and removal.").
(476.) Report of the Secretary at War to Congress, supra note 209, at 31-32.
(477.) Letter from Henry Knox to George Washington (July 7, 1789), in 3 THE PAPERS OF GEORGE WASHINGTON: PRESIDENTIAL SERIES, at 134, 136 (Dorothy Twohig ed., 1989).
(478.) See Paul Frymer, Building an American Empire: Territorial Expansion in the Antebellum Era, 1 U.C. IRVINE L. REV. 913, 917-19 (2011) (stressing the importance of nonmilitary exercises of federal power in facilitating western expansion, particularly through "the legitimating power of law"); cf HULSEBOSCH, supra note 8, at 11 ("[Americans] conquered the continent less with violence than with the confidence with which they carried forward their notions of constitutional liberty."). For a thoughtful consideration of violence in Native experiences of imperialism, see generally NED BLACKHAWK, VIOLENCE OVER THE LAND: INDIANS AND EMPIRES IN THE EARLY AMERICAN WEST (2006).
(479.) Subsequent events also proved that paternalism and exclusive federal power did not necessarily lead to more humane or just outcomes for Natives. See, e.g., BANNER, supra note 35, at 258-92 (depicting the harms caused by allotment). See generally FREDERICK E. HOXIE, A FINAL PROMISE: THE CAMPAIGN TO ASSIMILATE THE INDIANS, 1880-1920 (1984) (describing the deleterious effects of the federal government's paternalist assimilation campaign).
(480.) See ROSEN, supra note 470, at 78-79 ("The common goal of the state and federal governments with regard to Indians was control of Indians and Indian lands.... [T]hey acted in tandem to achieve that goal.").
(481.) 1 ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 452-53 (Francis Bowen ed., Henry Reeve trans., N.Y., The Century Co. 1898) (1835).
(482.) This includes treaties from 1789 through 1799; single treaties concluded with multiple Indian nations were each counted as only one treaty. If each agreement with a separate Indian nation is considered a distinct treaty, then the number of treaties concluded with Indian nations in the decade rises to thirty-one. Compare 7 Stat. 28-62 (recording treaties with Indian nations), with 8 Stat. 116-177 (recording treaties with "foreign" nations).
(483.) The two "foreign" wars were the War of 1812 and the Mexican-American War, both of which also involved fighting with Indian nations. Because Indian wars were rarely formally declared, counting them is more challenging: I have included the war against the Northwest Indian Confederacy (1790-95), Tecumseh's War (1810-13), the Creek War (1813-14), the Black Hawk War (1832), the Creek War of 1836, the First (1814-19), Second (1835-43), and Third (1855-58) Seminole Wars, the Cayuse/Yakima/Rogue River War (1847-58), and the Paiute War (1860). See generally HURT, supra note 474.
(484.) Articles on these topics that offer otherwise careful considerations of constitutional history but omit serious discussion of Indian affairs include Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power over Foreign Affairs, 111 YALE L.J. 231 (2001); William Michael Treanor, Fame, the Founding, and the Power To Declare War, 82 CORNELL L. REV. 695 (1996); John C. Yoo, The Continuation of Politics by Other Means: The Original Understanding of War Powers, 84 CALIF. L. REV. 167 (1996). Professor John Yoo considers the Washington administration's war against the Northwest Indian Confederacy more fully, but ignores the role of Indians in shaping the constitutional war powers, even though the sources from ratification he cites repeatedly mention Indians. See id. at 271-72, 290-91.
(485.) John C. Yoo, Globalism and the Constitution: Treaties, Non-Self-Execution, and the Original Understanding, 99 COLUM. L. REV. 1955, 2074 (1999); see also Curtis A. Bradley, The Treaty Power and American Federalism, 97 MICH. L. REV. 390, 410-17 (1998) (arguing based in part on constitutional history for federalist limitations on the treaty power).
(486.) See FRANCIS PAUL PRUCHA, AMERICAN INDIAN TREATIES: THE HISTORY OF A POLITICAL ANOMALY 70-79 (1994). Congress generally appropriated money for treaty purposes before a treaty was held and subsequently ratified any treaty; no further legislation was required. See id.
(487.) See, e.g., Carlos Manuel Vazquez, Treaties as Law of the Land: The Supremacy Clause and the Judicial Enforcement of Treaties, 122 HARV. L. REV. 599, 616-19 (2008) (discussing the inclusion of treaties within the Supremacy Clause as a response to the failures of the Articles, but omitting Indian treaties). See generally, e.g., Martin S. Flaherty, History Right?: Historical Scholarship, Original Understanding, and Treaties as "Supreme Law of the Land," 99 COLUM. L. REV. 2095 (1999) (critiquing Yoo's historical claims, see Yoo, supra note 485, without discussing Indian affairs); David M. Golove, Treaty-Making and the Nation: The Historical Foundations of the Nationalist Conception of the Treaty Power, 98 MICH. L. REV. 1075 (1999) (providing a lengthy historical argument for a nationalist treaty power without mentioning Indian affairs). At several points in Professor David Golove's article, his sources explicitly discuss Indian treaties, but he passes over this fact in silence. See Golove, supra, at 1167 n.278, 1178 n.317, 1179 n.319, 1243 n.557, 1278 n.695.
This issue has received renewed attention as the Supreme Court has heard Bond v. United States, No. 12-158 (U.S. argued Nov. 5, 2013), which addresses whether the treaty power authorizes Congress to criminalize local conduct. Yet even an amicus brief in the case filed by professors of international law and legal history arguing in favor of a robust national treaty power ignored Indian treaties, even though early Indian treaties routinely contained provisions addressing criminal law within state boundaries. Brief for Amici Curiae Professors of International Law and Legal History in Support of Respondent, Bond, No. 12-158, available at http://sblog.s3.amazonaws.com/wp-content/uploads/2013/08/12-58bsacProfsIntlLawandLegalHistory-FINAL-ok-to-print.pdf; cf., e.g., Treaty of New York, supra note 442, arts. VIII-X (addressing criminal law issues).
(488.) This is the predominant perspective and tone of the most influential intellectual history of the Constitution of the last century. See generally GORDON S. WOOD, THE CREATION OF THE AMERICAN REPUBLIC, 1776-1787 (1969).
(489.) See FEDERALIST NO. 51, supra note 53, at 322 (James Madison).
(490.) The literature on this topic is vast. For a historical view on the question, see JOHN FABIAN WITT, PATRIOTS AND COSMOPOLITANS: HIDDEN HISTORIES OF AMERICAN LAW 19, 55-70 (2007).
(491.) Francois Furstenberg, The Significance of the Trans-Appalachian Frontier in Atlantic History, 113 AM. HIST. REV. 647, 650 (2008). Professor Francois Furstenberg convincingly argues that "the great problem of North American, and perhaps even Atlantic, history from 1754 to 1815 [was] the fate of the trans-Appalachian West." Id. at 648. "[The] primary objective [of the United States] after the Revolution was to become an independent nation-state; and as many at the time recognized, the greatest obstacles to that ambition lay in the trans-Appalachian West." Id. at 659. Furstenberg further notes that "[f]rom 1783 through the end of the eighteenth century and beyond," American sovereignty over the region was very much uncertain; it could "be ensured only by overcoming three challenges: the geography of North America, and of the Appalachian Mountains in particular; Native American resistance; and the ambiguous loyalties of western colonists." Id. Arguably, success in overcoming all three was partially attributable to the new Constitution and the strengthened federal state it created.
(492.) See HOWE, supra note 457, at 852-55. See generally Frymer, supra note 478.
(493.) See FEDERALIST NO. 10, supra note 53, at 81-84 (James Madison). On the importance of federal authority in the early American West, see Bethel Saler, An Empire for Liberty, a State for Empire: The U.S. National State Before and After the Revolution of 1800, in THE REVOLUTION OF 1800: DEMOCRACY, RACE, AND THE NEW REPUBLIC 360 (James Horn, Jan Ellen Lewis & Peter S. Onuf eds., 2002). See generally WILLIAM H. BERGMANN, THE AMERICAN NATIONAL STATE AND THE EARLY WEST (2012); EDLING, supra note 23; Frymer, supra note 478.
(494.) For recent scholarship emphasizing the strength of the early national state, see BALOGH, supra note 16; EDLING, supra note 23; Frymer, supra note 478; William J. Novak, The Myth of the "Weak" American State, 113 AM. HIST. REV. 752 (2008).
(495.) Virginia Convention Debates (June 5, 1788), in 9 THE DOCUMENTARY HISTORY OF THE RATIFICATION OF THE CONSTITUTION, supra note 347, at 943, 959. Empire was a common theme in the ratification debates, invoked by both Federalists and Anti-Federalists. For thoughtful considerations of this aspect of ratification, see HULSEBOSCH, supra note 8, at 21058; JAMES G. WILSON, THE IMPERIAL REPUBLIC: A STRUCTURAL HISTORY OF AMERICAN CONSTITUTIONALISM FROM THE COLONIAL ERA TO THE BEGINNING OF THE TWENTIETH CENTURY 77-89 (2002).
(496.) For arguments emphasizing the centrality of Natives to the construction of the American national state, see BALOGH, supra note 16, at 151-218; ROCKWELL, supra note 16, at 58; Jeff Pasley, Midget on Horseback: American Indians and the History of the American State, COMMON-PLACE (Oct. 2008), http://www.common-place.org/vol-09/no-01/pasley.
(497.) See, e.g., REGINALD HORSMAN, RACE AND MANIFEST DESTINY: THE ORIGINS OF AMERICAN RACIAL ANGLO-SAXONISM 210-12, 239-44 (1981) (describing the use of anti-Indian rhetoric to justify the conquest and dispossession of Mexicans); Brian Rouleau, Maritime Destiny as Manifest Destiny: American Commercial Expansionism and the Idea of the Indian, 30 J. EARLY REPUBLIC 377, 379 (2010) ("By the nineteenth century, Native Americans ... became a stereotyped frame of reference applied to peoples encountered outside the continental context."). See generally RICHARD DRINNON, FACING WEST: THE METAPHYSICS OF INDIAN-HATING AND EMPIRE BUILDING 232-401 (1980) (emphasizing the connection between "Indian-hating" and American imperial projects in the Philippines, Puerto Rico, and southeast Asia).
(498.) For works emphasizing the links between the laws governing Indians and other American imperial projects, see Lauren Benton, Colonizing Hawai'i and Colonizing Elsewhere: Toward a History of U.S. Imperial Law, 38 LAW & SOC'Y REV. 835 (2004) (book review); Sarah H. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power over Foreign Affairs, 81 TEX. L. REV. 1 (2002); Patrick Wolfe, Corpus Nullius: The Exception of Indians and Other Aliens in US Constitutional Discourse, 10 POSTCOLONIAL STUD. 127 (2007). The legal structures of American empire are explored in COLONIAL CRUCIBLE: EMPIRE IN THE MAKING OF THE MODERN AMERICAN STATE (Alfred W. McCoy & Francisco A. Scarano eds., 2009); and GARY LAWSON & GUY SEIDMAN, THE CONSTITUTION OF EMPIRE: TERRITORIAL EXPANSION AND AMERICAN LEGAL HISTORY (2004). A thorough examination of the historical connection between American empire and military power appears in FRED ANDERSON & ANDREW CAYTON, THE DOMINION OF WAR: EMPIRE AND LIBERTY IN NORTH AMERICA, 1500-2000 (2005).
(499.) The literature on this subject is large. For the most recent historical treatments, see generally DON E. FEHRENBACHER, THE SLAVEHOLDING REPUBLIC: AN ACCOUNT OF THE UNITED STATES GOVERNMENT'S RELATIONS TO SLAVERY 28-47 (Ward M. McAfee ed., 2001); VAN CLEVE, supra note 240; WALDSTREICHER, supra note 240; Finkelman, supra note 240; Earl M. Maltz, The Idea of the Proslavery Constitution, 17 J. EARLY REPUBLIC 37 (1997).
(500.) For discussions of the link between expansionism and the rise of the Cotton Belt in former Indian lands, see HOWE, supra note 457, at 125-32; WALTER JOHNSON, RIVER OF DARK DREAMS: SLAVERY AND EMPIRE IN THE COTTON KINGDOM 18-45 (2013); ADAM ROTHMAN, SLAVE COUNTRY: AMERICAN EXPANSION AND THE ORIGINS OF THE DEEP SOUTH 37-72 (2005); Countryman, supra note 29, at 360-61. Twenty-two years after ratification, as Georgia rapidly expanded into Creek and Cherokee territory, the state's slave population had tripled to over 100,000. IRA BERLIN, MANY THOUSANDS GONE: THE FIRST TWO CENTURIES OF SLAVERY IN NORTH AMERICA 370 tbl.1 (1998).
(501.) Cf. HENDRICKSON, supra note 18, at 240 ("Injustice to African-Americans and injustice to Indian nations--a constitutional obligation to protect and even advance the slave power, an acknowledged duty to dispossess the Indian nations of the interior--were by this powerful logic woven into the inner fabric of their beautiful union.").
(502.) 2 THE RECORDS OF THE FEDERAL CONVENTION OF 1787, supra note 2, at 223.
(503.) The contrast I draw here concerns implications for present-day constitutional doctrine and theory, not the ahistorical and unhelpful question of whether slavery or the dispossession of Indians constitutes the greater "constitutional evil," as Professor Mark Graber terms the Constitution's entrenchment of slavery. MARK A. GRABER, DRED SCOTT AND THE PROBLEM OF CONSTITUTIONAL EVIL (2006). Moreover, my contrast at the level of doctrine and theory should not obscure the now neglected historical reality that chattel slavery was an integral part of Native dispossession: enslavement of Indians was a widespread practice in the Euro-American colonies that persisted into the nineteenth century. See Gregory Ablavsky, Comment, Making Indians "White": The Judicial Abolition of Native Slavery in Revolutionary Virginia and Its Racial Legacy, 159 U. PA. L. REV. 1457, 1463-67, 1515-17 (2011).
(504.) See generally Bethany R. Berger, Red: Racism and the American Indian, 56 UCLA L. REV. 591 (2008).
(505.) See, e.g., United States v. Lara, 541 U.S. 193, 200 (2004) ("The 'central function of the Indian Commerce Clause,' we have said, 'is to provide Congress with plenary power to legislate in the field of Indian affairs.'" (quoting Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989))). But see Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2565-71 (2013) (Thomas, J., concurring) (questioning the doctrine of plenary power based on the purported "original understanding" of the Indian Commerce Clause).
(506.) Matthew L.M. Fletcher & Peter S. Vicaire, Indian Wars: Old & New, 15 J. GENDER RACE & JUST. 201,223-30 (2012); Karl Jacoby, Op-Ed, Dishonored, L.A. TIMES, May 10, 2011, at A11; see also DRINNON, supra note 497, at 402-67 (describing the links between the history of Indian-hating and the Vietnam War). For a discussion of ongoing uses of tropes of "savagery" in current law and policy, see Ann E. Tweedy, "Hostile Indian Tribes ... Outlaws, Wolves, ... Bears ... Grizzlies and Things Like That?" How the Second Amendment and Supreme Court Precedent Target Tribal Self-Defense, 13 U. PA. J. CONST. L. 687, 737-54 (2011).
(507.) See CHARLES WILKINSON, BLOOD STRUGGLE: THE RISE OF MODERN INDIAN NATIONS 177-268 (2006) (tracing the role of Native activism in creating a federal Indian policy founded on tribal self-determination).
(508.) This is epitomized by recent Supreme Court doctrine, which has interpreted Marshall's long-ago proclamation of Native sovereigns as "domestic dependent nations," Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831), to impose significant quasi-constitutional restrictions on Natives' exercise of sovereignty. See, e.g., Montana v. United States, 450 U.S. 544, 563-67 (1981); Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 206-08 (1978); cf. Lara, 541 U.S. at 228 (Souter, J., dissenting) (arguing that the Court's "previous understanding of the jurisdictional implications of dependent sovereignty was constitutional in nature"). For criticism of this line of cases, see generally DAVID E. WILKINS, AMERICAN INDIAN SOVEREIGNTY AND THE U.S. SUPREME COURT: THE MASKING OF JUSTICE (1997); ROBERT A. WILLIAMS, Jr., LIKE A LOADED WEAPON: THE REHNQUIST COURT, INDIAN RIGHTS, AND THE LEGAL HISTORY OF RACISM IN AMERICA (2005).
(509.) For discussions of the implications of slavery for originalism, see RANDY E. BARNETT, RESTORING THE LOST CONSTITUTION: THE PRESUMPTION OF LIBERTY 111-12 (2004); ORIGINALISM: A QUARTER-CENTURY OF DEBATE 176-77 (Steven G. Calabresi ed., 2007); John O. McGinnis & Michael B. Rappaport, Originalism and the Good Constitution, 98 GEO. L.J. 1693, 1757-64 (2009).
(510.) See, e.g., HINDERAKER, supra note 475, at 268-70 ("[I]t is no accident that the exploitation of nonwhite peoples in the United States deepened and intensified before it began to be ameliorated. The Revolution liberated white men to pursue their economic and political independence."); EDMUND S. MORGAN, AMERICAN SLAVERY, AMERICAN FREEDOM: THE ORDEAL OF COLONIAL VIRGINIA 386 (1975) ("Racism became an essential, if unacknowledged, ingredient of the republican ideology that enabled Virginians to lead the nation."); SMITH-ROSENBERG, supra note 13, at 1-43, 465-68 (arguing that early American national identity was founded "on systematic patterns of exclusion"); JOHN WOOD SWEET, BODIES POLITIC: NEGOTIATING RACE IN THE AMERICAN NORTH, 1730-1830, at 3-5, 399-407 (2003) (exploring how American democracy "was shaped by the legacy of colonial conquest, enslavement, and racial domination"); WOOD, supra note 16, at 508-42 (observing that the marginalization and racialization of African-Americans "were the strange and perverse consequences of republican equality and democracy"); ROSEMARIE ZAGARRI, REVOLUTIONARY BACKLASH: WOMEN AND POLITICS IN THE EARLY AMERICAN REPUBLIC 180 (2007) (noting that, in early America, "[u]niversal male suffrage was increasingly defined against--even predicated on--women's and blacks' exclusion from governance").
(511.) See, e.g., HOWE, supra note 457, at 852-54 (identifying as the "primary driving force" in the antebellum United States "the domination and exploitation of the North American continent by the white people of the United States and their government").
(512.) See Finkelman, supra note 240, at 443-45 (describing the restriction on federal authority as the "ultimate" protection of slavery in the Constitution).
(513.) See ERIC FONER, RECONSTRUCTION: AMERICA'S UNFINISHED REVOLUTION, 1863-1877, at 564-612 (1988).
(514.) See generally FEHRENBACHER, supra note 499.
(515.) See William B. Skelton, The Confederation's Regulars: A Social Profile of Enlisted Service in America's First Standing Army, 46 WM. & MARY Q. 770, 781 (1989) (noting that the army averaged 520 men during this period); see also WILLIAM H. GUTHMAN, MARCH TO MASSACRE; A HISTORY OF THE FIRST SEVEN YEARS OF THE UNITED STATES ARMY, 1784-1791, at 1-90 (1975) (describing the federal military during this period); KOHN, supra note 471, at 54-72 (describing the weakness and financial difficulties of the Confederation army). According to data supplied by the Army Corps of Engineers, the river distance from Fort Harmar (present-day Marietta, Ohio) to Post Vincennes (present-day Vincennes, Indiana) is 782 miles. See Email from John D. Cheek, P.E., Great Lakes and Ohio River Div., U.S. Army Corps of Eng'rs, to Alvin L. Dong (Sept. 4, 2013) (on file with the Duke Law Journal).
(516.) OUTPOST ON THE WABASH, supra note 145, at 93-105.
(517.) Letter from Josiah Harmar to John Hamtramck (Aug. 7, 1788), in OUTPOST ON THE WABASH, supra note 145, at 99, 100; see also Letter from Brigadier-Gen. Harmar to Henry Knox, Sec'y of War (July 23, 1788), in 2 THE ST. CLAIR PAPERS, supra note 97, at 64, 64 ("I sincerely hope that the new government will soon begin to operate, in order that we may be enabled to sweep these perfidious villains [the hostile Indians] off the face of the earth.").
GREGORY ABLAVSKY, Sharswood Fellow in Law and History, University of Pennsylvania Law School; Doctoral Candidate in History, University of Pennsylvania. I would like to thank Bethany Berger, Stephen Burbank, Faisal Chaudry, Stephanie Corrigan, William Ewald, Smita Ghosh, Sally Gordon, Eric Hinderaker, Doug Kiel, Sophia Lee, Gerard Magliocca, Peter Onuf, Gideon Parchomovsky, Daniel K. Richter, Robert Reinstein, Justin Simard, Matiangai Sirleaf, Catherine Struve, and Karen Tani for their feedback on the work in progress. Versions of this Article were presented at the annual meetings of the Society for the History of the Early Republic, the American Society for Legal History, and the American Historical Association, and to the University of Pennsylvania faculty ad hoc workshop. Thanks also to the staff of Biddle Law Library, particularly Alvin Dong, for research assistance.
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|Title Annotation:||II. The Constitutional Convention B. The Hamiltonian Convention through Conclusion, with footnotes, p. 1046-1089|
|Publication:||Duke Law Journal|
|Date:||Feb 1, 2014|
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