The Indians’ Constitution: Rethinking Native American Influence on the Framing

     Native Americans rarely appear in standard narratives of the drafting of the Constitution.  This omission assumes that, because Indians are rarely mentioned in the constitutional text, they had little role in shaping it.  This paper argues otherwise.  It demonstrates that the Constitution’s drafters were deeply concerned with both state intrusion into Indian affairs and Indian power on the borderlands, and they crafted a government to address these challenges.  Drawing on recent legal history placing the Constitution in imperial context, it suggests the Framers understood constitutional provisions that scholars today believe have little to do with Natives—limits on the states’ power, federal military authority, the Supremacy Clause—as potential solutions to these problems.

      Indians were important actors in this process.  The Native leaders who emerged in the aftermath of the Revolution were well versed in Euro-American politics and exploited for their advantage the rampant divisions among state and federal officials that plagued the Articles of Confederation.  With the assistance of the Spanish and English, they were engaged in a nation-building project of their own during this period, constructing a pan-Indian confederacy they believed could resist Euro-American encroachments.  This prospect frightened Anglo-American politicians who recognized their weak and divided government could not effectively exert control over the frontier.  Thus, while some scholars have posited that Indian governance directly inspired the idea of confederation, this paper argues this approach got it backwards.  The Founders moved toward centralization not because they admired Indian unity, but because they feared it; it was Native power, not philosophy, that helped forge the American union.