Species of Sovereignty: Native Nations, the United States, and International Law, 1783–95

Historians have portrayed the legal contest for control of the early American borderlands as a battle for primacy between distinct Anglo-American and Native conceptions of law. This paper suggests an additional reading of this conflict: as an interpretive struggle over the meaning of the same body of law, the European-derived law of nations. I focus on international-law arguments to assert indigenous nationhood advanced by some Haudenosaunee and Creek leaders in the immediate aftermath of the American Revolution, a moment when fluid borders and European support created space for Native peoples to claim the legal rights associated with sovereign statehood. Recapturing this history of borderlands international-law arguments demonstrates that Natives were not simply subjects of, but also participants in, a transnational intellectual discourse that sought to define indigenous peoples and their legal status. It also suggests that Native peoples were equally capable as Anglo-Americans of grasping and contesting legal concepts like sovereignty even within a Eurocentric frame.

As a method of resisting U.S. imperialism, Natives’ turn to international law met some success: it arguably helped force a reluctant United States to entrench institutions and practices acknowledging Native sovereignty that many Anglo-Americans would have gladly discarded. This hard-won victory proved both highly contingent and surprisingly durable. Nonetheless, Native leaders who embraced law of nations arguments often did so from constraint, as other long-standing sources of Native power were increasingly foreclosed. This skepticism was well-founded, as the U.S. was able to repurpose international-law concepts of territorial sovereignty and protection to blunt Native interpretations. In the Supreme Court’s canonical decision in Cherokee Nation v. Georgia—a case litigated almost entirely around international-law concepts flowing from these earlier debates—the Court at once accepted most Native claims and yet, using these novel legal tools, relegated Native sovereigns to the subordinate status of domestic dependent nations.