You will be expected to post an original (250 – 300 words) response that includes at least 2 APA in-text citations for a bullete

Stop Saying This Is a Nation of Immigrants!

Roxanne Dunbar-Ortiz

A nation of immigrants: This is a convenient myth developed as a response to the 1960s move- ments against colonialism, neocolonialism, and white supremacy. The ruling class and its brain trust offered multiculturalism, diversity, and affirmative action in response to demands for decol- onization, justice, reparations, social equality, an end of imperialism, and the rewriting of history — not to be “inclusive” — but to be accurate. What emerged to replace the liberal melting pot idea and the nationalist triumphal interpretation of the “greatest country on earth and in history,” was the “nation of immigrants” story.

By the 1980s, the “waves of immigrants” story even included the indigenous peoples who were so brutally displaced and murdered by settlers and armies, accepting the flawed “Bering Straits” theory of indigenous immigration some 12,000 years ago. Even at that time, the date was known to be wrong, there was evidence of indigenous presence in the Americas as far back as 50,000 years ago, and probably much longer, and entrance by many means across the Pacific and the Atlantic — perhaps, as Vine Deloria jr. put it, footsteps by indigenous Americans to other conti- nents will one day be acknowledged. But, the new official history texts claimed, the indigenous peoples were the “first immigrants.” They were followed, it was said, by immigrants from Eng- land and Africans, then by Irish, and then by Chinese, Eastern and Southern Europeans, Russians, Japanese, and Mexicans. There were some objections from African Americans to referring to en- slaved Africans hauled across the ocean in chains as “immigrants,” but that has not deterred the “nation of immigrants” chorus.

Misrepresenting the process of European colonization of North America, making everyone an immigrant, serves to preserve the “official story” of a mostly benign and benevolent USA, and to mask the fact that the pre-US independence settlers, were, well, settlers, colonial setters, just as they were in Africa and India, or the Spanish in Central and South America. The United States was founded as a settler state, and an imperialistic one from its inception (“manifest destiny,” of course). The settlers were English, Welsh, Scots, Scots-Irish, and German, not including the huge number of Africans who were not settlers. Another group of Europeans who arrived in the colonies also were not settlers or immigrants: the poor, indentured, convicted, criminalized, kidnapped from the working class (vagabonds and unemployed artificers), as Peter Linebaugh puts it, many of who opted to join indigenous communities.

Only beginning in the 1840s, with the influx of millions of Irish Catholics pushed out of Ireland by British policies, did what might be called “immigration” begin. The Irish were discriminated

against cheap labor, not settlers. They were followed by the influx of other workers from Scan- dinavia, Eastern and Southern Europe, always more Irish, plus Chinese and Japanese, although Asian immigration was soon barred. Immigration laws were not even enacted until 1875 when the US Supreme Court declared the regulation of immigration a federal responsibility. The Immi- gration Service was established in 1891.

Buried beneath the tons of propaganda — from the landing of the English “pilgrims” (fanatic Protestant Christian evangelicals) to James Fennimore Cooper’s phenomenally popular “Last of the Mohicans” claiming “natural rights” to not only the indigenous peoples territories but also to the territories claimed by other European powers — is the fact that the founding of the United States was a division of the Anglo empire, with the US becoming a parallel empire to Great Britain. From day one, as was specified in the Northwest Ordinance that preceded the US Constitution, the new republic for empire (as Jefferson called the US) envisioned the future shape of what is now the lower 48 states of the US. They drew up rough maps, specifying the first territory to conquer as the “Northwest Territory,” ergo the title of the ordinance. That territory was the Ohio Valley and the Great Lakes region, which was filled with indigenous farming communities.

Once the conquest of the “Northwest Territory” was accomplished through a combination of genocidal military campaigns and bringing in European settlers from the east, and the indige- nous peoples moved south and north for protection into other indigenous territories, the republic for empire annexed Spanish Florida where runaway enslaved Africans and remnants of the in- digenous communities that had escaped the Ohio carnage fought back during three major wars (Seminole wars) over two decades. In 1828, President Andrew Jackson1 (who had been a general leading the Seminole wars) pushed through the Indian Removal Act to force all the agricultural indigenous nations of the Southeast, from Georgia to the Mississippi River, to transfer to Ok- lahoma territory that had been gained through the “Louisiana Purchase”2 from France. Anglo settlers with enslaved Africans seized the indigenous agricultural lands for plantation agricul- ture in the Southern region. Many moved on into the Mexican province of Texas — then came the US military invasion of Mexico in 1846, seizing Mexico City and forcing Mexico to give up its northern half through the 1848 Treaty of Guadalupe Hidalgo. California, Arizona, New Mexico, Colorado, Utah, Texas were then opened to “legal” Anglo settlement, also legalizing those who had already settled illegally, and in Texas by force. The indigenous and the poor Mexican commu- nities in the seized territory, such as the Apache, Navajo, and Comanche, resisted colonization, as they had resisted the Spanish empire, often by force of arms, for the next 40 years. The small class of Hispanic elites welcomed and collaborated with US occupation.

Are “immigrants” the appropriate designation for the indigenous peoples of North America? No.

Are “immigrants” the appropriate designation for enslaved Africans? No. Are “immigrants” the appropriate designation for the original European settlers? No. Are “immigrants” the appropriate designation for Mexicans who migrate for work to the

United States? No. They are migrant workers crossing a border created by US military force. Many crossing that border now are also from Central America, from the small countries that were ravaged by US military intervention in the 1980s and who also have the right to make demands on the United States.

1www.ourdocuments.gov 2www.historycooperative.org

2

So, let’s stop saying “this is a nation of immigrants.”

* * *

Roxanne Dunbar-Ortiz is a long-time activist, university professor, and writer. In addition to nu- merous scholarly books and articles, she has written three historical memoirs, Red Dirt: Growing Up Okie (Verso, 1997), Outlaw Woman: Memoir of the War Years, 1960–1975 (City Lights, 2002), and Blood on the Border: A Memoir of the Contra War (South End Press, 2005) about the 1980s contra war against the Sandinistas.

3

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Roxanne Dunbar-Ortiz Stop Saying This Is a Nation of Immigrants!

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[ 32 ]

PROCEEDINGS OF THE AMERICAN PHILOSOPHICAL SOCIETY VOL. 159, NO. 1, MARCH 2015

American Indian Constitutions and Their Influence on

the United States Constitution1

ROBERT J. MILLER Professor

Sandra Day O’Connor College of Law, Arizona State University Chief Justice, Grand Ronde Tribe Court of Appeals

Citizen, Eastern Shawnee Tribe

I. Introduction

American Indian political theories and tribal governance helped shape the political thinking of some of the United States’ Founding Fathers and the development of several provisions in the U.S. Constitution.”2 This statement is not universally accepted,3 but it is without question that Benjamin Franklin,  Thomas Jefferson, James Madison, James Wilson, John Adams, Thomas Paine, and other Founding Fathers were acquainted with Indian peoples, tribal governments, and indigenous theories of governance.4 Many of the Founders worked with Indian nations as treaty negotiators and commissioners for colonial, state, and national governments for many decades before the United States and

1 Read on 25 April 2013 at the Spring General Meeting of the American Philosophical Society.

2 See, e.g., R. J. Miller, “American Indian Influence on the United States Constitution and its Framers,” Am. Indian L. Rev. 18 (1993), 133; D. A. Grinde, Jr., and B. E. Johansen, Exemplars of Liberty: Native America and the Evolution of Democracy (1991); see also R. M. Underhill, Red Man’s America (1953), 83; C. Wissler, Indians of the United States: Four Centuries of Their History and Culture (rev. ed. 1966, org. ed. 1940), 128.

3 See, e.g., P. A. Levy, “Exemplars of Taking Liberties: The Iroquois Influence Thesis and the Problem of Evidence,” Wm. & Mary Q. 53 (1996), 588; E. M. Jensen, “The Imaginary Connection between the Great Law of Peace and the United States Constitution,” Am. Indian L. Rev. 15 (1991), 25; E. Tooker, “The United States Constitution and the Iroquois League,” Ethnohistory 35 (1988), 305.

4 See, e.g., R. J. Miller, Native America, Discovered and Conquered: Thomas Jefferson, Lewis & Clark and Manifest Destiny (2006), 77–8, 84–97; Miller, “American Indian Influ- ence,” 141–4, 146–50; Grinde and Johansen, Exemplars of Liberty, 15, 155.

miller_32_56_1p.indd 32 12/27/15 9:59 AM

[ 32 ]

PROCEEDINGS OF THE AMERICAN PHILOSOPHICAL SOCIETY VOL. 159, NO. 1, MARCH 2015

American Indian Constitutions and Their Influence on

the United States Constitution1

ROBERT J. MILLER Professor

Sandra Day O’Connor College of Law, Arizona State University Chief Justice, Grand Ronde Tribe Court of Appeals

Citizen, Eastern Shawnee Tribe

I. Introduction

American Indian political theories and tribal governance helped shape the political thinking of some of the United States’ Founding Fathers and the development of several provisions in the U.S. Constitution.”2 This statement is not universally accepted,3 but it is without question that Benjamin Franklin,  Thomas Jefferson, James Madison, James Wilson, John Adams, Thomas Paine, and other Founding Fathers were acquainted with Indian peoples, tribal governments, and indigenous theories of governance.4 Many of the Founders worked with Indian nations as treaty negotiators and commissioners for colonial, state, and national governments for many decades before the United States and

1 Read on 25 April 2013 at the Spring General Meeting of the American Philosophical Society.

2 See, e.g., R. J. Miller, “American Indian Influence on the United States Constitution and its Framers,” Am. Indian L. Rev. 18 (1993), 133; D. A. Grinde, Jr., and B. E. Johansen, Exemplars of Liberty: Native America and the Evolution of Democracy (1991); see also R. M. Underhill, Red Man’s America (1953), 83; C. Wissler, Indians of the United States: Four Centuries of Their History and Culture (rev. ed. 1966, org. ed. 1940), 128.

3 See, e.g., P. A. Levy, “Exemplars of Taking Liberties: The Iroquois Influence Thesis and the Problem of Evidence,” Wm. & Mary Q. 53 (1996), 588; E. M. Jensen, “The Imaginary Connection between the Great Law of Peace and the United States Constitution,” Am. Indian L. Rev. 15 (1991), 25; E. Tooker, “The United States Constitution and the Iroquois League,” Ethnohistory 35 (1988), 305.

4 See, e.g., R. J. Miller, Native America, Discovered and Conquered: Thomas Jefferson, Lewis & Clark and Manifest Destiny (2006), 77–8, 84–97; Miller, “American Indian Influ- ence,” 141–4, 146–50; Grinde and Johansen, Exemplars of Liberty, 15, 155.

miller_32_56_1p.indd 32 12/27/15 9:59 AM

american indian constitutions 33

the Constitution were created.  Interestingly, the government that was created by the U.S. Constitution more closely reflects the principles of indigenous governments than those of the European monarchies and political regimes of the late-1700s. Furthermore, there is no question that Indian affairs were among the primary justifications for the U.S. Constitution.

In section II, this paper briefly sets out the evidence that American Indian political theories and governments influenced the Founding Fathers and the Constitution. Section III then broadly describes modern-day Indian constitutionalism. The paper concludes with the thought that American history and government has been impacted by tribal nations in the past, perhaps more than has been recognized, and will continue to be influenced by indigenous peoples and governments into the future.

II. Tribal and Indian Influence on the Founders and the U.S. Constitution

Most American history has been written as if history were a function solely of white culture—in spite of the fact that well into the nine- teenth century the Indians were one of the principal determinants of historical events. – Bernard DeVoto5

In this short paper, we cannot delve deeply into the history of American Indian governments and their organizational and operational princi- ples. It is sufficient to note, however, that historic tribal governments, across what is now the United States, represented a broad array of governance styles, from relatively complex to simple governments, and from nearly autocratic to extremely democratic governments.6 We can also state that there is no question that some of America’s Founding Fathers were quite familiar with tribal governmental structures. Many Founders, for example, served their colonial, state, and national govern- ments as treaty negotiators and commissioners to tribal governments and actively studied indigenous theories of government.7 In addition,

5 A. I. Hallowell, “The Backwash of the Frontier: The Impact of the Indian on American Culture,” in The Frontier in Perspective (W. D. Wyman, and C. B. Kroeber eds., 1957), 230.

6 See, e.g., R. J. Miller, Reservation “Capitalism”: Economic Development in Indian Country (2012), 13, 18–21.

7 See, e.g., Smithsonian Institution Scholarly Press, Handbook of North American Indians: History of Indian-White Relations, Book 4, (William C. Sturtevant gen. ed., Wilcomb E. Washburn vol. ed., 1988), 128–62, 185–201, 211–29; C. Bowen, The Most Dangerous Man in America: Scenes From the Life of Benjamin Franklin (1974), 91–4, 97–8; C. P. Smith, James Wilson: Founding Father, 1742–1798 (1956), 67–72.

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american indian constitutions 33

the Constitution were created.  Interestingly, the government that was created by the U.S. Constitution more closely reflects the principles of indigenous governments than those of the European monarchies and political regimes of the late-1700s. Furthermore, there is no question that Indian affairs were among the primary justifications for the U.S. Constitution.

In section II, this paper briefly sets out the evidence that American Indian political theories and governments influenced the Founding Fathers and the Constitution. Section III then broadly describes modern-day Indian constitutionalism. The paper concludes with the thought that American history and government has been impacted by tribal nations in the past, perhaps more than has been recognized, and will continue to be influenced by indigenous peoples and governments into the future.

II. Tribal and Indian Influence on the Founders and the U.S. Constitution

Most American history has been written as if history were a function solely of white culture—in spite of the fact that well into the nine- teenth century the Indians were one of the principal determinants of historical events. – Bernard DeVoto5

In this short paper, we cannot delve deeply into the history of American Indian governments and their organizational and operational princi- ples. It is sufficient to note, however, that historic tribal governments, across what is now the United States, represented a broad array of governance styles, from relatively complex to simple governments, and from nearly autocratic to extremely democratic governments.6 We can also state that there is no question that some of America’s Founding Fathers were quite familiar with tribal governmental structures. Many Founders, for example, served their colonial, state, and national govern- ments as treaty negotiators and commissioners to tribal governments and actively studied indigenous theories of government.7 In addition,

5 A. I. Hallowell, “The Backwash of the Frontier: The Impact of the Indian on American Culture,” in The Frontier in Perspective (W. D. Wyman, and C. B. Kroeber eds., 1957), 230.

6 See, e.g., R. J. Miller, Reservation “Capitalism”: Economic Development in Indian Country (2012), 13, 18–21.

7 See, e.g., Smithsonian Institution Scholarly Press, Handbook of North American Indians: History of Indian-White Relations, Book 4, (William C. Sturtevant gen. ed., Wilcomb E. Washburn vol. ed., 1988), 128–62, 185–201, 211–29; C. Bowen, The Most Dangerous Man in America: Scenes From the Life of Benjamin Franklin (1974), 91–4, 97–8; C. P. Smith, James Wilson: Founding Father, 1742–1798 (1956), 67–72.

miller_32_56_1p.indd 33 12/27/15 9:59 AM

34 robert j. miller

many Euro-American colonists observed democratic principles and governance at work in Indian governments. Ultimately, the Founders developed democratic political theories and principles that were barely practiced in Europe. Instead, many of the principles that were incorpo- rated into the U.S. Constitution were practiced by North American indigenous cultures and governments long before European contact.8

In addition, there is no question that Native Americans and tribal governments played a significant role in shaping the history of the English colonies and the early history of the American states and the United States.9 Indian affairs were some of the most important “foreign affairs” issues that the U.S. faced in the first decades of its existence and were cited as primary justifications for developing the Constitution.10 It is no surprise, then, that scholars allege that tribal governments and political theories played a part in developing the Founders’ political ideas and impacted the development of many provisions in the U.S. Constitution. Tribal cultures and governments had, what I call, both “positive” and “negative” influences on some of the constitutional provisions, as the Founders were positively influenced by Indian ideas regarding government and human freedom and negatively influenced by the threats posed by Indian tribes.11

Tribes and Indians in the U.S. Constitution

Tribes are expressly mentioned once in the U.S. Constitution, and indi- vidual Indians are mentioned twice. In Article I, in the Interstate (Indian) Commerce Clause, the Founders decided that Congress would have the sole power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . . .”12 This

8 Miller, “American Indian Influence,” 133–4, 143–5; M. L .J. Fletcher, “The Original Understanding of the Political Status of Indian Tribes,” St. John’s L. Rev. 82 (2008), 153, 165–72, 181; D. E. Wilkins, American Indian Politics and the American Political System (2nd ed., 2007), 127–38.

9 G. S. Wood, “Federalism from the Bottom Up,” U. Chicago L. Rev. 78 (2011), 705, 706; Smithsonian Institution, Handbook of North American Indians: History of Indian- White Relations, 128–62, 185–201, 211–29. Indian and English interactions “began to shape the nature of the English experiment [of colonizing America] . . . .” B. Catton, and W. B. Catton, The Bold and Magnificent Dream: America’s Founding Years, 1492–1815 (1978), 137. The Iroquois “most profoundly influenced history in the seventeenth and eighteenth centuries.” Smithsonian Institution Scholarly Press, Handbook of North American Indians: Northeast, Book 15 (William C. Sturtevant gen. ed., Bruce G. Trigger vol. ed., 1978), 418.

10 Miller, “American Indian Influence,” 138, 155–7; G. Ablavsky, “The Savage Constitu- tion,” 63 Duke Law Journal 999 (2013), 1003–8, 1052–66. Accessed at http://papers.ssrn. com/sol3/papers.cfm?abstract_id=2229957

11 Miller, “American Indian Influence,” 133, 141–6, 155–8. 12 U.S. Const. art. I, § 8, cl. 3.

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34 robert j. miller

many Euro-American colonists observed democratic principles and governance at work in Indian governments. Ultimately, the Founders developed democratic political theories and principles that were barely practiced in Europe. Instead, many of the principles that were incorpo- rated into the U.S. Constitution were practiced by North American indigenous cultures and governments long before European contact.8

In addition, there is no question that Native Americans and tribal governments played a significant role in shaping the history of the English colonies and the early history of the American states and the United States.9 Indian affairs were some of the most important “foreign affairs” issues that the U.S. faced in the first decades of its existence and were cited as primary justifications for developing the Constitution.10 It is no surprise, then, that scholars allege that tribal governments and political theories played a part in developing the Founders’ political ideas and impacted the development of many provisions in the U.S. Constitution. Tribal cultures and governments had, what I call, both “positive” and “negative” influences on some of the constitutional provisions, as the Founders were positively influenced by Indian ideas regarding government and human freedom and negatively influenced by the threats posed by Indian tribes.11

Tribes and Indians in the U.S. Constitution

Tribes are expressly mentioned once in the U.S. Constitution, and indi- vidual Indians are mentioned twice. In Article I, in the Interstate (Indian) Commerce Clause, the Founders decided that Congress would have the sole power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . . .”12 This

8 Miller, “American Indian Influence,” 133–4, 143–5; M. L .J. Fletcher, “The Original Understanding of the Political Status of Indian Tribes,” St. John’s L. Rev. 82 (2008), 153, 165–72, 181; D. E. Wilkins, American Indian Politics and the American Political System (2nd ed., 2007), 127–38.

9 G. S. Wood, “Federalism from the Bottom Up,” U. Chicago L. Rev. 78 (2011), 705, 706; Smithsonian Institution, Handbook of North American Indians: History of Indian- White Relations, 128–62, 185–201, 211–29. Indian and English interactions “began to shape the nature of the English experiment [of colonizing America] . . . .” B. Catton, and W. B. Catton, The Bold and Magnificent Dream: America’s Founding Years, 1492–1815 (1978), 137. The Iroquois “most profoundly influenced history in the seventeenth and eighteenth centuries.” Smithsonian Institution Scholarly Press, Handbook of North American Indians: Northeast, Book 15 (William C. Sturtevant gen. ed., Bruce G. Trigger vol. ed., 1978), 418.

10 Miller, “American Indian Influence,” 138, 155–7; G. Ablavsky, “The Savage Constitu- tion,” 63 Duke Law Journal 999 (2013), 1003–8, 1052–66. Accessed at http://papers.ssrn. com/sol3/papers.cfm?abstract_id=2229957

11 Miller, “American Indian Influence,” 133, 141–6, 155–8. 12 U.S. Const. art. I, § 8, cl. 3.

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american indian constitutions 35

provision was expressly designed to correct one of the greatest weak- nesses of the Articles of Confederation—that state governments were allowed to meddle in Indian affairs. James Madison and other Founders agreed that fixing this problem was crucial to the success of a national government and any new constitution because states had caused Indian wars for the Continental and Articles of Confederation governments.13

Furthermore, federal/tribal treaties were included in the Treaty Clause of the Constitution and became “the supreme Law of the Land” to prevent states from interfering with federal/tribal treaties and entering state treaties with tribes.14 Consequently, the Constitution places the sole authority for conducting business with tribes in the hands of Congress.

Indian individuals are mentioned in the Constitution in the provi- sions that require a census of state populations to determine how many House representatives each state receives. Indians were not to be counted as state citizens (i.e., as part of a state’s population) unless they paid taxes.15 In 1868, when the freed slaves were granted full citizen- ship rights through the Fourteenth Amendment, Indians were again expressly excluded from state populations unless they paid taxes.16 These exclusions demonstrate that the Founders and the Constitution recognized that Indians were citizens of their own separate nations. (Most Indians were not made United States citizens until 1924.17)

Positive Indian Effects on the Founders and the Constitution

It would be a very strange Thing, if six Nations of ignorant Savages should be capable of forming a Scheme for such an Union, and be able to execute it in such a Manner as that it has subsisted Ages, and

13 James Madison, The Federalist Papers No. 42 (Clinton L. Rossiter ed., 1961) 268–9; id. at No. 3, 44–5 (J. Jay); County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 234 n.4 (1985) (“Madison cited the National Government’s inability to control trade with the Indians as one of the key deficiencies of the Articles of Confederation and urged adoption of the Indian Commerce Clause.”); Letter from James Madison to James Monroe (Nov. 27, 1784), in 2 The Founder’s Constitution 529 (P. B. Kurland, and R. Lerner eds., 1987) (Madison wrote that the provision controlling Indian policy in the Articles if “taken in its full latitude, it must destroy the authority of Congress altogether.”). Accord R. B. Morris, The Forging of the Union (1987), 186–8; C. Drinker Bowen, Miracle at Philadelphia (1966), 168–70; N. Schachner, The Founding Fathers (1954), 65.

14 U.S. Const. art. VI, cl. 2. By 1789, the Continental and Articles of Confederation Congresses signed nine treaties with tribal nations and 23 treaties with foreign nations.

15 U.S. Const. art. I, § 2, cl. 3. 16 U.S. Const. amend. XIV, § 2. 17 Act of June 2, 1924, ch. 233, 43 Stat. 253 (codified at 8 U.S.C. § 1401[b]).

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american indian constitutions 35

provision was expressly designed to correct one of the greatest weak- nesses of the Articles of Confederation—that state governments were allowed to meddle in Indian affairs. James Madison and other Founders agreed that fixing this problem was crucial to the success of a national government and any new constitution because states had caused Indian wars for the Continental and Articles of Confederation governments.13

Furthermore, federal/tribal treaties were included in the Treaty Clause of the Constitution and became “the supreme Law of the Land” to prevent states from interfering with federal/tribal treaties and entering state treaties with tribes.14 Consequently, the Constitution places the sole authority for conducting business with tribes in the hands of Congress.

Indian individuals are mentioned in the Constitution in the provi- sions that require a census of state populations to determine how many House representatives each state receives. Indians were not to be counted as state citizens (i.e., as part of a state’s population) unless they paid taxes.15 In 1868, when the freed slaves were granted full citizen- ship rights through the Fourteenth Amendment, Indians were again expressly excluded from state populations unless they paid taxes.16 These exclusions demonstrate that the Founders and the Constitution recognized that Indians were citizens of their own separate nations. (Most Indians were not made United States citizens until 1924.17)

Positive Indian Effects on the Founders and the Constitution

It would be a very strange Thing, if six Nations of ignorant Savages should be capable of forming a Scheme for such an Union, and be able to execute it in such a Manner as that it has subsisted Ages, and

13 James Madison, The Federalist Papers No. 42 (Clinton L. Rossiter ed., 1961) 268–9; id. at No. 3, 44–5 (J. Jay); County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 234 n.4 (1985) (“Madison cited the National Government’s inability to control trade with the Indians as one of the key deficiencies of the Articles of Confederation and urged adoption of the Indian Commerce Clause.”); Letter from James Madison to James Monroe (Nov. 27, 1784), in 2 The Founder’s Constitution 529 (P. B. Kurland, and R. Lerner eds., 1987) (Madison wrote that the provision controlling Indian policy in the Articles if “taken in its full latitude, it must destroy the authority of Congress altogether.”). Accord R. B. Morris, The Forging of the Union (1987), 186–8; C. Drinker Bowen, Miracle at Philadelphia (1966), 168–70; N. Schachner, The Founding Fathers (1954), 65.

14 U.S. Const. art. VI, cl. 2. By 1789, the Continental and Articles of Confederation Congresses signed nine treaties with tribal nations and 23 treaties with foreign nation

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