The Unsettled Constitution: Native Sovereignty from British Empire to American Union

This essay examines the constitutional problem of Native sovereignty from the seventeenth century through the ratification of the United States Constitution, arguing that treaty diplomacy with Native nations generated a persistent tension between international law and Anglophone constitutionalism. Focusing on debates surrounding the treaty power, it shows that Native nations were neither marginal nor anomalous to early American constitutional thought, but central to disputes over sovereignty, jurisdiction, and the distribution of powers within empire, colonies, states, and the Union. Beginning with British imperial contests over control of Indian affairs, the essay traces how colonial legislatures, the Crown, and Native polities articulated competing claims to war-making, alliance, and land, producing a layered constitutional order in which multiple sovereignties coexisted within the same territorial space. It then demonstrates how these tensions intensified during the Revolution and Confederation period, as the United States inherited diplomatic practices that recognized Native nations as treaty-worthy sovereigns while simultaneously constraining state authority. By foregrounding treaty records and constitutional debate together, the essay reframes Native diplomacy as a constitutive feature of American constitutional development rather than a peripheral or transitional phenomenon. In doing so, it clarifies the origins of plenary federal power, the limits of state sovereignty, and the enduring legal significance of treaties in Federal Indian law.