America's first immigration crisis: The implications of taking Indigenous Nationhood seriously

Sandy Levinson

First things first:  I strongly recommend to everyone Mary Sarah Bilder's new article, Without Doors:  Native Nations and the Convention, which has just appeared in a truly remarkable symposium in the Fordham Law Review on The Federalist Constitution.  I've not yet read all of the articles, but the three I've read so far are absolutely terrific, in every way.  Bilder focuses on the role that delegates from Indigenous Nations played at the Philadelphia Convention and then afterward in the early days of the Washington Administration.  By looking "without doors," i.e., outside the locked confines of the Convention itself, she demonstrates the genuine, and important, presence of delegates from a number of Indigenous Nations at the Convention and their influence on the drafting of the Constitution.  A lot of potted histories of the Convention, including my own, will have to be rewritten in light of her article.

What I find most fascinating, though, and triggers this post, is the degree to which the article focuses on what I'm now going to start describing as "America's first immigration crisis."  It is derived from the fact that Indigenous Nations rightly feared the incursion on their lands--which they considered their "sovereign territory," not part of the United States of America juridically--by rapacious white settlers.  Many, of course, had understandably supported the British in their own efforts to prevent American secession from the British Empire.  London had announced in 1763 a ban on further settlement west of the Alleghenies by settlers wishing to move west.  Needless to say, this didn't go over very well with the settler community.  The 1619 Project understandably focuses on the reality of white supremacy and American Blacks.  But Bilder brings to bear the importance of understanding the at least equally important reality of Indigenous Nations who were equally suspicious of their treatment at the hands of white would-be hegemons.  

Although none of the Nations seemingly suggested "building a wall" to keep out white settlement, one suspects they would have been receptive to the idea.  (One ever present possibility, of course, was the use of violence against insistent would-be settlers.). One of the many virtues of the article is that it tests many of one's own presuppositions about immigration.  Like many contemporary liberals, I tend toward quite open borders, wishing to welcome not only political refugees fearing persecution (broadly defined), but also persons, like my own ancestors, simply seeking a better life for themselves and their children.  And no one could doubt that America was initially built on a de facto reality of significantly open borders, at least if one were not a "vicious pauper," in the language of Mayor of New York v. Miln (1837).  And, as a political liberal, I tend ultimately to focus on "individual flourishing" and to be suspicious of states and other would-be hegemonic institutions speaking in behalf of maintaining a unified political culture.  

But, in the context of this article, I find myself sympathetic to the wishes of Indigenous Nations to keep out settlers.  In any event, one of the major developments at the Convention, as Bilder demonstrates, was the exclusion of states ("sovereign" or not) from having any role in negotiating with or making policies involving American Indians.  As it turned out, of course, this is part of the Constitution that might be described as a "parchment barrier" with regard to providing genuine protection for the Indigenous Nations that actually trusted the Americans.  One of the provisions of much-discussed Treaty of Hopewell promised that Indigenous Nations would be allowed to send "delegates" to Congress.  This obviously did not happen.  (And even if it had, one can be sure that, as with the District of Columbia and Puerto Rico, they would have had no vote and concomitantly little actual influence).  

One of the obvious differences between American Blacks and members of Indigenous Nations is that most of the former, I am quite confident, sought, like Frederick Douglass, personal autonomy and full membership within the American political community.  For the latter, though, personal autonomy had to be understood within the context of the very particular Nations within whom they were socialized and lived; more to the point, what they wanted to political autonomy in the form of genuine "sovereignty" of their respective Nations.  Although many treaties promised Native Americans the possibility of citizenship, that was not really their primary focus or desire.  Sitting Bull was not striving to become an American.  He wanted to lead an independent Lakota Sioux Nation, a juridical equal to the United States of America (and with no duty to take account of a subordinate entity like Montana or South Dakota).  It is totally unclear to me what the precise implications are for contemporary policy.  Bilder is a careful historian, trying to reconstruct the past as it was understood by the people actually living then.  She is not an "originalist" pretending to generate contemporary understandings based on what occurred over two centuries ago.  Still, it is clear that any "Indian lives matter" movement would inevitably have to take a somewhat different form from "Black lives matter" or most other standard-form social movements.

I doubt that many courses in American constitutional law treat in any depth the reality of Indigenous Nations and their relationship to the United States Constitution.  There may be mention of Marshall's dictum about their being "domestic dependent sovereigns,' but that is usually it.  There's just "not time" to treat the issue in any depth.  There are a bunch of contemporary "Indian rights" cases dealing with tribal autonomy, but, as Justice Thomas altogether accurately suggested, the actual treatment by the Court of tribal "sovereignty" is altogether incoherent and schizophrenic.  Judith Resnik has suggested for some years that "American federalism" ought to be recognized as consisting of three levels--nation, states, and Native American tribes.  More than ever, I think she is quite right, and it is illuminating to apply such an analysis to the analysis of membership rules and immigration.