SEPARATE, SOVEREIGN, AND SUBJUGATED: NATIVE CITIZENSHIP AND THE 1790 TRADE AND INTERCOURSE ACT. (response to Gabriel J. Chin and Paul Finkelman in this issue, p. 1047)

• Date: 01 April 2024
• Author: Berger, Bethany

TABLE OF CONTENTS
                INTRODUCTION 1119
                I. 1790: INDIGENOUS PRESENCE AND POWER 1122
                II. INDIGENOUS CITIZENSHIP AND SUBJECTION 1130
                CONCLUSION 1134
                

INTRODUCTION

On November 9, 2022, Samantha Maltais, like many Indigenous people from across the United States, went to D.C. in hopes of hearing Supreme Court arguments in Haaland v. Brackeen. (1) The first citizen of the Aquinnah (Gay Head) Wampanoag Tribe to attend Harvard Law School, Maltais wore her buckskin regalia to the Court. (2) The guards initially tried to remove her from line, claiming that the traditional garb was a forbidden political statement, but relented when she resisted. (3)

Like the Brackeen case itself, which challenged the Indian Child Welfare Act on federal power and equal protection grounds, (4) the incident reflected the contested status of Indigenous peoples in the United States. Indigenous people are at once U.S. citizens and possessed of separate political identity, at once celebrated and marginalized for their distinctness, and at once subjects of federal protection and federal domination. This Comment uses Gabriel Chin and Paul Finkelman's wonderful article on the 1790 Naturalization Act as a springboard to examine how this paradoxical status manifested in another possible "super-statute," the 1790 Indian Trade and Intercourse Act, (5) and what it means for the imagined racial status of the United States.

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As at the Brackeen argument, Indigenous people in traditional garb were present as the first Congress conducted its work. Traveling to New York and Philadelphia to negotiate treaties, complain about their violation, receive presents, or simply act as tourists, tribal citizens were frequent and noteworthy visitors to the seats of government. (6) Indigenous peoples were also frequent subjects of congressional and presidential concern. On July 22, 1790, four months after approving the first Naturalization Act, Congress also approved the first Indian Trade and Intercourse Act. (7) That act--parts of which are almost unchanged today--created the framework for trade, land purchases, territory, and criminal jurisdiction that still shapes federal Indian law. (8)

Unlike Samantha Maltais, the 1790 tribal visitors were not U.S. citizens, and were almost certainly not among the "free white persons" who could become so under the 1790 Naturalization Act. (9) Unlike children of Chinese immigrants, Indigenous people born in U.S. territory were not even birthright citizens under the Fourteenth Amendment. (10) Birthright citizenship would not be extended to Indigenous people until 1924 and then only by statute. (11) And yet contrary to Chin and Finkelman's account, incorporating people of Indigenous descent as citizens was part of the U.S. imagination, and even law, from the beginning. (12) What does this mean for Chin and Finkleman's claim that the framers "unambiguously conceived of the United States as a White country," (13) and what does this mean for Native citizenship?

This Comment argues that the history of Native citizenship in 1790 and beyond does not refute Chin and Finkleman's account but does complicate its meaning. What was at stake was not so much the Whiteness of the citizen population but the Whiteness of power. As Chin and Finkelman document, there was a substantial non-White population in the United States from its inception. (14) For the first century of U.S. history, moreover, citizenship--or eligibility for it--did not affect one's right to presence in the country. (15) Instead, its primary function was to allocate power, to some extent through voting, (16) and even more importantly, through ownership of land. (17) Indigenous citizenship, in this light, was consistent with the Whiteness of power, because it was understood to deprive individuals and their nations of autonomy from federal and state law and federal protection from dispossession, facilitating access to land and authority by White citizens and their governments. (18) Indigenous citizenship also affirmed the superiority of White American identity by symbolizing the choice of Indigenous people to abandon their cultures in favor of the Anglo-American culture of the United States. (19)

At the same time, the Trade and Intercourse Act and its framework of federal protection of tribal sovereignty and separateness reflected, in part, a more honorable commitment to respect for non-White peoples and the promises made to them. Of course, the Act reflected national self-interest as well, primarily desires to avoid costly conflicts at a time when U.S. coffers were depleted (20) and foreign and tribal military might was significant. (21) Yet it is necessary to acknowledge its more laudable impulses, like the paradoxical citizenship Professor Frost's Comment describes, to understand the often heartbreaking but sometimes inspiring complexity of the American experiment. (22)

Part I of this Comment describes the presence of Indian people and Indian affairs as Congress enacted the first Naturalization Act, and the lasting impact of the Trade and Intercourse Act on relationships between Indigenous, federal, and state governments. The Part argues that this relationship enshrined the separate and sovereign status of tribal nations, but also reflected their subjugation to federal authority and national interests. Over time, moreover, federal subjugation increased even as protection for separateness and sovereignty decreased. Part II discusses the lack of birthright citizenship or access to naturalization to Native people, the extension of citizenship to (certain) Native people and how this was consistent with both the Whiteness of U.S. power and identity and the more egalitarian strand of U.S. identity. The Conclusion discusses what this means for our understanding of citizenship, U.S. identity, and Native rights today.

I. 1790: INDIGENOUS PRESENCE AND POWER

Native people were ever-present in the capitals and consciousness of the fledgling United States. This presence manifested many times in the first Congress. (23) President Washington repeatedly provided information, sought advice, and urged action on Indian affairs. (24) The Senate and House of Representatives discussed responses to conflicts with tribal governments and allocation of constitutional authority with respect to Indian tribes. (25) Before the end of the term, the Senate had ratified a treaty with the Muscogee (Creek) Nation--the first entered into under the new Constitution--and Congress had enacted the first Trade and Intercourse Act. (26) Together, these documents sketched a federal Indian policy that has transformed many times, but important parts of whose basic structure remains today.

Indian affairs were a central concern in the first Congress. Burdened with debt from the Revolutionary War, (27) fearing territorial ambitions of England and Spain, (28) and encouraging its citizens to settle its Western Territory, (29) the United States could ill afford violent conflict with tribal nations. Yet state and settler actions seemed to make it inevitable. The tribes of the Wabash Confederacy were resisting settlement north of the Ohio River, (30) the Haudenosaunee Confederacy in New York and the Cherokee Nation in North Carolina protested encroachment on their treaty lands, (31) and the Muscogee (Creek) Nation was threatening war in Georgia. (32)

Conflicts between Georgia and the Muscogee Nation and between North Carolina and the Cherokee Nation were most pressing. On August 22, 1789, the President came to the Senate chamber to discuss the situation. (33) Both Georgia and North Carolina had claimed the federal treaties signed with these tribes under the Articles of Confederation "infring[ed] their legislative rights." (34) The Cherokee treaty had been "entirely violated by the disorderly White people on the [North Carolina] frontiers," and the state sought a new treaty to resolve the conflict. (35) As North Carolina had still not joined the Union, the President doubted whether "efficient measures" by the United States were possible. (36) Georgia, meanwhile, claimed to have signed three treaties with the Muscogee Nation, but the Muscogee, led by Alexander McGillivray, denied their validity. (37) Washington urged diplomacy to resolve the conflict, noting that the "fate of the Southern States" might depend on it. (38)

The President returned to the problem in his first annual address to Congress on January 8, 1790. (39) After celebrating North Carolina's recent accession to the Union and emphasizing the need for a regular army (and before mentioning the need for a uniform system of naturalization), Washington highlighted the failure of "pacific measures" to resolve conflicts in the South and West. (40) He had previously sought advice and consent regarding appointing three commissioners to treat with the Muscogee, (41) and when the commissioners failed, appointed Secretary of War Henry Knox himself to negotiate with the Nation. (42) Although some--notably Representative James Jackson of Georgia--insisted that the United States propose only war and not diplomacy to the "half-breed savage" McGillivray, (43) others chided Jackson for addressing "the passions more than the judgment." (44)

Indian affairs also raised constitutional questions. President Washington consulted the Senate on whether treaties with tribal nations were self-executing or required Senate ratification and congressional implementation. (45) He opined that all treaties "formed by the United States with other nations, whether civilized or not, should be made with caution, and executed with fidelity." (46) Although a congressional committee advised against requiring Senate ratification in 1789, (47) by the summer of 1790, the Senate was ratifying treaties without objection, (48) and the House questioned whether it had any role even with respect to the number of treaty commissioners. (49)

Throughout this period, the new government was sending delegations to secure...