In the past we have always had laws; however the Choctaw people shall possess this series of strong laws. . . . Now, in coming days we should take well to heart these laws we have passed as we continue our lives. It is imperative that we not forget.
— Choctaw Constitution of 18261
“How long will Indian constitutions last?” . . . An Indian constitution will exist as long as there remains in human hearts a community of interdependence, of common interests, aspirations, hopes, and fears, in realms of art and politics, work and play.
— Felix S. Cohen (1939)2
Introduction
The United States is known for its constitutions. At the nation’s birth, the American Revolution sparked a bold political experiment: The newly declared states replaced their colonial charters with the world’s first written constitutions and organized into a loose confederation.3 A decade later, delegates from twelve of the thirteen states, a group of fifty-five white men, met in Philadelphia and wrote a constitution that transformed that confederation into a national republic.4 Over 230 years later, that document, the U.S. Constitution, still governs us. And the list of our constitutional contributions has only expanded, with the addition of twenty-seven amendments to the U.S. Constitution,5 the admission of thirty-seven more states with their own constitutions,6 the successive adoption of thousands of amendments and rewritten constitutions by the fifty states,7 and continually raging debates over constitutional meaning.8
But this familiar picture of American constitutionalism is incomplete.9 Beyond the fifty-four federal, state, and territorial constitutions,10 approximately 230 other constitutions11 currently govern millions of people and tens of thousands of square miles of territory within the boundaries of the United States.12 And these contemporary constitutions are part of a much larger legal tradition, one that stretches back 200 years and includes an archive of over 1,000 constitutions and associated documents.13 These missing documents within the American constitutional picture14 — documents that comprise a substantial portion of this picture — are the constitutions of Native nations.15
Despite their number and long history, the written constitutions of Native nations have been overlooked by legal and historical scholarship thus far. While the U.S. Constitution, and increasingly state constitutions,16 command the field of constitutional law scholarship as the documents establishing the quintessential American governments, tribal constitutions are constrained to the supposedly “tiny backwater”17 of federal Indian and tribal law.18 Additionally, only one tribal constitution — that of the Cherokee Nation in 1827 — shows up in mainstream narratives of American constitutional history and solely in the context of debates on the U.S. Constitution.19 Otherwise, Native nations’ constitutions have been pushed to the margins, confined to the histories of specific Indigenous polities.20 As a result, Indigenous political activity has been separated from both American constitutionalism and mainstream U.S. history, leading to a stunted narrative on American constitutional development.
This Article seeks to correct these oversights. First and foremost, this Article counters tribal constitutions’ obscurity by calling for the recognition of a category of Indigenous constitutionalism.21 It contends that a coherent and shared constitutional tradition among Native nations exists and that uncovering this tradition is necessary to grasp fully the scope and history of American constitutionalism. And this Article sets out to understand and describe a particular historical and legal phenomenon that is part of this shared constitutional practice: Native nations adopting and transforming a Euro-American legal instrument — the written constitution22 — to commit their legal traditions and unwritten fundamental law23 to textual form. This syncretic process of adaptation and transformation is Indigenous constitutionalism. And its study illuminates not only the history of tribal sovereignty and governance, but also offers insights into Indigenous self-determination around the globe and the diversity and exceptionalism within American constitutionalism.24
On one level, this work is conceptual. This Article frames Indigenous constitutionalism as a distinct constitutional practice through which Native nations claim and exercise self-governance while embedded in the wider constitutional — and colonial — landscape of the United States.25 And it identifies four defining features of Indigenous constitutionalism: (1) the appropriation of the Euro-American concept of constitutionalism, including the written constitutional form; (2) the subversion of constitutions’ tendency to assimilate and erase non-Western polities and customary law; (3) the adaptation of unwritten customary law and written law to construct a hybrid legal order; and (4) the resistance to incorporation into the United States while demanding recognition of tribal sovereignty.26
But this work is also historical, drawing Indigenous constitutionalism’s features from the two-hundred-year history of written tribal constitutions. Using archival research alongside the work of Indian Country scholars, this Article identifies and explores three major eras of tribal constitutional development. The first era centers on the origins of written tribal constitutions in the nineteenth century, events that led to the recognition of tribal sovereignty in American law. Unfolding in the time of Indian Removal, the narrative of this era focuses on a moment never before studied in full: the simultaneous creation of the first written tribal constitutions — those of the Choctaw and Cherokee Nations — in the 1820s South, showcasing how these nations turned to constitutionalism to exercise and reify tribal power when faced with attempts to strip them of their homelands and their sovereignty.27 The second era covers the explosion of constitutions in the early twentieth century under the federal Indian Reorganization Act of 193428 (IRA). Despite a heavy-handed federal approach and a standard constitutional format,29 this era demonstrates that Native constitutional thought persisted even in a period of imposition. Felix Cohen — the legendary author of the Handbook of Federal Indian Law30 — relied on the nineteenth-century Native constitutions to both spell out and recognize the substantial breadth of tribal sovereignty that persisted after a century of Native dispossession, genocide, and subjugation.31 Finally, the third era is comprised of the movement for tribal constitutional reform that has stretched from the final decades of the twentieth century to today. Coinciding with the Self-Determination Era32 in federal Indian law that began in the 1960s and 1970s, tribes that had been stripped of their earlier constitutions, had recently regained federal recognition, or had struggled to govern under their IRA constitutions undertook constitution-writing projects — all pursuing innovative ways to bolster their status as modern nations with sophisticated tribal state apparatuses.33
Through this history, Indigenous constitutionalism has much to teach us. First, it promotes the continued flourishing of tribal law scholarship. Tribal law studies are currently undergoing a renaissance as scholars demand external recognition of tribal law as part of American law,34 call for attention to tribal law innovations in various regulatory areas,35 and propose methods for expanding tribal court systems to incorporate customary law and restorative justice methods.36 The study of Indigenous constitutionalism supplements this growing field by exploring in depth the ways in which Native peoples have approached their written constitutions, which — along with customary law — serve as the primary foundation for all other tribal law. It shows that just because tribal constitutions were written in the context of colonialism does not mean that these documents are inauthentic. In fact, their colonial nature helps to unearth Indigenous constitutionalism’s extensive history and diversity, which can inform further research into tribal law as a hybrid and congruent field combining Native customary and Euro-American positive law.
Perhaps Indigenous constitutionalism’s greatest contribution to the field of tribal law, though, is providing scaffolding for a tribal constitutional law framework. By viewing tribal constitutional practices as an ongoing, two-centuries-long dialogue among Native nations, Indigenous constitutionalism reveals the fundamental and persistent questions that Native peoples have encountered through writing and interpreting their constitutions. While tribal constitutions could easily slot into a federal or state constitutional law framework — with their similar concerns around issues such as separation of powers and individual rights — they also confront challenges that no other American polity faces due to their tribal character, persisting cultures, and colonial positionality. This Article points to three such issues that could structure the distinctive aspects of an academic and legal framework for tribal constitutional law: the construction of Native polities around membership and territory,37 the legal hybridity of constitutions that combine elements from Indigenous and Euro-American legal orders,38 and the effects of Native nations’ status within a protectorate system.39 And by showing how Native nations have taken various approaches to overcoming these same challenges across time and space, Indigenous constitutionalism emphasizes the sheer amount of constitutional creativity that Native peoples have exhibited.
Further, this Article positions Indigenous constitutionalism as a bridge between tribal law and federal Indian law. Uncovering the histories of tribal constitutions revises the standard origin stories of the field of federal Indian law, shifting its foundations from the isolation from — and even subjugation of — tribal law to being inextricably intertwined with respect for tribal authority. The common understanding is that federal Indian law derives from two moments — the “Marshall Trilogy”40 of U.S. Supreme Court cases in the early nineteenth century and the publication of Cohen’s Handbook of Federal Indian Law41 in the mid-twentieth century — and is the work of non-Native people wrestling with how to justify and ameliorate conquest. But inserting the foundational eras of tribal constitutional development — namely, the first constitutions in the Removal Era and the IRA constitutions of the twentieth century — into these stories reveals that Native peoples and their claims to and exercises of tribal sovereignty heavily influenced the field of federal Indian law.42 Thus, Indigenous constitutionalism demonstrates that tribal constitutions and federal Indian law were cocreated, ultimately providing more space for the further recognition and incorporation of tribal law into federal Indian law. And doctrinally, tribal constitutional provisions could concretize the often-amorphous concept of tribal sovereignty in federal law.43
This Article also opens pathways for examining how Indigenous constitutionalism may inform the practice of U.S. constitutional law. For instance, originalism is ascendant as a method of constitutional interpretation at the U.S. Supreme Court, and some have argued the same is true of state courts.44 But the same is not true for tribal courts that have engaged in their own acts of constitutional interpretation — acts that both reveal alternative interpretive approaches and challenge originalism’s inevitability.45 Likewise, tribes have implemented diverse approaches to allocating power across legislative, executive, and judicial branches46 — approaches that can inform ongoing separation of powers debates, such as arguments over legislative constitutionalism,47 the unitary executive,48 and judicial review.49 Awareness of antebellum tribal constitutions can even shed light on important interpretive debates, providing Native-authored documents that serve as evidence for what Native people thought of the U.S. Constitution and how they shaped its meaning.50 And such potential further indicates why we should view tribal constitutions as part of the wider debates over American constitutionalism.51 Although space constraints preclude a full investigation of these evergreen constitutional law debates in this Article, this study’s aim is to offer initial thoughts on how this category of Indigenous foundational documents might reorient our current approaches to U.S. history, federal Indian law, and American constitutional law.
But, most importantly, Indigenous constitutionalism complicates the nature and scope of American constitutionalism. By focusing on the federal and state constitutions, we have accepted the view that constitutions share the same structure, are the sole sources of supreme law, are pure expressions of popular sovereignty, and focus on two matters: internal governance through a three-branch framework and rights protection.52 But, recently, scholarship on state constitutional law has begun to alter the ways we think about American constitutionalism, highlighting state constitutions’ unique pro-democracy structures and alignment with features of other constitutions around the world.53
This Article contends that like state constitutions, tribal constitutions offer their own distinct perspective on American constitutionalism. Indigenous constitutionalism shows that Native nations have departed from the prevalent definitions of a Euro-American constitution. They have followed different formats in expressing their constitutional thought. They have also refused to recognize their written constitutions as the only and ultimate source of legal authority, placing them alongside other sources of fundamental law, such as treaties and customary law.54 Further, Native nations wrote constitutions for internal and external audiences, asserting their sovereignty and defining their relationship to other American governments.55 And tribal constitutions have employed alternative and creative institutional structures to reflect political circumstances and tribal culture. Thus, Indigenous constitutionalism expands the concept of American constitutionalism by pointing to the complex ways in which these charters have navigated Indigenous and colonial power.56 But exploring Indigenous constitutionalism also forces us to reexamine the dominant narrative on how we think about and interpret the U.S. Constitution, recovering features that were once seen as part of the Constitution but that have been obscured over time.57 In other words, what makes Indigenous constitutionalism distinctive for modern Americans would have been familiar to our forebears from the eighteenth and nineteenth centuries. Thus, this Article shows that instead of being merely a “mirror[]”58 of their American neighbors’ documents, tribal constitutions are actually a prism that refracts what we think we know about constitutionalism in the United States.
Ultimately, Indigenous constitutionalism speaks to the past, present, and future of Native nations and of the United States. This Article, however, is only the beginning of a much larger project. It focuses on three constitutional moments and a sampling of tribal constitutions to paint the broad outlines of the concept and illuminate the role of tribal constitutions in protecting Native self-government vis-à-vis the United States. Nevertheless, much remains to be explored in future work, including the constitutions’ impact on inter- and intratribal politics, changes in constitutional ideas across both adopted and proposed tribal constitutions from the nineteenth century to today, and the relationship between tribal constitution-making efforts and the drafting of both state and territorial constitutions. What follows is the theoretical and historical foundation required for such future research.
This Article proceeds in five Parts. Part I proposes Indigenous constitutionalism as the necessary paradigm for understanding Native nations’ fundamental law, particularly their written constitutions. Parts II through IV then discuss the three eras of tribal constitutional development from the nineteenth century to the present, drawing out how Native nations have used written constitutions and built a lasting constitutional tradition. Finally, Part V provides preliminary thoughts on the lessons that can be learned from the study of Indigenous constitutionalism, including rethinking the tribal constitutional law framework, revising the origin stories of federal Indian law, reframing the dominant narratives on U.S. constitutional law and history, and questioning the category of American constitutionalism.