Indigenous Representation: The Constitution's True Intent

The representation of Indigenous people in the US Constitution is a complex issue. While the Constitution was written in the name of the People of the United States, many Indigenous peoples were excluded from its drafting and ratification due to race, gender, and class. Despite this exclusion, Indigenous peoples had their own constitutional traditions and actively resisted the imposition of the US Constitution. They were forcibly included within the nation despite rejecting the Constitution and the political system it offered. The US Constitution does contain references to Natives, both individually and collectively, and Native peoples are specifically named in two sections of Article 1. However, the US Constitution and its amendments do not apply to Native nations, and even Native American citizens are not entitled to full constitutional protection of their tribally-based rights. In Canada, Indigenous leaders have campaigned for the inclusion and recognition of Indigenous rights in the Constitution, with some success in court rulings.

Explore related products

Indigenous Politics: Institutions, Representation, Mobilisation (Ecpr Studies in European Political Science)

$92.68 $116

Indigenous Struggles in the United States: The Divide-and-Conquer Strategy of "Federal Recognition" (Springer Studies on Populism, Identity Politics and Social Justice)

$142.42 $159.99

Racism and Resentment in Indigenous-Settler Relations: Lessons from the Voice (Indigenous-Settler Relations in Australia and the World Book 8)

$117.32 $119

Hidden Genocides: Power, Knowledge, Memory (Genocide, Political Violence, Human Rights)

$41.95 $41.95

Declaration of Indian Purpose: The Voice of the American Indian

$33.95

The Failure of the Voice Referendum and the Future of Australian Democracy (Anthem Studies in Australian Politics, Economics and Society, 1)

$110

Indigenous peoples' roles in constitutional debates

The US Constitution was written in 1787 by white men, and ratified the following year by white men who had been chosen by a white, male, property-holding electorate. This meant that many of the nation's people were excluded from the process based on race, gender, and class. However, these marginalized communities were far from silent, and a more inclusive constitutional history would capture their roles as actors, not just subjects, in constitutional debates.

Indigenous people had their own pre-revolutionary constitutional order, which has been referred to as the "diplomatic constitution". This was a set of practices, norms, and expectations that governed interactions between Native nations and European empires. Native peoples resisted when the principles of that diplomatic constitution were challenged, and they experienced a post-revolutionary era of turmoil and contention, an Indigenous "critical period".

After the Constitution's drafting, its Federalist proponents sought to persuade Native peoples of its merits, but most Native peoples decided to reject the Constitution and the political system it offered them. They were nonetheless forcibly and unwillingly included within the nation.

Some of the Founding Fathers who signed the Constitution had deep familiarity with Native nations, some having negotiated treaties or engaged in diplomatic relations with them. Benjamin Franklin, for example, was closely involved in negotiating and printing treaties with Native nations, including the Iroquois Confederacy, and studied their systems of governance. Eighteenth-century tribal governments across what is now the US had a wide variety of government models. John Adams suggested that those drafting the Constitution should study the governments of "the ancient Germans and modern Indians", which he believed divided power among the three branches of executive, judicial, and legislative governance. Thomas Jefferson also studied and expressed admiration for Native systems of government, though he incorrectly characterized them as having "no law".

In Canada, the Government recognizes that Indigenous self-government and laws are critical to the country's future and that Indigenous perspectives and rights must be incorporated into all aspects of the relationship between the Crown and Indigenous nations. Section 35 of the Constitution Act, 1982, contains a full box of rights and holds the promise that Indigenous nations will become partners in Confederation on the basis of a fair and just reconciliation between Indigenous peoples and the Crown.

Indigenous peoples' exclusion from the drafting and ratification of the Constitution

Indigenous peoples were excluded from the drafting and ratification of the US Constitution, with many of the nation's people left out of the process due to race, gender, and class. Despite this, they were not silent, and Native peoples debated the document and resisted the principles that challenged their own diplomatic constitution.

The US Constitution was written in the name of the "People of the United States", but the actual people of the nation were far less homogenous than the group that claimed to represent them. The Founding Fathers who signed the Constitution had varying levels of familiarity with Native nations, with some having negotiated treaties or engaged in diplomatic relations. Benjamin Franklin, for example, was closely involved in negotiating and printing treaties with Native nations, including the Iroquois Confederacy, and studied their systems of governance.

Eighteenth-century tribal governments across what is now the US had a wide variety of government models, from relatively complex to simple. John Adams suggested that those drafting the Constitution should study the governments of "the ancient Germans and modern Indians", noting that the Mohawks enjoyed "complete individual independence", while tribal leaders brought major decisions to a "national assembly". Thomas Jefferson also studied and expressed admiration for Native systems of government, though he incorrectly characterised them as having "no law".

Despite the influence of Indigenous governments on the framers of the Constitution, Indigenous nations were not parties to the construction of the US federal or state constitutions and have never been explicitly institutionalised as part of these systems. Native peoples are specifically named in two sections of Article 1 of the US Constitution, but in a way that appears to exclude them from the document.

Indigenous peoples were also excluded from the drafting and ratification of the Canadian Constitution. In the 1930s, the Métis people, in particular, were caught in a jurisdictional limbo, with neither the federal government nor the provinces claiming them as their responsibility. Like other Indigenous Peoples, they faced marginalization, racism, social displacement, and economic marginalization. In the 1970s, when Prime Minister Pierre Trudeau announced that he was going to patriate the Canadian Constitution, Indigenous groups across the country campaigned to ensure that they were included in the new Constitution. Eventually, Indigenous leaders were invited to participate in meetings, but only those relating to Indigenous inclusion in the Constitution.

Indigenous peoples' resistance to challenges to the 'diplomatic constitution'

Indigenous peoples' resistance to challenges to the diplomatic constitution has been varied and has evolved over time. Some groups have chosen to flee, while others have fought, submitted, or sought diplomatic solutions. For example, the Beothuk in Newfoundland fled, and are now practically extinct, while the Charrúa in what is now Uruguay were completely destroyed through massacre. In contrast, the Nenets have accommodated the Russian state.

Indigenous peoples have also employed armed resistance, diplomacy, and legal procedures to resist challenges to their rights and freedoms. They have formed alliances with other Indigenous or non-Indigenous nations and have pursued self-determination and sovereignty. In Canada, the Red Power movement asserted Indigenous sovereignty and called for treaties to be honoured, gaining significant press coverage and public support. This forced the government to negotiate with the Cree, Inuit, Dené, and Métis.

Indigenous peoples have also resisted through political participation, forming political parties such as Te Pāti Māori in New Zealand and Pachakutik in Ecuador. Bolivia has had an Indigenous president, Evo Morales. Additionally, Indigenous peoples have worked with international organizations like the United Nations to advance their rights and address the systemic discrimination and exclusion they face.

In the context of the United States Constitution, Indigenous peoples debated and resisted the document, which was written in the name of the "People of the United States" but excluded many based on race, gender, and class. Most Native peoples rejected the Constitution and the political system it offered, yet they were forcibly included within the nation. Indigenous peoples had their own diplomatic constitution, a set of practices, norms, and expectations that governed interactions with European empires, and they resisted when the principles of this constitution were challenged.

The contributions and resistance of Indigenous peoples to the US Constitution should be recognized as part of a more inclusive constitutional history, helping to build more inclusive law and recognizing the importance of Indigenous law and constitutional debates.

Explore related products

The Social Outburst and Political Representation in Chile (Latin American Societies)

$149 $159.99

Confederate Symbols in the Contemporary South

$28 $28

Constitutional Reform as a Remedy for Political Disenchantment in Australia: The Discussion We Need

$97.53 $119.99

Transnational Social Mobilisation and Minority Rights: Identity, Advocacy and Norms (Routledge Studies in Development and Society)

$190 $55.99

The Rights of Indians and Tribes

$9.99 $17.49

Notes of a Native Son (Beacon Classics)

$14.5 $16

Indigenous writings and modes of governance

Indigenous governance can be categorised into three types: practices independent of or prior to colonisation, practices coordinated with or sanctioned by colonial powers, and practices developed in opposition to colonial powers. Before colonisation, Indigenous peoples had their own forms of governance, which included traditional institutions, diplomatic relations with other Indigenous nations, internal organisation of clans or tribes, and ceremonial activities.

During the drafting of the US Constitution, some Founding Fathers, such as Benjamin Franklin and Thomas Jefferson, were familiar with and influenced by Indigenous systems of governance. Franklin negotiated treaties and studied the governance of the Iroquois Confederacy, while Jefferson expressed admiration for Native systems, noting their emphasis on individual independence and collective decision-making.

However, despite these influences, Indigenous peoples were excluded from the drafting and ratification of the US Constitution due to race, gender, and class discrimination. Most Native peoples rejected the Constitution and the political system it offered, but they were forcibly included within the nation.

Today, Indigenous governance continues to evolve and adapt to modern contexts. Initiatives like the British Columbia First Nations' Data Governance Initiative aim to address socio-economic and cultural issues by harnessing data. Indigenous law and legal traditions are also being recognised and incorporated into constitutional debates to build a more inclusive future.

Indigenous peoples' inherent rights and political relationships

The Indigenous nations were not included in the drafting and ratification of the US Constitution, and they have never been formally incorporated into the federal or state constitutions. Native peoples are specifically mentioned in two sections of Article 1 of the US Constitution. In section 2, paragraph 3, the phrase "excluding Indians not taxed" is used to determine the apportionment of representatives to Congress and direct taxes. This is similar to the language in Article 9 of the Articles of Confederation, which grants Congress exclusive authority over Native American affairs.

The Indigenous peoples' inherent rights and political relationships have been influenced by their interactions with European empires and the United States government. Before the Constitution was drafted, Indigenous peoples had their own set of practices, norms, and expectations that governed their interactions with these entities, known as the "diplomatic constitution." Indigenous peoples resisted when the principles of their diplomatic constitution were challenged, particularly by the new United States government, and they experienced a post-revolutionary period of turmoil and contention.

The Founding Fathers who signed the Constitution had varying degrees of familiarity with Native nations, with some having negotiated treaties or engaged in diplomatic relations. Benjamin Franklin, for example, was closely involved in negotiating and printing treaties with Native nations, including the Iroquois Confederacy, and studied their systems of governance. John Adams suggested that those drafting the Constitution should study the governments of "the ancient Germans and modern Indians," citing the Mohawks as an example of a group that enjoyed "complete individual independence." Thomas Jefferson also studied and expressed admiration for Native systems of government, noting their lack of formal laws and their ability to maintain order.

The constitutional framers viewed the Indigenous people of the Iroquois Confederacy as inferior, but they still admired their federalist principles. The Iroquois Confederacy, in particular, is believed to have significantly influenced the US Constitution. The delegates to the Constitutional Convention in 1787 had no contemporary European democracies to draw inspiration from, so they looked to the democratic forms of government they had personally encountered in Native American nations. The Iroquois Confederacy's system of unification through mutual defense and its conduct of foreign affairs were of particular interest to the framers, who sought to borrow aspects of their government that enabled them to assert the people's sovereignty.

In Canada, Indigenous leaders such as Harry Daniels have campaigned to ensure that Indigenous Peoples' inherent rights are enshrined in the Constitution. Daniels, the former president of the Native Council of Canada, represented Métis and non-status Indians and sought to have their rights affirmed in the new Constitution. In 2013, the Federal Court of Canada ruled that Métis and non-status Indians were considered "Indians" under the Constitution and fell under the federal government's jurisdiction. However, non-status Indians were later removed from this ruling on appeal.

Frequently asked questions