Sovereignty Project Hosts Constitution of Empire Workshop

As Sovereignty Project Co-Director Maggie Blackhawk emphasized in her opening remarks to this year’s NYU-Yale American Indian Sovereignty Project spring workshop, the divides between academic fields can prevent scholars from articulating the persistent legacies of colonialism in American legal history. The workshop, held on April 4, 2024 in advance of the “Global History of Indigenous Thought” conference, was part of the Project’s broader mission to confront this challenge and bring together scholars whose work touches the emergent field of Native American legal history. Panelists represented a wide variety of academic disciplines and institutions, and their presentations reflected both the richness of current research and the enormous potential for future interdisciplinary study of Federal Indian law and American colonialism.

Held on the top floor of the Blake Hotel in New Haven, the workshop consisted of three panels structured around the major themes of Blackhawk’s November 2023 Harvard Law Review Foreword, “The Constitution of American Colonialism.” The first session, “American Colonialism and Continental Expansion,” explored how the dynamics of Indian affairs and U.S. overseas expansion heavily influenced the development of constitutional law in the nineteenth century. Panelists repeatedly described how the past can illuminate connections between Native sovereignty and American constitutionalism that are more difficult to see today. Tanner Allread, Stanford Law J.D. ’22 explained how the Cherokee and Choctaw constitutions, adopted in the 1830s and 1840s, adopted the United States constitutional model in some ways without assimilating to the dominant legal culture. Instead, these tribal nations used constitutionalism to further their own sovereignty and demand recognition from the colonial state. Imperial expansion also heavily influenced constitutional law. As Lauren Benton, Professor of History and Law at Yale, emphasized in her comments, the divide separating Native American history and U.S. constitutional history disappears when considering imperial constitutions, and jurisdictional conflicts over sovereignty in both domestic and overseas territories shaped the paradigms of constitutional law.

Discussions of U.S. colonial expansion continued into the second session, “American Colonialism and Overseas Expansion.” Panelists cited the cases of both continental and overseas expansion, from the Southwestern borderlands to Puerto Rico and the Philippines. Bringing these distinct geographies into conversation helped articulate the arguments of panelists such as Aziz Rana, Professor of Law at Boston College, who noted that the United States is exceptional because it is the only nation to exercise global power and reject empire.

The final panel, “American Colonialism & Modern Liberal Constitutionalism,” focused on the contemporary incompatibilities between the constitutional model and sovereignty. As multiple panelists noted, the model constitutions adopted by many tribal nations following the Indian Reorganization Act were colonial impositions, connected not to traditional forms of tribal governance but to the constitution of the United States. Additionally, as Bertrall Ross, Professor of Law at the University of Virginia, pointed out, constitutional law is, broadly, a product of the Supreme Court’s interpretation, a methodology which relies largely on history. Basing these interpretations on history, however, raises the question of whose history is prioritized, ignoring the systematic exclusion of Native people and Native legal traditions. Lauren van Schilfgaarde, Assistant Professor of Law at UCLA, concluded the panel with an emphasis on models for shared sovereignty, from the tribal co-stewardship of public lands in the United States to the Bolivian constitution, which identifies the country as a pluralistic nation. A pressing question remained at the end of the final session: what can self-determination look like on occupied lands?

Following the workshop, many attendees trekked to the newly reopened Peabody Museum for a presentation by YGSNA graduate coordinator Emily Velez Nelms on her recent exhibit “Resonance of Things Unseen: Indigenous Sovereignty, Institutional Accession, & Private Correspondence.” Evening programming also included a reception at the Native American Cultural Center and a screening of ᏓᏗᏬᏂᏏ (We Will Speak), a documentary on Cherokee language revitalization.