In the years after the American victory at Yorktown, a series of debates took place over questions of citizenship and international law. Who counted as an American citizen, and what did that mean? What did the new American republics, and their confederation, owe to those who fell outside that category? In an earlier post, I discussed these matters in regard to one group of outsiders—suspected loyalists. Here I want to continue the theme as it touches a different group—Native Americans.
In the summer of 1784, James Duane, the mayor of New York, sat to hear the case of Rutgers v Waddington, which dealt with the property rights of loyalists and returning patriot exiles. The case hinged on whether international law, especially the newly ratified Treaty of Paris, trumped the state law made by the assembly. But importantly, Alexander Hamilton’s argument for the defense spoke not only of the treaty itself, but of a broader form of international law, the law of nature and nations, to which American law should, he argued, be beholden. This law of nature and nations was described in the books of great European theorists: Grotius, Pufendorf, and Vattel. In response, the plaintiff’s advocate Robert Troup made an interesting remark: all those European thinkers were, he said, “no more to the purpose than so many opinions drawn from the sages of the six nations.” Duane ruled for the defendant. In effect, he ruled in favor of the law of nations. But what did that mean for the sages of the Six Nations? To what kind of international community did the state of New York belong? Just whose voices demanded the respect of American law?
The remark would have been particularly puzzling to the Oneida and Tuscarora, nations that fought on behalf of the patriot cause. In 1778, Philip Schuyler had promised the Oneida in no uncertain terms that when the British were defeated, “your liberty and property will be safe.” He had reiterated that promise as late as January 1784, as had Congress a year earlier. One might imagine, then, that Schuyler’s position represented the same kind of liberal attitude to international law that his son-in-law, Hamilton, argued for in the Rutgers case, and that Duane accepted. The reality was different, but in a fairly subtle way. Duane did not conceive of the Indians as nations at all. He “would never suffer the word nations,” nor the term “treaty,” when it came to them. What he proposed instead was to treat the Indians “with as much plainness and simplicity as possible—and as if I was actually transacting business with the citizens” of New York. So not nations, nor quite citizens, but Indians were at least to be treated “as if” citizens.
James Monroe, investigating on behalf of Congress, rejected the New Yorkers’ position that the Indians in that state counted as “members” of it. “[T]hey acknowledge no obedience to its laws,” he wrote, and nor do they “enjoy the protections, nor any of the rights of citizenship within it.” For a while at least, Congress would stand between the state of New York and the Oneida and Tuscarora lands. Asserting the federal right to deal with Indians who were not “members” of a state, Congress sought to protect its own long term interests in western—that is, Indian—lands. As David Nichols puts it, “The unity and sovereignty of the Thirteen Fires, Native Americans learned, were merely polite fictions.”
The law of nature and of nations that men like Hamilton and Duane promoted was, as Waddington’s lawyer pointed out in court, a European invention imposed on America. It was a flexible and changing set of ideas which came in very useful to American elites who needed to justify and legitimate their opposition to the measures of democratic American assemblies. In post-revolutionary America, indeed, the law of nature and of nations functioned first and foremost as a network of property rights. It defended British creditors against defaulting American debtors, ex-loyalists against vengeful legislators, and it promised a stable environment for investment and commerce in the new nation. But it could not protect, or even include, Native Americans. Their way of life, and most importantly their concept of property, was beyond the European pale. “In the end,” as Colin Calloway writes, “white Americans excluded Indians from the republican society the Revolution created… The Revolution both created a new society and provided justification for excluding Indians from it.”
 Daniel Hulsebosch, Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664-1830 (Chapel Hill: University of North Carolina Press, 2005), 199.
 Alan Taylor, Divided Ground: Indians, Settlers, and the Northern Borderland of the American Revolution (New York: Knopf, 2006), 144-5.
 Ibid., 143.
 Ibid., 155-6.
 David Andrew Nichols, Red Gentlemen and White Savages: Indians, Federalists, and the Search for Order on the American Frontier (Charlottesville: University of Virginia Press, 2008), 19.
 Colin Calloway, The American Revolution in Indian Country: Crisis and Diversity in Native American Communities (New York: Cambridge University Press, 1995), xv.