Robert Alexander’s new book, The Northwest Ordinance: Constitutional Politics and the Theft of Indian Land (McFarland, April 2017), exposes the murky dealings leading to the 1787 Northwest Ordinance—“An Ordinance for the Government of the Territory of the United States, North-West of the River Ohio”—a mechanism for extending U.S. jurisdiction into the interior of the continent beyond the original 13 colonies.
The U.S. Library of Congress describes the Ordinance, enacted under the Articles of Confederation, as “one of the most important legislative acts of the Confederation Congress.” Alexander’s meticulous research demonstrates how a small group of well-connected land speculators—including members of the so-called “founding fathers” of the United States—developed the terms of the Ordinance to profit from a federal mechanism to divest Native Peoples of their lands.
Alexander’s research points to “an intimate link between the two original sins of the [United States]: the enslavement of millions of African-American men, women and children—and the theft of millions of acres of Native land.” The book displays how northern anti-slavery and southern pro-slavery interests managed to agree that Black people, as slaves, would count in the new constitution as three-fifths of a person, and that Native lands would be seized.
These competing interests met in two parallel venues: the “old” Congress under the Articles of Confederation, and the Constitutional Convention—which, though convened to amend the Articles, proceeded to scrap them and draft a new constitution with a strong central government. The Confederation Congress met in New York, while the Convention met in Philadelphia. Alexander examines historical records—“conferences and inter-communications”—revealing how members of the two bodies stayed in touch and shared their deliberations.
Both bodies were pre-occupied with how to expand into western lands. This was intimately tied to the slavery issue, as slaveholder interests insisted on their “right” to preserve this “peculiar institution” in new states; while anti-slavery interests sought ways to prevent that. Alexander teases apart the records of deliberations and the communications among the participants—some of whom were in both the “old” Congress and the new Constitutional Convention—to show how the complexities of the slave issue intertwined with the territorial expansion question.
As the Confederation Congress—the “old” Congress—focused on the framework for territorial expansion, the Constitutional Convention became preoccupied with the question of “representation”—how to apportion membership in the proposed federal Congress: specifically, whether (and how) to account for slaves in the calculation of state populations. Alexander explores the intricacies of these parallel debates and demonstrates how the two bodies reached internal agreements by means of an overarching agreement.
Keep in mind all this happened at precisely the moment when it seemed the U.S. Empire was falling apart. Shay’s Rebellion in Massachusetts—an armed attack on state government by citizens, including former revolutionary war soldiers, opposed to paying taxes to support moneyed interests in Boston—convinced George Washington, Henry Knox, and other “men of principle and property” that the Confederation government was not strong enough to suppress rebellion. Add southern anxieties about slave rebellions and a general fear of Native reprisals in defense of their lands, and the conclusion seemed clear: As Alexander Hamilton put it, only the success of the Constitutional Convention could “rescu[e] the American empire from disunion, anarchy, and misery.”
Revolutionary war debts presented another major challenge: The U.S. had incurred enormous debts—to French, Dutch and local speculators—while waging the war against Britain; but the Confederation Congress had no real taxing power. By 1787, while the Convention and “old” Congress were holding their meetings, the national treasury lacked enough cash even to make interest payments on the debts. James Madison wrote, “The…Confederacy is tottering to its foundation.”
Southern insistence on slavery intersected with the financial crisis. Both sides understood that expansion into western lands might provide an economic solution, if government could control expansion, rather than willy-nilly “settler” invasions. Alexander’s prose—meticulously supported by citations—reads at times like a detective story: How did the pro- and anti-slavery negotiators in each body manage to arrive at trade-offs that would satisfy both the expansion and the representation issue simultaneously? The pro-slavery three-fifths clause of the new constitution intertwined with the anti-slavery clause of the Northwest Ordinance. On one hand, Convention delegates agreed that the new, federal constitution would allow southern states to maintain slavery and count slaves as part of their populations—the now infamous “three-fifths” clause in Article I, section 2; on the other hand, the Confederation Congress agreed to prohibit slavery in any states formed within territory northwest of the Ohio River.
We see from this that the “founding fathers” came to an agreement to perpetuate Black slavery—which some of them opposed—in the face of what they saw as the larger issue: perpetuation and expansion of an “American empire.” Imperialism and colonialism motivated all of them. And imperialism and colonialism meant only one thing: breaking the power of Native Peoples to hold their lands, in such a way that sale of those lands would generate funds to pay the U.S. debt.
As historian Reginald Horsman underlined in a 1989 lecture: “Without the writing of a new constitution in the summer of 1787, the Northwest Ordinance might well have been a futile effort of a disintegrating nation rather than the keystone of a continental federal republic.” Ironically, Horsman delivered his lecture at the Chippewa Valley Museum, Eau Claire, Wisconsin, under the museum’s banner, “Liberty’s Legacy.” Apparently for the museum, the anti-slavery language in the Ordinance overshadowed the Ordinance’s anti-Indian purpose.
In 1789, after the U.S. Constitution replaced the Confederation Congress with a Federal Congress, that body reaffirmed the Northwest Ordinance in its first session, immediately after creating a War Department. The juxtaposition of the Ordinance and the War Department indicates the high significance the new government attached to the project to annex Native lands. The Ordinance established federal control of the processes by which Native lands were to be acquired, and the new federal taxing power provided a cash flow to support military coercion of Natives who refused to go along. Heretofore, Native warriors had been able to defend against disparate state and local militias; they would not be a match for a federally-funded army.
We turn now to examine the oft-quoted pro-Indian-sounding language in Article III of the Ordinance: “The utmost good faith shall always be observed toward the Indians, their lands and property shall never be taken from them without their consent, and in their property, rights and liberty, they shall never be invaded or disturbed unless in just and lawful wars authorized by Congress….”
The title of the Ordinance belies any commitment to “good faith” or “consent”: It refers to “the Territory of the United States.” Many commentators, taking the “good faith” and “consent” language out of context of the Ordinance as a whole, and missing the founders’ plans for “just and lawful wars,” applaud the stance of the U.S., and believe even today that the Ordinance can be used to support Native rights. But recall an earlier document of imperial, colonial “faith,” “consent,” and war—the 1513 Spanish Requerimiento, which urged Native Peoples in the “new world” (read “new territories”) to “consent” to the faith of the “religious fathers”: “If you do so, you will do well…. But, if you do not…we shall powerfully enter into your country, and shall make war against you in all ways and manners that we can….”
Robert Alexander’s path-breaking work shows the interweaving of white supremacy in the U.S. Constitution and the Northwest Ordinance. The notion of such supremacy remains an active element in U.S. politics and law.
Peter d’Errico graduated from Yale Law School in 1968. He was Staff attorney in Dinébe’iiná Náhiiłna be Agha’diit’ahii Navajo Legal Services, 1968-1970, in Shiprock. He taught Legal Studies at the University of Massachusetts, Amherst, 1970-2002. He is a consulting attorney on Indigenous issues.