Authors

Bethany Berger

Separate, Sovereign, and Subjugated: Native Citizenship and the 1790 Trade and Intercourse Act

Abstract

In 1790, the same year Congress limited naturalization to “free white persons,” it also enacted the first Indian Trade and Intercourse Act. The Trade and Intercourse Act may have even stronger claims to “super statute” status than the Naturalization Act. Key provisions of the Trade and Intercourse Act remain in effect today, and the Act enshrined a tribal, federal, and state relationship that profoundly shapes modern law. Unlike the Naturalization Act, the Trade and Intercourse Act reflected the input of people of color: it responded to the demands of tribal nations and—to a degree—reflected tribal sovereignty. While Indigenous people could not naturalize in 1790, early laws and policies encouraged them to become citizens of the United States. Indigenous citizenship, however, was a tool of subjugation, designed to undermine tribal sovereignty and thereby increase White authority. This history is inconsistent with Chin and Finkelman’s claim of a persistent vision of White citizenship, but it is consistent with allocation of citizenship as a tool of White power.

Repository Citation

Bethany Berger, Separate, Sovereign, and Subjugated: Native Citizenship and the 1790 Trade and Intercourse Act, 65 Wm. & Mary L. Rev. 1117 (2024), https://scholarship.law.wm.edu/wmlr/vol65/iss5/4