In 1787, in Philadelphia, some 55 free, propertied, and aristocratic men who were representing the self-declared free and independent “states”—(self-declared in 1776)—met behind locked doors and shuttered windows in the sweltering summer heat. As state representatives, they devised a foedus, or “leagued” system. And it was agreed that if that federal system or government were ratified by the states, then each state would send representatives to sit in the Congress of “the united States,” so as to collectively deliberate and decide on certain policies and actions.

The “states” delegated certain powers and responsibilities to the federal system, while retaining all other powers and responsibilities for themselves. Because the respective thirteen states did not have any legitimate governmental power over free and independent Indian nations, they had no such power over Indian nations to delegate to the leagued governmental system they were conceiving and forming.

Power over Indian nations was not in the states, and it was not in the foedus (“league”) for the simple reason that such power did not exist. Indian nation independence is why the “states” assigned to the federal system the responsibility of making treaties with what the drafters called “the Indian Tribes.” Making treaties with the independent Indian nations was regarded at that time as engaging in treaty “commerce with the Indian Tribes.” The federal system was considered to be responsible for conducting such commerce (land purchases) with the Indians. This, however, did not give the federal system any rightful governmental authority over the free nations.