The American War for Independence scrambled the concept of political allegiance and belonging. In James H. Kettner’s apt phrase, “subjects became citizens.” Where British law denied the possibility that a subject could renounce the obedience owed to their sovereign, Americans asserted through force of arms “the right to choose their allegiance.”Footnote ¹ Influenced by a contractual notion of political compact and by the mayhem of a violent civil war, people shuffled and sometimes reshuffled into camps of revolutionaries, loyalists, and neutrals.Footnote ²

The end of the war seemed to end the merry-go-round. At this point, historians have argued that everyone had to make their choice. On the mainland, “the end of the war meant an end to questions about their nationality,” as one historian has put it, though the matter remained more fluid on the open seas for decades longer.Footnote ³ The loyalists left and so remained British subjects; the revolutionaries and neutrals stayed and so became US citizens. Such scholarship recognizes that location mattered to citizenship but reinforces the idea that for free, white peopleFootnote ⁴ citizenship was volitional because actors could stay or they could go.Footnote ⁵ People could decide to remain or to leave, to be American or to be British.

As valuable as this scholarship is in framing some of the immediate effects of the US War for Independence on the question of citizenship, it makes two mutually reinforcing generalizations that mislead the conversation. The first is that the problem of allegiance was binary between the US and Britain. The second is that US citizenship existed at all in the 1770s and 1780s.Footnote ⁶

Moreover, though historians have importantly recognized the link between citizenship and domicile (otherwise the decision to move or stay would not matter), the relationship between loyalty, location, and the institutional, potentially coercive, power of states to act upon inhabitants residing within their jurisdictions merits deeper examination. Free people could choose their allegiance, perhaps, but they could not so easily choose the borders of the polity that claimed them. Though many tried.

In fact, some of the most important and constitutive debates about community belonging, often framed as “citizenship” in the 1770s and 80s, had nothing to do with staying or leaving, but instead focused on the definition and borders of the political community in which people found themselves.Footnote ⁷ In Maine and north and west of the Appalachian Mountains, ranging from Vermont through the Gulf of Mexico, free white folks asserted a variety of identities, allegiances, and claims that might but often did not map onto an axis of US-British belonging. Indigenous people allied with various European powers, but their own allegiances and claims were structured by their own political arrangements, organized through clan, town, and nation.

For many Euro-descended claimants, meanwhile, allegiance to empire, any empire, was contingent upon local political control. Free white inhabitants living in distant communities separated by imposing mountains and arduous journeys from their putative state capitals asserted their right to create their own more convenient and responsive governments—and to use them to control local resources, especially land. In doing so, they raised potent questions about the nature, extent, and basis of political community in the era of the Declaration of Independence. Frequently, they made citizenship claims on a national stage and conjured the threat of international intervention. The prize they sought, however, and indeed the parameters along which all the participants understood this status, was not US but state citizenship. The critical question was which state, and who controlled it.

This multi-faceted struggle over the question of political belonging produced by the US War for Independence suggests a reevaluation of the problem of citizenship from a more international perspective than heretofore adopted, with a fundamental recalibration. The relationships between the states themselves must be understood through an international paradigm, not anachronistically as having immediately created a nation. Such a recognition restores the original Latin meaning of the word federal, which comes from foedus, or treaty. The Confederation was a foederal government. Congress, the entity to which transmontane white communities frequently appealed, can best be understood in the 1770s and 1780s as a treaty organization, not possessing direct sovereign powers over the people living within the federation’s territory. It acted for and upon the states; it did not yet draw or confer political capacity in dialectic directly with inhabitants.Footnote ⁸

However, it was precisely Congress’s role as the arbiter within the treaty organization formed by these united states, and in particular its role to adjudicate disputed borders between existing states and assess the claims of separatist states, that it began—before the creation or ratification of the US Constitution—to change from a foederal (or treaty) government toward a federal government in a quite new sense of that word, meaning that it operated in tandem with state governments directly upon the people.Footnote ⁹ Through its policy decisions affecting the land and white settlers of the trans-Appalachian West Congress first began to craft a definition of US citizenship separate from the states. In a moment when rhetoric celebrating political choice flourished, volitional allegiance did not on its own or necessarily even primarily determine citizenship, even for the free, white, property-owning men the Revolution was ostensibly fought to empower. Congress, as a treaty organization of interested states, brought decisive, though never absolute, power to bear in determining jurisdictions and, through them, the legal regimes in which citizenship claims played out. Congress’s powers became federal on the marchlands.Footnote ¹⁰

*****

The beginning of the War for Independence, and even the document declaring it, did not create a nation. “No Man,” John Adams wrote in 1775, would think of “consolidating this vast continent under one national government.” Certainly, the Second Continental Congress had never been conceived with the idea of creating a national government. Originally, it had been called in 1775 to oversee the Nonimportation Agreement adopted by the First Congress in the autumn of 1774. Overtaken by the news of bloodshed at Lexington and Concord, the Second Continental Congress sat until the new federal constitution of 1787 implemented a new government in 1789. Until then, the Continental Congress scrambled ad hoc to create the necessary apparatus to coordinate and fund military resistance, negotiate diplomacy, and manage internal disputes, of which there were an irksome number. The states fiercely protected their internal sovereignty. Adams and most others expected the colonies, “after the Example of the Greeks, the Dutch and the Swiss” would create “a Confederacy of States, each of which must have a separate [sic] Government.”Footnote ¹¹

The Declaration of Independence in 1776 seemed to bear them out. It did no explicit work to create, let alone organize, a national government. Instead, the “thirteen united States of America” unanimously declared their independence, not as a single entity but as “Free and Independent States” with full powers to contract war and peace, form alliances, direct commerce, “and do all other Acts and Things which Independent States may of right do.” When it came to state-making, every noun in the Declaration was plural. As a governing document, the Declaration proclaimed an association of “united” but sovereign states bound together by common agreement or treaty, but not by shared or unitary governance. It was in recognition of this treaty, or foederal relationship, that some writers began as early as 1776 to speak of a “federal union.”Footnote ¹²

At the same time, however, the Declaration evoked “one people” on the basis of place and shared experience. The Declaration, after all, did not dissolve the legitimate government of King George III in all his domains. Instead, some of the most important work the Declaration did for contemporary audiences was to explain “to a candid world” how “a long train of abuses and usurpations” finally justified the separation of “one people” from a group now necessarily characterized as “another.” The thirteen united American Colonies had experienced these “abuses” both separately and in common. Even where an injury had been specific to one colony, however, for example, with the dissolution of Massachusetts’s charter in 1774, the revolutionaries had become convinced that before long “every other Colony must follow her example.”Footnote ¹³ In imagining the clutch of newly created “Free and Independent States” yet to be comprised of “one people,” Thomas Jefferson and the authors of the Declaration of Independence sketched a broad vision of political community and planted a contradiction at the heart of what was so far more of a treaty organization than a nation.Footnote ¹⁴ The states were sovereign and plural. Yet somehow Americans were one people. This paradox has lain at the heart of US identity and governance ever since.

Because the Congress operated as a treaty alliance only, acting in the name of the United American states, no citizenship rights or duties originated from it. Instead, the states adamantly rejected the idea of common citizenship. They considered the union as nothing more or less than “a firm league of friendship.” That language, not formally adopted until the Articles of Confederation were ratified in 1781, was in circulation as early as the summer of 1775.Footnote ¹⁵ In the Articles, the states retained their “sovereignty, freedom, and independence” along with “every power, jurisdiction, and right… not… expressly delegated.” Those powers “expressly delegated” had much to do with the power to make war, conclude peace, and conduct trade but said nothing about the internal workings of each state, including determining the citizenship status of its inhabitants or any newcomers. Citizenship was a matter outside the jurisdiction of Congress, left to the sovereign control of each state. State courts recognized and upheld the membership rights inhering to a citizen of another state, and the Articles protected interstate mobility for free people of property, but there was no such thing as US citizenship.Footnote ¹⁶ In an early act after declaring independence, for example, Congress offered land bounties to German auxiliaries (often mislabeled “Hessians”) who defected from the British Army and became “members of any of these states.”Footnote ¹⁷ There was no common citizenship available to offer.

Meanwhile, the British had no interest whatsoever in affirming US citizenship. British military officers exercised caution in exchanges of captured combatants whom they deemed treasonous rebels rather than prisoners of war belonging to another sovereign power.Footnote ¹⁸ Faced with the practical necessity of exchange, however, such hand-offs occurred therefore under the name of commanding officers. The states themselves exacerbated the problem because they retained the power to conduct independent prisoner trades and scrupled not to do so in ways that served the ends of freeing their own citizens, regardless of the promises of George Washington or the needs of the Continental Army.Footnote ¹⁹ In the midst of the war, little sense existed that “US citizenship” had power or meaning.Footnote ²⁰ One could not really be a citizen of a treaty organization but instead was a citizen of one of its constituent states.

How hollow and yet correspondingly capacious the idea of “US citizenship” was can be illustrated in a pair of extraordinary petitions the Continental Congress received in 1780. The petitions, which came from Kentucky and Illinois and together contained over one thousand signatures, made early and radical assertions that US citizenship was a meaningful legal category and that the petitioners should be seen as possessing it.

The proximate cause for both was a requirement from Virginia that the occupants swear allegiance to that state. The petitioners urgently wrote Congress to explain this obligation was impossible as “we have aredy [sic] taken the Oath of Alegince to the United States.” Indeed, said one, “we [are] the leige Subjects of the United States.”Footnote ²¹ The other asserted the petitioners were “the true and loyal Subjects of the United States of America at large.” To take the oath of allegiance to Virginia was repugnant to them as men because it would make them “Slaves to those Engrossers of Lands and the court of Virginia,” and impossible to them as patriots because it would “have a Tendency to weaken the United States and… Banish… the common cause of Liberty.”Footnote ²² The petitions explained that they “Conceive Ourselves Oppressed by Several acts of the General Assembly of Virginia” which failed to protect or govern them but did impose “unjust” taxes and threaten to “engross” land the petitioners had resettled and prepared for European-style agriculture. Control of the land lay at the heart of their desire to be separated from Virginia’s control.Footnote ²³

The westerners urged Congress to act. One petition implored “that the Continental Congress will take Proper Methods to form us into a Separate State or Grant us [such] Rules and Regulations as they in their Wisdom Shall think most Proper.”Footnote ²⁴ The other petition feared they must either submit to become the “slaves” of Virginia or flee to “some part of Mexico and become Subjects of the King of Spain.” As an alternate to either of these terrible outcomes, they asked Congress to empower them to “Remove themselves Over [meaning north of] the River Ohio, with their wives, children, and Slaves… in the name of the United States of America at large.” There, on what even they admitted was not their land, but the “Indian side of the Ohio,” they petitioned for the power to “govern themselves… being subject to the United States at large and no other state or power whatever.”Footnote ²⁵

White western settlers argued, therefore, that they were subjects of the nation. In a period before US civil identity had much meaning, the petitioners tried to inject consequence into the term, avail themselves of the status, and use it as protection against the “Interested” Virginians who sought unjustly to oppress them and in turn advance their own ambitions to control western land. In declaring their loyalty to Congress, the petitioners tried to empower it as the ultimate arbiter and vest it with the power to erect new and independent states. The language of the petitions invoked subjecthood (“liege subjects,” “true and loyal subjects”) on the part of the petitioners and solicited to know “more fully” the “mind and will of Congress” and asked that it “grant” the things they asked.Footnote ²⁶ Such framing suggested, as one critical Virginian growled, that they viewed Congress “as the immediate sovereign in this country.”Footnote ²⁷

Such language of subjecthood in the midst of a revolution that ostensibly turned subjects into citizens may have indicated the petitioners were not up-to-date on the latest republican theory. On the other hand, the petitioners invoked a very old monarchical form—the petition—and deployed it not to supplicate established authority but instead actively to establish that authority. They adopted the rhetorical position of subjects, but their petition sought to choose who had sovereignty over them, a very republican, citizen-ish act indeed.Footnote ²⁸

Around the same time, “Some Transallegheny Inhabitants” drafted another petition to Congress that showed still more fully how white westerners strategically sought to refashion the power, or even the point, of Congress. The authors incorrectly stated that the foederal agreement of “our union declares when any state grows too large or unwieldy, the same may be divided into one or more states, that the people have a right to emigrate from one state to another, and form new states in different countries whenever they can thereby promote their own ease & safety.” The Transallegheny petitioners argued, “Our remote situation… renders our interest incompatible” with eastern governments. The petitioners planned to ask that Congress “lay off a state” for them.Footnote ²⁹

In fact, the Articles did the opposite of what the petitioners tactically argued. The terms did not empower or capacitate citizens to create states. Instead, the treaty alliance of the American states intended to curtail precisely these kinds of assaults on state sovereignty and check the idea “that the people have a right to… form new States” at will.Footnote ³⁰ The Articles were intended as a bulwark to protect the original thirteen states and manage disagreements between them, not countenance new threats to their sovereignty or territory. Only by protecting and, where necessary, adjudicating between the states through a clear process could Congress hope to hold the union together. It had no power to authorize or support the white settlers who petitioned it. No record survives that Congress responded directly to these 1780 petitions.

Yet, Congress held onto the petitions. Doing so angered Virginia. That state’s delegates argued that Congress had no jurisdiction over this matter and ought to pass the petitions off to Virginia as the true sovereign power over “the said country.” Still, Congress refused.Footnote ³¹ It had no power to authorize or support the white settlers who petitioned it, but in declining to pass the petitions to Virginia, Congress was doing about as much as it could with its limited powers to keep its future options open. Retaining the petitions, which remain in the National Archives to this day, disputed Virginia’s jurisdiction and asserted the possibility that Congress might have a say “in the said country” after all.

The reason for this stand, however feeble, was less sympathy for the people making claims or the idea of US citizenship as a meaningful identity than interest in the land on which they made it. This matter participated in a long-running dispute about the status of the trans-Appalachian West. Did it belong to the American states in common or only to some states by virtue of their royal charters? Dismissive of the claims of Indigenous nations to their ancestral homelands, the treaty alliance debated this question more hotly than any other matter before it.

Certain states, Virginia foremost among them, resolutely claimed ownership of the trans-Appalachian west based on their seventeenth-century royal charters.Footnote ³² Opposing them, states without claims to western land argued that it was unfair for the thirteen states to undertake an expensive and dangerous war against Britain that would disproportionately enrich Virginia. Instead, they insisted “that the back lands acquired from the Crown of G.B. in the present war should be a common stock for the benefit of the United States.” “Can you think,” asked one newspaper commentator, “that the other members of the union will be satisfied to see Virginia exercising jurisdiction on the banks of the Mississippi” while the rest remain obstructed on “only this side of the Appalachian [sic] mountains”?Footnote ³³

Nothing caused greater internal division or held up the ratification of the Articles of Confederation more than this problem of the size and shape of western-land-claiming states. Landless states, including New Jersey, Maryland, and Delaware, all refused to ratify the Articles until Virginia and the other states that claimed western lands (Massachusetts, Connecticut, New York, North Carolina, South Carolina, and Georgia) had ceded their claims to the national government, “they being defended at the common expense.”Footnote ³⁴ The impasse caused considerable international embarrassment as the American states sought allies. How could they be taken seriously on an international stage if they could not even agree amongst themselves?Footnote ³⁵ As the council of the treaty alliance of the American states, Congress needed to balance these altercations and find an amicable way forward.

Finally, in early 1780, New York began to break the logjam. It relinquished its western claims “for the use of benefit of such of the United States as shall become members of the foederal alliance of the said States, and for no other use or purpose whatsoever.”Footnote ³⁶ Maryland celebrated that “this act is expressly calculated to accelerate the foederal alliance” and finally ratified the Articles.Footnote ³⁷ Virginia, Connecticut, and North Carolina began to gesture toward ceding their own claims, and at last the landless states ratified the Articles.Footnote ³⁸ After five years of acrimony and delay, the treaty alliance was formally in force, a “foederal union on a fixed and permanent basis and on principles acceptable to all its respected members.”Footnote ³⁹

Beginning in 1784 with Virginia’s cession, the largest and most important, the treaty organization of the American states became something new, a property holder on a continental scale.Footnote ⁴⁰ This collectively held domain, still more notional than national, gave Congress (at least potentially) powers and responsibilities that had never been conveyed by the treaty that created it. With “right, title, and claim” to millions of acres of land, Congress had at once acquired an economic resource upon which it could draw without having to cajole its thirteen constituent members and responsibility for the people on that land, both Indigenous people (who did not recognize congressional authority) and the white migrants intent upon removing them and resettling the land to their own benefit.Footnote ⁴¹ It might have seemed far-fetched in 1780 for white settlers in the trans-Appalachian west to assert US citizenship, but for many of them that is precisely what came to pass, as one by one, the “landed” states gave up their claims and left settlers literally stateless.

The gradual accommodation over the problem of western lands underscored the fact that the thirteen original states, despite all their bickering, wanted to seem treaty-worthy to one another and be deemed able to participate in the foederal alliance. Eliga Gould defines treaty-worthiness as being “accepted as a free and independent nation… among nations” and “worthy of peaceful relations.”Footnote ⁴² Each state wanted the union to succeed and to avoid provoking the censure of all the others. To that end, they accepted Congress’s arbitration in certain matters like negotiating the disagreements over trans-Appalachian land and adjudicating among the states in border disputes.Footnote ⁴³ The capacity to judge between states, however, did not empower Congress to organize the west or indicate its nascent independent settler colonial ambitions.Footnote ⁴⁴ It had no coercive powers to force the states to do anything. Only states could initiate action by bringing a case before Congress. Failing their voluntary action, all Congress could do was recommend arbitration.

Still, the states’ determination to maintain a working union and be seen as upstanding pillars of it leant Congress important authority. In its adjudicatory capacity, Congress directly affected the citizenship status of white settlers living in disputed areas, determining which state held jurisdiction. As Thomas Jefferson pointed out, specific families were affected. Depending on where policymakers drew the line, hundreds of families would be “thrown” into a new polity: three hundred Virginia families if the line were in one place, two hundred Pennsylvania families if drawn in another.Footnote ⁴⁵ Virginia and Pennsylvania negotiated their contested border largely through their own initiative, motivated by the cause of strengthening the union. But Congress had to intervene directly to settle the conflict between Pennsylvania and Connecticut after the former brought suit. A special court with five judges heard the case and ultimately found unanimously on behalf of Pennsylvania.Footnote ⁴⁶ Having lost, Connecticut did not contest the outcome. The unanimous decision of the tribunal and the collective weight of the rest of the confederacy proved too high a barrier.

Directly and indirectly, the treaty alliance prevented states from interfering in one another’s territorial affairs. For example, when western separatists in the Tennessee Valley seemed to include parts of Virginia, Governor Patrick Henry acted swiftly within his own state but hesitated to write the separatists directly. He feared that to do so encroached on North Carolina’s internal affairs and “might incur the censure of our neighboring State.”Footnote ⁴⁷ In this way, the adjudicatory role of Congress and the collective opinion of the rest of the alliance worked directly and indirectly to keep the states good neighbors. Each one had to maintain its treaty-worthy status.

Indicating the importance of Congress as the arbiter of the treaty alliance, separatists like the ones Henry dealt with were also keen to gain its recognition. In 1784, white settlers seized the opportunity of North Carolina’s land cession to claim that they were now without (outside) a state and must set up their own. They promptly did, named it Franklin, and threw the region into chaos as partisans warred with one another over which state held authority—Franklin or North Carolina—and as the former in particular attacked Cherokee, Chickamauga, and Chickasaw townspeople as a mechanism to seize land, satisfy its constituents, and thereby build legitimacy.Footnote ⁴⁸ Among Franklin’s first acts was to send representatives to Congress, an essential step to establishing the self-made state’s legitimacy. Franklin’s supporters understood that its chances of survival as a political entity required recognition and acceptance by most of the states in Congress. Only that external recognition and pressure could force North Carolina to let them go. Coming within one vote in an important congressional motion, Franklin could not succeed on the strength of its nascent political organization or revolutionary rhetoric.Footnote ⁴⁹ Without being found treaty-worthy by its peer states, Franklin collapsed.

For Vermont, the need for Congressional recognition was just as urgent. This wedge of land between the Green Mountains and Lake Champlain had been a roiling mess of populist violence for years before the Revolution. Both New Hampshire and New York claimed jurisdiction and issued dueling land titles for the same land. The white settlers venturing onto ancestral Abenaki lands, now styled “the New Hampshire Grants,” rebuffed the pretensions (and titles) of “Yorkers” and employed the tactics of intimidation and violence to eject them. Increasingly, they advocated for their own local control. When the war for independence from Britain began, partisans seized the opportunity at the same time to declare independence from both states that claimed it. In 1777, they created the state of Vermont. Their new state constitution rehearsed at once the need for separation from Britain and (more pressingly and in greater detail) from New York. Vermont, they declared, was “derived from, and founded on, the authority of the people only,” but added primly, “agreeable to the direction of the honorable American Congress.”Footnote ⁵⁰

A horrified Congress tried to clarify that it would not countenance Vermont’s claims because it was a treaty organization of member states.

Congress could not support Vermont’s “right to form a government for themselves.” Indeed, the assertion was “highly dangerous.” If such a doctrine were to “prevail and be carried into practice, it must inevitably destroy all Order, Stability and good Government, in particular States and entail Disunion, Weakness, and Insecurity on the United States.” Congress had no right to intervene or “Judge between a State and it’s discontented members.”Footnote ⁵¹ A Virginia delegate agreed. Congress must “fix the boundaries of these States and let the people who live within their respective limits know they are their Citizens and must submit to their Government.”Footnote ⁵²

Vermont refused to back down and for good measure now rejected the jurisdiction of Congress to determine the matter.Footnote ⁵³ Thomas Chittenden, first governor of Vermont, explained that in addition to the attack on Vermont citizens’ natural rights, Article Nine of the treaty alliance, by which Congress could adjudicate boundary disputes, had no relevance whatsoever in this case because “Vermont does not belong to some one of the United States.” It would not submit to the “the Controul or Arbitrement of any other power.” The states in their treaty organization might greedily agree to carve up Vermont between them as the autocratic monarchs of Europe did, “with this Difference only.” The American states “are not in possession of Vermont.” Positioned on “an important frontier” between the thirteen states and British Canada, independent Vermont threatened to pursue a separate peace with Britain as preferable to being “enslaved” by the United States.Footnote ⁵⁴ Soon, a number of Vermont leaders were in deep consultation with British officials, to the consternation of Congress. James Madison confided in a personal memorandum in 1782 that “the two great objects which predominate in the politics of Congress at this juncture are I. Vermont II. Western territory.”Footnote ⁵⁵ At the time he wrote, either or both might well destroy the treaty alliance.

Eventually, the need for Congressional recognition motivated both Vermont and New York to find a peaceful solution. The Treaty of Paris in 1783 proved a decisive turning point. Once it became clear that Britain would honor the northern border of the United States and draw back from negotiations with Vermont, the state lost important leverage. It could not, as Vermont partisan Ethan Allen boasted, “remain independent of independency.”Footnote ⁵⁶ No more than any other international actor could the small state exist independent of all external recognition or ties, and now British Canada was off the table. On the other hand, neither could Vermont be made peaceably to submit to New York. Its own internal governance structures had gained legitimacy and recognition from locals that would not be easy to overthrow.Footnote ⁵⁷ “Delay has given them a name and made them formidable” fretted an unsympathetic congressman.Footnote ⁵⁸ Meanwhile, other states, particularly in New England, seemed increasingly sympathetic to Vermont and exerted pressure on New York.Footnote ⁵⁹ Commissioners representing both states agreed in 1790 that in return for an indemnification of $30,000, New York would drop its objections to Vermont’s admission as a state in the union.Footnote ⁶⁰

In its admission to the treaty alliance represented through Congress, Vermont became a state recognized both within and without. As an astute historian of Vermont has remarked, “it alone truly created itself.”Footnote ⁶¹ However, and in common with the recognized states and other less-successful separatist movements, its legitimacy relied ultimately on recognition and acceptance in what was still an international system. In the process, a lot of people’s citizenship had been directly determined where it really mattered: at the state level.

Ostensibly, many of the treaty discussions that plagued the early union concerned land, but at root they were about people too. Through its policy decisions affecting member states’ jurisdiction, Congress intervened regularly in the citizenship claims individuals could make. In some cases, as with its failure to respond to the trans-Appalachian petitioners in 1780, Congressional inaction shaped events. Many of those petitioners remained subject to Virginia until that state partitioned off Kentucky in its own time and on its own terms. In other cases, as with the border dispute between Connecticut and Pennsylvania or the statehood application of Franklin, Congress arbitrated more directly. Pennsylvania retained the Susquehanna lands, and Connecticut titleholders on that land had to concede. Franklin’s supporters failed, and North Carolina retained jurisdiction over them until the state ceded the land a second time on its own advantageous terms in 1790.

Whatever internal dispute it faced among scheming delegates, ultimately Congress acted on behalf of the foederal or treaty alliance and defended member states’ jurisdictions as non-negotiable, even in the face of impassioned separatists spouting natural rights rhetoric and literally waving copies of the Declaration of Independence.Footnote ⁶² Vermont, the only separatist state that succeeded in achieving its aims, could do so only after fifteen acrimonious years and with New York’s consent. Separatists’ citizenship claims remained subject to the states that claimed them; Congress would not directly challenge member states’ borders.

On the other hand, it was the behavior of these fractious separatists themselves that spurred the states in Congress to pay attention. The alliance was forced to do it. The demands of separatists provoked a complicated dialectic about what locals, state authorities, and the treaty alliance could collectively accept as legitimate and workable arrangements. Separatists did not get everything they demanded immediately, but playing the long game, they got a lot of it eventually. The states lacked the coercive capacity and the treaty alliance, the stomach to deny the wishes and self-government of white male citizens.

Congress recognized as much. Beginning in 1784, by virtue of the states’ land cessions, what had begun as a treaty alliance now claimed direct sovereignty over the vast “Northwest Territory,” unmediated by any state. The people who lived there had become, as some of the 1780 petitioners had hoped “subjects to the United States at large and no other state or power whatever.”Footnote ⁶³ For some the creation of the Northwest Territory seemed cause for alarm. One writer warned that white westerners would become “immediately subject to the ordinances and resolutions of Congress,” totally subordinate to “a Body in which they are not represented.” Without the benefit of Virginia’s intercession he believed white westerners would suffer.Footnote ⁶⁴ Congress understood the immediate necessity of establishing the status of the inhabitants in what was no longer foederal (governed by treaty) territory but something new.

In their last major act as a Continental Congress, congressman placed their most direct and enduring stamp on the definition of US citizenship, though in the shadow of the Constitution it is usually forgotten. The Land Ordinance of 1787, also called the Northwest Ordinance, instituted a “compact between the original States and the people and States in the said [Northwest] territory.” It instituted temporary government by appointed officials.Footnote ⁶⁵ Once the territory reached certain population levels inhabitants could elect a representative legislature, then write a constitution, and finally apply to Congress for admission as a state. The Ordinance counted “free male inhabitants of full age” for one population benchmark and stipulated that to qualify as a voter “a man” must hold a certain amount of property. Notably, neither the words male nor man appeared in the original Constitution being drafted in Philadelphia.

Meanwhile, the Ordinance specifically mentioned three categories of residents in the Territory set apart from “free inhabitants.” First, the French-descended inhabitants mainly in Illinois were guaranteed French civil law for the time being until they could be absorbed in an Anglo-American legal regime. Second, the Ordinance professed “good faith” toward Indigenous people, a cover for the intention to possess their land.Footnote ⁶⁶ And finally, though the Ordinance famously prohibited slavery, it specified that a runaway “person… from whom labor or service is lawfully claimed” could be captured and returned into slavery.Footnote ⁶⁷ In its emphasis on gender, freedom, property ownership, and its care to distinguish Indigenous people and refugees from slavery separately from “free inhabitants,” the Northwest Ordinance created a visible, congressionally-imposed standard for full political belonging rooted in a hierarchy of male, Anglo-American property ownership.Footnote ⁶⁸ Congress had gone further than anyone could have imagined in 1776 to create a central, newly federal rather than foederal definition of US citizenship.Footnote ⁶⁹

*****

As the US War for Independence wound down J. Hector St. John de Crévecoeur posed an enduring question, “what is an American”?Footnote ⁷⁰ This article has asked, in the era of the US War for Independence, what was a US citizen? I have argued that, for as much as we apply that term backward, US citizenship had little to no legal meaning during and immediately following the Revolution, especially when set against the states, the jurisdictions that really did matter in determining most of a person’s rights and responsibilities. That being the case, assuming that the only or even most important citizenship conundrum for free, settler-descended people was binary, between the British Empire and the new American republic, misses the wealth of other contests taking place and the entities at the core of citizenship claims.

Many free, white people thought they had moved to locations that meant they were separate from the jurisdictions that had originally claimed them. As settlers moved beyond the significant geographical barrier of the Appalachian Mountains, they asked hard questions about the nature and extent of a political community. They wanted to know at what point, both in terms of pragmatism and by the logic of the Declaration of Independence, one people might be seen to be distinct from another. Their separatism did not necessarily imply a wish to leave the United States, if by that term we understand a continental treaty alliance. Instead, their citizenship claims expressed the desire to create and control sovereign states with full power over local resources, especially land. In the end, with the sole exception of Vermont, these experiments in self-directed state formation failed. They were too disruptive to the foederal or treaty union of the original partner states and too powerful for eastern land interests. Moreover, Congress, to which they all appealed, had no power whatsoever to stand in as a sovereign with the power to bestow or allocate land at will.

Yet, it was in Congress’s role as arbiter among the states in the treaty alliance that it opened a direct relationship with some citizens. In the marchlands—the contested borders between neighboring states, the zones raising separatist claims, and especially the turbulent western frontier—the states gave, and Congress seized, the opportunity to act in ways that shaped the jurisdictions and therefore the citizenship claims of individual people and families. The culminating events that gave Congress a direct, unmediated relationship with citizens were the western land cessions. After years of hard effort and diplomacy, states ceded their claims on behalf of securing the treaty alliance, the belated ratification of the Articles of Confederation being the most important result. Now, Congress did not merely adjudicate some claims in particular hotspots of disagreement; it had direct responsibility for land and people on a footprint that exceeded the size of the thirteen original states.

The Northwest Ordinance, famously, was a “compact between the original States and the people and States in the said territory.”Footnote ⁷¹ But at the time congressmen drafted the ordinance, there were no “States in the said territory” that they recognized (ignoring, as usual, Indigenous polities). The compact in 1787, then, operated directly between “the original States” through Congress on one hand and, on the other, stateless western “people.” It forged a new, direct relationship, albeit one that was intended to be temporary, between citizens and Congress. This “compact,” then, was, in a sense, the last treaty, the last foedus of the foederal government, the one that made it truly federal in the sense of acting directly on citizens.

Moving through the stages dictated by Congress in the Northwest Ordinance, new states began to enter the union in 1796 with the admission of Tennessee and in 1803 with Ohio.Footnote ⁷² With these first states and as more joined the union, the power of the central or national government operated upon citizens in tandem with their states. Free settlers in these places seized upon the resources offered by both statehood and the central government to mold local policy in their preferred ways. In the process, they shaped and amplified national government even as they built robust state governments.Footnote ⁷³ In the trans-Appalachian west, then, to a degree only more gradually true back east, did the newly federal government come to draw and confer political capacity in dialectic directly with citizens.