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20 may have meant to codify the centralized approach the British had pursued. But the “byzantine” document the drafters created, Ablavsky 2015, at 1034, came with a pair of easily exploited loopholes. First, the language of its Indian affairs clause allowed some to claim that various Tribes were “ ‘members’ ” of the States and thus “exclusively or principally subject to state legislative control.” Clinton 1995, at 1103, 1150. Second, owing to a fear that the phrase “sole and exclusive” could give the misimpression that States lacked power to manage their own affairs, the Articles’ drafters added another clause stipulating that “the legislative right of any [S]tate within its own limits be not infringed or violated.” Art IX. Taken literally, that provision meant only that the Articles left to States what belonged to the States and to the Tribes what belonged to the Tribes. But some States saw in that language too an opportunity to assert their own control. See Clinton 1995, at 1103, 1107, 1113–1118, 1128–1131.

The result? A season of conflict brought about by state and private encroachments on tribal authority. G. Ablavsky, The Savage Constitution, 63 Duke L. J. 999, 1035–1036 (2014) (Ablavsky 2014). By the time the Constitutional Convention rolled around, “Indian uprisings had occurred … in the Ohio River Valley and Virginia,” “the Creeks and Georgia were on the brink of open warfare,” and there was significant turmoil “on the western frontier.” Clinton 1995, at 1147. Those events were not lost on the framers. As they debated how to broker enduring peace, two predominant schools of thought emerged. Madison and his followers favored preventing intrusions on Indian land and interests; Hamilton and his adherents favored resort to military might. Ablavsky 2014, at 1035–1038. Both sides, however, found agreement on the “need for a stronger federal government” presence, without the impediment of state interference. Id., at 1038.