The United States Constitution

A forum for discussing the meaning of the United States Constitution for our political process.

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Location: Middleton, Massachusetts, United States

I am concerned about the direction of the United States economy and politics, and about our declining influence in the world. I feel we are losing our moral and ethical bearings.

Monday, February 12, 2007

Can the Governor of Texas Force 11 Year Old Girls to be Vaccinated Against HPV?

Rick Perry, the Governor of Texas, signed an executive order that requires all Texas schoolgirls entering the 6th grade to be vaccinated against Human Papilloma Virus (HPV).

Here is the text of Governor Perry's order. Governor Perry claims he has the authority to do this because:

NOW THEREFORE, I, RICK PERRY, Governor of Texas, by virtue of the power and authority vested in me by the Constitution and laws of the State of Texas as the Chief Executive Officer, do hereby order the following:

Vaccine. The Department of State Health Services shall make the HPV vaccine available through the Texas Vaccines for Children program for eligible young females up to age 18, and the Health and Human Services Commission shall make the vaccine available to Medicaid-eligible young females from age 19 to 21.

Rules. The Health and Human Services Executive Commissioner shall adopt rules that mandate the age appropriate vaccination of all female children for HPV prior to admission to the sixth grade.

Availability. The Department of State Health Services and the Health and Human Services Commission will move expeditiously to make the vaccine available as soon as possible.

Public Information. The Department of State Health Services will implement a public awareness campaign to educate the public of the importance of vaccination, the availability of the vaccine, and the subsequent requirements under the rules that will be adopted.

Parents' Rights. The Department of State Health Services will, in order to protect the right of parents to be the final authority on their children's health care, modify the current process in order to allow parents to submit a request for a conscientious objection affidavit form via the Internet while maintaining privacy safeguards under current law.

The vaccine, Gardasil, is manufactured by Merck, one of the largest drug companies in the world and a significant contributor to Governor Perry's political campaigns. Merck is the same company which hid the deaths from heart attacks and strokes associated with its anti-arthritis drug, Vioxx, forcing Merck, under pressure, to pull Vioxx from the market.

According the the Merck-sponsored Web site,,

GARDASIL is the only vaccine that may help guard against diseases that are caused by human papillomavirus (HPV) Types 6, 11, 16, and 18:

• Cervical cancer

• Cervical abnormalities that can sometimes lead to cervical cancer

• Genital warts

HPV Types 16 and 18 cause 70% of cervical cancer cases, and HPV Types 6 and 11 cause 90% of genital warts cases. What about the other 30% of cervical cancer cases? Doctors still recommend a Pap test - a far cheaper and more effective way of detecting early cervical cancer. Also certain types of HPV cause anal cancer, which would lead one to conclude that boys who might potentially engage in homosexual acts should also be vaccinated.

Another interesting tidbit is that millions of us - just about anyone who has had any kind of sexual contact on a regular basis - have been exposed to HPV, without any side effects. For most of us, our body has natural defenses against HPV, once exposed. There's no way of knowing who has these defenses and who does not. If that weren't true, then there would be many, many more cases of cervical cancer than there actually are. Merck's commercials play on fear - even one case is too many. Of course, that is true, IF there's an open and shut case that Gardasil will actually prevent even one case. This is far from proven, at this stage of the game.

Note the waffling in the Merck claim, especially the use of the phrase "may help guard against". HPV is not one virus, but one of a family of at least 100 different strains of the virus. The vaccine is targeted at only 4 types of HPV - types 16 and 18, which may cause 70% of cervical cancer cases, and types 6 and 11, which may cause 90% of genital warts cases. There are a dozen types of HPV that may be involved with cervical cancer. Gardasil only targets two of them. This, of course, begs the question of whether if in the future, Merck or some other company develops a "vaccine" against the other 10 types of HPV, should these be mandatory as well? And what about specific vaccines against other cancers? How many shots will the states expect our children to receive before they will become stuck with so many needles their arms will look like pincushions? And what about the side effects - these have not been sufficiently explored yet. Is an epidemic such as Gullian-Barre syndrome - a result of the Asian flu vaccine side effect - in our future?

According to the cancer site, Gardasil will cost between $300 and $500 per shot, which will be covered by Federal programs. Gardasil is the most expensive vaccine ever marketed in the United States. This is, of course, quite a bit of revenue for Merck, even if only Texas mandates the vaccine for every 6th grade girl. Gardasil was approved by the Centers for Disease Control (CDC) on June 8, 2006, specifically for girls. According to the CDC, not enough information is available to decide whether Gardasil should be given to boys as well.

The idea is that HPV is linked to the possibility of developing cervical cancer, that HPV is spread by sexual contact, and that vaccinating girls against this virus (vaccinating 6th grade boys apparently was not considered, though in most cases boys are involved as well as girls) will somehow prevent cervical cancer. Here are Governor Perry's words:

As governor of Texas, I will do everything in my power to protect public health. The executive order I signed last Friday will help stop the spread of human papillomavirus (HPV) and prevent cervical cancer in young women.

Some are focused on the cause of this cancer, but I remain focused on the cure. And if I err, I will always err on the side of protecting life.

If we could stop lung cancer, would some shy away claiming it might encourage tobacco use? This is a rare opportunity to act, and as a pro-life governor, I will always take the side of protecting life.

Merck is carrying on a massive lobbying effort for states to require women as young as 11 or 12 to undergo Gardasil vaccination. Here's a quote from the article:

Merck & Company is lobbying to have states pass legislation that would require women as young as 11 or 12 years of age to be “immunized” against a cervical cancer virus with a new drug recently approved by the FDA called Gardasil. At least 18 states are taking this initiative seriously enough to debate it. Michigan has already voted it down. But look at what they’re doing:

A top official from Merck’s vaccine division sits on the Women in Government business council, and many of the bills around the country have been introduced by members of Women in Government.

“Cervical cancer is of particular interest to our members because it represents the first opportunity that we have to actually eliminate a cancer,” Women in Government President Susan Crosby said. Here's a quote from the Women in Government Cervical Cancer position paper:

An HPV test is now available to detect high-risk types of the virus. When used in conjunction with a Pap test in women over 30 and older a doctor's ability to determine which women need early intervention increases to almost 100%.

I asked my son, who is a family practice physician and has researched this issue about this. He told me that the above statement is misleading because the Pap test remains the way to diagnose cervical cancer. The HPV "vaccine" does not add any certainty to the diagnosis. This is how lobbyists sow confusion among lawmakers.

Other states are jumping on the Gardasil bandwagon. In Arkansas, Dr. Jim Phillips, Director of Infectious Diseases at the Arkansas Health Division, voiced strong opposition to mandatory HPV vaccinations because it would encourage parents to opt out of all mandatory vaccinations. This, even though the Arkansas Cervical Cancer Task Force recommended mandatory HPV vaccinations for all girls age 9 to 12. There's enough Federal money to fund vaccines for uninsured Arkansas girls. However, if you can pay the $300 through your health insurance, Arkansas will force you to fork up the money.

In Virginia, Delegate Phillip Hamilton (R-Newport News) sponsored a bill - HB1914 - that would make it mandatory for all middle school girls to be vaccinated with Gardasil. As in other states, parents could opt out of the program by filling out a form.

The Roanoke Times editorial of February 7, 2007, opposes the measure. Here's a partial quote:

That should raise questions about the influence of Merck & Co., makers of the vaccine, called Gardasil.

Those questions are being asked in Texas, where last week Gov. Rick Perry signed an order requiring girls entering the sixth grade to get Gardasil beginning in September 2008.

His action sidestepped opposition in the Texas legislature and from some conservatives and parents' rights groups. They worry that the requirement would condone premarital sex -- since the viruses it protects against are sexually transmitted -- and interfere with how they raise their children.

Perry has ties to Merck. His former chief of staff is a lobbyist for the company, and Perry also received $6,000 from Merck's political action committee during his re-election campaign.

Merck has stretched its reach into other states considering similar laws, including Virginia. Since 1996, Merck has donated nearly $200,000 to candidates and political action committees in Virginia. Merck has given the House sponsor, Del. Phillip Hamilton, R-Newport News, $10,000 in the last decade.

Contrary to the fears of some, 10- and 11-year-old girls aren't likely to assume that this series of shots equates with permission to engage in premarital sex. That is not a good argument to oppose Merck's efforts to mandate the vaccine.

But there are others. While dangerous side effects aren't as likely with vaccines as with other drugs, such as Merck's Vioxx, it would still be prudent before making the vaccine mandatory to see whether any emerge now that it is in widespread use.

Also, many pediatricians and gynecologists aren't stocking the vaccine because they say insurance companies aren't adequately reimbursing them.

Finally, this premature move could blunt other companies' efforts to develop competing vaccines.

The finding that Gardasil protects against four HPV types, which together cause 70 percent of cervical cancers, is a breakthrough. But maybe one of Merck's competitors could improve on Gardasil's performance if Merck doesn't use legislation to prematurely corner the market.

Merck should spread the gospel of Gardasil, and let the health community and parents know of the vaccine's potential in the fight against cancer.

State legislators should not ignore that Merck stands to make billions in sales if Gardasil becomes mandatory across the country.

Merck's interests are served by mandating the vaccinations. Legislators should ensure that public health would also be served.

Campaign contributions aside, that argument has not been made convincingly.

Doctors are resisting stocking up on Gardasil, according to this Chicago Tribune article. In particular:

But in the real world, Gardasil is getting used less than doctors would like. Pediatricians and gynecologists across the nation are refusing to stock Gardasil because of its $360 price for the three doses required and "totally inadequate" reimbursement from most insurers.

Pediatricians, in particular, are rebelling, fed up after years of declining insurance reimbursement for vaccines, an explosion of new vaccines and fast-escalating vaccine prices.

Many practices must tie up $50,000 or more in vaccine inventory, insure the vaccines and spend lots of time on inventory management. They also must absorb the cost of broken or wasted vials, and they say that's not possible with most insurers reimbursing at just $2 to $15 over the $120 per dose charged by Gardasil's developer, Merck & Co.

This action raises both constitutional and health issues, such as:

  1. Can the Governor of Texas issue such a decree even though the legislature is in session? It's news to a number of Texas legislators that the governor can rule by decree. Texas is not in any state of emergency. Governor Perry simply bypassed the legislative process in issuing his executive order.

  2. Is mandatory vaccination allowed under the Texas Constitution? Governor Perry cites his executive powers as justification for his decree. Perhaps. If the legislation was not in session, and there was an imminent outbreak of something like bird flu that was a direct attack on public health, perhaps there would be no time for legislative deliberation. Given that the implementation of this decree is not supposed to occur until 2008, the "time is of the essence" argument doesn't seem to hold water. Why not dispense with the legislature altogether and just rule by decree, as dictators are accustomed to doing?

  3. Is mandatory vaccination allowed under the United States Constitution? There is a constitutional conflict here because under the reserved powers clause, and in general, matters of public health are traditionally state matters, under the state's "police power". However, if there is an affect on interstate commerce, mandatory vaccination could be in the province of the Federal government.

  4. Would the United States Supreme Court declare this particular decree unconstitutional, or perhaps require mandatory vaccinations? Who knows? The Court, especially these days, would probably allow a state to do what it deems best for the health and welfare of its citizens. If Pennsylvania requires doctors to jump through all sorts of hoops before performing an abortion, so be it. If Oregon wants to allow for medically assisted suicide, that might work as well. The Court could very well contribute to Merck's profits by upholding laws, pending in 18 states, forcing 6th graders to submit to the Gardasil vaccine, whether or not all the facts are in.

Saturday, December 09, 2006

The Legal Status of an Indian Tribe

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Yesterday, I chanced on an interesting article in the business section of my local paper.  The Seminole Indians purchased the Hard Rock Cafe for $965 million.  That's a pretty large amount of money.  That got me to thinking - how did the Seminoles get all that money?  Are all Indian tribes that rich?  And in what capacity - as a nation or a corporation - did the Seminoles make the transaction? Are the individual Seminoles shareholders in the Seminole Corporation, citizens of the Seminole nation, or both?   And how does a group become certified as an Indian tribe?  Could I gather a few friends, maybe some of my 6,000+ MySpace friends, declare that we're a tribe, and go into the casino business?  So, salivating over the prospect of casino riches, I decided to do a little research on how, exactly, an Indian tribe is set up.  There's a long and winding road associated with the answer to the question.

As I mentioned in my article about the legal basis of Indian ethnic cleansing, the Constitution grants to Congress, in the Commerce Clause, the power to regulate commerce with the Indian tribes.  There's also another area in which our government has dealt with Indian tribes - as a nation, like England or France.  In that capacity, the President, with the advice and consent of the Senate, has concluded many treaties with Indian tribes, as nations.  The idea that Indian tribes were nations was, at the time of the ratification of the Constitution, so self-evident that the tribes are not singled out as separate from a nation when the Executive is given the treaty making power.  It was just assumed.

As an early example, from the administration of George Washington, the United States government signed a "treaty of peace and friendship" with the Iroquois nation, on November 11, 1794.  The treaty is known either as the Pickering Treaty, the Calico Treaty (because calico cloth was the official method of payment), or the Treaty of Canandaigua (for the location, near Rochester, New York, where the treaty was signed.  I quote from the Preamble and the first two articles.

The President of the United States having determined to hold a conference with the Six Nations of Indians, for the purpose of removing from their minds all causes of complaint, and establishing a firm and permanent friendship with them; and Timothy Pickering being appointed sole agent for that purpose; and the agent having met and conferred with the Sachems, Chiefs and Warriors of the Six Nations, in a general council: Now in order to accomplish the good design of this conference, the parties have agreed on the following articles, which, when ratified by the President, with the advice and consent of the Senate of the United States, shall be binding on them and the Six Nations.

Article I.  Peace and friendship are hereby firmly established, and shall be perpetual, between the United States and the Six Nations.

Article II. The United States acknowledge the lands reserved to the Oneida, Onondaga and Cayuga Nations, in their respective treaties with the state of New York, and called their reservations, to be their property; and the United States will never claim the same, nor disturb them or either of the Six Nations, nor their Indian friends residing thereon and united with them, in the free use and enjoyment thereof: but the said reservations shall remain theirs, until they choose to sell the same to the people of the United States who have right to purchase.

You can read the entire text of the treaty here.

The Pickering Treaty has been formally observed continuously since then.  Every year the Six Nations in New York receive calico as payment, and the Oneida Tribe of Wisconsin receives a check for $1,800, in accordance with its terms.  The signing ceremony was reenacted on November 11, 2006 in Canandaigua.  None of this, however, prevented the United States government from flooding 10,000 acres of Allegany Seneca Reservation land and the traditional Seneca religious building, the Cold Spring Longhouse, by the Kinzua Dam, in 1965, in violation of the 1794 Pickering Treaty.  Apparently, when it comes to treaties with Indian nations (by some estimates, there have been over 400 of them solemnly sealed over the years), they are only enforced when it is convenient for the government.  Imagine if the Indians wanted to flood midtown Manhattan and St. Patrick's Cathedral because they didn't think that the $24 payment in wampum was enough compensation for Manhattan.

The Pickering Treaty terms seem pretty clear.  The Iroquois nation has a fee simple title to the land, complete with the "free use and enjoyment thereof", with the right to sell on terms agreeable to them, just like any landowner.  Well, that was the plain meaning of the treaty in 1794.  When the Supreme Court, led by Chief Justice John Marshall, (Johnson v. M'Intosh, 1823) actually ruled on whether the Native Americans could sell their land to a private party, the unanimous decision was that they could not because ultimate title belonged to the United States of America. Indians only had the "right of occupancy" because the Court held that the land was "discovered" by the European powers.  Here's how Marshall stated it:

It is supposed to be a principle of universal law, that, if an uninhabited country be discovered by a number of individuals, who acknowledge no connexion with, and owe no allegiance to, any government whatever, the country becomes the property of the discoverers, so far at least as they can use it. They acquire a title in common. The title of the whole land is in the whole society. It is to be divided and parcelled out according to the will of the society, expressed by the whole body, or by that organ which is authorized by the whole to express it.

            If the discovery be made, and possession of the country be taken, under the authority of an existing government, which is acknowledged by the emigrants, it is supposed to be equally well settled, that the discovery is made for the whole nation, that the country becomes a part of the nation, and that the vacant soil is to be disposed of by that organ of the government which has the constitutional power to dispose of the national domains, by that organ in which all vacant territory is vested by law.

In other words, the land was uninhabited until the white Europeans discovered it and it was only put to use when the white Europeans settled it.  The native Americans became, by legal magic, invisible and unproductive.

If the Indian tribes were a nation, they were certainly a curious nation.  They did not own their land.  In an 1831 case, Cherokee Nation v Georgia, the Marshall court defined the Cherokees as a "domestic, dependent nation", as opposed, I guess to England, which was an international, independent nation.  In Worcester v Georgia, an 1832 case, the Marshall Court held that only the Federal government, not the states, could negotiate treaties with Indian tribes.  The Treaty of New Echota, made by the United States government with a few dozen Cherokees, many of whom were assassinated by the other 17,000 Cherokees who opposed it, which made "official" the removal of the Cherokee nation to Oklahoma, was a formal treaty, negotiated by the President and ratified by the Senate, in line with the ratification procedure for any treaty.  By the terms of that treaty, the Cherokee Nation was supposed to be able to set up their independent government in Indian territory (present day Oklahoma), forever, without any interference from the white man.  White settlement in Indian Territory was expressly forbidden.

This arrangement worked until enough whites wanted to steal the land promised to the Indian "forever".  By the eve of the Civil War, each tribe that was "relocated" to Indian Territory had its own fragment of land.  The land intended for the Cherokee Nation and other relocated tribes was already occupied by other Indian tribes, principally the Osage and the Qawpaw, as the official Oklahoma history Web site explains.  By a treaty of 1808, amazingly, the Osage were promised the entire state of Oklahoma in return for relocating from Kansas.  In other words, far from being empty, uninhabited prairie, Indian Territory was already populated.  The tribes from the east were given land stolen from the tribes already living in Indian Territory.  A competition for food and land among the relocated tribes and the tribes already living their ensued.

When the white Europeans, such as ranchers, farmers, and mining companies, discovered that Oklahoma land and resources were valuable, the government needed to come up with a legal way to circumvent the inconvenient treaties they had made with the various Indian tribes.  The most important law passed by Congress was the Dawes Act, enacted in 1887.  Section One authorizes the President to survey Native American tribal land and divide the arable area into allotments for the individual Native American. It says that the head of any household will receive 160 acres (647,000 m²), and each single individual above the age of 18 and each orphan will receive 80 acres (324,000 m²), and each minor will receive 40 acres (162,000 m²).  In other words, native American tribal land was converted to individual homesteads for each Indian who could prove to the satisfaction of the United States Government that he or she was a proper member of the tribe.  The result of the Dawes Act was to destroy the tribal rights, negotiated by treaties, that the government was supposed to preserve.  The Dawes Act also destroyed the Indian tribal culture.  Each Indian had to enroll in the Dawes Roll, and, in a process hauntingly similar to what the Nazis did in Germany, prove that they had the required amount of Indian blood.  By the way, if you were of mixed Indian ancestry - say 50% Cherokee and 50% Osage - you had to choose, which meant that you were deprived of the tribal rights of the other tribe.  Hitler had similar rules about percentage of Jewishness to make you eligible for the gas chamber.  The idea of dealing with the tribes as sovereign nations was dead as a doornail.  In fact, in 1871, Congress passed a law which forbade the President from negotiating any more treaties with Indian tribes.

Check out this collection of documents related to the Dawes Act from PBS.

In my US history textbook published in the 1950s, I remember a picture of the famous Oklahoma Land Rush of 1889.  There were all those wagons and horses lined up at the Oklahoma border, waiting for the starter to give the signal to occupy the empty land across it.  In reality, the land was overcrowded with Indians trying to survive.  The land was not empty - it was stolen from the Cherokees and other tribes who had solemn treaty obligations to it.  The government pressured the tribes to cede "unassigned lands" - those lands where there were no formal Indian settlements - for white settlers - for minimal compensation.  So the Oklahoma Land Rush should more properly be called the Oklahoma Land Theft.

With each Indian reduced to his own homestead, and with little knowledge of this contorted history, unscrupulous white land agents took advantage of the Indians, effectively stealing whatever allotment was supposed to be available, and impoverishing those who still remained.  This Indian privatization scheme was disastrous to the native Americans.

This situation was partially relieved only in the New Deal era, with the passage of the Indian Reorganization Act of 1934 (also known as the Wheeler-Howard Act or the Indian New Deal).  The terms of the Act allowed the Indian tribes to organize as a tribe, appoint legal counsel, and negotiate contracts.  A tribe could adopt its own "constitution", subject to approval by the Secretary of the Interior.  Although the Act did not fully restore Indian tribes to complete nationhood, it did provide the legal foundation for contracts such as the Seminole contracts with gambling casinos.

Although there have been various twists and turns - a potentially disastrous twist occurred during the 1950s, in the Eisenhower administration, when the policy of "terminating" Indian tribes, basically returning them back to the Dawes Act era, was tried and failed - the Wheeler-Howard Act is the basic document underpinning the legal status of Indian tribes.  Termination was nearly a disaster for the Menominee tribe (the government wanted to make a state park out of the Menominee tribal land) and the Colville River tribes.  So can I get a group of my friends together, declare ourselves as a tribe, and get in on the casino action?  Not exactly.  We have to prove that we're biologically and genetically Indian, get the historians and anthropologists in on the action to prove that our ancestors acted as a tribe, and then apply to the US government for certification.  Some tribes, like the Lumbee in North Carolina, have been trying for over 100 years.  Maybe there's a loophole somewhere - can I be adopted by an official tribe?  Any of my native American MySpace friends, please contact me ( - I'm available!

Wednesday, December 06, 2006

The Native American Source for the Declaration and the Constitution

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In the standard high school history textbooks, the primary sources of the ideas behind the Constitution are almost entirely from western Europe.  We read about English common law, laws from ancient Greece and Rome, and French civil law.  Then, by some sort of magic, the Framers added their original genius, ideas about democracy, separation of powers, federalism, and so on, to the mix and, behold, the Constitution was created.

All well and good.  Certainly ancient Greece and Rome, medieval England, and the minds of Washington, Franklin, Jefferson, and others were vital contributions to the ideas of the Declaration of Independence and the Constitution.  But one source, hiding in plain sight, so to speak, is frequently overlooked.  This is the contribution of native Americans, particularly the Iroquois, to the mix.  The Iroquois constitution, called the Great Law of Peace, or Gayanashagowa, contains many echoes of our Constitution, and in a number of respects, is more advanced in thought than the Constitution that resulted from the Convention of 1787.

This is not something I made up.  If you read the original documents from the time, from people like Benjamin Franklin and George Washington, you will easily see that they deeply acknowledged their debt to the Iroquois and other native Americans.   It's no accident that the protestors at the Boston Tea Party chose to disguise themselves as Indians.  They did this out of respect for the democratic and free nature of Indian society - something they were trying to establish in the face of what they considered British tyranny.

Who were the Iroquois?  Here's how the Wikipedia article on the Iroquois describes it:

The Iroquois Confederacy (Haudenosaunee, also known as the League of Peace and Power, Five Nations, or Six Nations, mostly Six nations now a days) is a group of First Nations/Native Americans. It was made up of six tribes: the Mohawks, the Oneidas, the Onondagas, the Cayugas, and the Senecas. A sixth tribe, the Tuscarora, joined after the original five nations were formed. They are also sometimes called the people of the Long house. They are often referred to as Iroquois, a term that some members of the group consider derogatory.

The Union of Nations was established prior to major European contact, complete with a constitution known as the Gayanashagowa (or "Great Law of Peace") with the help of a memory device in the form of special beads called wampum that have inherent spiritual value (wampum has been inaccurately compared to money in other cultures). Most anthropologists have traditionally speculated that this constitution was created between the middle 1400s and early 1600s. However, recent archaeological studies have suggested the accuracy of the account found in oral tradition, which argues that the federation was formed around August 31, 1142 based on a coinciding solar eclipse (see Fields and Mann, American Indian Culture and Research Journal, vol. 21, #2). Some Westerners have also suggested that the Great Law of Peace was written with European help, although some dismiss this notion as racist.

The Iroquois were not simply passive observers of the conflict between the French and British.  They were a formidable military power.  In fact, they held the balance of power in the West for the 17th and 18th centuries.  According to Francis Parkman, the famous 19th century historian, the Iroquois were at the height of their power in the 17th century, with a population of around 12,000 people. Our image of native Americans comes mainly from those John Ford westerns, that they were savages who scalped innocent white settlers who just wanted to farm on the empty prairie.  This is not how Benjamin Franklin, who negotiated a treaty with the Iroquois, saw them.

"It would be a strange thing if six nations of ignorant savages should be capable of forming a scheme for such a union and be able to execute it in such a manner as that it has subsisted ages and appears insoluble; and yet that a like union should be impractical for ten or a dozen English colonies.

At the time, Franklin proposed a plan, called the Albany Plan of Union, based on the Great Law of Peace, to unite the colonies.  About 40 Iroquois representatives, led by Chief Hendrick of the Mohawk, urged such a union because it had worked so well for the Iroquois.  The white "savages", unfortunately, could not agree.  A number of historians cite the Albany Plan as a predecessor to our Constitution.  They don't always mention that its basis was a native American constitution that had been functioning continuously for hundreds of years.

On June 11, 1776, the Continental Congress, in the midst of debating the text of the Declaration of Independence, formally invited visiting Iroquois chiefs into the meeting hall.  Read about it here.  There a speech was delivered, in which they were addressed as "Brothers" and told of the delegates' wish that the "friendship" between them would "continue as long as the sun shall shine" and the "waters run." The speech also expressed the hope that the new Americans and the Iroquois act "as one people, and have but one heart."  After this speech, an Onondaga chief requested permission to give Hancock an Indian name. The Congress graciously consented, and so the president was renamed "Karanduawn, or the Great Tree."  Like I said, I'm not making this up.

Recent historians have taken note of the Iroquois contribution to our political thought.  At a conference at Cornell University in 1987, the 200th anniversary of the Ratification of the Constitution, 200 historians and scholars gathered to examine how the Great Law of Peace was indeed the source of the Constitution.  Here's how it was described:

Faithkeeper Oren Lyons, an Onondaga, states The Great Law of Peace includes "freedom of speech, freedom of religion, [and] the right of women to participate in government. Separation of power in government and checks and balances within government are traceable to our Iroquois constitution—ideas learned by colonists."

The central idea underlying Iroquois political philosophy is that peace is the will of the Creator, and the ultimate spiritual goal and natural order among humans. The principles of Iroquois government embodied in The Great Law of Peace were transmitted by a historical figure called the Peacemaker. His teachings emphasize the power of Reason to assure Righteousness, Justice and Health among humans. Peace came to the Iroquois, not through war and conquest, but through the exercise of Reason guided by the spiritual mind. The Iroquois League is based not on force of arms or rule of law, but spiritual concepts of natural law applied to human society.

At the planting of a Tree of Peace in Philadelphia in 1986, Mohawk Chief Jake Swamp explained, "In the beginning, when our Creator made humans, everything needed to survive was provided. Our Creator asked only one thing: Never forget to appreciate the gifts of Mother Earth. Our people were instructed how to be grateful and how to survive.

"But during a dark age in our history 1000 years ago, humans no longer listened to the original instructions. Our Creator became sad, because there was so much crime, dishonesty, injustice and war.

"So Creator sent a Peacemaker with a message to be righteous and just, and make a good future for our children seven generations to come. He called all warring people together and told them as long as there was killing there would be no peace of mind. There must be a concerted effort by humans for peace to prevail. Through logic, reasoning and spiritual means, he inspired the warriors to bury their weapons and planted atop a sacred Tree of Peace."

Here's a description of the Great Law of Peace, from the Official Six Nations Web Site.  Peace was more than the absence of war - the Iroquois considered it as harmony with nature, one's surroundings, and one's brothers.

Here's the text of the Great Law of Peace.

You can read the excellent book Forgotten Founders, by Bruce Johansen, online, for free.  Mr. Johansen examines not only the Great Law of Peace, but also other native American influences on the Declaration of Independence and the Constitution.  The Great Law was far more democratic than either document.  Women had full equality - in fact, they sort of ran the show.  The men turned in all their assets, except for their guns and arrows for fighting, to the women to manage.  The long house was a true democracy, where everyone could speak their mind.  Ideas such as free speech, later incorporated into the Bill of Rights, were first written down here.  The idea of separation of powers and federalism was not only written down but practiced.  Each nation preserved its own sovereignty but also agreed to the rights of the Iroquois nation for matters such as defense.  The Iroquois didn't have to wrestle with the "peculiar institution" of slavery because it was unknown.  A modern historian, faced with all the facts, could easily conclude that the Constitution was based on this native American document and then was debased by the fierce political horsetrading that occurred at the Convention in 1787.  Maybe this is too extreme a position.  At the least, however, the contributions of the native Americans to our fundamental documents should be both acknowledged and celebrated, instead of being invisible.

By the way, the thing about scalping - it was a European invention.  The British placed a bounty on the scalp of an Indian.  The Indians considered scalping as barbaric and only resorted to it out of self defense.  Makes you think about who the savages really were.

Friday, December 01, 2006

How the Seminoles Resisted Ethnic Cleansing From Florida

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After you read this post, you won't look at a 20 dollar bill - the one with Andrew Jackson's face on it -  the same way again.  When you think of the wars in American history, a standard list - including the French and Indian War, the American Revolution, the War of 1812, the Civil War, World War I, World War II, Vietnam, and Iraq - come to mind.  What about the Pequot War,   King Philip's War, Pontiac's Rebellion, the Creek War, or the Black Hawk War?  These were also wars we fought (King Philip's War was the bloodiest, pound for pound, in our history), but they're  invisible.  The reason - the "enemy" was native American.  In this episode, I will discuss how the Seminole Indians fought three wars in Florida, holding the United States Army at bay for nearly 4 decades, resisting the Indian removal policy.  The Seminoles, in fact, were never defeated in the field.

In the last episode, I discussed how the Cherokee nation was forcibly "removed" to Oklahoma in the 1830s, along paths which are now known collectively as the Trail of Tears.  The driving force behind this ethnic cleansing was Andrew Jackson, 7th President of the United States, known as Sharp Knife because of his lifelong dedication to Indian ethnic cleansing, by lies and deception if possible, by force if necessary.  Congress gave President Jackson the authority to relocate the Indians to Indian Territory (present day Oklahoma) by passing the Indian Removal Act of 1830.  The Cherokees, who had built a nation according to the white man's ways, decided to work through the legal system, and did not resort to armed resistance.  In this episode, I will discuss the Seminoles in Florida, who resisted fiercely, fighting three wars against the full might of the United States army, wars lasting 4 decades, in guerrilla fashion - hiding out in the mosquito and rat infested swamps of the Everglades, until both sides essentially tired of the struggle.  The Seminoles were never defeated on the battlefield.  At the end, the remnant bands retired to the remote parts of the Everglades until well into the 20th century, when the crush of development forced the Seminoles to settle more into the white man's ways.

Who are the Seminoles?  According to the white man, they're one of the Five Civilized Tribes, the others being the Creek (also called Muskoki), Cherokee, Chickasaw, and Choctaw.  By "civilized", the white man's view is that, unlike all the other Indian tribes, such as the Plains Indians, they adopted the white man's ways.   This of course is blatant nonsense.  Many of the tribes east of the Mississippi, such as the Iroquois, were as "civilized" as any white groups.  Foods like corn, squash, beans, and succotash, that we eat on Thanksgiving and in daily life, are of Indian origin.  Many Indians were farmers, some were large landowners.  Nevertheless, in spite of their civilized ways, they were for the most part "relocated" west of the Mississippi.  The reason had nothing to do with civilization.  Instead, it was the white man's hunger for land and, in the case of the Cherokees, gold.  They were forced to relinquish their land and other assets for land in Indian Territory (present-day Oklahoma) with the promise that the area would be theirs exclusively, with white settlement banned.   In the next episode, when I explain the real story behind the "Oklahoma Land Grab", I'll set the record on that score straight.

According to the Official Seminole Tribe Web Site, the ancestors of the Seminole tribe have lived in the southeastern states (Florida and Georgia mainly) for 12,000 years.  When the Spanish "discovered" Florida in 1513, about 200,000 Maskoki speaking peoples lived there.  The origin of the word Seminole is obscure.  One theory is that it is a corruption of the Spanish word "cimarrones", which means free people.  The Seminoles are closely related to the Creeks and concentrated along the border between Florida and Georgia.

We tend to think of the War of 1812 as a fight between Great Britain and the United States.  Of course, they did fight each other, in such events as the Battle of Lake Erie, the seige of Fort McHenry (Baltimore), the burning of Washington, DC, and the Battle of New Orleans.  But relatively unnoticed, a large part of the war consisted of fighting Indian tribes along the western and southern frontier.  One of these tribes was the Creeks.  The Creek War (1813-1814) started out as a civil war between those Creeks who wanted to remain living in traditional ways (the Red Sticks), and those who wanted to become more "civilized", according to the ways of the White man (the White Sticks).   On August 30, 1813, at Fort Mims, Alabama, the Red Sticks killed 500 people in the Massacre of Fort Mims. This event prompted the United States to become involved on the side of the White Sticks, with the goal of clearing Alabama for white settlement.  Under the command of Andrew Jackson, eventually the United States army prevailed, at the Battle of Horseshoe Bend (March 27, 1814).  According to the terms of the Treaty of Fort Jackson (August 9, 1814) - did you ever hear about this treaty in your history classes? - the Creeks gave up much of what is now the State of Alabama, and a chunk of south Georgia bordering Florida.

During this period, Florida was a Spanish territory.  The Florida-Georgia border was considered insecure, especially for southern slaveholders, because Florida was a haven for runaway slaves.  Some of the Creek bands who escaped from the Creek War wound up in Florida,  building towns, and sheltering runaway slaves.  In addition, our government considered Spain as a security threat.

As I mentioned earlier, the official White House biography is silent on what Andrew Jackson was doing between his victory in the Battle of New Orleans in 1815 and his inauguration as President in 1828.  He didn't just retire to the Hermitage and sip mint juleps.  Most of the time he was fighting Indians, including the Seminoles.  The First Seminole War erupted over forays staged by U.S. authorities to recapture runaway black slaves living among Seminole bands, who stiffly resisted. In 1818, Major General Andrew Jackson was dispatched with an army of more than 3,000 soldiers to Florida to punish the Seminole. After liquidating several native settlements, then executing two British traders held for reportedly encouraging Seminole resolve, General Jackson captured the Spanish fort of Pensacola in May 1818 and deposed the government.  Jackson did more than fight the Seminoles.  He instigated a crisis between the United States and Spain, making war without any authorization from Congress or the President (Monroe at the time).  His strategy worked, because in 1819, as a result of the Adams-Onis Treaty, Spain ceded Florida to the United States.

The Seminoles continued to be a problem for the United States.  In 1823, under the terms of the Treaty of Moultrie Creek - another one you've probably never heard of - some of the Seminoles agreed to relocate to a reservation area in central Florida.  This still didn't stop conflict between Seminoles and whites over the treatment of runaway slaves.

After the Indian Removal Act of 1830 was passed, the official United States policy under President Jackson was relocation to Oklahoma.  I already discussed how the Cherokees were relocated.  They went peaceably, with horribly tragic results.  The government expected the same scenario with the Seminoles.  In 1834, by the Treaty of Payne's Landing - another treaty that I'm sure is on the tip of your tongue - the Seminoles were ordered to relocate to Indian Territory in 1835.  In 1835, President Jackson ordered the Seminoles to start moving west.  Here's how the Wikipedia article describes it:

In March 1835 Thompson (Jackson's agent) called the chiefs together to read a letter from Andrew Jackson to them. In his letter, Jackson said, Should you ... refuse to move, I have then directed the Commanding officer to remove you by force. The chiefs asked for thirty days to respond. A month later the Seminole chiefs told Thompson that they would not move west. Thompson and the chiefs began arguing, and General Clinch had to intervene to prevent bloodshed. Eventually, eight of the chiefs agreed to move west, but asked to delay the move until the end of the year, and Thompson and Clinch agreed

Five important chiefs resisted the order.  One young warrior, Osceola, said:

The white man shall not make me black. I will make the white man red with blood; and then blacken him in the sun and rain ... and the buzzard live upon his flesh.

Osceola made good on his threat.  Although about 3,000 Seminoles voluntary relocated to Indian Territory following their version of the Trail of Tears, Osceola's band of 300 to 500 insurgents managed to hold off a sizeable fraction of the United States Army from 1835 to 1842.    One estimate of the cost of the Seminole War was $30,000,000 to $40,000,000 - a huge sum for its time.  At its height, the Army had 9,000 soldiers pursuing the Seminole bands.  There were significant battles in what is now Dade and Broward Counties in South Florida.  The Second Seminole War was the most expensive Indian war in United States history, lasting longer than any war the United States fought between the American Revolution and Vietnam.

The story of Osceola's capture by deceit was considered a black mark in American military history at the time.  Here's the story from the Wikipedia article about Osceola:

On October 21, 1837, on the orders of U.S. General Thomas Sidney Jesup, Osceola was captured when he arrived for supposed truce negotiations in Fort Payton. He was imprisoned at Fort Marion, St. Augustine, Florida. Osceola's capture by deceit caused uproar even among the white population and General Jesup was publicly condemned. Opponents of the contemporary administration cited it as a black mark against the government. The next December, Osceola and other Seminole prisoners were moved to Fort Moultrie, South Carolina. There painter George Catlin met him and convinced him to pose for him for two paintings. Robert J. Curtis painted an oil portrait of him. These pictures inspired a number of other prints, engravings and even cigar store figures. Afterwards numerous landmarks, including Osceola Counties in Florida, Iowa, and Michigan, have been named after him, along with Florida's Osceola National Forest. Osceola died of malaria on January 20, 1838 less than three months after his capture, and was buried with military honors.

By 1843, both the Seminoles and the US army were exhausted.  No formal treaty ended the war.  The Seminoles are the only tribe that never signed a peace treaty with the United States government.  The remnants of the Seminoles retreated to the Everglades and the Army units withdrew.  Peace reigned for a while.  Florida entered the Union as a slave state in 1845.  The government tried to remove the remaining Seminoles from Florida, prompting a third Seminole war from 1855 to 1858.  Scattered bands of Seminoles lived off the land until well into the 20th century.

In recent years, the Seminoles of Florida have recovered.  The tribe runs a number of profitable enterprises, such as gambling casinos, eco-tourism, cheap tobacco shops, and resorts, as a visit to their Web site shows.  If you're ever in Hollywood, Florida, not too far from Fort Lauderdale, pay a visit to their headquarters on Stirling Road and I-441.  The logo of the Florida Seminoles features Chief Osceola - it has the official seal of approval of the Seminole tribe.  There are also about 3,000 Seminoles in Oklahoma.

Friday, November 24, 2006

How the Cherokees Were Removed to Oklahoma

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This episode, certainly appropriate for Thanksgiving, describes how the Cherokee Indian Nation, the original inhabitants, for thousands of years, of Georgia, North Carolina, Alabama, and other southeastern states, were ethnically cleansed (the term used at the time was "removed") to Indian Territory, a dry prairie, a totally hostile environment, even though they had lived in peace with their white neighbors.  I described the legal basis, the doctrine of acquisition by conquest created by John Marshall and the Supreme Court, for this in the last episode.

The forced "removal" of the Cherokees, along what is now called the Trail of Tears (in the Cherokee language, it's Nunna daul Isunyi—"the Trail Where We Cried.") began on May 23, 1838, from near what is now Chattanooga, Tennessee.  This is merely one horrible act (and hardly the final one) in a drama filled with lies, deception, broken promises, and (yes) good but misplaced intentions in our Native American policy.   Professor Francis Paul Prucha, SJ, of Marquette University, a distinguished historian of our Native American policy, wrote that there were only four possible solutions to the Indian-white man conflict:  genocide (exterminate the race), integration (Indians live like white people), protect the natives where they lived, or removal.  By 1838, genocide had actually worked, for the most part, in the New England and Middle Atlantic states.  For example, King Philip's War (1675-1676), one of the most bloody and costly in American history.   It resulted in the elimination of The Narragansett, Wampanoag, Podunk, Nipmuck, and several smaller tribes, (about 3000 Indian soldiers in all) while the Mohicans were greatly weakened. Integration was not what the Indians really wanted.  Protecting the natives where they lived was not practical because the white squatters were gobbling up Indian land and the United States did not have enough military might, or will for that matter, to protect the tribes.  So the most humane option, according to Andrew Jackson and the other authors of Indian removal, was for the Indians to "relocate" - sort of the Final Solution of the Indian Question - resettle to a land where the Indians could live according to their tribal ways and the whites could "develop" the lands from which the Indians were emptied.

There was also a security aspect to Indian removal.  Like some of us believe that all Muslims in the United States are a threat to our national security, Indians were regarded as a security threat as well.  This argument had some merit.  It's no accident that the war called the Seven Years War in Europe (1756-1763) was called the French and Indian War in the United States.  Indeed, many of the Indian tribes in the west (the Iroquois, siding with the British, were a significant exception) sided with the French against the British colonists.  Pontiac's Rebellion (1763-1766) was an uprising by Indians around the Great Lakes area, against the harsh treatment of the Indians by Lord Jeffrey Amherst, the namesake of Amherst College in Massachusetts.  The British used Indian spies against the Americans in the Revolutionary War.

After our independence, there was constant tension and a number of wars fought between the white settlers and the Indians.  Fighting Indians was sort of a rite of passage for many political leaders in the first half of the 19th century.  During the War of 1812, Chief Tecumseh attempted to unite the Indians in the west into a coalition to drive the white settlers out.  Tecumseh's army was defeated at the Battle of Tippecanoe, by the Governor of the Indiana Territory, William Henry Harrison,  who became a hero as a result of this victory.  Harrison ran successfully under the slogan "Tippecanoe and Tyler too", to become our 9th President in 1841.  Unfortunately for Harrison, he only served one month because he died of pneumonia because of all the job seekers who beseiged him when he assumed the office of the President.   One of the less publicized parts of Abraham Lincoln's biography is that he was a soldier in the Black Hawk War (1832), which drove the Sac and Fox Indian tribe out of Illinois, as a young man.  Another President, Zachary Taylor, also fought in the Black Hawk War. So you can think of Jackson's Indian policy as being "tough on defense" - a very popular position in the "red state" West.

By 1830, the Cherokee Nation was the largest Indian group east of the Mississippi.  When I call them a nation, I'm only using the term they called themselves.  They had established a functioning government, with its capital at New Echota, Georgia; a written Cherokee language developed by Sequoyah; and even a Cherokee Constitution, modeled after the United States Constitution.  The Constitution was written by principal Chief John Ross and Major Ridge, the speaker of the Cherokee National Council, and adopted on 26 July 1827, declaring the Cherokee Nation to be a sovereign and independent nation. Many Cherokees became Christian.  As I mentioned in my last episode, they petitioned the Supreme Court, in Cherokee Nation vs. Georgia, as a sovereign nation, even though the Marshall Court struck down their petition.  That's not the end of the story - more on that later.  The point is that the Cherokees were not savages.  They adapted to white ways, creating a government far more functional than the current one in Iraq.

Why did many Georgians want Cherokee removal?  After all, the Treaty of Hopewell (1785), signed between the Cherokees and the US government, defined an agreed boundary between the Cherokee and United States nations.  Our government encouraged the Cherokees to develop white ways, and as we have seen, they did.  With the Compact of 1802, the state of Georgia relinquished to the national government its western land claims (which became the states of Alabama and Mississippi). In exchange, the national government promised to eventually conduct treaties to relocate those Indian tribes living within Georgia, thus giving Georgia control of all land within its borders.  In 1823, Creek chief William McIntosh, as an agent of the United States, attempted to bribe prominent Cherokee leaders to make major land cessions to the US. The $12,000 offer was rejected. In 1824, the Legislative Council sent John Ross, Major Ridge and other Cherokee leaders to Washington in an attempt to persuade President James Monroe to negate the Georgia Compact of 1802. The meeting ended in a stalemate, with the Cherokee refusing to cede their lands and Monroe refusing to negate the Georgia Compact.

The land claims issue heated up after gold was found on Cherokee land in north Georgia, sparking the Georgia gold rush - this before the California gold rush.  In 1829, the Georgia legislature requested the US government to enforce the Compact of 1802, to confiscate Cherokee land.  In 1830, at the urging of President Jackson, Congress passed the Indian Removal Act, which authorized Congress to make treaties with the Indian tribes to exchange their ancestral land for land west of the Mississippi.  The Act did not remove any Indians.  It just legalized their resettlement, eventually to Indian Territory, the current state of Oklahoma.

The first removal treaty signed after the Removal Act was the Treaty of Dancing Rabbit Creek on September 27, 1830, in which Choctaws in Mississippi ceded land east of the river in exchange for payment and land in the West.  The overwhelming majority of Cherokees opposed removal.  But Jackson was persistent.  He negotiated a treaty with a tiny, unrepresentative faction of the Cherokees, called the Treaty of New Echota, in 1836.  When the Cherokees found out about this, they sent a petition with 16,000 signatures to Washington to express their opposition to the treaty.  The Treaty was ratified by the Senate, as all treaties must be, by a vote of 31-15, which meant (a 2/3 majority being required to ratify a treaty) that the treaty passed by one vote.  Eventually, most of the principal negotiators of the treaty were assassinated by other Cherokees.  Nevertheless, having an authorized treaty negotiated by a tiny fraction of the Cherokee nation, the United States government proceeded with Cherokee removal.  The actual removal was due to start two years after the Treaty of New Echota, in May, 1838.  By that time, Jackson was out of office.  The removal was done by Martin Van Buren, Jackson's vice-president, who became President in 1837.

There was significant opposition, especially in New England, against the Indian Removal Act.  The famous essayist Ralph Waldo Emerson wrote a letter protesting the Cherokee removal to President Van Buren.  Here's an excerpt:

The newspapers now inform us that, in December, 1835, a treaty contracting for the exchange of all the Cherokee territory was pre-tended to be made by an agent on the part of the United States with some persons appearing on the part of the Cherokees; that the fact afterwards transpired that these deputies did by no means represent the will of the nation; and that, out of eighteen thousand souls composing the nation, fifteen thousand six hundred and sixty-eight have protested against the so-called treaty. It now appears that the government of the United States choose to hold the Cherokees to this sham treaty, and are proceeding to execute the same. Almost the entire Cherokee Nation stand up and say, " This is not our act. Behold us. Here are we. Do not mistake that handful of deserters for us ; " and the American President and the Cabinet, the Senate and the House of Representatives, neither hear these men nor see them, and are contracting to put this active nation into carts and boats, and to drag them over mountains and rivers to a wilderness at a vast distance beyond the Mississippi. And a paper purporting to be an army order fixes a month from this day as the hour for this doleful removal.

Nevertheless, under the command of General Winfield Scott, the removal proceeded.  Initially, the removal was supervised by the army, but later the Cherokees themselves supervised their own removal.  There actually is not one Trail of Tears but instead, a number of trails, as this map shows.  Estimates of the number of Cherokee who made the trek vary, although a number between 15,000 and 17,000 is generally accepted.  Somewhere between 2,000 and 4,000 Cherokees perished along the route.  The winter was especially harsh and frostbite deaths were common.  The Cherokees crossed frozen rivers in the dead of winter wearing light clothes and moccasins.  Food was scarce.  The destination, later becoming Tahlequah, Oklahoma, was harsh and desolate.  The Cherokees had to compete with other Indian tribes for food and water.

Amazingly, the Cherokees reconstituted themselves and even had periods of prosperity.  They are now the largest organized Indian tribe in the United States.  There have been some leadership crises in recent times, so in many respects they have adopted the white man's ways all too well.  They say that history repeats itself, first as tragedy, and second as farce.  Someone added "and third, as tourist trap".  These days, you can hike or drive the Trail of Tears National Historic Trail.   I'm sure that, along the way, you can eat what the Cherokees couldn't eat, stay at the Trail of Tears Sports Resort, and buy an authentic Cherokee squaw doll.  There are also a number of Cherokee bands outside of Oklahoma.  In North Carolina, a number of Cherokees escaped from the Federal manhunt or were located in a remote area outside the dragnet.  Today, you can visit Cherokee, North Carolina, home of the Eastern Band of Cherokees, officially recognized by the US government.  There's great hunting and fishing, demonstrations of native arts and crafts, a museum, gift shops, and more.  It's important that we don't forget this incredibly awful chapter of our history, because it could repeat itself.

Tuesday, November 21, 2006

The Legal Basis for Native American Ethnic Cleansing

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This is the first of two episodes in which I will discuss how we cleared out the native Americans (I'll use the word Indians, in spite of it's political incorrectness, in my discussion because that was the word used at the time), from the lands east of the Mississippi River. It's a sad and embarrassing story which has largely been papered over in our official accounts, such as in high school, and even some college, textbooks; and, as I mentioned in the last episode, in Jackson's official White House biography. Last night, I saw the football game between the New York Giants and the Jacksonville Jaguars, played in Jacksonville, Florida. Jacksonville is named after the central figure of our story, Andrew Jackson, the 7th President of the United States. Jackson is responsible for the US conquest of Florida, our purchase of Florida from Spain in 1819, and he was military governor of Florida in 1821. He cleaned out Florida of the native Seminoles and Creek Indians. So it's not inappropriate that northern Florida's largest city is named after him. He's certainly portrayed as an American hero, he certainly "opened the West" to settlement for American white people, and he acted out of what he thought of as noble intentions. But in the process, the man the Indians called "Sharp Knife" also became the architect of Indian removal, which in its effect was little different from the ethnic cleansing policy of Slobodan Milosevic or the forced removal of the Armenians into the desert by the Turks during World War I. In this episode, I will discuss the legal basis for our Indian ethnic cleansing policy. The featured player here is none other than John Marshall, the original judicial activist who did so much to expand Federal power into areas the Framers never thought of. In the next episode, I will explain how Andrew Jackson used these legal tools, as well as some others that he created, to remove the Indians, in the name of national security, from land that was their home for centuries to the barren, unproductive plains west of the Mississippi, along the Trail of Tears.

The Constitution refers to Indians directly only once, in the Commerce Clause, part of Article I, Section 8, which gives Congress the power:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

With respect to the Indian tribes, this raises more questions than it answers. First, Indian Tribes have a different status from "foreign nations". They are clearly some type of nation because both the Federal government and the states had signed "treaties" with Indian tribes. For example, On November 28, 1785, the Treaty of Hopewell was signed between the US Representative Benjamin Hawkins and the Cherokee Indians. The treaty laid out a Western boundary of settlement for the Colonials. In 1786, the US government also signed treaties with the Choctaws and the Chicasaws. Treaties are normally signed between sovereign nations. What kind of nation did we think the Indian tribes were? If they did not have full sovereignty, what was its scope?

After the French and Indian War ended, in 1763, the British Parliament enacted the Proclamation of 1763. Many of the Indian tribes had allied with the French in the French and Indian War. Parliament, desiring peace with the tribes and expansion of the profitable fur trade in the West, proclaimed a line, called the proclamation line, roughly corresponding with the Appalachian mountains. British colonists could not settle west of that line. In addition, Indian tribes and white settlers could not enter into property contracts because the British government believed that native lands belonged to the Crown. Clearly, the British saw the Indian tribes as enough of a "nation" that they could negotiate treaties with them, although not enough of a nation that it doesn't own the land underneath them.

The colonists felt constrained to the coastal areas by these rules. The restrictions on land purchases were as much of a restriction on American liberty as, say, the Stamp Act. Land speculation in pre Colonial America was something like venture capitalism today - a way to make easy money. Our Founding Fathers were eager participants in these ventures. George Washington, for example, was one of the largest landowners in Virginia, listing his occupation as "surveyor and mapmaker". Washington, as President, chose the site for the District of Columbia. It was probably not an accident that the District was near much property that Washington and his family owned. By happy coincidence the District of Columbia was both a great location for our nation's capital and a profitable venture for the Washington family.

After the Revolution, with the Proclamation of 1763 null and void, there were a number of schemes to purchase western lands, which led to disputes about whether land purchases, say from an Indian tribe to a white settler, were legal. If an Indian tribe is a nation, capable of entering into a binding treaty with the United States, surely the tribe can sell some of its land to whoever it wants to, right?

Well, not exactly. The John Marshall Supreme Court grappled with this, and other Indian related questions, defining the legal status of Indian tribes in a way that made Jackson's Indian ethnic cleansing legal and constitutional. The most important case, Johnson v McIntosh, 1823, (you'll see McIntosh written as M'Intosh) involved two conflicting land claims over a vast area of what is now part of the states of Illinois and Indiana. Here are the facts of the case, from the Wikipedia article:

Thomas Johnson bought land from Piankeshaw Indian tribes in 1773 and 1775. The defendant, William M'Intosh (pronounced "McIntosh"), subsequently obtained a land patent to this same land by the United States government. The plaintiffs, lessees of the son and grandson of Thomas Johnson who had inherited the land in the interim, brought an action for ejectment against Mr. M'Intosh in the Illinois District Court, claiming that it was theirs by virtue of their grandfather's purchases in 1773 and 1775. Plaintiffs contended that their title ran directly from the Native Americans who owned the property and therefore it was superior to defendants’ title. Defendant M’Intosh, on the other hand, maintained that the land belonged to him by virtue of the United States’ land patent. The District Court of Illinois the district court held that defendant M’Intosh’s claim was superior on the grounds that the Piankeshaw were not able to actually convey the land because they never “owned” it in the traditional sense of the word. The Plaintiffs requested review of the decision which granted title to the property in that state to defendant M’Intosh on the basis of the land grant from the United States.

The Supreme Court unanimously ruled that the United States government grant was superior. The "title search", so to speak, by the Court, started in 1609, when the Indians inhabited the entire land and had title to it. The Indians, according to the decision, owned:

the whole of the territory, in the letters patent described, except a small district on James River, where a settlement of Europeans had previously been made, was held, occupied, and possessed, in full sovereignty, by various independent tribes or nations of Indians, who were the sovereigns of their respective portions of the territory, and the absolute owners and proprietors of the soil; and who neither acknowledged nor owed any allegiance or obedience to any European sovereign or state whatever.

So why couldn't they sell their property, like any other owner? Marshall, as in Marbury v Madison, where he created the principle of judicial review where it hadn't existed before, creates the theory of "acquisition by discovery". Marshall wrote:

However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So, too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others.

The Indians live on the land "merely as occupants", while they are "in peace". They do not have title to the land. They only can stay on the land at the suffrance of the ultimate owner, the United States of America. In The Cherokee Nation v The State of Georgia (1831), the Court went further. When President Jackson, acting on the basis of the Indian Removal Act of 1830, ordered the Cherokee tribe to move from their ancestral home in Georgia, the Cherokees, acting as a nation, appealed directly to the Supreme Court to stop it. The Marshall Court ruled that the Cherokees were not a sovereign nation but instead a "denominated, domestic, dependent nation", and denied the Cherokees a hearing. Marshall wrote:

They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.

They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the president as their great father. They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States, that any attempt to acquire their lands, or to form a political connexion with them, would [30 U.S. 1, 18] be considered by all as an invasion of our territory, and an act of hostility.

An excellent, detailed book about the history of the doctrine of discovery and acquisition by conquest is Conquest by Law: How the Discovery of America Dispossessed Indigenous People and their Lands, by Professor Lindsay G. Robertson, Professor of Law at the University of Oklahoma. This "discovery doctrine" has been enshrined not only in our law but in the laws of other countries, such as Canada and Australia, in treating their native population.

Thursday, November 16, 2006

The Election of 1824 - When (Some of) The Candidates Decided the Outcome

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Picture this:  an election where there was only one party, but with four main candidates all from that party.  The people in 3/4 of the states get to vote for Presidential electors who are supposed to vote for the candidate of their choice.  In the other 1/4 of the states, no elections are held for President because the legislature gets to pick the electors.  None of the 4 candidates gets a majority of the vote, which throws the election into the House of Representatives.  In a back room deal, the candidate who received the most popular votes in the states where elections were held for President is frozen out by the other 3 candidates, who choose one of their own as President, with the understanding that he appoint another of them as Secretary of State  That's roughly what happened in the Election of 1824, an election which ranks with the elections of 1800, 1876, and 2000, as examples of why our Presidential election process is, and has always been, seriously flawed. 

In 1824, there was only one national political party, called the Democratic-Republicans, which was the legacy of Jefferson's Republican party.  The other political party, the Federalists, had been discredited by their opposition to the War of 1812.  By 1816, they had disappeared, so that James Monroe, had an easy time becoming our fifth President.  In the Election of 1816, Monroe, President Madison's Secretary of State, received 183 electoral votes to 34 electoral votes for his Federalist opponent, Rufus King.  In the Election of 1820, Monroe received every electoral vote except one.  Monroe's Presidency was called the era of good feelings because of the lack of controversy surrounding his election.

Monroe had opposed the ratification of the Constitution, joining the Virginia anti-Federalists.   He certainly wasn't alone in Virginia.  Thomas Jefferson and Patrick Henry also had opposed ratification, believing that the Constitution gave too much power to the central government.  Yet, like Jefferson, he ended up expanding Federal power as President.  Monroe's contribution was the Monroe Doctrine of 1823, in which he declared that the United States would take action against any European power that attempted to colonize the Americas (including Latin America). Certainly this was a bold step, a young country flexing its muscle.

By 1824, the President and both houses of Congress were all members of the same party.  No matter - the Era of Good Feelings came to an abrupt end as a result of this tumultuous election.  The winner of the popular vote (in those states where a Presidential vote was conducted) was Andrew Jackson, the war hero from Tennessee.  Most of the standard textbooks cite Jackson's rise to national prominence as a result of the Battle of New Orleans, a battle which took place after the Treaty of Ghent, ending the War of 1812, was signed, and so was totally unnecessary.  His record after that is not emphasized so much, or is omitted, as it is in the official White House biography of Jackson.  Most of his military activity during (and after) the War of 1812 was centered around a different enterprise:  fighting the Indian tribes.   Jackson's traditional nickname is Old Hickory.  From the Indian point of view, he has a different nickname - Sharp Knife - because of his viciousness and cruelty during the so-called Indian wars.  During the War of 1812, commanding the Tennessee militia during the Creek War, he took on the Creek Indians and defeated them at the Battle of Horseshoe Bend.  His main accomplishment as an Indian fighter occurred during the First Seminole War, in which he conquered Florida.  Indeed, after the Adams-Onis treaty of 1819, in which Spain ceded Florida to the United States, Jackson became military governor of Florida in 1821, starting a regime which can be described as Indian ethnic cleansing.  It was for these activities, more than the Battle of New Orleans, that gave Jackson his popularity in the Election of 1824.

The other potential candidates were John Quincy Adams of Massachusetts, the Secretary of State; William H. Crawford of Georgia, the Secretary of the Treasury; Congressman Henry Clay of Kentucky, the Speaker of the House; and John C. Calhoun of South Carolina, the Secretary of War.  Crawford received the nomination of the caucus in Washington, but it was sparsely attended and was widely attacked as undemocratic. In 1823, Crawford suffered a stroke. Even though he recovered in 1824, this crippled his bid for the presidency.  Calhoun initially was a serious candidate for the presidency, but he opted instead to seek the Vice Presidency and backed Jackson after seeing the popularity of Crawford in the South. Both Adams' and Jackson's supporters backed Calhoun, giving him an easy majority.  Remember, the 12th Amendment mandated separate voting for President and Vice President, so that made Calhoun a shoo-in for Vice President.

Since no candidate for President received a majority, the 12th Amendment mandated that the election be decided by the House of Representatives among the candidates (Jackson, Adams, and Crawford) receiving top 3 electoral votes.  Clay, who received the 4th highest number of electoral votes, was not among those to be considered.  However, he was Speaker of the House, and so had considerable influence.  Adams' victory shocked Jackson, who expected that, as the winner of a plurality of both the popular and electoral votes, he should have been elected President. When President Adams appointed Clay his Secretary of State, essentially declaring him heir to the Presidency—Adams and his three predecessors had all served as Secretary of State—Jackson and his followers accused Adams and Clay of striking a "corrupt bargain". The Jacksonians would campaign on this claim for the next four years, ultimately leading to Jackson's victory in the Adams-Jackson rematch in 1828.

After John Quincy Adams was defeated (he was so embittered against Jackson that he refused to attend Jackson's inauguration, just as his father, John Adams, refused to attend Jefferson's inauguration in 1801), he ran for Governor of Massachusetts and lost, and then became a representative from Massachusetts from 1831 until his death in 1848.  His character became a cameo role in the Stephen Spielberg movie, Amistad, because he represented the mutineers before the Supreme Court and won their freedom.  Henry Clay, try as he might, never became President but had one of the most distinguished careers in the history of the House of Representatives.  He authored both the Missouri Compromise of 1820 and the Compromise of 1850, attempting to hold North and South together over the question of slavery.  In spite of his efforts, the country was ripped apart by the issue, triggering the Civil War and southern secession after the election of Lincoln in 1860.