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.

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.


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