1
1American Government and Politics in a Racially Divided World
chap ter
In 2016, Gov. Jack Markell signed a long-awaited resolution officially apologizing for the state’s role in slavery. The apology for slavery illustrates the long and sometimes painful history of the United States’ struggle with race, from the time of Thomas Jefferson, a slave owner, to President Barack Obama, the first Black president of the United States.
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intro
D ecember 6, 2015, marked the 150th anniversary of the abolish-
ment of slavery, when the U.S. Congress ratified the Thirteenth
Amendment to the Constitution. There were numerous events
recognizing the end of slavery, including an official White House event
presided over by President Obama. On February 11, 2016, Delaware
joined eight other states to formally apologize for slavery when Gover-
nor Jack Markell (D) signed the state’s joint resolution. Delaware’s reso-
lution acknowledged its participation in 226 years of
slavery first of both Native Americans and Africans in
the mid-1600s; by the close of the 1700s its entire
slave population was of African descent. The resolu-
tion also included acknowledgments that Delaware
criminalized humanitarian attempts to assist slaves
and that in later times Delaware passed and enforced
Jim Crow laws to deny the rights of African American
citizens for much of the twentieth century.1
On July 29, 2008, the U.S. House of Representa-
tives passed a nonbinding resolution, introduced and
championed by Representative Steven Cohen (D-TN),
which offered a formal apology for the government’s
participation in African American slavery and the
establishment of Jim Crow laws. The resolution said, in part, “African
Americans continue to suffer from the consequences of slavery and Jim
Crow—long after both systems were formally abolished—through
enormous damage and loss, both tangible and intangible, including the
loss of human dignity and liberty, the frustration of careers and profes-
sional lives, and the long-term loss of income and opportunity.”2
On June 18, 2009, the U.S. Senate unanimously passed a similar reso-
lution apologizing to African Americans for slavery and Jim Crow. The
Senate resolution said explicitly that the apology could not be used in
support of reparations (or compensation for past wrongs).3
The story of apologies for slavery is a complex one that highlights some of the underlying dilemmas that face the U.S. political system—how to reconcile its stated principles of how individuals should be treated with how the government actually treats and has treated individuals. The apologies are intended to acknowledge the nation’s complicity in a destructive and immoral institution, at the same time avoid- ing any discussion of reparations for the descendants of those enslaved.
Reparations A concept or tool for providing monetary payments to members of aggrieved groups based on past wrongful actions against them or their ancestors.
chapter outline The Nature of Government 4
The Functions of Government 5
The Types of Government 6
Principles of Constitutional Democracies 7
Foundations of American Government 9
Exclusion and the Founding 20
features Our Voices: Lemuel Haynes—Republicanism
and Slavery 17
Evaluating Equality: Thomas Jefferson and Sally Hemings 19
Measuring Equality: Who Was Eligible to Be Included in “We the People”? 22
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American Government and Politics in a racially divided World 3
Both sides criticize the apologies for slavery. Arkansas Governor Mike Beebe (D) questioned whether Arkansas should join the other Southern states in apologizing for slavery: “I think Arkansas has as good a feel for folks working together as any Southern state or any other state, so I think we’ve moved past that.”4 In Georgia, which also debated the issue, former speaker of the house Glen Richardson (R) ex- pressed the views of many of his constituents when he said, “I’m not sure what we ought to be apologizing for. I think slavery was wrong—absolutely. But no one here was in office then.”5
On the other side, John Hope Franklin (now deceased), a prominent historian of African American history, was also not a fan of apologies. Referring to North Caroli- na’s issuance of an apology on April 12, 2007, by a unanimous vote of the House and the Senate, Franklin said:
It’s going to become an epidemic now. People are running around apologizing for slavery. What about that awful period since slavery—Reconstruction, Jim Crow and all the rest? What about the enormous wealth that was built up by Black labor? If I was sitting on a bil- lion dollars that someone had made when I sat on them, I probably would not be slow to apologize, if that’s all it takes. I think that’s little to pay for the gazillions that Black people built up—the wealth of this country—with their labor, and now you’re going to say I’m sorry I beat the hell out of you for all these years? That’s not enough.6
On May 31, 2007, Alabama governor Bob Riley (R) signed a resolution expressing the state’s “profound regret” for Alabama’s participation in slavery and apologizing for slavery’s wrongs and their lingering aftereffects.7 With his signature, Alabama became the fourth Southern state to issue an apology for slavery, following apologies issued by the legislatures of Maryland, Virginia, and North Carolina. Riley said, “Slavery was evil and is a part of American history. I believe all Alabamians are proud of the tremendous progress we have made and continue to make.”8 Florida issued an apol- ogy in March 2008. In the North, New York was the first state to issue an apology, in June 2007, followed by New Jersey in January 2008, and Tennessee and Connecticut in 2009.
Despite apologies by several states, apologies by the federal government and on behalf of the American people for mistreatment of a segment of its population are rare. It was not until 1988 that Congress passed legislation issuing an apology and providing reparations for Japanese Americans interned during World War II. In 1993, the United States apologized to native Hawaiians for providing military assistance to the White businessmen who in 1893 had overthrown Queen Liliuokalani, placed her under house arrest, and seized the islands of Hawaii for the United States.
These actions and the controversy surrounding them raise several questions and concerns about the American political system. Why did a government founded on the concepts of freedom and equality engage in actions and put in place policies that were inequitable and unjust? Why is it so difficult for this government to make amends for the inequities and inequalities it created? Who benefits from inequalities? When inequalities are created, those who have access to an arena such as voting, employ- ment, political office, and education, gain at the expense of those who are denied opportunities. When government moves to correct the inequalities it created, those
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who have gained a privileged position might perceive a lessening of oppor- tunities for themselves. Is it possible to correct inequalities for those ag- grieved without creating the belief that the government is reducing opportunities for others? These are difficult questions, but ones that the American political system has struggled with since its inception.
The U.S. government is built on a foundation with values that are ex- pressed in phrases such as “All men are created equal”; “life, liberty, and the pursuit of happiness”; and “government by the people.” These phrases, many Americans believe, convey the essence of the United States. Yet these simple phrases do not convey the complexities of government, the reality that government treats people differently, or the continual struggle neces- sary to ensure that the values expressed in those phrases apply equally to all Americans.
All of these questions illustrate the complicated and conflicted nature of American government and politics in our time. Yet the sources of these complexities and conflicts are rooted in the history of government in gen- eral and of the United States in particular. Only by exploring that history can we understand these issues more fully. To that end, this opening chap- ter begins by examining what government is, what it does, and what forms it can take. This information serves as the context for understanding the ideas that influenced the creation of the American political system and continue to this day to shape its political debates.
The Nature of Government Can you imagine a situation in which all people could do what- ever they wanted without regard for how their actions could affect others? If you wanted to drive 100 miles per hour through your
neighborhood streets, or launch a rocket from your backyard, you could do so without concern for the safety of your neighbors or airline passengers over- head. It is difficult to imagine living in a country without some mechanism for controlling the behaviors and managing the conflicts that arise when people interact. The mechanism that does this is government.
When you think of government, some of you might think of the president and the White House, others think of senators and representatives and the U.S. Capitol, and still others think of the Internal Revenue Service, the people down at city hall, or the postal service. Each of these thoughts recognizes a part of government. In the simplest sense, government is a social institution that controls the behavior of people. It does this by managing conflicts, estab- lishing order, and devising rules and regulations. More concretely, govern- ment is the entity that has the authority to make decisions for you and all those who live in a political unit, such as a country, a state, or a city. When we speak of the government, we refer to those individuals who make up that po- litical and administrative hierarchy.
Government A social institution that controls the behavior of people; the political and administrative hierarchy of an organized state.
In 1893, the United States military, at the behest of White businessmen, overthrew Queen Liliuokalani and seized the islands of Hawaii for the United States. On July 4, 1894, the Republic of Hawaii was declared with Sanford B. Dole as president. Queen Liliuokalani was eventually arrested in 1895 and held until 1896.
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the Func tions of Government 5
The Functions of Government Government serves several essential functions, including providing security, serving the public good, managing and resolving conflicts, and offering ser- vices. A first function of government is the provision of security. National gov- ernments maintain armed forces to protect their countries from attack from other countries; for example, the United States maintains an armed force that consists of the U.S. Army, Navy, Air Force, Marines, and Coast Guard. The United States is estimated to have from 700 to 1,000 bases around the world that range from small drone sites in Afghanistan to large permanent military bases, such as Ramstein Air Force Base in Germany.9
Government provides security in other ways as well. It tries to protect citi- zens from such harms as unfair business practices, discrimination, and denial of constitutional rights. In the United States laws have been passed to correct those harms, such as the 1968 Fair Housing Act aimed at protecting African Americans and other racial minorities from discrimination in the purchase of a home and the renting of an apartment or house. In addition, Title IX of the Education Amendments of 1972, as amended, prohibits discrimination on the basis of sex in federally assisted education programs. The latter has had a tre- mendous effect on the ability of women to participate in sports. In 1971, women made up 7 percent of high school athletes; in 2008, women made up 41 percent of all high school athletes. At the university level, women were 15 percent of all college athletes in 1971, but 43 percent of all college athletes by 2008.10 In 2012, at the collegiate level, there were 8.73 women’s varsity teams per school, up from 2.5 in 1970.11
A second function of government is to provide for the public good, a policy or action that benefits society as a whole rather than a specific individ- ual. Government has the responsibility to address issues and problems in terms of how they affect the well-being of the larger society. Even though you also might think about issues and problems that affect society, you, like most individuals, are likely to make decisions for your own benefit. Thus, govern- ment is the entity charged with making decisions that will reflect broad, rather than narrow, interests in society.
One way government ensures the public good is through laws and regula- tions. For example, legislation to protect the environment, such as the Clean Air Act of 1963, and its amendments over the years, has the broader interests of society as its objective and is therefore a public good. National defense is also a public good because it provides security for the entire nation, not a par- ticular individual. The Civil Rights Act of 1964 made it illegal to discriminate against African Americans and other racial minorities in the use of public ac- commodations, such as restaurants, movie theaters, and hotels, thereby out- lawing segregation and serving the interests of all citizens.
The process of determining what is best for the well-being of society, how- ever, generates debate and controversy, which leads to a third function of gov- ernment: managing and resolving conflict. The give-and-take in a governmental
Public Good A government policy or action that benefits society as a whole rather than a specific individual.
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system, and the resolution of the problems that arise in that system through the process of discussion, bargaining, and com- petition, are called politics. Bargaining could occur among groups that want different outcomes on the same issue or among individuals who want to occupy positions in government. Gov- ernment serves as the arbitrator of this compromise process. Congress balances the arguments from groups of people who will be affected by specific legislation and tries to balance those interests in compromises struck in the final bill.
Governments also offer ser vices, a fourth function, many of which would not be had if government did not provide them. In the United States, our government supports the postal system, education, hospitals, transportation, and Social Secu- rity for elderly citizens, among other things. Although some private entities might build a toll highway, it is unlikely that the national interstate highway system that runs from east to west and north to south in the countr y would have been built without the federal government. Likewise, large public univer- sities, such as the University of California–Berkeley, Ohio State University, or the University of Mar yland–College Park, would not have been established without the land grants of the federal government’s Morrill Acts of 1862 and 1890.12
Although most governments participate in these functions, not all governments do so in the same way. For example, in Den- mark health care is universal and basically free to patients. In the United States, despite the passage of the Affordable Care Act of 2010 that will provide health care for many of the currently un-
insured, people must pay something for physician and hospital services.13 The differences in how governments approach these functions are rooted in the type of government in question, its philosophical foundations, and its source of authority.
The Types of Government Some form of government oversees every country in the world, but those gov- ernments differ in form and structure. The United States is a democracy, a system of government in which the people exercise political power. The word democracy derives from the Greek words demos (the people) and kratos (author- ity). The way in which people participate in a democracy may be direct or in- direct (representative). Direct democracy exists when people make decisions themselves rather than electing individuals to make decisions on their behalf. The democracy of the ancient Greeks was direct in that everyone who was eligible to participate in government had a say in the decision-making process in an open forum. In the United States, the town meeting format found today
Politics the conflict, competition, and compromise that occur within a political system.
Democracy A system of government in which political power is exercised by the people.
Direct Democracy A democracy in which the people are able to participate directly in decision making.
Title IX has expanded opportunities for female athletes and has resulted in the development of major women’s sports teams. Chelsea Gray (12) of Duke University drives to the basket against Dawnn Maye of Georgia Tech in an NCAA women’s college basketball game on December 6, 2012. Duke won the game 85–52.
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Principles of constitutional democracies 7
in some New England towns serves as a form of direct democracy. Every resi- dent of the town is eligible to participate in the town meeting and to vote on the resolution of issues taken up in the meeting.
Indirect (or representative) democracy exists when people do not make governmental decisions themselves but elect individuals to represent their interests. Indirect, or representative, democracy is the most common form of government found in the world today; individuals elect officials to represent them in the political process and to participate on their behalf. The United States is a representative democracy. Americans elect people to repre- sent them at all levels of government—U.S. Congress, state legislatures, city councils, school boards, and mayors’ offices, among others. Most countries that are democracies are representative; no pure direct democracies exist among the governments of the world today.
Most democracies derive their governmental authority from a written constitution, which is a set of formal written rules and principles governing the country. In a constitutional democracy, authority for government stems from the constitution. In such democracies, all actions by government must conform to the constitution, and officials who make and enforce the law are themselves subject to the law.
Constitutional democracies share several characteristics.
1. There are free elections in which candidates compete with each other, and the political opposition (those not in power) is free to criticize the government.
2. The press and other media are free, meaning they operate independently of the government, and censorship is rare.
3. Elections are held at regular intervals; elected officials serve for a prescribed length of time, never for life; and the transition of power from one elected official to the next is a peaceful process.
4. Personal and civil rights, such as freedom of speech and religion, are protected.14
The United States, Great Britain, Canada, Australia, Iceland, the Netherlands, South Africa, and a host of other countries that exhibit these characteristics are constitutional democracies. Although Great Britain does not have a single written constitution similar to that of the United States, its governing princi- ples stem from numerous legislative acts, common law, and conventions that provide a constitutional framework.
Principles of Constitutional Democracies Even though the structures of constitutional democracies may differ—for in- stance, certain countries have presidents and other countries have prime min- isters and parliaments—they all share several common principles. These principles provide a common basis for understanding some of the values
Indirect (or Representative) Democracy A democracy in which people do not participate directly in decision making and instead elect individuals to represent their interests.
Constitution A set of formal written rules and principles governing a state.
Constitutional Democracy A government that derives its authority from a constitution.
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present in constitutional democracies. These principles are the rule of law, natural law, and natural rights. Understanding the principles common to con- stitutional democracies provides a window through which to view the essen- tial features of the American political system.
The Rule of Law A first element of constitutional democracy is a belief in the rule of law, the idea that laws should take precedence over the arbitrary governance of people. According to the rule of law, all citizens, including the government and gov- ernment officials, must obey the law. This principle prohibits constitutional democracies from acting in an arbitrary and capricious manner. For example, the U.S. government cannot take your property without following a prescribed legal process. By law and constitutional authority, the government cannot detain you without telling you the charges and allowing you to obtain legal counsel. Government’s actions must adhere to authority granted in a constitu- tion or in laws passed by the legislature.
The rule of law is a core principle of the American political system. Laws passed by a legislative body such as the U.S. Congress, a state legislature, or a city council are intended to bring order and fairness to the political system. By the rule of law, everyone is supposed to be equal before the law, and the law is supposed to apply equally to all. No person—rich, poor, official, or ordinary— is supposed to be above the law. In reality, the United States has a history of treating its citizens differently based on race, gender, and sexual orientation. Paula D. McClain and Joseph Stewart, Jr. argue that for much of the nation’s history, Blacks were subject to a “separate system of laws.”15
Natural Law A second principle underlying a constitutional democratic government is natural law, law that comes from nature and is superior to written law passed by legislatures. The theory of natural law holds that a system of right or justice comes from nature rather than from rules of society and that it applies to all persons. Human beings have the ability to reason (“right reason”) and through the use of reason are able to determine the proper and correct thing to do. Cicero (106–43 bce), a political philosopher in ancient Rome and one of the earliest to discuss the concept, provided a definition of natural law:
There is in fact a true law—namely, right reason—which is in accordance with nature, applies to all men, and is unchangeable and eternal. By its commands this law summons men to the performance of their duties; by its prohibitions it restrains them from doing wrong. Its commands and prohibitions always influence good men, but are without effect on the bad. To invalidate this law by human legislation is never morally right, nor is it permissible ever to restrict its operation, and to annul it wholly impossible.16
Natural law theory argues that if statutory law, or the laws passed by leg- islative bodies, conflicts with natural law—for example, the correct thing to
Rule of Law the predominance of law over discretionary authority.
Natural Law law that comes from nature and is superior to statutory law.
Statutory Law A type of law pertaining to rules made by legislatures, especially congress.
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Foundations of American Government 9
do—it need not be obeyed. The U.S. Declaration of Independence invokes natural law in its first paragraph:
When in the course of human events it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal sta- tion to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.
The clause emphasized here in italics argues that natural law entitled the colonists to break away from Great Britain.
Natural Rights A third and last common principle of constitutional democratic governments is that of natural rights, those rights to which every person is entitled and that exist apart from and are not dependent on government, such as life and liberty. Natural rights stem from natural law and belong to individuals from birth. The concept of natural rights is drawn primarily from the work of John Locke (1632–1704), an English political theorist. Locke argued that natural law endowed people with natural rights, which for Locke were “life, liberty, and property.” In the Declaration of Independence, Thomas Jefferson adapted Locke’s natural rights of life, liberty, and property to “Life, Liberty, and the pursuit of Happiness.”
Foundations of American Government Given that constitutional democracies share similar principles of government, yet might differ in structure, why does the United States have the political system that it does? What are the theoretical and philosophical underpinnings of the system, and from where did they come?
The American system of government draws on several theories of government and governing in Western European political thought and is the product of multi- ple political traditions. These traditions include (1) classical liberalism, a name now applied to a body of Western European political philosophy that is con- cerned with the freedom of the individual and the role of government in protect- ing that freedom; (2) classical republicanism, a theory that says rule by the people ought to be indirect through representatives; and (3) inegalitarianism, a tradition of excluding large segments of the American population from partici- pation in the political system despite the universal language of equality, liberty, and freedom.17 These traditions are central to an understanding of the American political system.
Classical Liberalism The founders of American government, particularly Thomas Jefferson, author of the Declaration of Independence, were familiar with contemporary West- ern European political thought. They were especially influenced by the ideas
Natural Rights rights to which every person is entitled, such as life and liberty; rights that are not dependent on government.
Classical Liberalism A body of Western european political philosophy that is concerned with the freedom of the individual and the role of government in protecting that freedom.
Classical Republicanism A theory that rule by the people ought to be indirect through representatives.
Inegalitarianism A tradition of excluding large segments of the American population from participation in the political system despite the language of equality, liberty, and freedom.
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of classical liberalism, a body of thought aimed at liberating the individual from the oppressive restraints of feudalism and monarchial rule.
Under feudalism, a system of landholding practiced widely in Medieval Europe, peasants, called serfs, pledged their loyalty and a portion of their income to a lord in exchange for protection. Rather than protect the serfs, however, lords too often abused their power over their dependents.
By the fifteenth century, feudalism had begun to die out in England, France, and other countries in Western Europe, only to be replaced by monar- chical rule. Although the change brought serfdom to an end, people in these countries were still subject to the seemingly arbitrary authority of their rulers. In time, political thinkers began to challenge this authority and collectively their ideas came to define what we now call classical liberalism.
Thomas Hobbes (1588–1679), a British political philosopher, believed, as expressed in his work Leviathan (1651), that by nature men are aggressive and, therefore, are afraid of being attacked. To protect themselves from attack, men contract with each other to form a civil society and to create a mechanism, government, for resolving these fears. Men create government by entering into a social contract in which people give up a little bit of their independence for the safety and peace that government creates. Hobbes stated that without gov- ernment, life would be extremely difficult and possibly very “nasty, brutish, and short,” to use his oft-quoted words.
The work of English political theorist John Locke best exemplifies classi- cal liberalism, particularly his Two Treatises of Government (1689). In these works, Locke argued that the responsibility of government is to protect an individual’s right to own property. If the government fails in this responsibil- ity, then the people have the right to overturn the government and establish a new one.
Locke proposed several mechanisms for limiting government’s power. First, the powers of government should be divided among several branches. Locke distrusted executive power (the monarch) and believed that the execu- tive should be subordinate and accountable to the legislature (parliament). But he believed that controls needed to be placed on the legislature as well. These controls include a belief in the rule of law, a view that laws should not be arbitrary but should be designed for the good of the people, and an argu- ment that taxes should not be raised without the consent of the people or their representatives.
Although liberal theorists might differ on some key ideas, such as their notions of natural law, individualism, and self-interest, all liberal theories share these four characteristics:18
1. Liberalism is optimistic. This optimism is expressed in the belief that society works better if individuals are left to themselves without government interference. Liberalism places great faith in the behav- ior and motivations of individuals unrestrained by coercive restrictions.
Feudalism A system of landholding involving a network of allegiances and obligations.
Social Contract individuals creating government by entering into a contract with it.
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2. Liberalism favors the individual over the group. Liberalism gives individ- ual self-determination or individualism priority over societal good. Individual freedom is paramount, and government should not in- fringe on that freedom.
3. Liberalism supports free-market economics. Liberalism holds that the role of government is to protect and facilitate economic develop- ment. Government should not enact legislation or regulations that hamper economic development. This tenet is exemplified in the work of eighteenth-centur y Scottish philosopher Adam Smith (1723–1790), whose book An Inquiry into the Nature and Causes of the Wealth of Nations (1776) is considered the first modern work of eco- nomics and the primer for free-market economics, what he called self-interested competition. He argued against the development of monopolies.
4. Liberalism places reason before faith. Liberalism seeks to “liberate” the human mind from unquestioned acceptance of religious dogma by focusing on those things that can be proved or demonstrated. The widespread belief at the time, known as the divine right of kings, held that the monarch derived his or her right to rule from the will of God. Thus, the monarch was not subject to any authority other than that of God.
The influence of classical liberalism is evident in the early documents of the nation—the Declaration of Independence, the state constitutions devel- oped after independence, and the U.S. Constitution. Thomas Jefferson drew substantially from John Locke in writing the Declaration of Independence. Locke’s natural rights—“life, liberty, and property”—became Jefferson’s “Life, Liberty, and the pursuit of Happiness.” Jefferson adapted Locke’s statement on equality—“men being by nature all free, equal, and independent”—to “All men are created equal.” According to the Declaration, “To secure these [natu- ral] rights, Governments are instituted among Men.”
Classical liberal theory is also prominent in The Federalist Papers (1787), essays written by Alexander Hamilton of New York, James Madison of Vir- ginia, and John Jay of New York, in support of ratification of the Constitution. One fundamental liberal principle central to several of the essays is govern- ment’s responsibility to protect private property and to provide an environ- ment in which people can use private property as a basis for commerce. Arguing in favor of limited government, the authors stated that the political system of the new United States would be one in which the national govern- ment and state governments shared power, but that the powers given to the national government would be “few and defined.” The writers also wanted to assure the states that the scope of the national government’s role would be limited primarily by a checks-and-balances system that would prevent any one of the three branches of the national government from acquiring too much power.
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Classical liberal theory has exerted other influences as well. The American political values of religious toleration, separation of church and state, freedom of expression, restrictions on police behavior, free elections, and an economic policy aimed at sustained growth on the basis of private ownership derive from the theory of classical liberalism.19
It would be a mistake to confuse classical liberalism with the way we use the term liberal (political liberalism) in our contemporary political world. In contemporary politics, a liberal is someone who believes that government has a role to play in the lives of individuals and that government should be looked to for solutions to problems. Political liberals support programs aimed at job creation, universal health care, elimination of discrimination in American so- ciety, and support for the poor, among others. Liberals are also interested in protecting individual civil rights and liberties and believe that government has a responsibility to protect citizens’ rights.
We juxtapose this definition of contemporary political liberalism against the definition of the contemporary political term conservative. Conservatives are individuals who believe in a limited role for government and do not be- lieve that government should be turned to for solutions to some problems. Conservatives believe that too much government regulation hinders the abil- ity of the free market to function unfettered; conservatives are strong believers in a free-market economy. They are not in favor of governmental expansion of individual rights and liberties. Conservatives do believe, however, that the government has a major role to play in defense, and they are more likely to support increases in defense spending while opposing spending in social pro- gram areas. In many ways, contemporary conservatism resembles classical lib- eralism more than today’s political liberalism does.
Classical Republicanism Whereas classical liberalism emphasizes individualism and self-interest, classi- cal republicanism concerns itself with civic virtue, the subordination of indi- vidualism and individual self-interest to the interest of society. Civic virtue is demanded both of those who govern and those who are governed. Classical re- publicanism, with its origins in ancient Rome, views government as divided into different branches with a checks-and-balances system preventing any one branch from gathering too much power.20 Direct democracy is unworkable, in this view, because it is unwieldy to have everyone participating in government’s decision-making process. Thus, republicans argue for representative democracy— individuals elect other individuals to represent them in government’s affairs.
English political theorists such as James Harrington, Algernon Sidney, and French jurist Baron de Montesquieu wrote on aspects of republicanism. James Harrington (1611–1677) in The Commonwealth of Oceana (1656) argued that, although the government is accountable to the people, direct democracy is im- possible because it is chaotic, with everyone trying to participate in decision making. Thus, government should be a representative democracy in which the people elect officials to represent them. Algernon Sidney (1622–1683) also
Liberal An individual who believes that government has a role to play in the lives of individuals and that government can provide solutions to policy problems.
Conservative individual who believes that government should play a limited role in the lives of individuals and that government is not the source of solutions for problems.
Civic Virtue the subordination of individualism and individual self-interest to the interest of society.
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rejected direct democracy and argued in Discourses Con- cerning Government (1698, published after his death) that people would delegate their authority to the legislature.
Charles-Louis de Secondat, Baron de Montesquieu (1689–1755), a French observer of British government, in his work Spirit of the Laws (1748), further refined the idea of the division of power among several branches of gov- ernment in what he called the balanced constitutions. Montesquieu believed that if legislative, executive, and judicial powers were all held by the same person or body it would signal the end of liberty. He saw the principle of separation of powers as a guarantee on the restraint of government and the assurance that individuals would retain their liberty.21
Five characteristics, common to all republican theo- ries, define the essence of classical republicanism:
1. Republicanism believes in a virtuous citizenry. Classical republicanism defines a virtuous citi- zenry as a public-spirited, self-sacrificing people devoted to the general good of the community. Both leaders and followers will subordinate private interests to the public good. Virtuous citi- zens will participate in government with the public good in mind.
2. Republicanism is concerned with property. Like classical liberalism, classical republicanism is concerned with property. In classical republicanism, property ownership is a primary criterion for holding political office and for voting for those who run for office.
3. Republicanism sees the people as the ultimate authority but believes they must be kept at a distance. Government governs with the consent of the people. The people, however, delegate their authority to representatives who then run the government on behalf of the people. Government works best when the masses of people are kept far from the levers of power.
4. Republicanism advocates a distribution of power across branches of government. No one person should be able to control all the levers of power. To avoid such singular control, power must be distributed among the branches of government. This arrangement has become known as the doctrine of separation of powers. Also, a system of checks and balances exists to prevent any one branch from garner- ing too much power.
5. Republicanism believes that the rights of individuals must be protected. Even though individuals delegate their authority to elected
Thomas Hobbes (1588–1679), a British political philosopher, believed that government was necessary, but that individuals enter into a social contract with government in which they give up a little bit of their independence for the safety and peace that government creates.
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John Locke (1632–1704), an English philosopher, argued that government’s responsibility is to protect an individual’s right to own property, and if government fails, then the people have the right to overturn the government and establish a new one.
Charles-Louis de Secondat de Montesquieu (1689–1755), a French philosopher and jurist, was considered a classical republican theorist. He saw the principle of separation of powers as a guarantee on the restraint of government and the assurance that individuals would retain their liberty.
representatives, they must have their rights protected from the gov- ernment. This protection occurs through a bill of rights.
The influence of classical republicanism is evident in the state constitu- tions and the U.S. Constitution, particularly in the government values asso- ciated with republicanism: the rule of law, a sovereign people, elected representatives, separation of powers, and a system of checks and balances on the branches of government. As with liberal ideas, republican ideas also ran throughout The Federalist Papers. In the papers, the authors discussed in detail the reasons that the new government would be a republican form of government rather than a direct democracy. Citizens would elect people to represent them in government, and the views of the people would be filtered through these individuals. Those elected individuals would administer the government. Yet, other voices spoke out at the time, voices arguing that clas- sical republicanism required the abolition of slavery. See the remarks of the Rev. Lemuel Haynes in “Our Voices: Lemuel Haynes—Republicanism and Slavery” on page 17.
Republican Form of Government A government whose powers are exercised by elected representatives who are directly or indirectly accountable to the people governed.
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It is important not to confuse classical republicanism with the contempo- rary Republican Party. In some ways, contemporary Democrats (who are often liberals) espouse philosophies and support policies closer to those of classical republicanism than to those of classical liberalism. Both the Democratic and Republican parties, although differing in philosophy and policy preferences, are grounded in the classical liberal and classical republican foundations un- dergirding the U.S. political system.
Tradition of Exclusion (Inegalitarianism) The American Founders created a system based on liberal and republican ideals. They believed that individual freedoms and liberties were fundamental values. They were passionate in their arguments defending these beliefs. Despite the inclusive and egalitarian principles embodied in such words as equality, liberty, and freedom, however, the Founders did not intend for such principles to be universally applied. Instead, they followed a tradition of exclusion (or inegalitarianism) that denied to large segments of the American population the protections promised in the Declaration of Independence and the Constitution. This exclusionary tradition, which many would argue is consistent with some of the tenets of liberalism, accepted the notion that not all people are equal and that inequalities are acceptable and need not be cor- rected. Moreover, the Founders did not see this tradition of exclusion as being inconsistent with the notion that “all men are created equal.” In other words, liberalism provides room for the development of inegalitarianism. The in- equality of treatment under this tradition was often based on characteristics such as race, gender, ethnicity, and religion.22 (Table 1.1 provides a compari- son of the elements of classical liberalism, classical republicanism, and the tradition of exclusion.)
The origins of this tradition are many and varied. In some instances, the origins are rooted in practice and culture. In others, they are anchored in the works of political philosophers. At the time of the founding of the United States, gender, ethnic, racial, and religious hierarchies were worldwide phenomena.
White Women. Many of the attitudes toward women and their place in soci- ety can be traced to a global or philosophical context, but some aspects of the attitudes were uniquely American. The subordination of White women during colonial times created cultural and economic discrimination against them.23
In addition, Western political philosophy during the Enlightenment (the Age of Reason in the eighteenth century), with which the Founders were fa- miliar, rarely considered the role of women in the civic and political arenas. When political philosophers did mention women, they were considered in subservient roles to men in not only physical but mental and moral capabili- ties as well. French philosopher Jean-Jacques Rousseau (1712–1778) argued that the world of women was separate from the empire of men. Women were not to be members of the political world.24 Rousseau wrote in Emile (1762): “In
Tradition of Exclusion A tradition that excludes groups from the political system based on their ascribed traits, such as race, gender, and religion.
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TAB LE 1.1 Key Points of Comparison of Classical Liberalism, Classical Republicanism, and the Tradition of Exclusion
Classical Liberalism
Classical Republicanism Tradition of Exclusion
Optimism Pessimism Oppression
Government by consent
Government based on popular sovereignty
Government based on the consent of White males
Direct democracy Elected representatives
People defined narrowly in terms of race (White), gender (male), and religion (Protestant)
Limited government
Separation of powers and checks and balances
Limited government, but force of government used to exclude non-Whites and White women
Majority rule but with minority protection
Barriers to majority rule
Minority rights nonexistent
Market economy Market economy Non-Whites and White women excluded from economy
Individual/equal rights paramount
Property ownership/ natural rights central
Property ownership rights denied to most, but not all, non-Whites and some women; a majority of Blacks were considered property
Rule of law Rule of law Law used to oppress non-Whites and, to a lesser extent, White women
Religious freedom
Religious freedom White Protestants considered superior to all others
the union of the sexes each alike contributes to the common end, but in dif- ferent ways. From this diversity springs the first difference which may be observed between man and woman in their moral relations. The man should be strong and active; the woman should be weak and passive; the one must have both the power and the will; it is enough that the other should offer little resistance.”25
Aspects of English common law—law derived from custom and practice rather than legislative statutes—that governed the relations between husbands and wives also played a major role in defining the role of women in the new nation. That law included the doctrine of coverture, which transferred a woman’s civic identity to her husband at marriage, giving him use and direction of her property. Thus, married women had no identity apart from that of their husbands.26 Coverture’s influence on the role of women carried over to the American colonies.
Coverture A doctrine and system in British common law according to which marriage merged a woman’s legal identity with that of her husband.
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Lemuel Haynes—Republicanism and Slavery Between 1776 and 1820, lemuel Haynes, a Black new england congregational minister and patriot of the revolution, wrote a series of essays and sermons setting his opposition to slavery and his insistence on equal rights for Black Americans in the context of the two great influences on his thinking: republican ideology and new divinity theology, a movement away from the calvinist theology of the new england Puritans. drawing from republican ideology, Haynes argued that because liberty was a natural right, slavery was unlawful. republican liberty, he continued, was threatened by slavery and oppression, which undermined the virtue that led indi- viduals to promote and defend liberty.
Here are excerpts from “liberty Further extended: or Free thoughts on the illegality of slave-keeping; Wherein those arguments that Are used in its vindication Are plainly confuted. together with a humble Address to such as are concearned in the practise” (1776):
it is not my Business to enquire into every particular practise, that is practised in this land, that may come under this odeus character; But, what i have in view, is humbly to offer som[e] free thoughts, on the prac- tise of slave-keeping. opression, is not spoken of, nor ranked in the sacred oracles, among the least of those sins, that are the procureing caus of those signal Judgments, which god is pleas’d to bring upon the children of men. therefore let us attend. i mean to white [write] with freedom, yet with the greatest submission.
And the main proposition, which i intend for some Breif illustration is this, namely, that an African, or, in other terms, that a Negro may Justly Chalenge, and has
an undeniable right to his [“freed(om)” is blotted out] Liberty: Consequently, the practise of Slave-keeping, which so much abounds in this Land is illicit.
Why do you think that Haynes felt that slavery threat- ened the republican notion of liberty?
our voices
Lemuel Haynes (1753–1833) was an influential African American religious leader who argued against slavery. Haynes’s arguments against slavery were grounded in classical republican theory.
Blacks. In the case of Blacks, American colonists’ views stemmed not from English common law, but from attitudes and behaviors the colonists had brought with them. For the English, Blacks’ skin color set them apart from White colonists. Because Blacks were from a continent that was not Christian, they were also, in this view, defective in religion. For many Whites, these two aspects made Blacks something less than human beings. Therefore, many Whites did not consider owning Blacks as slaves to be wrong.27
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The first Africans arrived at Jamestown, Virginia, in 1619 as indentured servants, individuals who contracted themselves to work as servants for a specified period of time for people who often had paid their passage to the American colonies. By 1641, Massachusetts had incorporated slavery into co- lonial law. Slavery was instituted on a broad scale in Virginia in 1661 as the need for labor increased and Whites found Indian servitude and slavery inad- equate and the supply of White indentured servants insufficient. The perma- nent enslavement of Africans and African Americans became the answer to the labor problem. The supply of Blacks appeared to be endless, and their color made them easily identifiable.28
Rogers Smith, a University of Pennsylvania political theorist, argues that these negative attitudes toward Blacks were given a uniquely American charac- ter when political figures at the time of the founding began to use a fascination with the science of the Enlightenment to explain the differences between Blacks and Whites.29 Thomas Jefferson was one of those individuals. Jefferson’s original draft of the Declaration of Independence included an indictment of King George for his participation in the Black slave trade, but the language was struck from the final version. Jefferson, while a member of the Virginia House of Burgesses, also pushed for the abolition of slavery in Virginia.
Jefferson, however, did not believe that Blacks should be citizens. Nor did his antislavery sentiments prevent him from owning slaves himself (see “Eval- uating Equality: Thomas Jefferson and Sally Hemings”. In his Notes on the State of Virginia (1785), a book in which Jefferson sought to use the scientific meth- odology of the Enlightenment to study everything from foliage to Blacks, Jef- ferson was uncompromising in his belief that Blacks were innately inferior to Whites. He advocated removing free Blacks from the nation and colonizing them somewhere away from the United States.30 Some scholars argue that Jef- ferson helped to inaugurate the historical tendency in America to legitimize racial prejudice with the gloss of pseudoscience—fake science utterly lacking supporting evidence.31
Race is a prominent thread in the American political fabric and is part of the original tapestry of the American political system. Yet race is a social and political, rather than a biological, construction. The social construction of race in the United States evolved directly from government’s interest in defin- ing and expanding the boundaries of Blackness for purposes of enslavement initially and for purposes of exclusion later. Many states went to great lengths to define the amount of “Negro” blood (e.g., one-eighth, one-sixteenth, “any ascertainable amount of Negro blood”) that legally classified an individual as Black.32 The state-supported and legally codified definition of who was Black resulted in the construction of a group that varied widely in phenotype, skin color, and physical characteristics.
American Indians. The arguments used for the inferiority of Blacks were ap- plied to American Indians as well. Many colonists felt that because American Indians, like Blacks, were not Christian and their skin color was dark, they were
Social Construction of Race the construction of a group of people of various phenotypes, skin colors, and physical characteristics for political and social purposes such as enslavement and exclusion.
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Thomas Jefferson and Sally Hemings is it possible to reconcile thomas Jefferson’s views on slavery with his actions?
thomas Jefferson is often charac- terized as being opposed to slavery. yet he continued to own slaves. is it possible to reconcile these seem- ingly contradictory elements?
Jefferson’s Views Jefferson’s original draft of the decla- ration of independence contained a sharp attack on King George iii for his support and facilitation of the slave trade and the enslavement of Afri- cans. this attack, however, was unac- ceptable to both northern and southern delegates and was re- moved from the final document. in later years, Jefferson would write pas- sionately of the evils of slavery and the need to abolish the institution.
despite his antislavery views, Jefferson did not believe that the United states should attempt to in- corporate Blacks into the nation. in his Notes on the State of Virginia, Jefferson was uncompromising in his belief that Blacks were innately infe- rior to Whites. He advocated remov- ing free Blacks from the nation and colonizing them outside the United states. He also found Blacks physically offensive and argued against the in- termixing of White and Black blood.
Jefferson’s Actions despite Jefferson’s writings on the evils of slavery, he did not free his own slaves. even on his death, he freed only five of his approximately 130 slaves. in addition, during his life,
Jefferson was said to have fathered children by his slave sally Hemings, although Jefferson and his supporters denied that this was true. some Jefferson historians have pointed to his disdain for Blacks as proof that he would not have fathered children with his slave.
in 1998, however, dnA testing confirmed, within a certain degree of probabil- ity, that thomas Jefferson had fathered at least one of Hemings’s children.1 meticu- lous research by Annette Gordon-reed, a law profes- sor at Harvard University, is now acknowledged to pro- vide additional proof that Jefferson indeed fathered all of sally Hemings’s children.2
• is it possible to reconcile Jefferson’s public pro- nouncements and his belief in liberal and re- publican ideals with his private behavior of owning slaves, including his own children? Why or why not?
• does the contradiction between Jefferson’s public writings and pri- vate behavior have any parallels with contem- porary politicians and govern- ment or public figures today? ex- plain your answer.
1 e. A. Foster et al., “Jefferson Fathered
slave’s last child,” Nature 196 (november
1998): 27–28.
2 Annette Gordon-reed, Thomas Jefferson
and Sally Hemings: An American Controversy
(charlottesville: University of virginia Press,
1997).
evaluating equality
Historical research and DNA evidence showed that Thomas Jefferson fathered Sally Hemings’s six children. Yet, many of Jefferson’s White descendants refused to accept the evidence. Shay Banks-Young, a descendant of Sally Hemings’s son, Madison, is shown with Lucian Truscott IV, a White descendant of Jefferson, after the Monticello Association voted not to extend membership to the descendants of Hemings on May 5, 2002. Banks-Young holds a copy of a photo of a Black man with a zipper across his mouth that Truscott said was sent to him in an e-mail by former association president John Works, Jr. Works said he regretted sending the photo.
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not quite human and were culturally and intellectually inferior to Europeans. The colonists felt that if Indians were to live near or among White settlements, they needed to be transformed into “civilized” human beings.33 Massachusetts divided its Indian population into wild tribes and converted tribes.34
Because the colonists perceived Indians to be unfamiliar with European ways of thinking and to have vastly different conceptions of property than they themselves did, the colonists developed the notion that Indians were similar to children and needed to be directed in all aspects of life. The colo- nists then decided that Indian lands should be sold to settlers at reduced prices as an exercise in the colonists’ trusteeship of Indians and their lands.35 With the takeover of their lands, many tribes went to war with settlers as they moved west. Whites came to look on Indians as alien enemies who should be and needed to be destroyed.36
The tradition of exclusion and denial of rights and privileges to certain groups shaped the definition of who was an “American” in the new nation.37 “True” Americans were those who possessed morally and intellectually supe- rior traits often associated with race and gender. Thus, many Americans be- lieved that non-Whites and women should be governed as subjects or second-class citizens and be excluded from participation in the nation.38 The tradition of exclusion was based on several assumptions:
Men were naturally suited to rule over women. Women were inferior to men in physical as well as mental and moral capabilities. Therefore, women were not suited to participate in public life.
White northern Europeans were superior, culturally and biologically, to southern, darker-skinned Europeans, African Americans, American Indians, and all other races and civilizations. Non-White peoples were inferior in every aspect, and many Whites questioned whether darker-skinned people were even human.
Protestant Christianity was superior to any other form of religion. Protestant Christians were superior to those who practiced other religions.
Exclusion and the Founding Under the tradition of exclusion, groups of Americans were excluded from full participation in the new nation, and that exclusion was hierarchical. It ranged from the initial denial of the vote to unpropertied White males, to the denial of the vote and participation in the formal structures of government to White women, to the denial of citizenship and suffrage to African Americans and American Indians (see “Measuring Equality: Who Was Eligible to Be Included in ‘We the People’” on page 22).
Although the Founders intended the rights and guarantees of the Consti- tution to extend to all free White males, not all free White males were eligible to participate in the affairs of government. In the early days of the nation, only propertied White males were eligible to vote. Property ownership was thought to give people a stake in the political system and allow them to have a say in
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how it was run. Those who owned no property, therefore, had no stake in the system and thus no right to a voice in government decision making.
It is true that White women were citizens of the United States from the beginning of the new nation,39 but the relationship of White women to the new nation was different in substantial and important respects from the relationship of White males to their nation. The political exclusion of White women from the Constitution did not originate with that document. State constitutions written after 1776 explicitly or implicitly denied White women the limited political rights they had enjoyed before the Revolution, such as the ability to vote in local elections. None of the new state constitutions, except that of New Jersey, granted women the right to vote.
The primary reasoning behind not giving the vote to women was the continued reliance, present since colonial times, on coverture, which (as explained earlier) held that on marriage a woman’s legal identity merged into that of her husband. Thus, to give women in the new nation the right to vote would be synonymous with giving their hus- bands two votes.
The Founders did not intend the Constitution to apply to Blacks and Indians.40 Following the ratification of the Constitution, Congress passed the Naturalization Act of 1790 in response to its new constitutional power to legislate a uniform rule to deal with the process by which foreigners could be “admitted to the rights of citizens.” The act stated, as did all naturalization legislation from 1790 through 1854, that only a “free White person” was eligible to become a citizen of the United States. Because, accord- ing to prevailing belief, Indians and slaves did not understand the European way of life and political system, they were not free and were, therefore, not suited to be members of the political system or to exercise the duties and re- sponsibilities of citizenship, and they were justifiably excluded from all this legislation.41
The issue of what to do with Black slaves in the new nation was central to several of the compromises struck on the Constitution. In the end, an African American’s right to liberty conflicted with a White master’s right to property. In keeping with the classical liberal foundations of the nation, the right of property took precedence.42 Many of the Founders viewed Blacks as property, not citizens of the new republican nation.
Under the Articles of Confederation, the country’s first constitution, the Continental Congress established a committee to address the question of Indian inclusiveness. The initial committee report recommended that Con- gress urge the states to make it easy for Indians to become citizens. Most
Portrait of Mrs. John Stevens (Judith Sargent, later Mrs. John Murray) 1751–1820, by John Singleton Copley. Judith Sargent, like Lemuel Haynes, was a voice of those excluded from the original conception of those eligible to participate in the new nation. White women, like slaves, freed Blacks, and American Indians, were not originally considered a part of the political system.
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Who Was Eligible to Be Included in “We the People”? the pie chart provides a visual illustration of the number of people present at the founding of the United states and, of those, how many were eligible to participate in the new nation. indians were not counted, so the popu- lation number was actually greater than the 3.9 million shown here. the chart shows that 20.7 percent of the population were White males over the age of sixteen. the actual number of people eligible to participate in
the new nation was even smaller than 20.7 percent be- cause the requirements were “a White male, twenty-one years of age and over, and a property owner.” According to national Archives estimates, as few as 6 percent of the counted population were White male property owners. What picture of the new nation do these data present? Who was included in the phrase “We the People”?
Figure 1.1
Free Blacks 1.52% Black slaves
17.80%
White males under 16 yrs.
20.30%
White females all ages 39.60%
White males 16 yrs. & older 20.70%
6%
Total population: 3,893,874 Total does not add up to 100 due to rounding.
measuring equality
American Indians traded with, protected, and supported European settlers until conflict erupted over control of land. This report, however, was tabled by the Congress. A subsequent report by a different committee “referred to Indi- ans, not as potential citizens, but as possible allies.”43 This categorization meant that Indians were not to be included as citizens in the new nation. They were foreign aliens outside the nation despite their living physically within it.
Despite the Founders’ notions about the place of American Indians in the new nation, they drew on many of the concepts practiced by them. American Indians exercised democratic norms and behaviors before contact with Euro- peans. The most famous Indian confederation was the League of the Iroquois, located in what is now upper New York State. Although there is disagreement over the date of the establishment of the League of the Iroquois, it existed
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The map shows the land of the six Iroquois nations that covered what is now the states of New York and Pennsylvania.
prior to contact with Europeans. Many scholars suggest that the League of the Iroquois influenced the shaping of the U.S. Constitution. Benjamin Franklin used the league as the basis for the Albany Plan of Union in 1754.44 In October 1988, the U.S. Congress passed Concurrent Resolution 331 to recognize the influence of the Iroquois Constitution on the U.S. Constitution and Bill of Rights.
The Iroquois Confederacy initially consisted of five tribes—the Mohawk, Onondaga, Oneida, Cayuga, and Seneca—with the Tuscarora joining in 1722. This loose group of tribes formed an organized government based on several democratic principles. The league was governed by a constitution, the Great Law of Peace. Under the constitution, the chiefs of the tribes were appointed by the female leaders of the tribes, who also had the authority to remove the chiefs for misconduct, sickness, or other reasons causing them to be ineffec- tive. When a chief died, the women chose a new one.45
The governing council of the initial Five Nation Confederation consisted of fifty representatives divided proportionally among the tribes, with the On- ondagas having fourteen delegates; the Cayugas, ten; the Mohawks and Onei- das, nine delegates each; and the Senecas, eight. (Initially, the Tuscarora had no voting rights.) Warriors were prohibited from being council representatives because they might adopt warlike positions and attempt to promote warlike policies. All delegates were chosen by their tribes in accordance with tribal governance rules. The council was obliged to meet every five years, more often if necessary.46
The Great Law of Peace was initially recorded with beads on wampum belts, as were records of meetings and decisions reached by the Council of the
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termsK E Y T E R M S civic virtue p. 12
classical liberalism p. 9
classical republicanism p. 9
conservatives p. 12
constitution p. 7
constitutional democracy p. 7
coverture p. 16
democracy p. 6
direct democracy p. 6
Feudalism p. 10
Government p. 4
indirect (or representative)
democracy p. 7
inegalitarianism p. 9
liberal p. 12
Five Nations. Concern about possible loss or destruction of the belts prompted translation of the document into English in 1880 by Seth Newhouse, a Mohawk.47
Conclusion The opening vignette about the various apologies for slavery and later segrega- tion illustrates how central race was to the development of the American po- litical system. As was demonstrated throughout the chapter, race intertwined intimately with the liberal and republican theories at the foundation of this system.
Aspects of classical liberalism include the notion of limited government, the rule of law, and the primacy of private property. Concepts associated with the classical republican tradition include a sense of civic virtue, a belief that institutions derive their authority from the people, and support for elected rep- resentation. The tradition of exclusion subscribes to the notion of inequality among people. According to this tradition, true Americans are drawn only from a certain group of people, a group that excludes non-Whites and women. The Founders of the American system of government blended inegalitarian beliefs with the principles of classical liberalism and classical republicanism.48
The classical liberal and republican foundations of the American political system remain embodied in American government. Strains of the traditions of exclusion endure as well. Inequalities abound in our political system, many stemming directly from this tradition. We still struggle with the paradox of a commitment to democratic and egalitarian principles and a continued con- flict between these principles and the experiences of many citizens who have been and are treated differently by the American government.
reviewR E V I E W Q U E S T I O N S 1. What are the three principles underlying constitutional
democracy?
2. How and where are these three principles evident in the
American system of government?
3. What were the three theoretical traditions at the foundation
of the American political system?
4. How did elements of the tradition of exclusion influence who
was covered by the constitution?
5. Please explain this statement: one cannot truly be a student
of American government and politics without understanding
the role that race played in the development of the American
political system.
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conclusion 25
readings
natural law p. 8
natural rights p. 9
Politics p. 7
Public Good p. 5
reparations p. 2
republican Form of Government p. 14
rule of law p. 8
social construction of race p. 18
social contract p. 10
statutory law p. 8
tradition of exclusion p. 15
A D D I T I O N A L R E A D I N G S Bruce e. Johansen, Forgotten Founders: How the American Indian
Helped Shape Democracy. Boston: Harvard common Press, 1982.
this study investigates the use of democratic principles by
American indians prior to contact with europeans and how
indian use of these principles helped shape the American
democratic system.
Alan ray Gibson, Interpreting the Founding: Guide to the Enduring
Debates over the Origins and Foundations of the American Republic,
2nd ed. revised and expanded. lawrence: University Press of
Kansas, 2009.
this book provides summaries and analyses of the leading
interpretive frameworks that have guided the study of the
Founding.
m. n. s. sellers, American Republicanism: Interpretation of the
Constitution of the United States. new york: new york University
Press, 1994.
this book examines the influence of the roman republic on
the U.s. constitution.
linda K. Kerber, Women of the Republic: Intellect and Ideology in
Revolutionary America. chapel Hill: University of north carolina
Press, 1980.
this book studies the political views of American women
during the founding of the nation.
sidney Kaplan, The Black Presence in the Era of the American
Revolution, 1770–1800. Washington, dc: national Portrait Gallery,
smithsonian institution, 1973.
this book chronicles Black American speaking and writing
during the revolutionary period.
01-McClain-Chap01.indd 25 11/24/16 8:35 PM 08/20/2017 - RS0000000000000000000000562545 (Anthony Ratcliff) - American
Government in Black and White
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Government in Black and White
3
Final UnEssay Project
Overview: Due to the number of BIOL 1107 students I teach each semester, I have to use a lot of standard activities and assessments which include mostly multiple choice questions for homework and testing situations. However, these don’t allow you to show your creativity in interacting with the material. I’ve been trying to find a way that lets you engage with the material using a very important aspect of science: imagination! The models, ideas, and processes we study this semester, first had to be imagined before they could be tested. Creativity and imagination are extremely important aspects of science. Therefore, in addition to these traditional assessments, there will be a final project for this class. This allows you to engage with the material in whatever way best suits you.
Why: Students have a variety of reasons for taking BIOL 1107. “It’s required” and “I enjoy biology” are very common ones, but there are 100’s of other reasons for taking this course. BIOL 1107 is a survey course on cellular and molecular biology. This means that we learn about a lot of topics in these fields of biology to prepare you for a variety of future coursework and careers, but do not have to the time to go in-depth about any particular topic in the course. You may be interested in the genetic basis for breast cancer, the cellular mechanism that allows cacti to survive in very arid environments, how high performance athletes switch from aerobic to anaerobic metabolism during exercise, how chromosome crossing-over happens at the molecular level, etc.
What: The Final UnEssay Project is your chance to combine your interests, personal reasons for learning cellular and molecular biology, and creativity to go more in-depth about a specific topic. The Final UnEssay Project can be done on any topic in cellular and molecular biology. It can be done using any medium (writing, art, music, pictures, etc.). It can be done individually or as a group project. It’s called an UnEssay because it doesn’t confine you to a research paper with specific conditions and formatting requirements (although you can certainly write a research paper), but instead allows you the creativity to explore a topic of interest in a way that most resonates with you.
How: Choose any topic you want provided you can associate your topic with at least one subject of this course. You can take any presentation approach to the UnEssay. You can use as few or as many sources as you want. Your presentation method should complement the topic chosen. A few presentation ideas: research paper, blog, website, music video, cartoon, PPT presentation, drawing, sculpture, photo-essay, learning activity, game, lesson plan, book review, etc. The only requirement is that your UnEssay is compelling, effective, and accurate.
Timeline: The parts of the project are due the following Sundays by 11:59pm:
January 30th Topic and Format
March 13th Substantial Work In Progress
April 17th Final UnEssay Project
Topic and Format (due January 30th):
Submit a short Topic and Format statement that explains (a)your topic, (b)the format in which you plan to present it, (c)what you plan to do and when, and (d)why you want to do this project. IF working in a group, everyone should submit their own Topic and Format statement that reflects their personal views on the project, lists the group members, and explains what each person is planning on contributing to the project. This statement should be 300 – 400 words written in Word and submitted by 11:59pm January 30th to the Topic and Format dropbox.
Substantial Work in Progress (March 13th):
Submit a short Work in Progress statement that (a)explains what you have accomplished, (b)what you need to do to finish, and (c)something that shows your progress (e.g. a picture of artwork, draft/outline/annotated bibliography for written pieces, etc.) If working in a group, everyone should submit their own Work in Progress statement that reflects their personal views on the project, lists the group members, and explains what you have contributed to the project. This statement should 200 – 300 words, submitted using Word by 11:59pm March 13th to the Work in Progress dropbox.
Final UnEssay Project Submission (due April 17th):
When you submit your project include a short Explanatory statement that explains (a)what you did, (b)why you did it, and (c)how you went about producing the UnEssay. If you chose to do a standard essay/paper this can be your place to be more open about the process you used to create the piece. The Explanatory statement should be 400 - 500 words, turned into the final UnEssay Dropbox using Word. If working in a group, everyone should submit their own Explanatory statement that reflects their personal views on the project. The process of submission of your Final UnEssay Project will be related to the best way to get the project to Dr. DP (e.g. Folio dropbox, hand-in, etc.).
Grading Rubric: If UnEssays can be about anything and there are no restrictions on format and presentation, how are they graded? The main criterion is how well it all fits together; how compelling, effective, and accurate your work is.
An UnEssay is compelling when it shows some combination of the following:
· it is as interesting as its topic and approach allows
· it is as complete as its topic and approach allows (it doesn’t leave the audience thinking that important points are being skipped over or ignored)
An UnEssay is effective when it shows some combination of these attributes:
· it is readable/watchable/listenable (i.e. the production values are appropriately high and the audience is not distracted by avoidable lapses in presentation)
· it is appropriate (i.e. it uses a format and medium that suits its topic and approach)
· it is attractive (i.e. it is presented in a way that leads the audience to trust the author and his or her arguments, examples, and conclusions).
An UnEssay is accurate when it show some combination of the following:
· it is truthful (any questions, evidence, conclusions, or arguments you raise are honestly and accurately presented)
· it contains accurate scientific information
Ideas contributed from Mike Kessel, Daniel O’Donell, Emily Clark, and Patrick Sullivan.
Sullivan, P. (2015). The UnEssay: Making Room for Creativity in the Composition Classroom. College Composition and Communication, 67(1): 6 – 33.
[ 32 ]
PROCEEDINGS OF THE AMERICAN PHILOSOPHICAL SOCIETY VOL. 159, NO. 1, MARCH 2015
American Indian Constitutions and Their Influence on
the United States Constitution1
ROBERT J. MILLER Professor
Sandra Day O’Connor College of Law, Arizona State University Chief Justice, Grand Ronde Tribe Court of Appeals
Citizen, Eastern Shawnee Tribe
I. Introduction
American Indian political theories and tribal governance helped shape the political thinking of some of the United States’ Founding Fathers and the development of several provisions in the U.S. Constitution.”2 This statement is not universally accepted,3 but it is without question that Benjamin Franklin, Thomas Jefferson, James Madison, James Wilson, John Adams, Thomas Paine, and other Founding Fathers were acquainted with Indian peoples, tribal governments, and indigenous theories of governance.4 Many of the Founders worked with Indian nations as treaty negotiators and commissioners for colonial, state, and national governments for many decades before the United States and
1 Read on 25 April 2013 at the Spring General Meeting of the American Philosophical Society.
2 See, e.g., R. J. Miller, “American Indian Influence on the United States Constitution and its Framers,” Am. Indian L. Rev. 18 (1993), 133; D. A. Grinde, Jr., and B. E. Johansen, Exemplars of Liberty: Native America and the Evolution of Democracy (1991); see also R. M. Underhill, Red Man’s America (1953), 83; C. Wissler, Indians of the United States: Four Centuries of Their History and Culture (rev. ed. 1966, org. ed. 1940), 128.
3 See, e.g., P. A. Levy, “Exemplars of Taking Liberties: The Iroquois Influence Thesis and the Problem of Evidence,” Wm. & Mary Q. 53 (1996), 588; E. M. Jensen, “The Imaginary Connection between the Great Law of Peace and the United States Constitution,” Am. Indian L. Rev. 15 (1991), 25; E. Tooker, “The United States Constitution and the Iroquois League,” Ethnohistory 35 (1988), 305.
4 See, e.g., R. J. Miller, Native America, Discovered and Conquered: Thomas Jefferson, Lewis & Clark and Manifest Destiny (2006), 77–8, 84–97; Miller, “American Indian Influ- ence,” 141–4, 146–50; Grinde and Johansen, Exemplars of Liberty, 15, 155.
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[ 32 ]
PROCEEDINGS OF THE AMERICAN PHILOSOPHICAL SOCIETY VOL. 159, NO. 1, MARCH 2015
American Indian Constitutions and Their Influence on
the United States Constitution1
ROBERT J. MILLER Professor
Sandra Day O’Connor College of Law, Arizona State University Chief Justice, Grand Ronde Tribe Court of Appeals
Citizen, Eastern Shawnee Tribe
I. Introduction
American Indian political theories and tribal governance helped shape the political thinking of some of the United States’ Founding Fathers and the development of several provisions in the U.S. Constitution.”2 This statement is not universally accepted,3 but it is without question that Benjamin Franklin, Thomas Jefferson, James Madison, James Wilson, John Adams, Thomas Paine, and other Founding Fathers were acquainted with Indian peoples, tribal governments, and indigenous theories of governance.4 Many of the Founders worked with Indian nations as treaty negotiators and commissioners for colonial, state, and national governments for many decades before the United States and
1 Read on 25 April 2013 at the Spring General Meeting of the American Philosophical Society.
2 See, e.g., R. J. Miller, “American Indian Influence on the United States Constitution and its Framers,” Am. Indian L. Rev. 18 (1993), 133; D. A. Grinde, Jr., and B. E. Johansen, Exemplars of Liberty: Native America and the Evolution of Democracy (1991); see also R. M. Underhill, Red Man’s America (1953), 83; C. Wissler, Indians of the United States: Four Centuries of Their History and Culture (rev. ed. 1966, org. ed. 1940), 128.
3 See, e.g., P. A. Levy, “Exemplars of Taking Liberties: The Iroquois Influence Thesis and the Problem of Evidence,” Wm. & Mary Q. 53 (1996), 588; E. M. Jensen, “The Imaginary Connection between the Great Law of Peace and the United States Constitution,” Am. Indian L. Rev. 15 (1991), 25; E. Tooker, “The United States Constitution and the Iroquois League,” Ethnohistory 35 (1988), 305.
4 See, e.g., R. J. Miller, Native America, Discovered and Conquered: Thomas Jefferson, Lewis & Clark and Manifest Destiny (2006), 77–8, 84–97; Miller, “American Indian Influ- ence,” 141–4, 146–50; Grinde and Johansen, Exemplars of Liberty, 15, 155.
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american indian constitutions 33
the Constitution were created. Interestingly, the government that was created by the U.S. Constitution more closely reflects the principles of indigenous governments than those of the European monarchies and political regimes of the late-1700s. Furthermore, there is no question that Indian affairs were among the primary justifications for the U.S. Constitution.
In section II, this paper briefly sets out the evidence that American Indian political theories and governments influenced the Founding Fathers and the Constitution. Section III then broadly describes modern-day Indian constitutionalism. The paper concludes with the thought that American history and government has been impacted by tribal nations in the past, perhaps more than has been recognized, and will continue to be influenced by indigenous peoples and governments into the future.
II. Tribal and Indian Influence on the Founders and the U.S. Constitution
Most American history has been written as if history were a function solely of white culture—in spite of the fact that well into the nine- teenth century the Indians were one of the principal determinants of historical events. – Bernard DeVoto5
In this short paper, we cannot delve deeply into the history of American Indian governments and their organizational and operational princi- ples. It is sufficient to note, however, that historic tribal governments, across what is now the United States, represented a broad array of governance styles, from relatively complex to simple governments, and from nearly autocratic to extremely democratic governments.6 We can also state that there is no question that some of America’s Founding Fathers were quite familiar with tribal governmental structures. Many Founders, for example, served their colonial, state, and national govern- ments as treaty negotiators and commissioners to tribal governments and actively studied indigenous theories of government.7 In addition,
5 A. I. Hallowell, “The Backwash of the Frontier: The Impact of the Indian on American Culture,” in The Frontier in Perspective (W. D. Wyman, and C. B. Kroeber eds., 1957), 230.
6 See, e.g., R. J. Miller, Reservation “Capitalism”: Economic Development in Indian Country (2012), 13, 18–21.
7 See, e.g., Smithsonian Institution Scholarly Press, Handbook of North American Indians: History of Indian-White Relations, Book 4, (William C. Sturtevant gen. ed., Wilcomb E. Washburn vol. ed., 1988), 128–62, 185–201, 211–29; C. Bowen, The Most Dangerous Man in America: Scenes From the Life of Benjamin Franklin (1974), 91–4, 97–8; C. P. Smith, James Wilson: Founding Father, 1742–1798 (1956), 67–72.
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the Constitution were created. Interestingly, the government that was created by the U.S. Constitution more closely reflects the principles of indigenous governments than those of the European monarchies and political regimes of the late-1700s. Furthermore, there is no question that Indian affairs were among the primary justifications for the U.S. Constitution.
In section II, this paper briefly sets out the evidence that American Indian political theories and governments influenced the Founding Fathers and the Constitution. Section III then broadly describes modern-day Indian constitutionalism. The paper concludes with the thought that American history and government has been impacted by tribal nations in the past, perhaps more than has been recognized, and will continue to be influenced by indigenous peoples and governments into the future.
II. Tribal and Indian Influence on the Founders and the U.S. Constitution
Most American history has been written as if history were a function solely of white culture—in spite of the fact that well into the nine- teenth century the Indians were one of the principal determinants of historical events. – Bernard DeVoto5
In this short paper, we cannot delve deeply into the history of American Indian governments and their organizational and operational princi- ples. It is sufficient to note, however, that historic tribal governments, across what is now the United States, represented a broad array of governance styles, from relatively complex to simple governments, and from nearly autocratic to extremely democratic governments.6 We can also state that there is no question that some of America’s Founding Fathers were quite familiar with tribal governmental structures. Many Founders, for example, served their colonial, state, and national govern- ments as treaty negotiators and commissioners to tribal governments and actively studied indigenous theories of government.7 In addition,
5 A. I. Hallowell, “The Backwash of the Frontier: The Impact of the Indian on American Culture,” in The Frontier in Perspective (W. D. Wyman, and C. B. Kroeber eds., 1957), 230.
6 See, e.g., R. J. Miller, Reservation “Capitalism”: Economic Development in Indian Country (2012), 13, 18–21.
7 See, e.g., Smithsonian Institution Scholarly Press, Handbook of North American Indians: History of Indian-White Relations, Book 4, (William C. Sturtevant gen. ed., Wilcomb E. Washburn vol. ed., 1988), 128–62, 185–201, 211–29; C. Bowen, The Most Dangerous Man in America: Scenes From the Life of Benjamin Franklin (1974), 91–4, 97–8; C. P. Smith, James Wilson: Founding Father, 1742–1798 (1956), 67–72.
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34 robert j. miller
many Euro-American colonists observed democratic principles and governance at work in Indian governments. Ultimately, the Founders developed democratic political theories and principles that were barely practiced in Europe. Instead, many of the principles that were incorpo- rated into the U.S. Constitution were practiced by North American indigenous cultures and governments long before European contact.8
In addition, there is no question that Native Americans and tribal governments played a significant role in shaping the history of the English colonies and the early history of the American states and the United States.9 Indian affairs were some of the most important “foreign affairs” issues that the U.S. faced in the first decades of its existence and were cited as primary justifications for developing the Constitution.10 It is no surprise, then, that scholars allege that tribal governments and political theories played a part in developing the Founders’ political ideas and impacted the development of many provisions in the U.S. Constitution. Tribal cultures and governments had, what I call, both “positive” and “negative” influences on some of the constitutional provisions, as the Founders were positively influenced by Indian ideas regarding government and human freedom and negatively influenced by the threats posed by Indian tribes.11
Tribes and Indians in the U.S. Constitution
Tribes are expressly mentioned once in the U.S. Constitution, and indi- vidual Indians are mentioned twice. In Article I, in the Interstate (Indian) Commerce Clause, the Founders decided that Congress would have the sole power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . . .”12 This
8 Miller, “American Indian Influence,” 133–4, 143–5; M. L .J. Fletcher, “The Original Understanding of the Political Status of Indian Tribes,” St. John’s L. Rev. 82 (2008), 153, 165–72, 181; D. E. Wilkins, American Indian Politics and the American Political System (2nd ed., 2007), 127–38.
9 G. S. Wood, “Federalism from the Bottom Up,” U. Chicago L. Rev. 78 (2011), 705, 706; Smithsonian Institution, Handbook of North American Indians: History of Indian- White Relations, 128–62, 185–201, 211–29. Indian and English interactions “began to shape the nature of the English experiment [of colonizing America] . . . .” B. Catton, and W. B. Catton, The Bold and Magnificent Dream: America’s Founding Years, 1492–1815 (1978), 137. The Iroquois “most profoundly influenced history in the seventeenth and eighteenth centuries.” Smithsonian Institution Scholarly Press, Handbook of North American Indians: Northeast, Book 15 (William C. Sturtevant gen. ed., Bruce G. Trigger vol. ed., 1978), 418.
10 Miller, “American Indian Influence,” 138, 155–7; G. Ablavsky, “The Savage Constitu- tion,” 63 Duke Law Journal 999 (2013), 1003–8, 1052–66. Accessed at http://papers.ssrn. com/sol3/papers.cfm?abstract_id=2229957
11 Miller, “American Indian Influence,” 133, 141–6, 155–8. 12 U.S. Const. art. I, § 8, cl. 3.
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34 robert j. miller
many Euro-American colonists observed democratic principles and governance at work in Indian governments. Ultimately, the Founders developed democratic political theories and principles that were barely practiced in Europe. Instead, many of the principles that were incorpo- rated into the U.S. Constitution were practiced by North American indigenous cultures and governments long before European contact.8
In addition, there is no question that Native Americans and tribal governments played a significant role in shaping the history of the English colonies and the early history of the American states and the United States.9 Indian affairs were some of the most important “foreign affairs” issues that the U.S. faced in the first decades of its existence and were cited as primary justifications for developing the Constitution.10 It is no surprise, then, that scholars allege that tribal governments and political theories played a part in developing the Founders’ political ideas and impacted the development of many provisions in the U.S. Constitution. Tribal cultures and governments had, what I call, both “positive” and “negative” influences on some of the constitutional provisions, as the Founders were positively influenced by Indian ideas regarding government and human freedom and negatively influenced by the threats posed by Indian tribes.11
Tribes and Indians in the U.S. Constitution
Tribes are expressly mentioned once in the U.S. Constitution, and indi- vidual Indians are mentioned twice. In Article I, in the Interstate (Indian) Commerce Clause, the Founders decided that Congress would have the sole power “[t]o regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes . . . .”12 This
8 Miller, “American Indian Influence,” 133–4, 143–5; M. L .J. Fletcher, “The Original Understanding of the Political Status of Indian Tribes,” St. John’s L. Rev. 82 (2008), 153, 165–72, 181; D. E. Wilkins, American Indian Politics and the American Political System (2nd ed., 2007), 127–38.
9 G. S. Wood, “Federalism from the Bottom Up,” U. Chicago L. Rev. 78 (2011), 705, 706; Smithsonian Institution, Handbook of North American Indians: History of Indian- White Relations, 128–62, 185–201, 211–29. Indian and English interactions “began to shape the nature of the English experiment [of colonizing America] . . . .” B. Catton, and W. B. Catton, The Bold and Magnificent Dream: America’s Founding Years, 1492–1815 (1978), 137. The Iroquois “most profoundly influenced history in the seventeenth and eighteenth centuries.” Smithsonian Institution Scholarly Press, Handbook of North American Indians: Northeast, Book 15 (William C. Sturtevant gen. ed., Bruce G. Trigger vol. ed., 1978), 418.
10 Miller, “American Indian Influence,” 138, 155–7; G. Ablavsky, “The Savage Constitu- tion,” 63 Duke Law Journal 999 (2013), 1003–8, 1052–66. Accessed at http://papers.ssrn. com/sol3/papers.cfm?abstract_id=2229957
11 Miller, “American Indian Influence,” 133, 141–6, 155–8. 12 U.S. Const. art. I, § 8, cl. 3.
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provision was expressly designed to correct one of the greatest weak- nesses of the Articles of Confederation—that state governments were allowed to meddle in Indian affairs. James Madison and other Founders agreed that fixing this problem was crucial to the success of a national government and any new constitution because states had caused Indian wars for the Continental and Articles of Confederation governments.13
Furthermore, federal/tribal treaties were included in the Treaty Clause of the Constitution and became “the supreme Law of the Land” to prevent states from interfering with federal/tribal treaties and entering state treaties with tribes.14 Consequently, the Constitution places the sole authority for conducting business with tribes in the hands of Congress.
Indian individuals are mentioned in the Constitution in the provi- sions that require a census of state populations to determine how many House representatives each state receives. Indians were not to be counted as state citizens (i.e., as part of a state’s population) unless they paid taxes.15 In 1868, when the freed slaves were granted full citizen- ship rights through the Fourteenth Amendment, Indians were again expressly excluded from state populations unless they paid taxes.16 These exclusions demonstrate that the Founders and the Constitution recognized that Indians were citizens of their own separate nations. (Most Indians were not made United States citizens until 1924.17)
Positive Indian Effects on the Founders and the Constitution
It would be a very strange Thing, if six Nations of ignorant Savages should be capable of forming a Scheme for such an Union, and be able to execute it in such a Manner as that it has subsisted Ages, and
13 James Madison, The Federalist Papers No. 42 (Clinton L. Rossiter ed., 1961) 268–9; id. at No. 3, 44–5 (J. Jay); County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 234 n.4 (1985) (“Madison cited the National Government’s inability to control trade with the Indians as one of the key deficiencies of the Articles of Confederation and urged adoption of the Indian Commerce Clause.”); Letter from James Madison to James Monroe (Nov. 27, 1784), in 2 The Founder’s Constitution 529 (P. B. Kurland, and R. Lerner eds., 1987) (Madison wrote that the provision controlling Indian policy in the Articles if “taken in its full latitude, it must destroy the authority of Congress altogether.”). Accord R. B. Morris, The Forging of the Union (1987), 186–8; C. Drinker Bowen, Miracle at Philadelphia (1966), 168–70; N. Schachner, The Founding Fathers (1954), 65.
14 U.S. Const. art. VI, cl. 2. By 1789, the Continental and Articles of Confederation Congresses signed nine treaties with tribal nations and 23 treaties with foreign nations.
15 U.S. Const. art. I, § 2, cl. 3. 16 U.S. Const. amend. XIV, § 2. 17 Act of June 2, 1924, ch. 233, 43 Stat. 253 (codified at 8 U.S.C. § 1401[b]).
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provision was expressly designed to correct one of the greatest weak- nesses of the Articles of Confederation—that state governments were allowed to meddle in Indian affairs. James Madison and other Founders agreed that fixing this problem was crucial to the success of a national government and any new constitution because states had caused Indian wars for the Continental and Articles of Confederation governments.13
Furthermore, federal/tribal treaties were included in the Treaty Clause of the Constitution and became “the supreme Law of the Land” to prevent states from interfering with federal/tribal treaties and entering state treaties with tribes.14 Consequently, the Constitution places the sole authority for conducting business with tribes in the hands of Congress.
Indian individuals are mentioned in the Constitution in the provi- sions that require a census of state populations to determine how many House representatives each state receives. Indians were not to be counted as state citizens (i.e., as part of a state’s population) unless they paid taxes.15 In 1868, when the freed slaves were granted full citizen- ship rights through the Fourteenth Amendment, Indians were again expressly excluded from state populations unless they paid taxes.16 These exclusions demonstrate that the Founders and the Constitution recognized that Indians were citizens of their own separate nations. (Most Indians were not made United States citizens until 1924.17)
Positive Indian Effects on the Founders and the Constitution
It would be a very strange Thing, if six Nations of ignorant Savages should be capable of forming a Scheme for such an Union, and be able to execute it in such a Manner as that it has subsisted Ages, and
13 James Madison, The Federalist Papers No. 42 (Clinton L. Rossiter ed., 1961) 268–9; id. at No. 3, 44–5 (J. Jay); County of Oneida v. Oneida Indian Nation, 470 U.S. 226, 234 n.4 (1985) (“Madison cited the National Government’s inability to control trade with the Indians as one of the key deficiencies of the Articles of Confederation and urged adoption of the Indian Commerce Clause.”); Letter from James Madison to James Monroe (Nov. 27, 1784), in 2 The Founder’s Constitution 529 (P. B. Kurland, and R. Lerner eds., 1987) (Madison wrote that the provision controlling Indian policy in the Articles if “taken in its full latitude, it must destroy the authority of Congress altogether.”). Accord R. B. Morris, The Forging of the Union (1987), 186–8; C. Drinker Bowen, Miracle at Philadelphia (1966), 168–70; N. Schachner, The Founding Fathers (1954), 65.
14 U.S. Const. art. VI, cl. 2. By 1789, the Continental and Articles of Confederation Congresses signed nine treaties with tribal nations and 23 treaties with foreign nations.
15 U.S. Const. art. I, § 2, cl. 3. 16 U.S. Const. amend. XIV, § 2. 17 Act of June 2, 1924, ch. 233, 43 Stat. 253 (codified at 8 U.S.C. § 1401[b]).
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36 robert j. miller
appears indissoluble; and yet a like Union should be impracticable for ten or a Dozen English Colonies, to whom it is more necessary, and must be more advantageous; and who cannot be supposed to want an equal Understanding of their Interests.
– Benjamin Franklin18
This statement by Benjamin Franklin (perhaps properly considered the grandfather of the United States) is significant evidence that tribal governments had at least some effect on the ultimate creation of the United States.19 Franklin studied and had extensive contacts with the Iroquois Confederacy and other tribes in negotiating and printing Indian treaties, as well as in numerous other diplomatic encounters.20 Furthermore, Franklin and colonial representatives were expressly advised in 1744 by an Iroquois Confederacy leader, Canasatego, that the English colonies needed to form a union such as the Iroquois had created.21
At a 1744 Lancaster treaty council, Canasatego advised colonial representatives, stating:
. . . we, the Six Nations, heartily recommend union and a good agree- ment between you . . . . Our wise Forefathers established Union and Amity between the Five Nations; this has made us formidable; this has given us great Weight and Authority with our neighboring Nations. We are a powerful Confederacy; and, by your observing the same Methods our wise Forefathers have taken, you will acquire fresh Strength and Power; therefore whatever befalls you, never fall out one with another.22
18 Benjamin Franklin to James Parker (March 20, 1751), in The Papers of Benjamin Franklin 4, (Leonard Labaree et al. eds., 1961), 118–9. See also G. S. Wood, The American- ization of Benjamin Franklin (2004), 73 (“If the Iroquois could unite, why couldn’t the colonists?”); F. Jennings, Empire of Fortune: Crowns, Colonies, and Tribes in the Seven Years War in America (1988), 89.
19 One author calls it “absurd” to attribute this statement “to the making of the Consti- tution” because, he argues, Franklin was “advocating colonial union against those ‘ignorant savages.’” Jennings, Empire of Fortune, 259, n.15 (italics in original). But even if Jennings is correct that Franklin was only advocating colonial union to oppose tribal nations, it is still probable that he learned something about the efficacy of confederacies from Indian nations, and it is indisputable, then, that tribes influenced the colonial decision to unite. See also Wood, The Americanization of Benjamin Franklin, 73 (Franklin had other reasons for proposing colonial union than just opposing Indians).
20 Bowen, The Most Dangerous Man in America, 91–4, 97–8; R. W. Clark, Benjamin Franklin: A Biography (1983), 100; Jennings, Empire of Fortune, 87–9 (Franklin studied Cadwallader Colden, The History of the Five Indian Nations of Canada [1747]).
21 Bowen, The Most Dangerous Man in America, 98–9; Jennings, Empire of Fortune, 89. 22 Indian Treaties Printed by Benjamin Franklin, 1736–1762 (Carl Van Doren, and
Julian P. Boyd eds., 1938), 78.
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36 robert j. miller
appears indissoluble; and yet a like Union should be impracticable for ten or a Dozen English Colonies, to whom it is more necessary, and must be more advantageous; and who cannot be supposed to want an equal Understanding of their Interests.
– Benjamin Franklin18
This statement by Benjamin Franklin (perhaps properly considered the grandfather of the United States) is significant evidence that tribal governments had at least some effect on the ultimate creation of the United States.19 Franklin studied and had extensive contacts with the Iroquois Confederacy and other tribes in negotiating and printing Indian treaties, as well as in numerous other diplomatic encounters.20 Furthermore, Franklin and colonial representatives were expressly advised in 1744 by an Iroquois Confederacy leader, Canasatego, that the English colonies needed to form a union such as the Iroquois had created.21
At a 1744 Lancaster treaty council, Canasatego advised colonial representatives, stating:
. . . we, the Six Nations, heartily recommend union and a good agree- ment between you . . . . Our wise Forefathers established Union and Amity between the Five Nations; this has made us formidable; this has given us great Weight and Authority with our neighboring Nations. We are a powerful Confederacy; and, by your observing the same Methods our wise Forefathers have taken, you will acquire fresh Strength and Power; therefore whatever befalls you, never fall out one with another.22
18 Benjamin Franklin to James Parker (March 20, 1751), in The Papers of Benjamin Franklin 4, (Leonard Labaree et al. eds., 1961), 118–9. See also G. S. Wood, The American- ization of Benjamin Franklin (2004), 73 (“If the Iroquois could unite, why couldn’t the colonists?”); F. Jennings, Empire of Fortune: Crowns, Colonies, and Tribes in the Seven Years War in America (1988), 89.
19 One author calls it “absurd” to attribute this statement “to the making of the Consti- tution” because, he argues, Franklin was “advocating colonial union against those ‘ignorant savages.’” Jennings, Empire of Fortune, 259, n.15 (italics in original). But even if Jennings is correct that Franklin was only advocating colonial union to oppose tribal nations, it is still probable that he learned something about the efficacy of confederacies from Indian nations, and it is indisputable, then, that tribes influenced the colonial decision to unite. See also Wood, The Americanization of Benjamin Franklin, 73 (Franklin had other reasons for proposing colonial union than just opposing Indians).
20 Bowen, The Most Dangerous Man in America, 91–4, 97–8; R. W. Clark, Benjamin Franklin: A Biography (1983), 100; Jennings, Empire of Fortune, 87–9 (Franklin studied Cadwallader Colden, The History of the Five Indian Nations of Canada [1747]).
21 Bowen, The Most Dangerous Man in America, 98–9; Jennings, Empire of Fortune, 89. 22 Indian Treaties Printed by Benjamin Franklin, 1736–1762 (Carl Van Doren, and
Julian P. Boyd eds., 1938), 78.
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Franklin printed the speech in 1744, and Cadwallader Colden reprinted it in his 1747 book on the Iroquois.23 Governor George Thomas thanked Canasatego for the advice.24
Very significantly, 31 years later, on August 25, 1775, the Commis- sioners of Indian Affairs for the Continental Congress quoted Canasat- ego’s 1744 speech back to Iroquois leaders at a diplomatic meeting. The commissioners stated: “Our forefathers” said Canasatego’s “advice was good” and his “words [had] sunk deep into their hearts,” and they would “take their counsel, and teach our children to follow it.”25 Several of the commissioners who spoke these words, including Major General Philip Schuyler and Colonel Oliver Wolcott, were Founding Fathers, as were three of the Continental Congress delegates, Thomas Lynch of South Carolina, and James Duane and Robert Livingston of New York, who also participated in these treaty sessions.
Arguably, Franklin heeded Canasatego’s advice because in 1754, he began promoting his Albany plan, one of the first to advocate a union of the thirteen colonies.26 Scholars agree that Franklin “admired the Iroquois confederation and plainly had it in mind in his earliest discussion of the need of union among the colonies.”27 Professor Julian Boyd, editor of the Jefferson Papers and Franklin’s Indian treaties, stated that Franklin “found his materials [for the Albany plan] in the great confederacy of the Iroquois.”28 Furthermore, several historians suggest that the Albany plan was a forerunner of the U.S. Constitution,29 and Franklin was, of course, heavily involved in the efforts to create the United States; he helped Thomas Jefferson with the Declaration of Independence, was on the committee that drafted the Articles of
23 Id.; Tooker, “The United States Constitution,” 309, 330 n.3 (citing Colden, The History of the Five Indian Nations, 20).
24 Tooker, “The United States Constitution,” 309. 25 “Journal of the Treaty held at Albany, in August, 1775, with the Six Nations by the
Commissioners of the Twelve United Colonies,” in Collections of the Massachusetts Histor- ical Society 5 (3rd series, 1836), 83–4.
26 H. S. Commager, The Empire of Reason: How Europe Imagined and America Real- ized the Enlightenment (1977), 19; C. L. Rossiter, Seedtime of the Republic (1953), 306–8.
27 C. V. Doren, Benjamin Franklin (1938), 209; accord Bowen, The Most Dangerous Man in America, 98.
28 J. P. Boyd, “Dr. Franklin: Friend of the Indians,” in Meet Dr. Franklin (R. N. Lokken ed., 1981), 239. See also Meet Dr. Franklin, 240 (“In the realm of political thought the Indian probably had a greater influence over civilized society than any other savage race.”); Commager, The Empire of Reason, 165–6 (Colonials learned about cooperation and union from the Iroquois Confederacy, Chief Pontiac’s alliance, and from necessity; Indians “set the stage for [American] nationalism.”).
29 Rossiter stated that the “Albany Plan is a landmark on the rough road of union that leads through the first Continental Congresses and the Articles of Confederation to the Constitution of 1787.” Rossiter, Seedtime of the Republic, 308. See also Commager, The Empire of Reason, 19.
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Franklin printed the speech in 1744, and Cadwallader Colden reprinted it in his 1747 book on the Iroquois.23 Governor George Thomas thanked Canasatego for the advice.24
Very significantly, 31 years later, on August 25, 1775, the Commis- sioners of Indian Affairs for the Continental Congress quoted Canasat- ego’s 1744 speech back to Iroquois leaders at a diplomatic meeting. The commissioners stated: “Our forefathers” said Canasatego’s “advice was good” and his “words [had] sunk deep into their hearts,” and they would “take their counsel, and teach our children to follow it.”25 Several of the commissioners who spoke these words, including Major General Philip Schuyler and Colonel Oliver Wolcott, were Founding Fathers, as were three of the Continental Congress delegates, Thomas Lynch of South Carolina, and James Duane and Robert Livingston of New York, who also participated in these treaty sessions.
Arguably, Franklin heeded Canasatego’s advice because in 1754, he began promoting his Albany plan, one of the first to advocate a union of the thirteen colonies.26 Scholars agree that Franklin “admired the Iroquois confederation and plainly had it in mind in his earliest discussion of the need of union among the colonies.”27 Professor Julian Boyd, editor of the Jefferson Papers and Franklin’s Indian treaties, stated that Franklin “found his materials [for the Albany plan] in the great confederacy of the Iroquois.”28 Furthermore, several historians suggest that the Albany plan was a forerunner of the U.S. Constitution,29 and Franklin was, of course, heavily involved in the efforts to create the United States; he helped Thomas Jefferson with the Declaration of Independence, was on the committee that drafted the Articles of
23 Id.; Tooker, “The United States Constitution,” 309, 330 n.3 (citing Colden, The History of the Five Indian Nations, 20).
24 Tooker, “The United States Constitution,” 309. 25 “Journal of the Treaty held at Albany, in August, 1775, with the Six Nations by the
Commissioners of the Twelve United Colonies,” in Collections of the Massachusetts Histor- ical Society 5 (3rd series, 1836), 83–4.
26 H. S. Commager, The Empire of Reason: How Europe Imagined and America Real- ized the Enlightenment (1977), 19; C. L. Rossiter, Seedtime of the Republic (1953), 306–8.
27 C. V. Doren, Benjamin Franklin (1938), 209; accord Bowen, The Most Dangerous Man in America, 98.
28 J. P. Boyd, “Dr. Franklin: Friend of the Indians,” in Meet Dr. Franklin (R. N. Lokken ed., 1981), 239. See also Meet Dr. Franklin, 240 (“In the realm of political thought the Indian probably had a greater influence over civilized society than any other savage race.”); Commager, The Empire of Reason, 165–6 (Colonials learned about cooperation and union from the Iroquois Confederacy, Chief Pontiac’s alliance, and from necessity; Indians “set the stage for [American] nationalism.”).
29 Rossiter stated that the “Albany Plan is a landmark on the rough road of union that leads through the first Continental Congresses and the Articles of Confederation to the Constitution of 1787.” Rossiter, Seedtime of the Republic, 308. See also Commager, The Empire of Reason, 19.
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Confederation, and was an important figure at the Constitutional Convention.30 Thus, the Indian influence on Franklin’s political ideas and the Albany plan carried over to the U.S. Constitution.
In addition to Franklin, other Founders were also acquainted with tribal governments and indigenous political theories after decades of interactions with tribes as colonial, state, and national treaty negotia- tors and commissioners.31 The long history of interactions and contacts between Indian tribes and the colonies and states affected and shaped both sides. For example, Thomas Jefferson studied tribal governments and Indian languages over many decades.32 He “freely acknowledged his debt to Indian teachers.”33 Jefferson also thought that Indian legal systems, which he incorrectly thought had “no law,” were “preferable” to “too much law, as among civilized Europeans . . . .”34 He also concluded: “France and England . . . [are a] den of robbers . . . [and] pirates . . . I would rather wish our country to be ignorant, honest and estimable as our neighboring savages are.”35 In 1787, Jefferson wrote the following to John Rutledge, a member of the Convention committee that compiled the first draft of the Constitution, regarding the virtues of American Indian governments: “ . . . the only condition on earth to be compared with ours is that of the Indians, where they still have less law than we. The Europeans are governments of kites over pidgeons.”36
Another influential Founder, James Wilson of Pennsylvania, was an active member of the Continental Congress’s permanent committee on Indian affairs and an Indian commissioner and treaty negotiator who had numerous interactions with tribal peoples and the Iroquois Confederacy.37 At the Constitutional Convention on June 7, 1787,
30 Commager, The Empire of Reason, 19; Rossiter, Seedtime of the Republic, 308. 31 Smithsonian Institution, Handbook of North American Indians: History of Indi-
an-White Relations, 245–9; Grinde and Johansen, Exemplars of Liberty, 15, 152; B. E. Johansen, Forgotten Founders: How the American Indian Helped Shape Democracy (1982), 116. See also The Complete Anti-Federalist (Herbert J. Storing ed., 1981), 107 (Quoting one anti-Federalist: “with [Indians] the whole authority of government is vested in the whole tribe . . . . Their government is genuinely democratic.”).
32 Miller, “American Indian Influence,” 77–8, 84–6; C. A. Miller, Jefferson and Nature: An Interpretation (1988), 110–1; Thomas Jefferson, Notes on the State of Virginia (William H. Peden ed., 1955, org. ed. 1784), 151.
33 F. S. Cohen, “Americanizing the White Man,” Am. Scholar 21 (1952), 177, 184. 34 C. A. L. Binger, Thomas Jefferson: A Well Tempered Mind (1970), 26; The Writings of
Thomas Jefferson, vol. 15 (A. A. Lipscomb, and A. E. Bergh eds., 1904), 25 (“Every man with them, is perfectly free to follow his own inclinations.”).
35 The Adams-Jefferson Letters, vol. 2 (Lester Cappon ed., 1959), 291. 36 Jefferson to Rutledge (Aug. 6, 1787), in Papers of Jefferson, vol. 11, (Julian P. Boyd
ed., 1955) 701. 37 Smith, James Wilson, 67–72; Grinde and Johansen, Exemplars of Liberty, 292, n.23
(quoting Wilson that he argued during the debate over the Articles of Confederation that “Indians know the benefits of Confederation [they] have an example of it in the union of the six Nations”).
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Confederation, and was an important figure at the Constitutional Convention.30 Thus, the Indian influence on Franklin’s political ideas and the Albany plan carried over to the U.S. Constitution.
In addition to Franklin, other Founders were also acquainted with tribal governments and indigenous political theories after decades of interactions with tribes as colonial, state, and national treaty negotia- tors and commissioners.31 The long history of interactions and contacts between Indian tribes and the colonies and states affected and shaped both sides. For example, Thomas Jefferson studied tribal governments and Indian languages over many decades.32 He “freely acknowledged his debt to Indian teachers.”33 Jefferson also thought that Indian legal systems, which he incorrectly thought had “no law,” were “preferable” to “too much law, as among civilized Europeans . . . .”34 He also concluded: “France and England . . . [are a] den of robbers . . . [and] pirates . . . I would rather wish our country to be ignorant, honest and estimable as our neighboring savages are.”35 In 1787, Jefferson wrote the following to John Rutledge, a member of the Convention committee that compiled the first draft of the Constitution, regarding the virtues of American Indian governments: “ . . . the only condition on earth to be compared with ours is that of the Indians, where they still have less law than we. The Europeans are governments of kites over pidgeons.”36
Another influential Founder, James Wilson of Pennsylvania, was an active member of the Continental Congress’s permanent committee on Indian affairs and an Indian commissioner and treaty negotiator who had numerous interactions with tribal peoples and the Iroquois Confederacy.37 At the Constitutional Convention on June 7, 1787,
30 Commager, The Empire of Reason, 19; Rossiter, Seedtime of the Republic, 308. 31 Smithsonian Institution, Handbook of North American Indians: History of Indi-
an-White Relations, 245–9; Grinde and Johansen, Exemplars of Liberty, 15, 152; B. E. Johansen, Forgotten Founders: How the American Indian Helped Shape Democracy (1982), 116. See also The Complete Anti-Federalist (Herbert J. Storing ed., 1981), 107 (Quoting one anti-Federalist: “with [Indians] the whole authority of government is vested in the whole tribe . . . . Their government is genuinely democratic.”).
32 Miller, “American Indian Influence,” 77–8, 84–6; C. A. Miller, Jefferson and Nature: An Interpretation (1988), 110–1; Thomas Jefferson, Notes on the State of Virginia (William H. Peden ed., 1955, org. ed. 1784), 151.
33 F. S. Cohen, “Americanizing the White Man,” Am. Scholar 21 (1952), 177, 184. 34 C. A. L. Binger, Thomas Jefferson: A Well Tempered Mind (1970), 26; The Writings of
Thomas Jefferson, vol. 15 (A. A. Lipscomb, and A. E. Bergh eds., 1904), 25 (“Every man with them, is perfectly free to follow his own inclinations.”).
35 The Adams-Jefferson Letters, vol. 2 (Lester Cappon ed., 1959), 291. 36 Jefferson to Rutledge (Aug. 6, 1787), in Papers of Jefferson, vol. 11, (Julian P. Boyd
ed., 1955) 701. 37 Smith, James Wilson, 67–72; Grinde and Johansen, Exemplars of Liberty, 292, n.23
(quoting Wilson that he argued during the debate over the Articles of Confederation that “Indians know the benefits of Confederation [they] have an example of it in the union of the six Nations”).
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Wilson stated that “the British government cannot be our model.”38 Charles Pinckney, a South Carolina Convention delegate, agreed. He stated in 1788 that the delegates were skeptical of European governments, as “from the European world no precedents are to be drawn for people who think they are capable of governing themselves.”39
John Adams also discussed tribal governments in his 1787 treatise on constitutions, which he no doubt wrote to influence the Constitu- tional Convention.40 He demonstrated some knowledge of tribal governments and seemed to be talking about the principle of separa- tion of powers when he stated that it would be worthwhile “[t]o collect together the legislation of the Indians” because while “[t]he sovereignty is in the nation . . . the three powers are strong in every tribe . . . .”41 He again seems to have been discussing separation of powers when he stated that “an accurate investigation of the form of government of the ancient Germans and modern Indians” would be worthy because “in both, the existence of the three divisions of power is marked with a precision that excludes all controversy.”42 Adams also noted that in Indian (and ancient German) governments, “[t]he democratical branch, especially, is so determined, that the real sovereignty resided in the body of the people and was exercised in the assembly of king, nobles, and commons together.”43 He also stated that the Mohawks in partic- ular enjoyed “complete individual independence,” and tribal leaders, or “sachems,” deliberated “national affairs” in councils and put major decisions, such as declarations of war, to “a national assembly.”44
Most of the Founders would have also been familiar with tribal governance because the eastern part of North America was governed by multiple confederacies of tribal nations.45 The Iroquois Confederacy in upstate New York, for example, was a union of five (and later six) tribes that operated under a constitutional system of government starting as early as the 11th century. The Iroquois inscribed their demo- cratic style government in “the symbolized writing of wampum belts,” and the Iroquois Constitution is known as the Great Law of Peace.
38 Notes on Debates in the Federal Convention of 1787 Reported by James Madison (Adrienne Koch ed., 1966), 85.
39 Grinde and Johansen, Exemplars of Liberty, 243 (quoting the Charleston Columbia Herald, 1788 June 9).
40 John Adams, “Defence of the Constitutions of the Government of the United States of America,” vol. 1 (1787), in The Works of John Adams, vol. 4 (Charles Francis Adams ed., 1851, reprint 1971), 271–588.
41 The Works of John Adams, 298. See id. 292 (“The rudest tribes of savages in North America have certain families from which their leaders are always chosen.”).
42 Id., 296. 43 Id. 44 Id., 511, 566–7. 45 Grinde and Johansen, Exemplars of Liberty, 6, 33, 35, 80, 86.
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Wilson stated that “the British government cannot be our model.”38 Charles Pinckney, a South Carolina Convention delegate, agreed. He stated in 1788 that the delegates were skeptical of European governments, as “from the European world no precedents are to be drawn for people who think they are capable of governing themselves.”39
John Adams also discussed tribal governments in his 1787 treatise on constitutions, which he no doubt wrote to influence the Constitu- tional Convention.40 He demonstrated some knowledge of tribal governments and seemed to be talking about the principle of separa- tion of powers when he stated that it would be worthwhile “[t]o collect together the legislation of the Indians” because while “[t]he sovereignty is in the nation . . . the three powers are strong in every tribe . . . .”41 He again seems to have been discussing separation of powers when he stated that “an accurate investigation of the form of government of the ancient Germans and modern Indians” would be worthy because “in both, the existence of the three divisions of power is marked with a precision that excludes all controversy.”42 Adams also noted that in Indian (and ancient German) governments, “[t]he democratical branch, especially, is so determined, that the real sovereignty resided in the body of the people and was exercised in the assembly of king, nobles, and commons together.”43 He also stated that the Mohawks in partic- ular enjoyed “complete individual independence,” and tribal leaders, or “sachems,” deliberated “national affairs” in councils and put major decisions, such as declarations of war, to “a national assembly.”44
Most of the Founders would have also been familiar with tribal governance because the eastern part of North America was governed by multiple confederacies of tribal nations.45 The Iroquois Confederacy in upstate New York, for example, was a union of five (and later six) tribes that operated under a constitutional system of government starting as early as the 11th century. The Iroquois inscribed their demo- cratic style government in “the symbolized writing of wampum belts,” and the Iroquois Constitution is known as the Great Law of Peace.
38 Notes on Debates in the Federal Convention of 1787 Reported by James Madison (Adrienne Koch ed., 1966), 85.
39 Grinde and Johansen, Exemplars of Liberty, 243 (quoting the Charleston Columbia Herald, 1788 June 9).
40 John Adams, “Defence of the Constitutions of the Government of the United States of America,” vol. 1 (1787), in The Works of John Adams, vol. 4 (Charles Francis Adams ed., 1851, reprint 1971), 271–588.
41 The Works of John Adams, 298. See id. 292 (“The rudest tribes of savages in North America have certain families from which their leaders are always chosen.”).
42 Id., 296. 43 Id. 44 Id., 511, 566–7. 45 Grinde and Johansen, Exemplars of Liberty, 6, 33, 35, 80, 86.
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Scholars state that the Iroquois were “a decidedly democratic people” and that “American Indian confederacies figured importantly in the evolution of democratic thought.”46 Several of the Founders were impressed by the Iroquois Confederacy.47
The Iroquois, Shawnee, Cherokee, and other tribal governments operated under democratic principles with “national” or “federal” governing councils, as well as with checks and balances on civil and military affairs to avoid the concentration of power in individuals.48 Almost all tribes separated military and civil duties between different chiefs or leaders. These tribal governments and communities also protected a wide range of personal freedoms and democratic princi- ples, such as freedom of religion, women’s suffrage, initiative, refer- endum, veto, and recall.49 (Iroquois women played very important roles in their government, and women were heavily involved in the governance of most, if not all, tribes.50)
Because many of the Founders were conversant with tribal govern- ments and political theories, it seems incorrect to argue that they could not possibly have learned anything from tribes and Indians, and that they were not influenced at all by the extensive contacts they had with tribes and their knowledge of tribal governments. In contrast, the evidence shows that the Founders observed tribal governments and cultures that practiced democratic principles and incorporated similar principles into the U.S. Constitution, including separation of powers,
46 Id., xvii, xx–xxii, xxiv–xxv, 19–32; accord Smithsonian Institution, Handbook of North American Indians: Northeast, 418–41; B. Graymont, The Iroquois in the American Revolution (1972), 16–7; V. Deloria, Jr., and C. M. Lytle, American Indians, American Justice (1983), 82 (“. . . the first written constitution drafted in North America . . . written on the sacred wampum belts made of sea shells”); Wilkins, American Indian Politics, 129; F. Gould- smith Speck, “The Iroquois: A Study in Cultural Evolution,” Bulletin 26 (Cranbrook Inst. Sci., vol. 23, 2nd ed. 1955, org. ed. 1945) (The “self-government of the Iroquois has impressed [many historians] as embodying surprisingly modern conceptions of democratic rule . . . . the Iroquois were, and still are, a decidedly democratic people.”).
47 Supra notes 4 and 7; R. Aqulia, The Iroquois Restoration: Iroquois Diplomacy on the Colonial Frontier, 1701-1754 (1983), 15; Wissler, Indians of the United States, 128 (“There is some historical evidence that knowledge of the league influenced the colonies in their first efforts to form a confederacy and later to write a constitution.”); Underhill, Red Man’s America, 83 (naming Lee, Franklin, Jefferson, and Washington).
48 Smithsonian Institution, Handbook of North American Indians: Northeast, 156, 216, 422, 429, 610, 627, 640, 684, 782; R. Strickland, Fire and the Spirits (1975), 24–5; F. W. Hodge, Handbook of American Indians North of Mexico (1975), 364; A. M. Gibson, The Chickasaws (1971), 21; A. Debo, The Road to Disappearance (1941), 6–7.
49 Cohen, Americanizing the White Man, 182; Smithsonian Institution, Handbook of North American Indians: Northeast, 156, 314–7, 610, 627.
50 Grinde and Johansen, Exemplars of Liberty, 19–32, 218–30; R. Jacobs, “Iroquois Great Law of Peace and the United States Constitution: How the Founding Fathers Ignored the Clan Mothers,” Am. Indian L. Rev. 16 (1991), 497; Graymont, The Iroquois in the Amer- ican Revolution, 12–3, 18, 21, 159; Smithsonian Institution, Handbook of North American Indians: Northeast, 156, 216, 261, 418–41,610, 617–8, 624–5, 627, 640, 684, 732, 782.
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Scholars state that the Iroquois were “a decidedly democratic people” and that “American Indian confederacies figured importantly in the evolution of democratic thought.”46 Several of the Founders were impressed by the Iroquois Confederacy.47
The Iroquois, Shawnee, Cherokee, and other tribal governments operated under democratic principles with “national” or “federal” governing councils, as well as with checks and balances on civil and military affairs to avoid the concentration of power in individuals.48 Almost all tribes separated military and civil duties between different chiefs or leaders. These tribal governments and communities also protected a wide range of personal freedoms and democratic princi- ples, such as freedom of religion, women’s suffrage, initiative, refer- endum, veto, and recall.49 (Iroquois women played very important roles in their government, and women were heavily involved in the governance of most, if not all, tribes.50)
Because many of the Founders were conversant with tribal govern- ments and political theories, it seems incorrect to argue that they could not possibly have learned anything from tribes and Indians, and that they were not influenced at all by the extensive contacts they had with tribes and their knowledge of tribal governments. In contrast, the evidence shows that the Founders observed tribal governments and cultures that practiced democratic principles and incorporated similar principles into the U.S. Constitution, including separation of powers,
46 Id., xvii, xx–xxii, xxiv–xxv, 19–32; accord Smithsonian Institution, Handbook of North American Indians: Northeast, 418–41; B. Graymont, The Iroquois in the American Revolution (1972), 16–7; V. Deloria, Jr., and C. M. Lytle, American Indians, American Justice (1983), 82 (“. . . the first written constitution drafted in North America . . . written on the sacred wampum belts made of sea shells”); Wilkins, American Indian Politics, 129; F. Gould- smith Speck, “The Iroquois: A Study in Cultural Evolution,” Bulletin 26 (Cranbrook Inst. Sci., vol. 23, 2nd ed. 1955, org. ed. 1945) (The “self-government of the Iroquois has impressed [many historians] as embodying surprisingly modern conceptions of democratic rule . . . . the Iroquois were, and still are, a decidedly democratic people.”).
47 Supra notes 4 and 7; R. Aqulia, The Iroquois Restoration: Iroquois Diplomacy on the Colonial Frontier, 1701-1754 (1983), 15; Wissler, Indians of the United States, 128 (“There is some historical evidence that knowledge of the league influenced the colonies in their first efforts to form a confederacy and later to write a constitution.”); Underhill, Red Man’s America, 83 (naming Lee, Franklin, Jefferson, and Washington).
48 Smithsonian Institution, Handbook of North American Indians: Northeast, 156, 216, 422, 429, 610, 627, 640, 684, 782; R. Strickland, Fire and the Spirits (1975), 24–5; F. W. Hodge, Handbook of American Indians North of Mexico (1975), 364; A. M. Gibson, The Chickasaws (1971), 21; A. Debo, The Road to Disappearance (1941), 6–7.
49 Cohen, Americanizing the White Man, 182; Smithsonian Institution, Handbook of North American Indians: Northeast, 156, 314–7, 610, 627.
50 Grinde and Johansen, Exemplars of Liberty, 19–32, 218–30; R. Jacobs, “Iroquois Great Law of Peace and the United States Constitution: How the Founding Fathers Ignored the Clan Mothers,” Am. Indian L. Rev. 16 (1991), 497; Graymont, The Iroquois in the Amer- ican Revolution, 12–3, 18, 21, 159; Smithsonian Institution, Handbook of North American Indians: Northeast, 156, 216, 261, 418–41,610, 617–8, 624–5, 627, 640, 684, 732, 782.
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popular vote, presidential veto, recall, freedom of religion, and, later, women’s suffrage and the right of all citizens to participate in their government. These ideas were practiced by indigenous governments long before the U.S. Constitution.
Finally, there is no question that tribal governments and Indian affairs were very important to the initial decision to create a new constitution and national government. The interactions between national, state, and tribal governments led the Founders to realize that (1) the Articles of Confederation were inadequate and (2) a new consti- tution was needed to create a stronger national government that held the exclusive authority to conduct Indian affairs.51 James Madison, known as the father of the Constitution, and other Founders made this point perfectly clear.52
Negative Tribal Effects on the Founders
American Indians and tribes also had “negative effects” on the Consti- tution due to the Founders’ fears of Indian nations.53 The United States was incredibly weak and bankrupt after the Revolutionary War, and in the early decades of its existence, it could not afford to fight tribes. Thousands of warriors, from dozens of tribal nations, were located on and within U.S. borders. This fact of life obviously affected the Founders and early Americans. This danger, and the inability of the Congress of the Confederation to address it, created an enormous incentive for the Founders and states to unify under a stronger federal government.54 Thereafter, the threats posed by Indians impacted the decision to create a new national government and specific provisions that were included in the Constitution.
The challenges presented by tribes served as a catalyst for creating a strong central government with the power to formulate and enforce a unified federal Indian policy, possess a standing army, garrison forts on the frontier, raise needed taxes, and control the Western lands.55 Staunch Federalists probably did not think these results were
51 Supra note 13; see also O. Handlin, and L. Handlin, Liberty in Expansion 1760–1850 (1989), 146–8; R. B. Morris, The Forging of the Union (1987), 187–8; M. Farrand, The Framing of the Constitution (1913), 47–8.
52 Supra note 13. 53 Miller, “American Indian Influence,” 155–6. Accord Graymont, The Iroquois in the
American Revolution, 88–9; W. H. Mohr, Federal Indian Relations 1774–1788 (1933), 100; see generally P. Silver, Our Savage Neighbors: How Indian War Transformed Early America (2008).
54 Miller, “American Indian Influence,” 155–6; Ablavsky, “The Savage Constitution,” 1052–53.
55 Miller, “American Indian Influence,” 155–7; accord Ablavsky, “The Savage Constitu- tion,” 1049–55, 1063.
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popular vote, presidential veto, recall, freedom of religion, and, later, women’s suffrage and the right of all citizens to participate in their government. These ideas were practiced by indigenous governments long before the U.S. Constitution.
Finally, there is no question that tribal governments and Indian affairs were very important to the initial decision to create a new constitution and national government. The interactions between national, state, and tribal governments led the Founders to realize that (1) the Articles of Confederation were inadequate and (2) a new consti- tution was needed to create a stronger national government that held the exclusive authority to conduct Indian affairs.51 James Madison, known as the father of the Constitution, and other Founders made this point perfectly clear.52
Negative Tribal Effects on the Founders
American Indians and tribes also had “negative effects” on the Consti- tution due to the Founders’ fears of Indian nations.53 The United States was incredibly weak and bankrupt after the Revolutionary War, and in the early decades of its existence, it could not afford to fight tribes. Thousands of warriors, from dozens of tribal nations, were located on and within U.S. borders. This fact of life obviously affected the Founders and early Americans. This danger, and the inability of the Congress of the Confederation to address it, created an enormous incentive for the Founders and states to unify under a stronger federal government.54 Thereafter, the threats posed by Indians impacted the decision to create a new national government and specific provisions that were included in the Constitution.
The challenges presented by tribes served as a catalyst for creating a strong central government with the power to formulate and enforce a unified federal Indian policy, possess a standing army, garrison forts on the frontier, raise needed taxes, and control the Western lands.55 Staunch Federalists probably did not think these results were
51 Supra note 13; see also O. Handlin, and L. Handlin, Liberty in Expansion 1760–1850 (1989), 146–8; R. B. Morris, The Forging of the Union (1987), 187–8; M. Farrand, The Framing of the Constitution (1913), 47–8.
52 Supra note 13. 53 Miller, “American Indian Influence,” 155–6. Accord Graymont, The Iroquois in the
American Revolution, 88–9; W. H. Mohr, Federal Indian Relations 1774–1788 (1933), 100; see generally P. Silver, Our Savage Neighbors: How Indian War Transformed Early America (2008).
54 Miller, “American Indian Influence,” 155–6; Ablavsky, “The Savage Constitution,” 1052–53.
55 Miller, “American Indian Influence,” 155–7; accord Ablavsky, “The Savage Constitu- tion,” 1049–55, 1063.
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“negative” because they enhanced federal powers, but these steps were controversial, although they were justified and deemed necessary primarily due to the dangers the United States felt from tribes. In fact, Alexander Hamilton wrote that one of the “important objects . . . of a national government” was to “protect . . . your Western frontier against the savages.”56 He also wrote that “[t]he savage tribes on our Western frontier ought to be regarded as our natural enemies . . . .”57 According to Hamilton, the United States needed a “standing army” to keep “garrisons on our Western frontier . . . [to guard] against the ravages and depredations of the Indians.”58 James Madison joined this argu- ment and wrote that only a stronger national government could end European intrigues designed to arouse the Indians against the United States.59 Furthermore, James Wilson, defending the new Constitution in an important speech that was reprinted across the 13 states, cited ongoing frontier violence as justification for a standing army.60 Finally, Secretary of War Henry Knox argued at the end of the convention that the Constitution would be ratified if people reflected on the fact that the Articles of Confederation government could not “chastise the despi- cable bands of murdering savages on the frontiers.”61
Many Founders, and especially the Anti-Federalists, feared a standing army because of the power it gave the federal government and the danger of misuse.62 But most of the Founders, and even some Anti-Federalists, agreed that an army, frontier garrisons, and the required taxes were necessary evils in light of the dangers from tribes.63 Consequently, Indians and tribal governments played crucial roles in the adoption of these provisions into the U.S. Constitution and government.
56 The Papers of Alexander Hamilton, vol. 4 (Harold C. Syrett ed., 1962), 198. 57 Alexander Hamilton, The Federalist Papers No. 24, (Clinton L. Rossiter ed., 1961),
161. 58 Id. He also argued that frontier garrisons would be “keys to the trade with the Indian
nations.” Id., 162. 59 Letter from James Madison to George Nicholas (May 17, 1788), in The Documen-
tary History of the Ratification of the Constitution, vol. 18 (John P. Kaminiski et al. eds., 1995), 28–9.
60 J. Wilson, Speech at a Public Meeting in Philadelphia (October 6, 1781), in Documen- tary History, vol. 13 337–8, 341.
61 Letter from Henry Knox to Unknown (September 1, 1787), in Documentary History, vol. 4, 27. See also Ablavsky, “The Savage Constitution,” 1049–51 (noting others who argued for constitutional ratification due to the risk from Indians).
62 Complete Anti-Federalist, supra note 31, 414; Ablavsky, “The Savage Constitution,” 1051–3.
63 D. F. Epstein, The Political Theory of the Federalist (1984), 41; complete Anti- Federalist, supra note 31, 415–6.
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“negative” because they enhanced federal powers, but these steps were controversial, although they were justified and deemed necessary primarily due to the dangers the United States felt from tribes. In fact, Alexander Hamilton wrote that one of the “important objects . . . of a national government” was to “protect . . . your Western frontier against the savages.”56 He also wrote that “[t]he savage tribes on our Western frontier ought to be regarded as our natural enemies . . . .”57 According to Hamilton, the United States needed a “standing army” to keep “garrisons on our Western frontier . . . [to guard] against the ravages and depredations of the Indians.”58 James Madison joined this argu- ment and wrote that only a stronger national government could end European intrigues designed to arouse the Indians against the United States.59 Furthermore, James Wilson, defending the new Constitution in an important speech that was reprinted across the 13 states, cited ongoing frontier violence as justification for a standing army.60 Finally, Secretary of War Henry Knox argued at the end of the convention that the Constitution would be ratified if people reflected on the fact that the Articles of Confederation government could not “chastise the despi- cable bands of murdering savages on the frontiers.”61
Many Founders, and especially the Anti-Federalists, feared a standing army because of the power it gave the federal government and the danger of misuse.62 But most of the Founders, and even some Anti-Federalists, agreed that an army, frontier garrisons, and the required taxes were necessary evils in light of the dangers from tribes.63 Consequently, Indians and tribal governments played crucial roles in the adoption of these provisions into the U.S. Constitution and government.
56 The Papers of Alexander Hamilton, vol. 4 (Harold C. Syrett ed., 1962), 198. 57 Alexander Hamilton, The Federalist Papers No. 24, (Clinton L. Rossiter ed., 1961),
161. 58 Id. He also argued that frontier garrisons would be “keys to the trade with the Indian
nations.” Id., 162. 59 Letter from James Madison to George Nicholas (May 17, 1788), in The Documen-
tary History of the Ratification of the Constitution, vol. 18 (John P. Kaminiski et al. eds., 1995), 28–9.
60 J. Wilson, Speech at a Public Meeting in Philadelphia (October 6, 1781), in Documen- tary History, vol. 13 337–8, 341.
61 Letter from Henry Knox to Unknown (September 1, 1787), in Documentary History, vol. 4, 27. See also Ablavsky, “The Savage Constitution,” 1049–51 (noting others who argued for constitutional ratification due to the risk from Indians).
62 Complete Anti-Federalist, supra note 31, 414; Ablavsky, “The Savage Constitution,” 1051–3.
63 D. F. Epstein, The Political Theory of the Federalist (1984), 41; complete Anti- Federalist, supra note 31, 415–6.
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In conclusion, it seems clear that Indian nations and peoples impacted the formation of the current U.S. government, the Constitu- tion that created it, and several specific provisions in that document.64 Scholars who disagree with that statement seem a bit too incredulous that Indians and tribal governments could have contributed in any way to the development of American political thought or that the Founding Fathers could have learned anything from Indians. I believe this view- point is too parochial and ignores the evidence presented here and else- where. The hundreds of years of interactions between native nations and English and American colonies, states, leaders, and the United States Founding Fathers shaped the political thinking of both sides and even influenced the development, drafting, and ratification of the U.S. Constitution.
III. Modern Tribal Constitutions
More than 565 federally recognized tribal governments exercise polit- ical and sovereign powers within the United States today. However, only about 230 of these governments have written constitutions. Many observers would no doubt ask how a government can function without a constitution, and how the rights of citizens can be defined and protected if they are not set out in a written constitution. We must note, however, that England has never had a written constitution, and two other recognized democracies, New Zealand and Israel, also do not have written constitutions.65
Early Tribal Constitutionalism
American Indian societies and peoples organized themselves under various forms of governance structures for centuries before European contact.66 As already cited, the Iroquois Confederacy was governed by a constitution recorded in “the symbolized writing of wampum belts,”67 but as Indian political leaders became familiar with the Amer- ican federal government, they began to consider adopting written constitutions. The Cherokee Nation adopted its first written
64 One commentator argues that the context of Indian affairs is crucial to understanding several constitutional provisions and themes. Ablavsky, “The Savage Constitution,” 1062–6.
65 V. Bogdanor, The New British Constitution (2009), xii–xiii, 8–9; P. Joseph, Constitu- tional and Administrative Law in New Zealand (2nd ed., 2007).
66 Miller, “American Indian Influence,” 133–4, 143–5; Smithsonian Institution, Hand- book of North American Indians: Northeast, 418–41; Deloria and Lytle, American Indians, 82; Speck, “The Iroquois,” 26.
67 Supra note 46 and accompanying text.
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In conclusion, it seems clear that Indian nations and peoples impacted the formation of the current U.S. government, the Constitu- tion that created it, and several specific provisions in that document.64 Scholars who disagree with that statement seem a bit too incredulous that Indians and tribal governments could have contributed in any way to the development of American political thought or that the Founding Fathers could have learned anything from Indians. I believe this view- point is too parochial and ignores the evidence presented here and else- where. The hundreds of years of interactions between native nations and English and American colonies, states, leaders, and the United States Founding Fathers shaped the political thinking of both sides and even influenced the development, drafting, and ratification of the U.S. Constitution.
III. Modern Tribal Constitutions
More than 565 federally recognized tribal governments exercise polit- ical and sovereign powers within the United States today. However, only about 230 of these governments have written constitutions. Many observers would no doubt ask how a government can function without a constitution, and how the rights of citizens can be defined and protected if they are not set out in a written constitution. We must note, however, that England has never had a written constitution, and two other recognized democracies, New Zealand and Israel, also do not have written constitutions.65
Early Tribal Constitutionalism
American Indian societies and peoples organized themselves under various forms of governance structures for centuries before European contact.66 As already cited, the Iroquois Confederacy was governed by a constitution recorded in “the symbolized writing of wampum belts,”67 but as Indian political leaders became familiar with the Amer- ican federal government, they began to consider adopting written constitutions. The Cherokee Nation adopted its first written
64 One commentator argues that the context of Indian affairs is crucial to understanding several constitutional provisions and themes. Ablavsky, “The Savage Constitution,” 1062–6.
65 V. Bogdanor, The New British Constitution (2009), xii–xiii, 8–9; P. Joseph, Constitu- tional and Administrative Law in New Zealand (2nd ed., 2007).
66 Miller, “American Indian Influence,” 133–4, 143–5; Smithsonian Institution, Hand- book of North American Indians: Northeast, 418–41; Deloria and Lytle, American Indians, 82; Speck, “The Iroquois,” 26.
67 Supra note 46 and accompanying text.
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constitution in 1827. That decision seems to have been a deliberate attempt to adopt the U.S. form of government in an effort to fend off the designs Georgia had on Cherokee lands. The Cherokee adopted a government of three branches: executive, legislative, and judicial. When the Nation was forcibly removed to Oklahoma in 1838 and reorganized itself in 1839, it adopted another written constitution. Other tribal nations from the American southeast also adopted written constitutions seemingly based on the U.S. Constitution for the same reasons as the Cherokee Nation.68
The Stockbridge-Munsee Band also tried to protect its sovereignty by adopting a constitution written in English in 1837. This document required elected leaders to be Christians, prevented women from voting, and established a three-branch government similar to the United States. Moreover, numerous tribes adopted constitutions in the 19th century, including the Creek, Choctaw, Chickasaw, Seneca, Osage, Sisseton-Wahpeton, Sac and Fox, and Menominee. And even more adopted written constitutions in the early-20th century, including the Pima Indians (1901); the Pueblo of Laguna (1908); the Rosebud Sioux Tribe (1916, 1920, and 1924); and the Indians of the Flathead Reserva- tion (1930), to mention a few.69 More than 60 tribal nations had written constitutions on file with the U.S. Department of Interior by 1934.70
Indian Reorganization Act Constitutions
In 1934, the U.S. Congress enacted the Indian Reorganization Act (IRA) and instituted a new era of United States–Indian policy. The
68 Documents of Native American Political Development (David E. Wilkins ed., 2009), 56–66; R. B. Porter, “Strengthening Tribal Sovereignty through Government Reform: What are the Issues?” Kan. J.L. & Pub. Pol’y, 7 (1997), 72, 82–3; D. Champagne, Social Order and Political Change: Constitutional Governments among the Cherokee, the Choctaw, the Chick- asaw, and the Creek (1992); Strickland, Fire and the Spirits, 51–65.
69 Documents of Native American Political Development, 56–66 (Cherokee 1827), 75–81 (Seneca 1848), 101–20 (Seneca 1854, Chickasaw 1856, Stockbridge and Munsee 1857), 168–78 (Osage 1861 and 1881), 195–210 (Sisseton-Wahpeton 1884), 211–20 (Sac and Fox 1885), 259–64 and 293-98 (Menominee 1892 and 1904), 269–76 (Creek 1894), 281–7 (Pima), 365–73 (Laguna), 390–401 (Rosebud Sioux), 457–60 (Flathead); J. W. Oberly, A Nation of Statesmen: The Political Culture of the Stockbridge-Munsee Mohicans, 1815– 1972 (2005), 58–62, 207; D. E. Wilkins, and S. Lightfoot, “Oaths of Office in Tribal Consti- tutions,” Am. Indian Q. 32 (2008), 390, 396, 398–9; Champagne, Social Order and Political Change.
70 F. S. Cohen, Handbook of Federal Indian Law (University of New Mexico Press reprint 1971, orig. ed. 1941), 128–9 and n.59; E. R. Rusco, A Fateful Time: The Background and Legislative History of the Indian Reorganization Act (2000), 38–9; D. E. Wilkins, “Intro- duction,” in F. S. Cohen, On the Drafting of Tribal Constitutions (David E. Wilkins ed., 2006), xxi.
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constitution in 1827. That decision seems to have been a deliberate attempt to adopt the U.S. form of government in an effort to fend off the designs Georgia had on Cherokee lands. The Cherokee adopted a government of three branches: executive, legislative, and judicial. When the Nation was forcibly removed to Oklahoma in 1838 and reorganized itself in 1839, it adopted another written constitution. Other tribal nations from the American southeast also adopted written constitutions seemingly based on the U.S. Constitution for the same reasons as the Cherokee Nation.68
The Stockbridge-Munsee Band also tried to protect its sovereignty by adopting a constitution written in English in 1837. This document required elected leaders to be Christians, prevented women from voting, and established a three-branch government similar to the United States. Moreover, numerous tribes adopted constitutions in the 19th century, including the Creek, Choctaw, Chickasaw, Seneca, Osage, Sisseton-Wahpeton, Sac and Fox, and Menominee. And even more adopted written constitutions in the early-20th century, including the Pima Indians (1901); the Pueblo of Laguna (1908); the Rosebud Sioux Tribe (1916, 1920, and 1924); and the Indians of the Flathead Reserva- tion (1930), to mention a few.69 More than 60 tribal nations had written constitutions on file with the U.S. Department of Interior by 1934.70
Indian Reorganization Act Constitutions
In 1934, the U.S. Congress enacted the Indian Reorganization Act (IRA) and instituted a new era of United States–Indian policy. The
68 Documents of Native American Political Development (David E. Wilkins ed., 2009), 56–66; R. B. Porter, “Strengthening Tribal Sovereignty through Government Reform: What are the Issues?” Kan. J.L. & Pub. Pol’y, 7 (1997), 72, 82–3; D. Champagne, Social Order and Political Change: Constitutional Governments among the Cherokee, the Choctaw, the Chick- asaw, and the Creek (1992); Strickland, Fire and the Spirits, 51–65.
69 Documents of Native American Political Development, 56–66 (Cherokee 1827), 75–81 (Seneca 1848), 101–20 (Seneca 1854, Chickasaw 1856, Stockbridge and Munsee 1857), 168–78 (Osage 1861 and 1881), 195–210 (Sisseton-Wahpeton 1884), 211–20 (Sac and Fox 1885), 259–64 and 293-98 (Menominee 1892 and 1904), 269–76 (Creek 1894), 281–7 (Pima), 365–73 (Laguna), 390–401 (Rosebud Sioux), 457–60 (Flathead); J. W. Oberly, A Nation of Statesmen: The Political Culture of the Stockbridge-Munsee Mohicans, 1815– 1972 (2005), 58–62, 207; D. E. Wilkins, and S. Lightfoot, “Oaths of Office in Tribal Consti- tutions,” Am. Indian Q. 32 (2008), 390, 396, 398–9; Champagne, Social Order and Political Change.
70 F. S. Cohen, Handbook of Federal Indian Law (University of New Mexico Press reprint 1971, orig. ed. 1941), 128–9 and n.59; E. R. Rusco, A Fateful Time: The Background and Legislative History of the Indian Reorganization Act (2000), 38–9; D. E. Wilkins, “Intro- duction,” in F. S. Cohen, On the Drafting of Tribal Constitutions (David E. Wilkins ed., 2006), xxi.
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United States (a) intended to help tribal governments reorganize, reform their governments, and exercise self-governing and sovereign powers; and (b) encouraged and assisted tribal communities to draft written constitutions and bylaws, organize their governing bodies, and create federally chartered corporations to engage in economic activities.
The IRA is important to a discussion of modern-day tribal consti- tutionalism because the majority of written tribal constitutions in use today originate from that law. However, we must not overemphasize the IRA constitutions because they are not the entire story of American Indian constitutions, and because only about 35% to 40% of the more than 565 federally recognized tribes operate under IRA constitutions, it is obvious that there is much more to the study of tribal constitutions than just the IRA.71
Under the IRA, Congress created a process in which tribal commu- nities were encouraged to consider organizing their governments. Indian communities that were then federally recognized tribes (except those in Alaska and Oklahoma) had only 2 years, however, to hold elections to decide whether to organize under the Act. In the elections that were held, 181 tribal communities (representing more than 129,000 Indians) voted to organize under the Act, and 77 tribes (repre- senting more than 86,000 Indians) voted not to do so. However, the tribes that voted to organize under the IRA did not automatically acquire a written constitution. A community that voted to organize under the IRA then had to take the additional steps of drafting a
71 The 2005 edition of Cohen’s Handbook of Federal Indian Law states that approxi- mately 160 Indian nations adopted constitutions under the IRA and that about 75 other tribes have created constitutions outside the parameters of that Act. In a 1990 article, Professor Elmer Rusco examined 220 tribal constitutions, 154 of which he says were written under the authority of the IRA and the 1936 IRA Oklahoma amendment. For some reason, however, it appears that he did not include any of the 60–70 Alaskan tribal constitutions that were adopted pursuant to the 1936 IRA Alaska amendment. Counting the Alaska constitu- tions, Rusco’s numbers demonstrate that there are perhaps more than 220 tribal IRA consti- tutions. In contrast, Vine Deloria, Jr. stated in 1984 that of the 181 tribes that voted to organize under the IRA, only “about 96” drafted constitutions that were then approved by the Secretary of the Interior and later adopted by the tribal electorate. Deloria also states that the BIA encouraged other tribes to organize and draft constitutions and that 13 other tribes drafted constitutions that were approved by the Secretary. See E. R. Rusco, “Civil Liberties Guarantees Under Tribal Law: A Survey of Civil Rights Provisions in Tribal Constitutions,” Am. Indian L. Rev. 14 (1989), 269, 270; Rusco, A Fateful Time, at 301; V. Deloria, Jr., and C. M. Lytle, The Nations Within: The Past and Future of American Indian Sovereignty (1984), 172–7; T. H. Haas, Ten Years of Tribal Government Under I.R.A. 2–3, (1947), 11–2 (In 1947, four tribes that had voted to organize under the IRA were using constitutions, but they had not been approved under the IRA); Cohen, Handbook of Federal Indian Law 277 (N. Jessup Newton ed.-in-chief, 2005 ed.); Wilkins and Lightfoot, “Oaths of Office,” 392; M. Hirschfield, “The Alaska Native Claims Settlement Act: Tribal Sovereignty and the Corporate Form,” Yale L. J. 101 (1992), 1331, 1335 n.29.
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United States (a) intended to help tribal governments reorganize, reform their governments, and exercise self-governing and sovereign powers; and (b) encouraged and assisted tribal communities to draft written constitutions and bylaws, organize their governing bodies, and create federally chartered corporations to engage in economic activities.
The IRA is important to a discussion of modern-day tribal consti- tutionalism because the majority of written tribal constitutions in use today originate from that law. However, we must not overemphasize the IRA constitutions because they are not the entire story of American Indian constitutions, and because only about 35% to 40% of the more than 565 federally recognized tribes operate under IRA constitutions, it is obvious that there is much more to the study of tribal constitutions than just the IRA.71
Under the IRA, Congress created a process in which tribal commu- nities were encouraged to consider organizing their governments. Indian communities that were then federally recognized tribes (except those in Alaska and Oklahoma) had only 2 years, however, to hold elections to decide whether to organize under the Act. In the elections that were held, 181 tribal communities (representing more than 129,000 Indians) voted to organize under the Act, and 77 tribes (repre- senting more than 86,000 Indians) voted not to do so. However, the tribes that voted to organize under the IRA did not automatically acquire a written constitution. A community that voted to organize under the IRA then had to take the additional steps of drafting a
71 The 2005 edition of Cohen’s Handbook of Federal Indian Law states that approxi- mately 160 Indian nations adopted constitutions under the IRA and that about 75 other tribes have created constitutions outside the parameters of that Act. In a 1990 article, Professor Elmer Rusco examined 220 tribal constitutions, 154 of which he says were written under the authority of the IRA and the 1936 IRA Oklahoma amendment. For some reason, however, it appears that he did not include any of the 60–70 Alaskan tribal constitutions that were adopted pursuant to the 1936 IRA Alaska amendment. Counting the Alaska constitu- tions, Rusco’s numbers demonstrate that there are perhaps more than 220 tribal IRA consti- tutions. In contrast, Vine Deloria, Jr. stated in 1984 that of the 181 tribes that voted to organize under the IRA, only “about 96” drafted constitutions that were then approved by the Secretary of the Interior and later adopted by the tribal electorate. Deloria also states that the BIA encouraged other tribes to organize and draft constitutions and that 13 other tribes drafted constitutions that were approved by the Secretary. See E. R. Rusco, “Civil Liberties Guarantees Under Tribal Law: A Survey of Civil Rights Provisions in Tribal Constitutions,” Am. Indian L. Rev. 14 (1989), 269, 270; Rusco, A Fateful Time, at 301; V. Deloria, Jr., and C. M. Lytle, The Nations Within: The Past and Future of American Indian Sovereignty (1984), 172–7; T. H. Haas, Ten Years of Tribal Government Under I.R.A. 2–3, (1947), 11–2 (In 1947, four tribes that had voted to organize under the IRA were using constitutions, but they had not been approved under the IRA); Cohen, Handbook of Federal Indian Law 277 (N. Jessup Newton ed.-in-chief, 2005 ed.); Wilkins and Lightfoot, “Oaths of Office,” 392; M. Hirschfield, “The Alaska Native Claims Settlement Act: Tribal Sovereignty and the Corporate Form,” Yale L. J. 101 (1992), 1331, 1335 n.29.
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constitution, having it approved by the Secretary of the Interior, and holding another tribal election to decide whether to adopt the constitu- tion as drafted.
In 1936, Congress extended the IRA to Alaska Natives and Okla- homa tribes. In these two states, tribal governments can still vote today whether to organize under the IRA. In other states, tribes that were federally recognized in 1934 cannot vote now to accept the IRA. Tribal communities that accepted the IRA in their 1934–6 elections and adopted a constitution at that time, however, can amend or revoke those constitutions at any time in elections organized and operated by the Secretary of the Interior.72
Boiler plate constitutions? A widely accepted idea is that the Bureau of Indian Affairs (BIA) presented the tribal communities that voted to organize under the IRA with “boilerplate” and “cookie cutter” consti- tutions and bylaws that the communities and tribal governments were nearly forced to accept as written.73 Most scholars and commentators repeat the adage that the BIA imposed constitutions and foreign polit- ical theories and governments on American Indian tribes.74 Vine Deloria, for example, reported that the BIA sent teams of anthropolo- gists and lawyers to reservations with a model constitution and imposed very similar American-style constitutions on communities that had little legal expertise. Thus, the argument is that these constitutions reflect non-Indian values and concepts of governance and intrude on traditional tribal self-government and sovereignty.75
Research has shown that Felix Cohen, considered the father of Federal Indian Law, drafted a model IRA constitution, bylaws, and an outline of points that tribes could consider including in their constitu- tions.76 Commentators allege that the BIA employees and attorneys who were sent to reservations to help tribes draft their constitutions
72 25 U.S.C. § 503; Haas, Ten Years of Tribal Government, 2, 30; 25 U.S.C. § 476(b). 73 Deloria and Lytle, American Indians, 15, 101–2. 74 J. Resnik, “Dependent Sovereigns: Indian Tribes, States, and the Federal Courts,” U.
Chi. L. Rev. 56 (1989), 672, 712; Haas, Ten Years of Tribal Government, 3; see also G. D. Taylor, The New Deal and American Indian Tribalism: The Administration of the Indian Reorganization Act, 1934–1945 (1980), 33, 97, n.11. Professor Frank Pommersheim says the top-down handiwork of the BIA and the Secretary’s overarching authority under the IRA raises questions about “the quality and authenticity of the tribal constitutions adopted pursuant to the IRA . . . . ” F. Pommersheim, “A Path Near the Clearing: An Essay on Consti- tutional Adjudication in Tribal Court,” Gonz. L. Rev. 27 (1991), 393, 396.
75 Cohen, Handbook, 86–7, 253; R. N. Clinton, C. E. Goldberg, and R. Tsosie, American Indian Law: Native Nations and the Federal System (4th ed., 2003), 38–9; Deloria and Lytle, The Nations Within, 173; Deloria and Lytle, American Indians, 15, 101; Taylor, The New Deal, xiii, 33, 96, 97, n.11; E. R. Gross, Contemporary Federal Policy toward American Indians (1989), 20.
76 Cohen, Drafting of Tribal Constitutions.
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constitution, having it approved by the Secretary of the Interior, and holding another tribal election to decide whether to adopt the constitu- tion as drafted.
In 1936, Congress extended the IRA to Alaska Natives and Okla- homa tribes. In these two states, tribal governments can still vote today whether to organize under the IRA. In other states, tribes that were federally recognized in 1934 cannot vote now to accept the IRA. Tribal communities that accepted the IRA in their 1934–6 elections and adopted a constitution at that time, however, can amend or revoke those constitutions at any time in elections organized and operated by the Secretary of the Interior.72
Boiler plate constitutions? A widely accepted idea is that the Bureau of Indian Affairs (BIA) presented the tribal communities that voted to organize under the IRA with “boilerplate” and “cookie cutter” consti- tutions and bylaws that the communities and tribal governments were nearly forced to accept as written.73 Most scholars and commentators repeat the adage that the BIA imposed constitutions and foreign polit- ical theories and governments on American Indian tribes.74 Vine Deloria, for example, reported that the BIA sent teams of anthropolo- gists and lawyers to reservations with a model constitution and imposed very similar American-style constitutions on communities that had little legal expertise. Thus, the argument is that these constitutions reflect non-Indian values and concepts of governance and intrude on traditional tribal self-government and sovereignty.75
Research has shown that Felix Cohen, considered the father of Federal Indian Law, drafted a model IRA constitution, bylaws, and an outline of points that tribes could consider including in their constitu- tions.76 Commentators allege that the BIA employees and attorneys who were sent to reservations to help tribes draft their constitutions
72 25 U.S.C. § 503; Haas, Ten Years of Tribal Government, 2, 30; 25 U.S.C. § 476(b). 73 Deloria and Lytle, American Indians, 15, 101–2. 74 J. Resnik, “Dependent Sovereigns: Indian Tribes, States, and the Federal Courts,” U.
Chi. L. Rev. 56 (1989), 672, 712; Haas, Ten Years of Tribal Government, 3; see also G. D. Taylor, The New Deal and American Indian Tribalism: The Administration of the Indian Reorganization Act, 1934–1945 (1980), 33, 97, n.11. Professor Frank Pommersheim says the top-down handiwork of the BIA and the Secretary’s overarching authority under the IRA raises questions about “the quality and authenticity of the tribal constitutions adopted pursuant to the IRA . . . . ” F. Pommersheim, “A Path Near the Clearing: An Essay on Consti- tutional Adjudication in Tribal Court,” Gonz. L. Rev. 27 (1991), 393, 396.
75 Cohen, Handbook, 86–7, 253; R. N. Clinton, C. E. Goldberg, and R. Tsosie, American Indian Law: Native Nations and the Federal System (4th ed., 2003), 38–9; Deloria and Lytle, The Nations Within, 173; Deloria and Lytle, American Indians, 15, 101; Taylor, The New Deal, xiii, 33, 96, 97, n.11; E. R. Gross, Contemporary Federal Policy toward American Indians (1989), 20.
76 Cohen, Drafting of Tribal Constitutions.
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“exerted considerable pressure and employed legally manipulative tactics to secure ratification.”77 Furthermore, it is clear that most of the IRA constitutions have identical and/or nearly identical provisions. In addition, the BIA created an entirely new role for itself by including in most, if not all, tribal IRA constitutions the requirement that the Secre- tary of the Interior approve all laws enacted by tribal governments that organized under the IRA.
In an ironic twist, the constitutions that the BIA allegedly drafted and which the Secretary approved did not contain separation of powers provisions and the checks and balances on governmental power that are in the U.S. Constitution. The IRA constitutions also did not provide for tribal judicial systems. It is frankly surprising that these elements of American constitutionalism were left out of the IRA constitutions.
However, on the other hand, some dispute the widely accepted viewpoint set out above. Several scholars disagree with the characteri- zation that boilerplate IRA constitutions were forced on tribal commu- nities. Professor Elmer Rusco has argued that because more than one-half of American Indian tribes never adopted a written constitu- tion, and because many variations exist in the IRA constitutions that tribes adopted, it is clear that tribes did not work from a boilerplate model and did not have IRA constitutions forced on them.78 More recently, Professor David Wilkins states that the “perception that the IRA, including a ‘boilerplate tribal constitution,’ was virtually imposed on nearly all Native nations” is a stereotype.79 In contrast, however, Cohen himself noted that some tribes were adopting constitutions nearly “identical with the ‘Short Form Model Constitution,’ which has been presented to and adopted by various other tribes.”80
Notwithstanding the uncertainty on that question, we can still state some relevant facts. One-third of the 258 tribal communities that held elections whether to organize under the IRA voted “no,” which is firm evidence that tribal communities exercised their sovereignty and deci- sion making in accepting or rejecting the IRA. In addition, almost one-half of the 181 tribes that initially voted “yes” to organize under the IRA ended up not adopting an IRA constitution. These situations
77 Clinton, Goldberg, and Tsosie, American Indian Law, 38–9. Some BIA officials expressed concerns that boilerplate constitutions were being forced on tribes. S. Rep. No. 78–1031 (1944), 5–6.
78 Rusco, A Fateful Time, 297, 301–2, 307 n.7; Rusco, Civil Liberties, 270; E. R. Rusco, “The Indian Reorganization Act and Indian Self-Government,” in American Indian Consti- tutional Reform and the Rebuilding of Native Nations (E. D. Lemont ed., 2006), 49, 184, 188.
79 Wilkins and Lightfoot, “Oaths of Office,” 391; Wilkins, “Introduction,” xxiii, xxv. 80 Wilkins, “Introduction,” xxvi–xxviii.
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“exerted considerable pressure and employed legally manipulative tactics to secure ratification.”77 Furthermore, it is clear that most of the IRA constitutions have identical and/or nearly identical provisions. In addition, the BIA created an entirely new role for itself by including in most, if not all, tribal IRA constitutions the requirement that the Secre- tary of the Interior approve all laws enacted by tribal governments that organized under the IRA.
In an ironic twist, the constitutions that the BIA allegedly drafted and which the Secretary approved did not contain separation of powers provisions and the checks and balances on governmental power that are in the U.S. Constitution. The IRA constitutions also did not provide for tribal judicial systems. It is frankly surprising that these elements of American constitutionalism were left out of the IRA constitutions.
However, on the other hand, some dispute the widely accepted viewpoint set out above. Several scholars disagree with the characteri- zation that boilerplate IRA constitutions were forced on tribal commu- nities. Professor Elmer Rusco has argued that because more than one-half of American Indian tribes never adopted a written constitu- tion, and because many variations exist in the IRA constitutions that tribes adopted, it is clear that tribes did not work from a boilerplate model and did not have IRA constitutions forced on them.78 More recently, Professor David Wilkins states that the “perception that the IRA, including a ‘boilerplate tribal constitution,’ was virtually imposed on nearly all Native nations” is a stereotype.79 In contrast, however, Cohen himself noted that some tribes were adopting constitutions nearly “identical with the ‘Short Form Model Constitution,’ which has been presented to and adopted by various other tribes.”80
Notwithstanding the uncertainty on that question, we can still state some relevant facts. One-third of the 258 tribal communities that held elections whether to organize under the IRA voted “no,” which is firm evidence that tribal communities exercised their sovereignty and deci- sion making in accepting or rejecting the IRA. In addition, almost one-half of the 181 tribes that initially voted “yes” to organize under the IRA ended up not adopting an IRA constitution. These situations
77 Clinton, Goldberg, and Tsosie, American Indian Law, 38–9. Some BIA officials expressed concerns that boilerplate constitutions were being forced on tribes. S. Rep. No. 78–1031 (1944), 5–6.
78 Rusco, A Fateful Time, 297, 301–2, 307 n.7; Rusco, Civil Liberties, 270; E. R. Rusco, “The Indian Reorganization Act and Indian Self-Government,” in American Indian Consti- tutional Reform and the Rebuilding of Native Nations (E. D. Lemont ed., 2006), 49, 184, 188.
79 Wilkins and Lightfoot, “Oaths of Office,” 391; Wilkins, “Introduction,” xxiii, xxv. 80 Wilkins, “Introduction,” xxvi–xxviii.
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are evidence of tribal-specific decision making and the exercise of self-government.81
Provide tribal communities with necessary governmental powers? A very relevant question concerning modern-day tribal constitution- alism is whether the extant constitutions adequately help tribal govern- ments and communities develop the tools and powers they need to exercise governance and sovereign powers.
The answer may be “yes” because tribal communities that voted for or against the IRA, as well as those who then engaged in constitu- tion drafting and voted on those draft constitutions, were exercising self-governance and sovereignty. Even if the BIA provided model consti- tutions to tribes, those tribal communities were involved in thinking about their governments and whether to write and adopt constitutions to organize and operate such governments. One commentator noted this point: “[T]he mere act of organizing to write an organic instru- ment in the form of a constitution may have been a stimulus for more effective government . . . .”82
In addition, Congress clearly intended the IRA to increase tribal governmental powers by lessening the paternalistic powers and stran- glehold that the BIA exerted over tribal governments. The legislative history demonstrates that the IRA was an express congressional attempt to limit the boundless discretion of the BIA and Department of Interior and give Indians a chance at real self-government.83 In addi- tion, Congress affirmed tribal powers of inherent sovereignty, recog- nized some new tribal powers, and ratified, in essence, all of the tribal powers that had been recognized by court cases up to 1934.84 One scholar notes that Congress “makes it clear that the legal theory behind the IRA is that Native American governments established under its authority exercise aboriginal authority not withheld from them.”85
In contrast, however, it can also be argued that the IRA did not provide the tools and powers that tribes need to govern effectively. First, there is the glaring omission of a separation-of-powers provision between the governmental branches. The U.S. Constitution, pre-1934 tribal constitutions, and traditional Indigenous governments in North America carefully separated governing powers between different branches and created checks and balances on too much power
81 Taylor, The New Deal, 33, 97, n.11; Deloria and Lytle, The Nations Within, 172–7. 82 “Tribal Self-Government and the Indian Reorganization Act of 1934,” Mich. L. Rev.
70 (1971), 955, 972–3. 83 Id., 966–8. 84 25 U.S.C. § 476(e); accord Rusco, A Fateful Time, 262–4, 271, 281; Deloria and Lytle,
The Nations Within, 142, 158–9. 85 Tribal Constitutions: Their Past—Their Future (James J. Lopach, et al. eds., 1978), 12.
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48 robert j. miller
are evidence of tribal-specific decision making and the exercise of self-government.81
Provide tribal communities with necessary governmental powers? A very relevant question concerning modern-day tribal constitution- alism is whether the extant constitutions adequately help tribal govern- ments and communities develop the tools and powers they need to exercise governance and sovereign powers.
The answer may be “yes” because tribal communities that voted for or against the IRA, as well as those who then engaged in constitu- tion drafting and voted on those draft constitutions, were exercising self-governance and sovereignty. Even if the BIA provided model consti- tutions to tribes, those tribal communities were involved in thinking about their governments and whether to write and adopt constitutions to organize and operate such governments. One commentator noted this point: “[T]he mere act of organizing to write an organic instru- ment in the form of a constitution may have been a stimulus for more effective government . . . .”82
In addition, Congress clearly intended the IRA to increase tribal governmental powers by lessening the paternalistic powers and stran- glehold that the BIA exerted over tribal governments. The legislative history demonstrates that the IRA was an express congressional attempt to limit the boundless discretion of the BIA and Department of Interior and give Indians a chance at real self-government.83 In addi- tion, Congress affirmed tribal powers of inherent sovereignty, recog- nized some new tribal powers, and ratified, in essence, all of the tribal powers that had been recognized by court cases up to 1934.84 One scholar notes that Congress “makes it clear that the legal theory behind the IRA is that Native American governments established under its authority exercise aboriginal authority not withheld from them.”85
In contrast, however, it can also be argued that the IRA did not provide the tools and powers that tribes need to govern effectively. First, there is the glaring omission of a separation-of-powers provision between the governmental branches. The U.S. Constitution, pre-1934 tribal constitutions, and traditional Indigenous governments in North America carefully separated governing powers between different branches and created checks and balances on too much power
81 Taylor, The New Deal, 33, 97, n.11; Deloria and Lytle, The Nations Within, 172–7. 82 “Tribal Self-Government and the Indian Reorganization Act of 1934,” Mich. L. Rev.
70 (1971), 955, 972–3. 83 Id., 966–8. 84 25 U.S.C. § 476(e); accord Rusco, A Fateful Time, 262–4, 271, 281; Deloria and Lytle,
The Nations Within, 142, 158–9. 85 Tribal Constitutions: Their Past—Their Future (James J. Lopach, et al. eds., 1978), 12.
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accumulating in just one leader or branch. However in the BIA model, as well as the IRA constitutions that most tribes started adopting in 1934, tribal councils were the executive and legislative branches and were even sometimes part of the judicial branch. Furthermore, inexpli- cably, the IRA constitutions failed completely to provide for tribal court systems.
Second, the IRA did not accomplish Congress’ goal of lessening the power of the BIA and the Department of the Interior over tribal nations. That failure must be blamed on the BIA and the Interior. Amer- ican Indian tribes are still fighting today to free themselves of the pater- nalistic BIA. As noted by the U.S. Supreme Court, the BIA slipped into all or almost all of the IRA constitutions a provision that the Secretary of the Interior had to approve all tribally enacted laws. Moreover, commentators and studies show that the one-branch governments created under IRA constitutions were often easily controlled by the BIA and that the BIA approved almost every tribal governmental deci- sion. Deloria wrote that the IRA provisions for secretarial approvals of constitutions, bylaws, hiring of attorneys, and tribal laws became, in effect, a veto power over tribal activities.86
Finally, to the extent that IRA constitutions limited or infringed on traditional tribal governance systems, the IRA failed to help Indian communities develop and exercise the tools and powers needed to exer- cise their sovereignty.
Amending Tribal Constitutions
Today, tribal communities use several methods to organize and operate their governments. Dozens of tribes have adopted constitutions pursuant to the IRA, and many other tribes have adopted non-IRA constitutions. Other hundreds of tribal governments have chosen to operate without constitutions and instead rely on their traditional legal customs and modern-day codified laws to operate their governments.87
In one sense, all tribes operate pursuant to “modern-day” constitutions no matter how old their constitution may be because the written and unwritten constitutions, as well as the IRA and non-IRA
86 25 U.S.C. § 476(b)-(d); Cohen, Handbook, 253 (citing Duane Champagne, Stephen Cornell, and Joseph Kalt); “Tribal Self-Government,” 972, 976–7; Deloria and Lytle, Amer- ican Indians, 102; R. J. Miller, “Economic Development in Indian Country: Will Capitalism or Socialism Succeed?” Ore. L. Rev. 80 (2001), 757, 821–3.
87 A. R. Riley, “Good (Native) Governance,” Colum. L. Rev. 107 (2007), 1049, 1082; J. Kalt, “Constitutional Rule and the Effective Governance of Native Nations,” in American Indian Constitutional Reform and the Rebuilding of Native Nations (Eric D. Lemont ed., 2006), 184, 188.
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accumulating in just one leader or branch. However in the BIA model, as well as the IRA constitutions that most tribes started adopting in 1934, tribal councils were the executive and legislative branches and were even sometimes part of the judicial branch. Furthermore, inexpli- cably, the IRA constitutions failed completely to provide for tribal court systems.
Second, the IRA did not accomplish Congress’ goal of lessening the power of the BIA and the Department of the Interior over tribal nations. That failure must be blamed on the BIA and the Interior. Amer- ican Indian tribes are still fighting today to free themselves of the pater- nalistic BIA. As noted by the U.S. Supreme Court, the BIA slipped into all or almost all of the IRA constitutions a provision that the Secretary of the Interior had to approve all tribally enacted laws. Moreover, commentators and studies show that the one-branch governments created under IRA constitutions were often easily controlled by the BIA and that the BIA approved almost every tribal governmental deci- sion. Deloria wrote that the IRA provisions for secretarial approvals of constitutions, bylaws, hiring of attorneys, and tribal laws became, in effect, a veto power over tribal activities.86
Finally, to the extent that IRA constitutions limited or infringed on traditional tribal governance systems, the IRA failed to help Indian communities develop and exercise the tools and powers needed to exer- cise their sovereignty.
Amending Tribal Constitutions
Today, tribal communities use several methods to organize and operate their governments. Dozens of tribes have adopted constitutions pursuant to the IRA, and many other tribes have adopted non-IRA constitutions. Other hundreds of tribal governments have chosen to operate without constitutions and instead rely on their traditional legal customs and modern-day codified laws to operate their governments.87
In one sense, all tribes operate pursuant to “modern-day” constitutions no matter how old their constitution may be because the written and unwritten constitutions, as well as the IRA and non-IRA
86 25 U.S.C. § 476(b)-(d); Cohen, Handbook, 253 (citing Duane Champagne, Stephen Cornell, and Joseph Kalt); “Tribal Self-Government,” 972, 976–7; Deloria and Lytle, Amer- ican Indians, 102; R. J. Miller, “Economic Development in Indian Country: Will Capitalism or Socialism Succeed?” Ore. L. Rev. 80 (2001), 757, 821–3.
87 A. R. Riley, “Good (Native) Governance,” Colum. L. Rev. 107 (2007), 1049, 1082; J. Kalt, “Constitutional Rule and the Effective Governance of Native Nations,” in American Indian Constitutional Reform and the Rebuilding of Native Nations (Eric D. Lemont ed., 2006), 184, 188.
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50 robert j. miller
constitutions that tribes use today, are the methods that these tribal communities are using in the modern-day to govern themselves. If tribal communities choose not to amend their current governing documents, they have then acquiesced to whatever form of government and constitution they have in place.
Tribal communities and governments have shown that they are capable of amending their constitutions and making them more respon- sive to traditional tribal structures and their needs and issues. Several tribal communities have held constitutional conventions to address perceived problems in their constitutions. The only apparent limitation on the sovereign right of tribal communities to engage in amending or even revoking IRA constitutions is that the Secretary of the Interior has to organize, operate, and verify any election held to amend or revoke an IRA constitution. Many dozens of IRA tribes have already success- fully amended their IRA constitutions, and at least three tribes have completely revoked them.88
The elimination of the provision that the Secretary has to approve all tribally enacted laws has become a favorite amendment to make to the IRA constitutions. As Professor Robert Porter stated, after these amendments, tribes clearly have more “autonomous constitutional governments.”89
Many tribes have also corrected the absence of separation of powers and tribal court provisions. Some tribal communities and governments did this by statutory fixes and court decisions, but many others have chosen to amend their constitutions to provide these important governing principles with constitutional authority.90
Other tribal communities have undertaken major amendment efforts, including organizing conventions and other intensive efforts to amend their constitutions. The Cherokee Nation of Oklahoma, for example, held its third constitutional convention in February 1999, when 79 citizens/delegates met for a 9-day convention.91 Several other tribes have also used effective processes for amending their constitutions, including the Rosebud Sioux Tribe, Hualapai Nation, and Northern Cheyenne Tribe. In 1991, the Hualapais used a non-profit organization and 25 tribal volunteers to hold monthly meetings, lead discussions, and draft proposed amendments to their 1935 IRA
88 25 U.S.C. § 476(a)-(c); 25 C.F.R. § 81.4, 81.7, 81.24; Clinton, Goldberg, and Tsosie, American Indian Law, 310.
89 Cohen, Handbook, 254, 256; Porter, “Strengthening Tribal Sovereignty,” 76. 90 Cohen, Handbook, 254, 259–60, 277–8; S. Cornell, and J. Kalt, “Sovereignty and
Nation-Building: The Development Challenge in Indian Country Today,” Am. Indian Culture & Research J. 22 (1999), 187.
91 E. Lemont, “Overcoming the Politics of Reform: The Story of the Cherokee Nation of Oklahoma Constitutional Convention,” Am. Indian L. Rev. 28 (2003), 1, 2.
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50 robert j. miller
constitutions that tribes use today, are the methods that these tribal communities are using in the modern-day to govern themselves. If tribal communities choose not to amend their current governing documents, they have then acquiesced to whatever form of government and constitution they have in place.
Tribal communities and governments have shown that they are capable of amending their constitutions and making them more respon- sive to traditional tribal structures and their needs and issues. Several tribal communities have held constitutional conventions to address perceived problems in their constitutions. The only apparent limitation on the sovereign right of tribal communities to engage in amending or even revoking IRA constitutions is that the Secretary of the Interior has to organize, operate, and verify any election held to amend or revoke an IRA constitution. Many dozens of IRA tribes have already success- fully amended their IRA constitutions, and at least three tribes have completely revoked them.88
The elimination of the provision that the Secretary has to approve all tribally enacted laws has become a favorite amendment to make to the IRA constitutions. As Professor Robert Porter stated, after these amendments, tribes clearly have more “autonomous constitutional governments.”89
Many tribes have also corrected the absence of separation of powers and tribal court provisions. Some tribal communities and governments did this by statutory fixes and court decisions, but many others have chosen to amend their constitutions to provide these important governing principles with constitutional authority.90
Other tribal communities have undertaken major amendment efforts, including organizing conventions and other intensive efforts to amend their constitutions. The Cherokee Nation of Oklahoma, for example, held its third constitutional convention in February 1999, when 79 citizens/delegates met for a 9-day convention.91 Several other tribes have also used effective processes for amending their constitutions, including the Rosebud Sioux Tribe, Hualapai Nation, and Northern Cheyenne Tribe. In 1991, the Hualapais used a non-profit organization and 25 tribal volunteers to hold monthly meetings, lead discussions, and draft proposed amendments to their 1935 IRA
88 25 U.S.C. § 476(a)-(c); 25 C.F.R. § 81.4, 81.7, 81.24; Clinton, Goldberg, and Tsosie, American Indian Law, 310.
89 Cohen, Handbook, 254, 256; Porter, “Strengthening Tribal Sovereignty,” 76. 90 Cohen, Handbook, 254, 259–60, 277–8; S. Cornell, and J. Kalt, “Sovereignty and
Nation-Building: The Development Challenge in Indian Country Today,” Am. Indian Culture & Research J. 22 (1999), 187.
91 E. Lemont, “Overcoming the Politics of Reform: The Story of the Cherokee Nation of Oklahoma Constitutional Convention,” Am. Indian L. Rev. 28 (2003), 1, 2.
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american indian constitutions 51
constitution. The tribal electorate then approved an amended constitution in 1991. Similarly, the Northern Cheyenne Tribe secured a federal grant in 1991 to organize a reform effort, and appointees and volunteers began working with the tribal attorney to review the Tribe’s 1935 IRA constitution. This committee met for more than 15 months, and conducted surveys and public meetings to engage tribal citizens. In 1996, the electorate approved three major constitutional amendments, reorganizing the tribal council, creating governmental separation of powers, and establishing an ethics code. In addition, in 1966, the Rosebud Sioux Tribe amended its IRA constitution to add a Bill of Rights, and in 1985, amended it again to remove the Secretary’s approval power over tribal ordinances.92
Furthermore, even tribes without written constitutions can engage in “constitutional” amendments and change the principles that govern their reservations and people. In 2009–10, the citizens of the Navajo Nation made major amendments to their unwritten constitution. Because they do not have a written constitution, the people changed their government by a referendum vote. On 2009 December 15, the Navajo voted 25,206 to 16,166 to reduce the size of their legislative tribal council from 88 members to 24. They also voted 24,489 to 16,893 to grant the Navajo president a line-item veto power over the Nation’s annual budget.93
Comparative Analysis of Tribal Constitutions
As already mentioned, the tribal constitutions currently in place define the parameters of modern-day tribal constitutionalism. A close exam- ination of these constitutions demonstrates the different powers that tribal governments exercise under their constitutions and the different ways in which tribal communities have chosen to create, organize, and control their governments. In the Figure, I analyze 28 tribal constitu- tions from large and small tribes. Several important and interesting points are made abundantly clear by this analysis.
92 E. Lemont, “Developing Effective Processes of American Indian Constitutional and Governmental Reform: Lessons from the Cherokee Nation of Oklahoma, Hualapai Nation, Navajo Nation, and Northern Cheyenne Tribe,” Am. Indian L. Rev. 26 (2001), 147, 158–62; Pommersheim, “A Path near the Clearing,” 74, 393.
93 “Direct Democracy: The Tyranny of the Majority,” The Economist, (2009 December 19), 47–4, accessed at http://www.economist.com/node/15127600; “Navajos Vote to Reduce Council, Line Item Veto, for Dec. 2015,” Navajo.org (last accessed by author on 14 May 2010); “Navajos Vote on Reducing Council,” The Durango Herald (last accessed by author on 14 May 2010). Accord Nelson v. Initiative Committee to Reduce Navajo Nation Council, No. SC-CV-03-10, at 4 (Navajo Nation Supreme Court, 28 May 2010). Reprinted at https:// turtletalk.files.wordpress.com/2010/05/nnsc-initiative-committee-to-reduce-council.pdf (last accessed by author 22 May 2015).
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american indian constitutions 51
constitution. The tribal electorate then approved an amended constitution in 1991. Similarly, the Northern Cheyenne Tribe secured a federal grant in 1991 to organize a reform effort, and appointees and volunteers began working with the tribal attorney to review the Tribe’s 1935 IRA constitution. This committee met for more than 15 months, and conducted surveys and public meetings to engage tribal citizens. In 1996, the electorate approved three major constitutional amendments, reorganizing the tribal council, creating governmental separation of powers, and establishing an ethics code. In addition, in 1966, the Rosebud Sioux Tribe amended its IRA constitution to add a Bill of Rights, and in 1985, amended it again to remove the Secretary’s approval power over tribal ordinances.92
Furthermore, even tribes without written constitutions can engage in “constitutional” amendments and change the principles that govern their reservations and people. In 2009–10, the citizens of the Navajo Nation made major amendments to their unwritten constitution. Because they do not have a written constitution, the people changed their government by a referendum vote. On 2009 December 15, the Navajo voted 25,206 to 16,166 to reduce the size of their legislative tribal council from 88 members to 24. They also voted 24,489 to 16,893 to grant the Navajo president a line-item veto power over the Nation’s annual budget.93
Comparative Analysis of Tribal Constitutions
As already mentioned, the tribal constitutions currently in place define the parameters of modern-day tribal constitutionalism. A close exam- ination of these constitutions demonstrates the different powers that tribal governments exercise under their constitutions and the different ways in which tribal communities have chosen to create, organize, and control their governments. In the Figure, I analyze 28 tribal constitu- tions from large and small tribes. Several important and interesting points are made abundantly clear by this analysis.
92 E. Lemont, “Developing Effective Processes of American Indian Constitutional and Governmental Reform: Lessons from the Cherokee Nation of Oklahoma, Hualapai Nation, Navajo Nation, and Northern Cheyenne Tribe,” Am. Indian L. Rev. 26 (2001), 147, 158–62; Pommersheim, “A Path near the Clearing,” 74, 393.
93 “Direct Democracy: The Tyranny of the Majority,” The Economist, (2009 December 19), 47–4, accessed at http://www.economist.com/node/15127600; “Navajos Vote to Reduce Council, Line Item Veto, for Dec. 2015,” Navajo.org (last accessed by author on 14 May 2010); “Navajos Vote on Reducing Council,” The Durango Herald (last accessed by author on 14 May 2010). Accord Nelson v. Initiative Committee to Reduce Navajo Nation Council, No. SC-CV-03-10, at 4 (Navajo Nation Supreme Court, 28 May 2010). Reprinted at https:// turtletalk.files.wordpress.com/2010/05/nnsc-initiative-committee-to-reduce-council.pdf (last accessed by author 22 May 2015).
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52 robert j. miller
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52 robert j. miller
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american indian constitutions 53
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american indian constitutions 53
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54 robert j. miller
First, the majority of tribal constitutions were drafted and ratified under the IRA. Only a bare majority of these tribal communities, however, have so far amended their IRA constitutions to delete the Secretary’s authority over tribal laws. Second, these tribes have various methods for determining tribal citizenship, which is to be expected because citizenship requirements are community-specific decisions based on disparate tribal histories and cultures. Third, a wide disparity exists in the presence and definition of separation of powers. Fourth, some tribes have amended their constitutions multiple times, whereas several tribes have never done so. Fifth, I was surprised to see that tribal courts are not provided for in the constitutions of eight of the 28 tribes. Sixth, and most surprising to me, is how few communities have placed provisions in their constitutions to protect cultural issues. Seventh, I was surprised at the variety in the power of tribal citizens to recall elected leaders and vote on initiative or referendum measures. On the other hand, eighth, I was not surprised at all by the nearly unanimous limitations on tribal councils selling tribal lands without a vote of all tribal voters. Ninth, I was surprised to see the frequent use of voting districts on reservations in which the tribal electorate votes for a representative to the tribal council based on the district of the reservation where they live and do not vote for all tribal council members at large. Tenth, I was not surprised by the recognition of a Bill of Rights in the majority of the constitutions. And, eleventh, I was a little surprised that these constitutions do not provide or define more exactly the powers of the general council (i.e., all the voters of the tribes). (Perhaps like the 9th and 10th Amendments of the U.S. Consti- tution, it is assumed that powers not specifically granted to the tribal council are to remain with the people?)
Finally, it is not surprising that these tribal constitutions are quite similar. Some of these similarities may result from the IRA and the alleged efforts of the BIA to create standardized constitutions, and part of it is probably due to tribal communities borrowing sample constitu- tions from other tribes. However, in addition, there is probably a finite world of provisions that constitutions can address. It is also axiomatic that constitutions are designed primarily to set forth general statements of the powers that a specific group of people, the body politic, grants to the government being created or reorganized. One reason for that is to allow some latitude and flexibility for governments to develop over time the exact parameters of those powers. The United States and deci- sions of the U.S. Supreme Court are examples of the application of that kind of constitution. On the other hand, many modern constitutions adopted in Central and South America are very specific and run to
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54 robert j. miller
First, the majority of tribal constitutions were drafted and ratified under the IRA. Only a bare majority of these tribal communities, however, have so far amended their IRA constitutions to delete the Secretary’s authority over tribal laws. Second, these tribes have various methods for determining tribal citizenship, which is to be expected because citizenship requirements are community-specific decisions based on disparate tribal histories and cultures. Third, a wide disparity exists in the presence and definition of separation of powers. Fourth, some tribes have amended their constitutions multiple times, whereas several tribes have never done so. Fifth, I was surprised to see that tribal courts are not provided for in the constitutions of eight of the 28 tribes. Sixth, and most surprising to me, is how few communities have placed provisions in their constitutions to protect cultural issues. Seventh, I was surprised at the variety in the power of tribal citizens to recall elected leaders and vote on initiative or referendum measures. On the other hand, eighth, I was not surprised at all by the nearly unanimous limitations on tribal councils selling tribal lands without a vote of all tribal voters. Ninth, I was surprised to see the frequent use of voting districts on reservations in which the tribal electorate votes for a representative to the tribal council based on the district of the reservation where they live and do not vote for all tribal council members at large. Tenth, I was not surprised by the recognition of a Bill of Rights in the majority of the constitutions. And, eleventh, I was a little surprised that these constitutions do not provide or define more exactly the powers of the general council (i.e., all the voters of the tribes). (Perhaps like the 9th and 10th Amendments of the U.S. Consti- tution, it is assumed that powers not specifically granted to the tribal council are to remain with the people?)
Finally, it is not surprising that these tribal constitutions are quite similar. Some of these similarities may result from the IRA and the alleged efforts of the BIA to create standardized constitutions, and part of it is probably due to tribal communities borrowing sample constitu- tions from other tribes. However, in addition, there is probably a finite world of provisions that constitutions can address. It is also axiomatic that constitutions are designed primarily to set forth general statements of the powers that a specific group of people, the body politic, grants to the government being created or reorganized. One reason for that is to allow some latitude and flexibility for governments to develop over time the exact parameters of those powers. The United States and deci- sions of the U.S. Supreme Court are examples of the application of that kind of constitution. On the other hand, many modern constitutions adopted in Central and South America are very specific and run to
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hundreds of clauses. Some argue that these constitutions are written with too much specificity.
Tribal communities are faced with the same question of how narrowly or broadly to define their government’s powers. How much does a tribal community want to trust and empower their present and future leadership? How closely were leaders monitored and controlled in their traditional and historic governance systems? What sorts of decisions should be reserved for the entire adult population (the general council), as opposed to being made by the legislature, the tribal council, or the executive branch? These are questions for tribal communities to consider when creating or amending their constitutions and exercising and protecting their sovereignty.
The hundreds of American Indian nations that do not have written constitutions face these same questions. Do tribal communities without a constitution want or need to create one? Without a constitution, tribal leaders operate perhaps with more freedom and power than tribal governments that are restricted by specific constitutional limita- tions. Without these limitations, and independent court systems, there is a risk that tribal leadership may be tempted to exceed the authority that tribal history and culture would ordinarily allow. Perhaps such communities would be better off protecting their sovereignty by defining more exactly what they expect of tribal leaders and limiting some of the powers of their leaders and governmental bodies.
Conclusion
Some of the most basic rights that citizens can possibly possess are (a) deciding how to govern themselves and (b) choosing how to organize and control their political institutions. For many centuries, American Indians organized their societies and cultures under democratic governing principles that helped protect their important values and sovereignty. Tribal communities continue to be interested in preserving their cultural and political values and directing and deciding their own futures. As the Navajo Nation Supreme Court stated, the Nation must develop its own legal system because the “concept of justice has its source in the fabric of each individual society.”94
At the same time, however, different societies and political systems can learn from each other. In fact, the evidence demonstrates that America’s Founding Fathers studied and were influenced by indigenous political theories and tribal governments, and that the U.S. Constitution reflects such influence. Historians, political scientists, and American
94 In re: “Validation of Marriage of Francisco,” 6 Navajo Rptr 134, 16 Ind. L. Rep. 6113 (1989).
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american indian constitutions 55
hundreds of clauses. Some argue that these constitutions are written with too much specificity.
Tribal communities are faced with the same question of how narrowly or broadly to define their government’s powers. How much does a tribal community want to trust and empower their present and future leadership? How closely were leaders monitored and controlled in their traditional and historic governance systems? What sorts of decisions should be reserved for the entire adult population (the general council), as opposed to being made by the legislature, the tribal council, or the executive branch? These are questions for tribal communities to consider when creating or amending their constitutions and exercising and protecting their sovereignty.
The hundreds of American Indian nations that do not have written constitutions face these same questions. Do tribal communities without a constitution want or need to create one? Without a constitution, tribal leaders operate perhaps with more freedom and power than tribal governments that are restricted by specific constitutional limita- tions. Without these limitations, and independent court systems, there is a risk that tribal leadership may be tempted to exceed the authority that tribal history and culture would ordinarily allow. Perhaps such communities would be better off protecting their sovereignty by defining more exactly what they expect of tribal leaders and limiting some of the powers of their leaders and governmental bodies.
Conclusion
Some of the most basic rights that citizens can possibly possess are (a) deciding how to govern themselves and (b) choosing how to organize and control their political institutions. For many centuries, American Indians organized their societies and cultures under democratic governing principles that helped protect their important values and sovereignty. Tribal communities continue to be interested in preserving their cultural and political values and directing and deciding their own futures. As the Navajo Nation Supreme Court stated, the Nation must develop its own legal system because the “concept of justice has its source in the fabric of each individual society.”94
At the same time, however, different societies and political systems can learn from each other. In fact, the evidence demonstrates that America’s Founding Fathers studied and were influenced by indigenous political theories and tribal governments, and that the U.S. Constitution reflects such influence. Historians, political scientists, and American
94 In re: “Validation of Marriage of Francisco,” 6 Navajo Rptr 134, 16 Ind. L. Rep. 6113 (1989).
miller_32_56_1p.indd 55 12/27/15 9:59 AM
56 robert j. miller
society should not ignore the political and governmental principles that were learned from Indian societies in the past, nor should they ignore that America can continue to learn from the modern-day political efforts and practices of tribal communities.
Acknowledgments
I thank Eric Sheets, Lewis & Clark Law School student, for his assistance in 2009–10 in compiling and analyzing 28 tribal constitutions presented earlier in a figure in this paper.
miller_32_56_1p.indd 56 12/27/15 9:59 AM
56 robert j. miller
society should not ignore the political and governmental principles that were learned from Indian societies in the past, nor should they ignore that America can continue to learn from the modern-day political efforts and practices of tribal communities.
Acknowledgments
I thank Eric Sheets, Lewis & Clark Law School student, for his assistance in 2009–10 in compiling and analyzing 28 tribal constitutions presented earlier in a figure in this paper.
miller_32_56_1p.indd 56 12/27/15 9:59 AM
Stop Saying This Is a Nation of Immigrants!
Roxanne Dunbar-Ortiz
A nation of immigrants: This is a convenient myth developed as a response to the 1960s move- ments against colonialism, neocolonialism, and white supremacy. The ruling class and its brain trust offered multiculturalism, diversity, and affirmative action in response to demands for decol- onization, justice, reparations, social equality, an end of imperialism, and the rewriting of history — not to be “inclusive” — but to be accurate. What emerged to replace the liberal melting pot idea and the nationalist triumphal interpretation of the “greatest country on earth and in history,” was the “nation of immigrants” story.
By the 1980s, the “waves of immigrants” story even included the indigenous peoples who were so brutally displaced and murdered by settlers and armies, accepting the flawed “Bering Straits” theory of indigenous immigration some 12,000 years ago. Even at that time, the date was known to be wrong, there was evidence of indigenous presence in the Americas as far back as 50,000 years ago, and probably much longer, and entrance by many means across the Pacific and the Atlantic — perhaps, as Vine Deloria jr. put it, footsteps by indigenous Americans to other conti- nents will one day be acknowledged. But, the new official history texts claimed, the indigenous peoples were the “first immigrants.” They were followed, it was said, by immigrants from Eng- land and Africans, then by Irish, and then by Chinese, Eastern and Southern Europeans, Russians, Japanese, and Mexicans. There were some objections from African Americans to referring to en- slaved Africans hauled across the ocean in chains as “immigrants,” but that has not deterred the “nation of immigrants” chorus.
Misrepresenting the process of European colonization of North America, making everyone an immigrant, serves to preserve the “official story” of a mostly benign and benevolent USA, and to mask the fact that the pre-US independence settlers, were, well, settlers, colonial setters, just as they were in Africa and India, or the Spanish in Central and South America. The United States was founded as a settler state, and an imperialistic one from its inception (“manifest destiny,” of course). The settlers were English, Welsh, Scots, Scots-Irish, and German, not including the huge number of Africans who were not settlers. Another group of Europeans who arrived in the colonies also were not settlers or immigrants: the poor, indentured, convicted, criminalized, kidnapped from the working class (vagabonds and unemployed artificers), as Peter Linebaugh puts it, many of who opted to join indigenous communities.
Only beginning in the 1840s, with the influx of millions of Irish Catholics pushed out of Ireland by British policies, did what might be called “immigration” begin. The Irish were discriminated
against cheap labor, not settlers. They were followed by the influx of other workers from Scan- dinavia, Eastern and Southern Europe, always more Irish, plus Chinese and Japanese, although Asian immigration was soon barred. Immigration laws were not even enacted until 1875 when the US Supreme Court declared the regulation of immigration a federal responsibility. The Immi- gration Service was established in 1891.
Buried beneath the tons of propaganda — from the landing of the English “pilgrims” (fanatic Protestant Christian evangelicals) to James Fennimore Cooper’s phenomenally popular “Last of the Mohicans” claiming “natural rights” to not only the indigenous peoples territories but also to the territories claimed by other European powers — is the fact that the founding of the United States was a division of the Anglo empire, with the US becoming a parallel empire to Great Britain. From day one, as was specified in the Northwest Ordinance that preceded the US Constitution, the new republic for empire (as Jefferson called the US) envisioned the future shape of what is now the lower 48 states of the US. They drew up rough maps, specifying the first territory to conquer as the “Northwest Territory,” ergo the title of the ordinance. That territory was the Ohio Valley and the Great Lakes region, which was filled with indigenous farming communities.
Once the conquest of the “Northwest Territory” was accomplished through a combination of genocidal military campaigns and bringing in European settlers from the east, and the indige- nous peoples moved south and north for protection into other indigenous territories, the republic for empire annexed Spanish Florida where runaway enslaved Africans and remnants of the in- digenous communities that had escaped the Ohio carnage fought back during three major wars (Seminole wars) over two decades. In 1828, President Andrew Jackson1 (who had been a general leading the Seminole wars) pushed through the Indian Removal Act to force all the agricultural indigenous nations of the Southeast, from Georgia to the Mississippi River, to transfer to Ok- lahoma territory that had been gained through the “Louisiana Purchase”2 from France. Anglo settlers with enslaved Africans seized the indigenous agricultural lands for plantation agricul- ture in the Southern region. Many moved on into the Mexican province of Texas — then came the US military invasion of Mexico in 1846, seizing Mexico City and forcing Mexico to give up its northern half through the 1848 Treaty of Guadalupe Hidalgo. California, Arizona, New Mexico, Colorado, Utah, Texas were then opened to “legal” Anglo settlement, also legalizing those who had already settled illegally, and in Texas by force. The indigenous and the poor Mexican commu- nities in the seized territory, such as the Apache, Navajo, and Comanche, resisted colonization, as they had resisted the Spanish empire, often by force of arms, for the next 40 years. The small class of Hispanic elites welcomed and collaborated with US occupation.
Are “immigrants” the appropriate designation for the indigenous peoples of North America? No.
Are “immigrants” the appropriate designation for enslaved Africans? No. Are “immigrants” the appropriate designation for the original European settlers? No. Are “immigrants” the appropriate designation for Mexicans who migrate for work to the
United States? No. They are migrant workers crossing a border created by US military force. Many crossing that border now are also from Central America, from the small countries that were ravaged by US military intervention in the 1980s and who also have the right to make demands on the United States.
1www.ourdocuments.gov 2www.historycooperative.org
2
So, let’s stop saying “this is a nation of immigrants.”
* * *
Roxanne Dunbar-Ortiz is a long-time activist, university professor, and writer. In addition to nu- merous scholarly books and articles, she has written three historical memoirs, Red Dirt: Growing Up Okie (Verso, 1997), Outlaw Woman: Memoir of the War Years, 1960–1975 (City Lights, 2002), and Blood on the Border: A Memoir of the Contra War (South End Press, 2005) about the 1980s contra war against the Sandinistas.
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Roxanne Dunbar-Ortiz Stop Saying This Is a Nation of Immigrants!
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