Tuesday, September 29, 2015

Governance without representation

michael9/27/2015 4:01 PM 
There was a time and I know you know this well that the Constitution was purposefully written with exclusions in mind and quite frankly purposefully in my view. Women and blacks and Indians were probably foremost in their reasoning. These framers faced with the reality of their time were highly intelligent men whose lives were at stake. 

That raises many significant issues:

i) To my knowledge, the original Constitution+10 bill of rights does not exclude women. It uses generic language like "persons" and "citizens." So women were covered by the bill of rights. 

Indeed, there's nothing in the wording of the Constitution to exclude women from running for national office. That might have been inconceivable to the founding fathers, but for that very reason, it didn't occur to them to forbid it. By the same token, the wording of the Constitution doesn't prohibit blacks from running for national office. That's even before the 14th & 19th amendments.

ii) It's true that the original Constitution makes some minimal, grudging concessions to slavery. But even in Colonial times, there was a distinction between black slaves and black freemen. 

iii) The legal/Constitutional status of American Indians is the most historically complex. 

a) One point of tension was whether Indians were viewed as American citizens or tribal citizens. Were they viewed as citizens of a colony/state, and/or United States, or were Indian tribes viewed as sovereign states, to which Indians belonged?

Nowadays, I believe American Indians have the equivalent of dual citizenship: both American citizens and citizens of their own "nation" (i.e. tribe).

b) From what I've read, during Colonial American history, white settlers treated Indian tribes like sovereign states. White officials entered into formal diplomatic negotiations with Indian tribes, often resulting in treaties. And that's codified in the original Constitution, under the Commerce Clause ( Article I, Section 8, Clause 3).

In Colonial America, the balance of power between Indians and white settlers was more egalitarian inasmuch as some Indian tribes were militarily formidable. At that time they could bargain from a position of strength. However, as the US army began to achieve military dominate, the balance of power shifted. 

You still had treaties, but these were signed at gunpoint. Given the futility of military engagement, it was a kind of preemptive surrender to sue for terms of peace under terms more favorable to Indians than if they fought and lost. These are coercive treaties. 

c) From what I've read, the 14th amendment excluded most Indians from US citizenship. 

d) There was always tension between the Christian view of Indians and competition for land and natural resources.

Christian missionaries viewed the Indians as sons of Adam. Although they were heathen, the ancestors of the white settlers were no less heathen until missionaries evangelized their white forebears. Hence, you had organizations like The Society for Propagating the Gospel Among the Indians (1787), as well as noted individuals like Daniel Brainerd. Some white missionaries even sided with the Indians in territorial disputes (e.g. Samuel Austin Worcester, Elizur Butler). 

In addition, some children of white settlers grew up around Indians, and learned to speak Indian languages. You had whites like Davy Crocket who opposed the Indian Removal Act. 

e) You also had a distinction between Indians who lived with members of their own tribe, maintaining their ancestral customs, and Indians who were more assimilated. Some Indians were bicultural. They could move back and forth between white society and Indian society. 

Samson Occom is a prominent example. He was graduate of Eleazar Wheelock's Latin School and/or Indian Charity School. 

I doubt that even bicultural Indians were ever accepted as equals in "polite society" back then. However, polite society was generally snobbish. Very class conscious. 

iv) Their ambiguous legal status led to governance without representation. As Justice Harlan said, in Elk v. Wilkins:

Born, therefore, in the territory, under the dominion and within the jurisdictional limits of the United States…There is still in this country a despised and rejected class of persons with no nationality whatever, who, born in our territory, owing no allegiance to any foreign power, and subject, as residents of the states, to all the burdens of government, are yet not members of any political community, nor entitled to any of the rights, privileges, or immunities of citizens of the United States. 

1 comment:

  1. Steve, thanks for that expansion and insight.

    First, on my paternal side we are Pomo Indians. I'll come back to that in a bit.

    To the question of women, I went on and said:::>

    //The Court's decision, in part, had to have been with utter disregard for God and the Word of His Grace which defines at least for women a lesser role in rule but not in importance when it comes to the makeup of the Biblical Will of family.//

    For the most part the framer participators of the 13 Colonies were Godly men and some likely used the Bible as a guide. My point with the exclusion of women was based in how the Bible lays out the role of the woman in leadership. There are exceptions to that rule as we read about in the Scriptures. Your point is well taken that there is no prohibition against women or blacks holding elective office.

    Steve: //That might have been inconceivable to the founding fathers, but for that very reason, it didn't occur to them to forbid it. By the same token, the wording of the Constitution doesn't prohibit blacks from running for national office. //

    From my Native American, (Pomo Indian), background it is true that those "LUCKY" Tribes that got treaties ratified were incorporated and thereafter treated as stand alone "states" within a State. The Bureau of Indian Affairs is an agency within the Department of the Interior and oversees all Indian affairs in the United States.

    Out here, out West, there were Indian Agents, three of them that I know of, who were sent out here and who went around with "powers" to negotiate treaties with the "Indian Tribe". There are 62 treaties that Indian Tribes agreed to that were never picked up by Congress and agreed to in Washington D.C.. There is much consternation within First Nations people because of this. There is also a lot of hostility towards the treatment of our assets held in Trust. After the termination period Indian Tribes with Federal recognition are treated as and have as much right to Federal dollars as any State in the Union. Whenever the President or State Governor declares a disaster, Tribes affected can apply for Federal dollars to help recover from the loss the disaster brings on our land provided that land is held in Trust with the Federal Government.

    Can Washington D.C. treat us better? Yes, of course and parenthetically now they do now that we have gaming money to spend on politicians! We get treated very well by our local, state and federal servants including the President! I enjoyed lunch with a sitting U.S. President some years ago. He got apple pie for desert and I got ice cream! :)