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Members of the Ogitchedaw Veteran and Warrior Society of the Saginaw Chippewa march to ritual at Saganing Eagles Landing.>br> (Photo Arenac Independent)

TRIBAL SOVEREIGNTY: 1832 Ruling for Cherokee Cited by Local Chippewa Tribe

Lost in Time: Bay City Pioneer James G. Birney's Role in 14th Amendment

April 28, 2017       Leave a Comment
By: Dave Rogers

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All Americans have Constitutional protections under the 14th Amendment. But just how did those protections come to be part of the American canon?

Here, as radio commentator Paul Harvey used to say, is the rest of the story, beginning with the first Americans, the native Indians.

Although in the early Republic their rights as citizens were almost non-existent, Native American tribal sovereignty is now well-established and tribes with gambling casinos now have the money to defend it.

That wasn't always the case back in the days before the 14th Amendment protected the rights of all Americans. I make the case in my book "Apostles of Equality: The Birneys, the Republicans, and the Civil War," that James G. Birney, in his writings and speaking, laid the foundation for that vital amendment providing for due process and equal justice.

Hardly anybody remembers today, but abolitionist Birney, later a Bay City pioneer, first stood up for Native Americans in representing the Cherokee as a lawyer.

This put Birney smack in the battle for 25 million acres of Indian land in the South that resulted in Indian Removal along the infamous Trail of Tears to Oklahoma. Thousands of Indians died as U.S. troops brutally drove them west.

At the time, 1826, Birney was living in Alabama and was beginning fearlessly to challenge the slave power that ruled much of the nation. The slaveholding society of the South was just as prejudiced against the Indians as against African Americans, perhaps moreso.

Andrew Jackson was President. According to some writers I cite in the book, President Jackson favored "cultural extinction" of the natives.

In 1830 gold had been discovered in Georgia on Cherokee land. Lotteries were held to give Indian land and gold to whites. Cherokees were not allowed to conduct tribal business, make contracts, testify in court against whites or mine for gold.

Birney was a Princeton and Philadelphia-educated lawyer who had served as one of the regional attorneys general of Alabama, prosecuting a murder ring. As the first mayor of Huntsville, he had fought the liquor interests.

After first declining the Cherokee entreaties to represent them, he accepted in 1826 "even though prejudice against the Indians was violent, and public opinion was clamoring for the opening of their valuable lands to white settlement," according to Betty Fladeland in her 1955 doctoral dissertation at the University of Michigan.

The case of Worcester v. Georgia, cited by the Saginaw Chippewa as their basis for tribal sovereignty, did not result in justice for the Cherokee even though Chief Justice John Marshall ruled in their favor.

The "rest of the story," as the saying goes, is a lamentable tale of injustice repeated often in our country's early history. President Jackson rejected the ruling out of hand, allegedly saying: "John Marshall has made his decision; let him enforce it now if he can."

Today, the Saginaw Chippewa, on their website, recall that case and the powers it preserved for all tribes:

"An Indian Tribe is a distinct political community. A Tribe retains its inherent powers of self-government absent action by Congress to limit those powers. A State cannot limit the powers of a Tribe.

"The source of Tribal powers rests in its people. Tribes have had the inherent right to govern themselves "from time immemorial". See Worchester v. Georgia, 515, 558 (1832). Tribal governments have the same powers as the federal and state governments to regulate their internal affairs, with some few exceptions. For instance, the Tribes have the power to form a government, to decide their own membership, the right to regulate property, the right to maintain law and order, the right to regulate commerce, and so on.

"However, over the history of the Tribes' relations with the United States, Tribes have been economically devastated. Most have not had the financial means to effectively exercise their governmental powers. For some Tribes, Gaming has provided the only successful means to raise funds to be able to exercise their inherent powers of self-government.

"Without Tribal sovereignty and the financial means to exercise powers of self-government, Tribes would not survive as Indian Nations."

Worcester v. Georgia was argued before the U.S. Supreme Court by the nation's most famous trial lawyer, William Wirt.

Samuel Worcester was one of nine New England missionaries convicted of violating Georgia law by entering Cherokee territory. Their sentences to four years in prison at hard labor was appealed to the high court.

Justice Marshall, in his opinion, held that the Indian nations were "distinct, independent political communities retaining their original natural rights" that had been acknowledged by the treaties with the United States.

Former Michigan territorial governor Lewis Cass, then Secretary of War, had decided to pay the Cherokee for their treaty land settlements individually, rather than as a tribe, undermining their financial ability. As a result, Wirt had to depend on donations for his trial work.

Birney attempted to get an appointment to mediate the crisis peacefully without force, fearing a threat to the Union, but his ideas were ignored.

Scholars recently have theorized that the defense of the Native Americans actually gave momentum to the abolitionist movement that led to the 14th Amendment. Legislators who authored the amendment cited Worcester v. Georgia and the Indian Removal as their guideposts for interpreting the Constitution.

One scholar, Gerard N. Magliocca, has written that without the 14th Amendment "the U.S. would not be today what we call a democracy."

So, it would not be a stretch to say that the Native Americans in the 19th century paid the price for freedoms we now all enjoy. ###

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Dave Rogers

Dave Rogers is a former editorial writer for the Bay City Times and a widely read,
respected journalist/writer in and around Bay City.
(Contact Dave Via Email at carraroe@aol.com)

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