A Little History on Andrew Jackson and the Supreme Court (for Mike Huckabee)

Mike Huckabee invoked Andrew Jackson in encouraging the President to not comply with federal court orders striking the Muslim travel ban, saying “Hoping @POTUS tells Hawaii judge what Andrew Jackson told overreaching court-“I’ll ignore it and let the court enforce their order.”, invoking the aftermath of Worcester v. Georgia, in which the Supreme Court held that Georgia could not prosecute a white man (Worcester) for setting foot in Cherokee Indian country without its permission.

Like the President, Mr. Huckabee should look into history to see not only how offensive that statement is to both Indian people and to the integrity of United States, but how President Jackson ultimately and completely capitulated to the Supreme Court.

Here is Justice Breyer’s retelling of the incident:

But then North Carolina . . . said, “We will not give the United States customs duties that we owe them because we prefer to keep them. Andrew Jackson woke up to the problem and he ended up saying to the governor of Georgia, You must release Worcester.” They had a negotiation and Worcester was let out of jail.

Stephen G. Breyer, Reflections of a Junior Justice, 54 Drake L. Rev. 7, 9 (2005). In short, once President Jackson realized that South Carolina heard his comment about the Supreme Court enforcing their own orders and were ready to stop paying federal tariffs, he contacted Georgia Governor Lumpkin privately and asked him to release Worcester. He also got Congress to pass a “Force Act,” authorizing him to use the military against South Carolina to enforce those federal tariffs. He effectively capitulated to the Supreme Court in order to save the Union, leaving that mess for future Presidents.

And, finally, here is Chief Justice Marshall’s private mockery of Andrew Jackson after the President had capitulated:

Imitating the Quaker who said the dog he wished to destroy was mad, they said Andrew Jackson had become a Federalist, even an ultra-Federalist. To have said he was ready to break down and trample on every other department of the government would not have injured him, but to say that he was a Federalist–a convert to the opinions of Washington, was a mortal blow under which he is yet staggering.

David Loth, Chief Justice: John Marshall and the Growth of the Republic 368 (1949) (quoting a letter from Chief Justice Marshall to Justice Story). The Chief Justice was near death when he wrote this letter, and months earlier had believed that President Jackson’s refusal to enforce the Court’s order in Worcester was going to be the end of the Court, and perhaps the Constitution, and perhaps the Union. This letter expressed his relief that the Worcester order would be enforced, and his mockery of President Jackson for seemingly turning on his states’ rights ideology.



US Forest Service Destroyed Portions of the Trail of Tears

Here is “Docs detail government damage of Trail of Tears.”

An excerpt:

The documents outline the extensive process the Forest Service employees should have gone through before doing the work but didn’t.

For instance, the ranger who approved the project told another employee they didn’t’ have to comply with the National Environmental Policy Act because they did not own the land.

Kenneth Casebeer on Subaltern Voices of the Cherokee Nation’s Trail of Tears

Kenneth Casebeer has posted his paper, “Subaltern Voices in the Trail of Tears: Cognition and Resistance of the Cherokee Nation to Removal in Building American Empire,” on SSRN.

Here is the abstract:

Empire, since publication of the book by the same name, by Michael Hardt and Antonio Negri has generated almost an obsession for revisionist social theorists. In this literature, the idea and history of empire is structurally dialectical – the ongoing interaction between imperialist colonizers and subordinated indigenous or subaltern populations and cultures connected with the colonized space. Included in this literature are two recent works that present a curious view of American Empire, and its relatively early and key history of removal of Eastern Native nations to west of the Mississippi. The curiosity in the book by Sean Wilentz, and an article more focused on law by Paul Frymer , is that the exceptional histories of removal they report includes the voice of none of the removed populations, the subalterns by which the imperialists are in part constructed. In this review the record is simply being documented as necessary to recover the subalterns assumed by the histories because they were there, and had to be there, in the history of subordination. Contrasting the stunted reasoning of the federal government with Cherokee resistance and subsequent dénouement links removal’s significant contribution to the legitimation campaign supporting slavery and Dred Scott, and in material terms, contributed to the inevitability of the secession and the Civil War.

Recent Books on Tribal Leadership During Treaty Times

We want to highlight two recent books — both excellent in their own ways — on Indian leaders during (roughly) treaty times. First, Anton Treuer’s book, The Assassination of Hole in the Day (available online at Birchbark Books, the greatest bookstore in the world), published by the Minnesota Historical Society Press, is a truly entertaining read. It is one of the rare books that makes extensive use of Indian oral histories, and gives these histories the credence they so often deserve. The story of Hole in the Day’s murder by his own people is a classic tale of Anishinaabe political leadership that more or less tracks the rise and fall of Julius Ceasar. Important leader, does some great and terrible things, overreaches, loses power, and eventually loses life. But real import, however, is the impact of treaty negotiations on Aninshinaabe leaders.

The second book, Brian Hicks’ Toward the Setting Sun: John Ross, the Cherokees, and the Trail of Tears (available here), was published by the Atlantic Monthly Press, and is another entertaining read. And like Treuer’s book, this is a great study of how tribal leadership operated during these amazing times.

Andrew Jackson, the Cherokees & the Judgment Power

Ok, so earlier today I posted two articles back to back for a reason. They are (1) a light LA Times commentary on Andrew Jackson (okay dude or Hitler?); and (2) a dense law review article on the Article III judgment power by William Baude. They’re connected, in my opinion, although I doubt it is apparent to anyone but me.

Here it goes:

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The Two Andrew Jacksons: Old Hickory or the American Hitler?

From the LA Times (H/T Bookforum):

The two Andrew Jacksons

Was ‘Old Hickory’ a great president or an American Hitler?

By Carl Byker
December 12, 2007

‘Is he a president whose accomplishments we should celebrate or a president whose failures we should apologize for?”

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Pokagon Band and Notre Dame

From the Notre Dame Observer:

Pokagon Band part of ND history, land

Relationship with Potawatomi tribe celebrated during Native American Heritage Month
By: Katie Peralta

While driving around South Bend, students might notice Potawatomi Park, Potawatomi Zoo and Pokagon Street – places all named after former residents of the area, the Potawatomi American Indian tribe and its local division, the Pokagon Band.

But not all passers-by may be aware that the land upon which Notre Dame was built once belonged to the Pokagon Band.

As a part of Native American Heritage Month, Notre Dame’s Multicultural Student Programs and Services (MSPS) will host a series of events bringing members of the Potawatomi tribe to campus to relay the history between the tribe and the University. As part of this series, MSPS will host a dinner Dec. 4 featuring members of the Potawatomi tribe to share their history.

Before Notre Dame founder Father Edward Sorin claimed this plot of land on Nov. 26, 1842, the land had been inhabited by the Pokagon Band, said Kevin Daugherty, educational resource developer for the Pokagon Band.

The Chicago Treaty of 1833, however, ordered the removal of Indians in the northern Indiana region, Daugherty said. Leopold Pokagon, a prominent Potawatomi leader and the spokesperson after whom the Pokagon Band is named, negotiated the right to stay on the land and was given a sum of money, Daugherty said. Pokagon used this money to buy land northwest of modern-day Dowagiac, Mich., where Daugherty said many members of the band still reside today.

During the 17th and 18th centuries, Potawatomi land stretched from what is now Chicago to Detroit, Daugherty said.

Many different villages populated this region and considered themselves Potawatomi, sharing a common language and culture. Such villages had alliances but operated independently on a local level.

The Pokagon Band of the Potawatomi Indians resided in the southwest Michigan and northern Indiana region, including the grounds where campus is now.

“They of course moved around a bit,” Daugherty said. “They moved along the St. Joseph River to farm, hunt and gather.”

Notre Dame anthropology professor Mark Schurr led an archaeological survey along the St. Joseph River about five years ago. The survey, a joint effort of a Notre Dame field school and the Pokagon Band, lasted about three years and revealed a few village sites along the river, Schurr said.

American settlers began moving west and consequently pushed for removal of American Indians by the U.S. government, Daugherty said.

In compliance with settlers’ demands for westward migration, the Indian Removal Act of 1830 dictated that all native peoples east of the Mississippi River move to present day states of Kansas and Oklahoma, said Ben Secunda, a Notre Dame history professor.

Just as the Cherokee’s removal was called the “Trail of Tears,” Secunda said, the Potawatomi called their removal the “Trail of Death.” The Potawatomi tribe, along with sympathetic whites such as the Catholic missionaries and traders friendly to the Indians, strongly protested it.

Secunda noted that violent roundups, led by governmental officials like Indian agent John Tipton, occurred throughout the Midwest except in the area of Michigan where Leopold Pokagon had secured land for his people. Pokagon’s land, Secunda said, became a safe haven for refugees evading the removal to Kansas. Baptist missionaries in the area supported such removals, he said.

To resist such removal, Leopold Pokagon, in 1830, trekked to Detroit to the Catholic headquarters to make an appeal, Secunda said. He asked for a Catholic priest to come back with him, one who would aid in removal resistance, convincing Father Stephen Badin and the Catholic missionaries to come down to the South Bend area, Secunda said.

Badin and the missionaries came and worked out of Pokagon’s log chapel, the famous historic landmark next to Saint Mary’s Lake, Secunda said. This became their base of operations.

Essentially, he said, out of Leopold Pokagon’s appeal came Notre Dame.

“The Pokagon band, Roman Catholic Church and Notre Dame priests supplemented each other at a key point in their history,” Schurr said. “Since then the groups have gone their separate ways. None would be as successful as they are now.”

Badin and the other Catholic missionaries successfully replaced the other pro-removal missionaries.

“The forerunners of the University did the right thing,” Secunda said. “With their help, the Potawatomi people were able to maintain a level of self-sufficiency, avoid removal, become Catholic and basically survive as a people.”

When Sorin arrived in the area in fall of 1841, “the Pokagons and the Catholics were interacting readily,” Daugherty said.

From the beginning, the Potawatomi in the area coexisted peacefully with the new settlers, Schurr said.

In fact, he said, Badin and the other priests shared many meals with the tribe members. They also lived in close proximity with the tribe.

The Pokagon Band today is scattered throughout Midwest. This dispersal is not totally unprecedented, Daugherty said.

“We have never had a land base or tribal ownership,” he said.

Though there is dispersal, the largest Pokagon population today is located in northern Indiana and southwestern Michigan.

About 3,300 members are in the Band today, and Daugherty said roughly 40 percent live within about 30 miles of Dowagiac. There is also a large concentration of people in the Kalamazoo area, with the remainder scattered across the Midwest.

Native American Heritage Month at Notre Dame includes a number of programs. In addition to the Dec. 4 dinner, the agenda includes a workshop in black ash basketry on Nov. 26. A visual display on contemporary American Indians will be displayed in the library for the remainder of the month.