Archive for the ‘American Civil War’ Tag

Lela on Indian Nations and States Rights   4 comments

Thom, this is why I like our conversations. You force me to dig back into my memory and, when it fails, research. Last week you said I was off base on the Civil War and you ended up defending Indian sovereignty against someone who is a member of a tribal nation. That’s kind of ironic, I think.


DSC01494First, I don’t agree with you about the payback thing. We need to stop the back-and-forth retribution attitude and move forward. I’m pretty sure if I dig deeply enough I would find a white ancestor who killed Indians in retribution for my ancestor Barasallai killing white settlers in the Michigan wilderness circa 1810-ish. To be angry at one and not the other would be inconsistent and to be angry at both would be schizophrenic. There are parts of both sides of my heritage that I love and parts of both sides that I find regrettable. “Move on and let the dead bury the dead” is my motto. I don’t see a racist behind every bush trying to bring back Indian transportation. I see people who look a lot like my dad who are mostly trying to be my friends, who may not understand my family history … as I may not understand theirs. I don’t hold them accountable for the actions of their long-dead ancestors. I only hold them accountable for what they personally do to me and then I give them the rough side of my tongue if I feel it’s necessary. I don’t need special status to do that. It’s a natural right we’re all born with as humans.

The Wendake (Wyandot in the US) share a reservation with the Cherokee in Oklahoma, but I admit my grasp of Cherokee history was mostly confined to a PBS special. The Wyandot were “free” by the 1830s, they had been accepted as American citizens, which meant they had a very different history than the Cherokee and other tribes who refused to assimilate. They chose to reconstitute as a tribe in the 20th century. Most of my immediate family had already assimiliated, but my grandmother registered with the tribe and my mother became friends with distant cousins in Oklahoma.  I’ve never lived on the reservation, but I do visit and I am a full-fledged voting member of the tribe. And now I’ve brushed up on my Cherokee Nation history and I understand why they were angry, but I still don’t understand why my cousins feel we should join them as our experiences were very different.

The Wyandot consider themselves to be a nation too, but you know – I don’t buy into it. Especially groups like the Cherokee and Wyandot who have no blood quantum standard for membership — it feels a little bit like a scam. Because I am a member of the tribe, I can claim to be an American citizen when it’s convenient. I can vote for President and claim Constitutional protections. When things aren’t convenient, I can claim to be a citizen of the sovereign Wyandot Nation, slip into the Cherokee Nation reservation and they’ll protect me. Literally, I’ve seen them (all of the tribes that share the reservation) circle the wagons (pun intended) and hide someone from outside authority, which walks on egg shells on Indian land. I don’t buy that. It’s having it both ways and that argues against my belief that we’re all pink inside and equality means all races being treated the same under the law.

It’s all predicated on two decisions in the 1830s that were dancing around Indian apartheid. The SCOTUS refused to hear the Georgia case because, they said, they couldn’t determine if Indians were American citizens, sovereign nations outside of the United States authority or some sort of enclave under US protection. Since they refused to rule, transportation – which was what the Cherokee were trying to prevent – was undertaken. Less than a year later, the SCOTUS ruled they were sovereign citizens of their own nation who could resist transportation on their own land, but the Trail of Tears had already begun, so they had no land on which to resist, but also because they weren’t citizens, they had no rights in US courts to protest what was happening to them. Those decisions were used later with other tribes to assert that Indian “nations” didn’t have a right to the land the US gave them by treaty because it was not their ancestral land. Pretty sweet Catch 22 — unless you happened to be a member of one of the unassimilated tribes.

At about the same time, the exact same US government that transported the Cherokee against their will offered the Wyandot money for their land in Ohio and a substitute grant of land in Kansas. The Wyandot agreed if they could become American citizens. The citizens stayed in Kansas when it became an organized territory. Those that didn’t become citizens were transported to Oklahoma in the 1870s, because non-citizen Indians didn’t have any rights. Whoa, there’s a pattern there!

I am not saying what the US and Georgia did to the Cherokee was right. I have some personal theories about how American history would have turned out had the government done things differently, but they didn’t and that can’t be changed. What if wasn’t, which leaves us with what is. Today, because white folks feel guilty for the actions of long-dead white folks against long-dead Indians, Indian nations now have special rights.  I object to that because it continues the cycle of racism and retribution. Can’t we all just be Americans? No white privilege, no Indian pride, just folks? American culture is a crazy quilt of glorious diversity and I love that.  Not only should you respect my culture, but I should respect yours — or at least your right to celebrate it. What would be so wrong with actual post-racial America? That only happens when all American citizens are equal before the law, but if I have special status, then I am more equal than you are. I want to be judged by the content of my character, not the color of my skin.

Now, once again, setting aside the slavery issue and just looking at states rights …

The bombardment of Ft. Sumter was equivalent to the shot heard round the world, when the British moved on vital American interests and the Americans moved from diplomacy to defending themselves. South Carolina seceded from the union in December. Between that time and President Lincoln’s inauguration in March of 1861, the seceding states tried hard to avoid aggression and President Buchanan took no military action, noting that while he believed the states had no constitutional authority to secede, he could find no constitutional authority for him to prevent it. While refusing to allow the resupply of Ft. Sumter, the South offered a peace treaty and to buy the military installations it was asking the Union to vacate. Because Buchanan was a lame-duck president, he didn’t move on those requests, but they could have settled the issue peacefully. Instead, Lincoln came into office and, like King George before him, refused to acknowledge the rights of the people of the seceding states to self-determination and moved to resupply Ft. Sumter, which controlled Charleston Harbor.

Last week, you said no country could be expected to ignore the bombardment of one of its military facilities. True, except that South Carolina had declared its independence and asked what it viewed as an army of occupation to leave. And, there is American precedent for that. No country could be expected to accept the encroachment of an aggressive neighbor in their most vital port. The bombardment of Ft. Sumter was no different than the siege of Boston or the bombardment of New York during the Revolution. For the Southerners, the Union Army were refusing to leave their country when asked peacefully. The Union Army had taken aggressive military action to entrench themselves in a strengthened position in control of a vital South Carolinian national asset. What choice did South Carolina have but to defend its territory or submit to what amounted to colonial tyranny? Had Lincoln taken Buchanan’s view on the situation, the bombardment never would have happened. Instead, he forced the issue and South Carolina moved before he could take control of their harbor.

I don’t know how we can say it was okay for the Americans to stand up against British colonial aggression and protect the arms cache at Concord and yet turn around and say it wasn’t okay when our government took the role of England against the Southern states. It amounted to the same thing.

Secession is in American blood, after all. We seceded from Great Britain in 1776 AFTER they forced the issue. During that war and for several years after, each of the rebelling colonies considered itself a sovereign nation cooperating with a dozen similar sovereigns in a relationship of shared goals. The Articles of Confederation explicitly asserted that each state retained its “sovereignty, freedom and independence”. It was too loose a confederacy to work and the Articles could not be amended, which is why they were replaced by the US Constitution. Most states joining the union were of the belief that they had retained the right of secession. New England threatened twice, the South threatened over tariffs in the 1830s and the border states threatened during the Civil War. Clearly half the states in the union are on record for thinking they had a right to secede.

Just because the Constitution lacks a specifically stated right to secession does not mean there isn’t one. The 10th Amendment states “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, the federal government was always supposed to be subordinate to the states or to the people — and was until the Civil War. The US Constitution was written by people who believed wholeheartedly in the revolutionary right of a free people to change their government anytime they see fit. They had just done that within their lifetimes. It’s enshrined in the Declaration of Independence. Notably, Abraham Lincoln himself expressed a similar sentiment in 1947 on the floor of the US House of Representatives:

“Any people, anywhere, being inclined and having the power, have the right to rise up and shake off the existing government, and form a new one that suits them better. This is a most valuation, a most sacred right, a right which we hope and believe is to liberate the world.”

I guess “any people, anywhere” did not include the Southern states when he was President. They had no “sacred right”.

James Madison, father of the Constitution, argued in the Convention that the Constitution would be “analogous to conventions among individual states” and  “a breach of any one article by any one party leaves all other parties at liberty to consider the whole of the convention as dissolved.” From the Southern point of view (and I must thank a Southern friend for explaining this to me), the United States had breached several articles of the Constitution and thus the whole of the convention was dissolved.

Thom StarkI don’t think you can argue that prior to the Civil War, most Americans thought that secession was not allowed or that states rights lacked validity. The very way in which the western states were admitted into the union suggests they saw states rights as important. Why was Missouri allowed to be a “slave” state and Kansas was admitted as a “free” state if not because states were recognized as having rights?

But you are entirely right that since that time, most people have been of the opinion that states have no rights, but that’s based on the Union winning the war, not on any changes in the Constitution undertaken by all parties. I’m arguing that states should have their rights restored and that if the federal government continues to force its one-size-fits-all tyranny on the states, they will eventually breed another round of secession and civil war. Recognition of states rights as Constitutionally intended could possibly prevent the dissolution of the union.

Thom Stark on States Rights   1 comment

Thom and I are having fun with our back-and-forth discussion. I said this on special interests and this on states rights last week and this is his reply this week. Lela

Thom StarkI’m sorry, but you’re WAY off base on the American Civil War.

First of all, there is NO provision in the Constitution for secession from the Union – so there was NO legal basis for the Confederate states’ withdrawal. Period, end of discussion.

Secondly – and this is crucial – South Carolina began its secession attempt with a 34-hour bombardment of Fort Sumter. That could not, under any circumstances, be considered anything other than an act of war, and the Union responded accordingly.

Had the Confederate states simply announced their secession from the Union without attacking the Union fort, a diplomatic solution might have been possible. But South Carolina chose to underline its withdrawal with an unprovoked attack on a Union military base. NO country could – or can – afford to let such an action simply pass without military response. It was South Carolina’s act of war that forced the Union into the bloodiest domestic conflict in American history, not the Union’s inflexibility on the issue of slavery. Or secession, for that matter.

As for the issue of “us” vs “them” – Lela, I went to considerable pains to frame that locution in terms of individual (rather than government) choice and perception. By “us”, in the framework of this discussion, I meant “whatever group you, as a person, consider yourself to be affiliated with to the exclusion of those outside the group”. Which is to say “them.”

The whole point of civil rights legislation is to codify the notion that, in the USA, there is no legal basis for discriminating between “us” and “them”. We are all at least theoretically equal under the law – and it seems to me that we solidly agree on that precept.

In my mind, elected officials have a Constitutional duty to uphold that principle, by passing civil rights legislation where necessary, and by NOT proposing or voting in favor of discriminatory legislation under any circumstances. The whole Palinesque “real Americans” vs (presumably) false Americans dichotomy is purposefully divisive gnatpuckey, deserving only of general contempt.

That you are of Indian ancestry is something I didn’t know prior to this discussion. I think it’s kind of cool. It adds another layer of identity to the Lela Markham I’m coming to know: woman, Alaskan, Christian, author, free-thinker, and now Indian.

Lela Markham Davidson Ditch CorrectedAs for discrimination against whites on the reservation, ever since John Marshall’s majority opinion on Cherokee Nation vs Georgia in 1831, the status of Indian reservations as sovereign nations has been enshrined in U.S. law – and repeatedly upheld since then. Therefore, as nation-states, formally-recognized Indian tribes naturally have the legal authority to make any kind of damn-fool laws they desire. If that includes sanctioning racial discrimination on their reservations … well, it’s deplorable, but completely legal, because, in the eyes of the law, Indian reservations are NOT U.S. soil. They’re their own countries, and they can do as they please, so long as they do not make war on the USA.

I will note that, given the long, sad history of discrimination against Indians by American whites, it’s not especially surprising to hear that Indians on your tribe’s reservation relish the opportunity to return the favor. Revenge, after all, is a dish best served with a small side salad and a nice Chianti.

Article V Might Have Prevented the Civil War   Leave a comment

If you’re like me, you wonder why the states did not make use of the Article V state-application-for-convention process to avoid the Civil War. My high school history books (and I confirmed this in my daughter’s high school history book) informs us that Congress was hopelessly deadlocked because slavery had become the 19th century third-rail of politics. So why didn’t the states take action?

The simple answer is that some of them did try to make use of the system, but they tarried unduly, contributing to the tragedy that would follow.

Compromise to stave off war and preserve the union typically included one or more constitutional amendments. Senator John J. Crittenden of Kentucky was a highly respected moderate. To modern thinking, the Crittenden plan is unacceptable. It proposed to protect slavery where it existed, enforced the fugitive slave laws and admitted slavery into western territories south of the old Missouri Compromse line.  It also reversed Dred Scott, which said slavery was forever legal in all the territories. It would have eventually ended slavery by isolating it in a region of diminishing relative economic and political importance. It would have preserved the union and saved 600,000 lives, 500,000 wounded and the domination of the South by the North for the next century. Crittenden’s plan received a good amount of public support, but Congress was never going to propose a constitutional amendment of this sort. They lacked the two-thirds majority to make it happen and it was political suicide no matter which state the politician represented.

Advocates for maintaining the union considered the state-application-for-convention method when they realized Congress could not and would not act. At a cabinet meeting on November 9, 1860, President Buchanan supported an Article V convention to propose an “explanatory amendment” on the subject of slavery. In the ensuing months, several members of Congress – including Representatives Charles Larrabee of Wisconsin, John C. Burch of California, and Reuben Fenton of New York – all offered congressional resolutions encouraging the states to apply under Article V. George E. Pugh of Ohio and James W. Grimes of Iowa did the same in the Senate. On March 4, President Lincoln, now newly inaugurated, said that while he had no specific amendments to recommend, he had no objection to amendments generally, and that he preferred proposal by a convention to proposal by Congress. He probably knew Congress was not going to act.

Meanwhile, the Commonwealth of Virginia – which had not yet seceded – called for a less formal interstate convention. The Commonwealth commissioned former President John Tyler as its envoy to Washington. Congress took no action, but throughout most of February 1861, 133 commissioners from 21 of the 34 states met in what came to be known as the Washington Peace Conference. Tyler served as chairman. At the Peace Conference, Virginia recommended a settlement based on the Crittenden plan, and the ultimate recommendation of the conference was a variation of that proposal. Unlike an Article V convention, however, the Peace Conference had no constitutional standing to propose amendments directly to the states. Instead of promoting an Article V convention, the Peace Conference decided to submit its proposal to Congress, which was in political deadlock. The Senate rejected the recommendation of the Peace Conference, and the House refused even to consider it.

Doesn’t that sound familiar?

Several states decided to attempt to break the deadlock by filing Article V applications. We do not know how many valid applications there were because all do not appear in the congressional records. They may not have been transmitted or Congress, which had no established way of handling such documents, simply failed to record them. Illinois’ application does not appear in the congressional records, but those records do state that on February 28, 1861, New York Senator William Seward announced that Kentucky, New Jersey, and Illinois already had applied; two days later, Illinois Senator Lyman Trumbell said the same thing. Kentucky applied first (January 24, 1861), suggesting as a basis for settlement the compromise offered by that state’s favorite son, Senator Crittenden. The application’s operative wording was for a general convention rather than one limited by subject matter:

“Resolved … That application to Congress to call a convention for proposing amendments to the Constitution of the United States, pursuant to the fifth article, thereof, be, and the same is hereby now made.”

 New Jersey applied the next day, stating in part:

4. And be it resolved, Th at the resolutions and propositions submitted to the Senate of the United States by Hon. JOHN J. CRITTENDEN, of Kentucky, for the compromise of the questions in dispute between the people of the northern and of the southern States, or any other constitutional method of settling the slave question permanently, will be acceptable to the people of the State of New Jersey, and the Senators and Representatives in Congress from New Jersey be requested, and earnestly urged, to support these resolutions and propositions. 5. And be it resolved, That as the Union of these States is in imminent danger unless the remedies before suggested be speedily adopted, then, as a last resort, the State of New Jersey hereby makes application, according to the terms of the Constitution, of the Congress of the United States, to call a convention (of the States) to propose amendments to said Constitution.

The Illinois legislature adopted its application on February 12. Indiana sent their application to Congress on March 8, requesting Congress to call a convention of the States to take into consideration the propriety of amending the Constitution, so that its meaning may be definitely understood in all sections of the Union…. The Ohio legislature applied March 10, bringing the tally to five states. Unfortunately, the movement had not begun in time. When Ohio submitted its application, seven Southern states already had seceded, though there were three applications transmitted after the Civil War had begun. One was a reaffirmation from Kentucky, adopted in 1863. In March 1864, North Carolina, although still in rebellion, applied for an Article V convention to resolve the war, and in September 1864, Oregon submitted a single-subject-matter application for an amendment abolishing slavery:

Whereas, article five, section one of the Constitution of the United States provides for its own amendment … and whereas in the process of the rebellion, it has become apparent that African slavery has been the cause thereof, and that there can be no permanent peace with slavery as a political element in the government, or with any of the attendant laws in force in States thereof, and believing that the Constitution ought to be so amended as to forever prohibit involuntary servitude, except for crimes within the United States and the territories thereof, therefore,

Resolved That application is hereby made to the Congress of the United States for calling a convention for proposing amendments to the Constitution of the United States.

The lessons from the state application process during the Civil War and the years leading up to the war reinforce certain conclusions reached earlier. The Founding-era view was that an Article V convention was the creature of the state legislatures, and not of the people directly. During this period, the assembly was referred to repeatedly by the phase “convention of the states” and certain variants. This was true not only in the South, but in border states (i.e., slave states that had not seceded) and in the North. Others called it by its constitutional name – a “convention for proposing amendments.” It is notable that few, if any, mistook it for a constitutional convention.

Most state applications during this era asked for a general, rather than limited-subject, convention, because the crisis required a comprehensive solution. Yet Oregon’s application for an amendment abolishing slavery showed that the constitutional option of a limited-subject convention had not been forgotten.

Might a convention for proposing amendments averted Civil War?

Certainly some of the most respected political leaders of the day – including Presidents Buchanan and Lincoln, and a number of U.S. senators – thought that it might. What if wasn’t, so we’ll never know certainly, but it certainly would have been a prudent step to take before Americans started shooting at Americans. I can’t see how a convention of state delegates to propose amendments to the Constitution could have been any more harmful to the Union than what actually happened.

Federal History   Leave a comment

Part of the current secession sentiment in the United States grows from our differing views of the structure of the United States government. This goes back to the Constitutional Convention in 1787. American history classes today try to present our current constitution as something that James Madison presented to the delegates and everybody simply saw the wisdom in it and ratified it, but that isn’t actually what happened. The Virginia Plan (essentially Madison’s plan) was strongly favored, but many of the delegates objected to the power given to the central government and the ability for large population states to functionally crush the smaller population states. Alexander Hamilton, who was essentially a monarchist, proposed his own plan that called for dissolving the states altogether.  Maybe that scared the delegates into agreeing to a compromise – the Connecticut Compromise. It kept many of the features of the Virginia Plan while strengthening the states and tempering the power of the large states so as to protect small-state sovereignty.

The Federalist Papers portrayed the new constitution as a compromise between the confederation of the Articles, which was too weak to function, and the national government most people in the states feared with a deep and abiding loathing. They proposed a federation – a cooperative agreement among states that lent the federal government (not national government) power to represent them on the international stage and to, in limited circumstances, regulate issues among the states. This was acceptable to enough Americans that they ratified the constitution with a promise of a bill of rights to acknowledge (not protect) individual liberty. After ratification, however, the nationalists co-opted Federalism for themselves, distorted the meaning of the term, and set about strengthening the federal government along strong centralist lines. At first the Supreme Court went along with this, but with the election of Thomas Jefferson, there was a slow return to a more federalist system which remained in place throughout the 19th century … to be smashed by the Civil War.

Let’s be honest about that – the Civil War was the national government forcing some of the states to comply with a change in culture against their will. I’m wholly in agreement with ending slavery in the United States and would not agree with its reestablishment because I believe the practice violated our first principle of “all men are created equal”, but that doesn’t negate the fact that the national government violated the individual rights of southerners and the state sovereignty of southern states in order to force a change in culture. Lincoln smashed the Constitution and during the War and Reconstruction, our country was a dictatorship of the northern states over the southern states. To a certain extent, the country has never recovered from that dictatorship. We returned to a federal system after Reconstruction, but then a president who had spent his youth as a southerner during those tyrannical years came to power and Woodrow Wilson understood our country as a national, central government rather than as a federation.  I sometimes wonder – if I could sit down to interview Woodrow – if he’d admit that his broad manipulative form of governance was his way of striking a blow for southern states, to wrap all of us up in the tyranny of Washington so that the South might once again be equal to the North.

Men can be as equal  in slavery as we were in liberty.


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