An Historical Review of Legalized Discrimination by the United States

By Arthur Perlman

In An Historical Review of Legalized Discrimination by the United States, retired attorney Arthur Perlman illustrates how specific congressional legislation, Executive Orders, and Supreme Court decisions are deliberately discriminatory against minorities. Citing selected legal precedent to support his argume

• Language: English
• Publisher: Arthur Perlman
• Release date: Aug 18, 2022
• ISBN: 9798885907651

Arthur Perlman

Arthur Perlman is a retired attorney. He practiced law for thirty-five years. He is a graduate of the University of Denver with a double major in history and political science and earned his law degree from Southwestern Law School in Los Angeles.

Book preview

CHAPTER ONE

NATIVE AMERICANS

The only good Indians I ever saw were dead.

Philip Henry Sheridan, Remark at Ford Cobb, January 1869

N

ative Americans lived for generations on their lands which would later become The United States of America. The white founding fathers could have incorporated them into the new country by granting them citizenship but instead they were treated as aliens. In 1778, a treaty was consummated with the Delaware nation granting it the right to create a state and to ‘’have a representation in Congress.’"¹ When the treaty failed, the tribe joined the British side of the Revolutionary War.² Alexander Hamilton wrote in The Federalist Paper XXIV: The savage tribes on our Western frontier ought to be regarded as our natural enemies . . ..³ The Constitution specifically excluded Native Americans when calculating the number of representatives that a state would have in the House of Representatives.⁴ The Constitution confirmed the Native Americans’ status as aliens by granting Congress the power to regulate commerce with Native American tribes.⁵

As President of the newly created country, George Washington wanted to consummate peaceful relations with Native Americans, but resorted to non-peaceful measures to punish tribes for not acquiescing to the demands of the white conquerors:

Accordingly, at the same time that treaties have been provisionally concluded and other proper means used to attach the wavering and to confirm in their friendship the well-disposed tribes of Indians, effectual measures have been adopted to make those of a hostile description sensible that a pacification was desired upon terms of moderation and justice.

Those measures having proved unsuccessful, it became necessary to convince the refractory of the power of the United States to punish their depredations.⁶

But if after manifesting clearly to the indians the dispositions of the general government for the preservation of peace, and the extension of a just protection to the said indians, they should continue their incursions, the United States will be constran’d to punish them with severity.⁷

Treaties with Native Americans did not follow the general rule of international treaties.⁸ They were designed to promote the movement toward white ways of subsistence.⁹ They serve[d] as vehicles for ‘reforming’ the cultures of the Indians to bring them into conformity with white society.¹⁰ Almost 400 treaties were ratified by the United States between 1778 and 1868.¹¹

An example of United States negotiating tactics was a message Secretary of War Henry Knox sent to the Miami Ohio Indians on March 11, 1791:

The President of the United States is anxious that you should understand your true situation, and the consequences of your persisting any longer in the exercise of hostilities. The United States are powerful, and able to send forth such numbers of warriors as would drive you entirely out of the country. It is true, this conduct would occasion some trouble to us, but it would be absolute destruction to you, your women, and your children.¹²

The United States displayed its military force at meetings with Native Americans, and many meetings were held at military forts.¹³

White expansion and the removal or destruction of Native Americans predates the establishment of the United States an example of which was the aftermath of Virginians treating with the Powhatan Confederacy:

In rapid succession hundreds of settlers arrived in Virginia and, within forty years, Jamestown was rooted, while the nations of the once powerful Powhatan Confederacy withered and were pushed west to the frontier.¹⁴

Treaties with Native Americans required the acknowledgment by the tribes of their loyalty and subservience to the United States. The M’Intosh Treaty of January 21, 1785 stipulated:

The said Indian nations do acknowledge themselves and all their tribes to be under the protection of the United States, and no other sovereign whatsoever.¹⁵

The Great Miami Ohio Treaty of January 31, 1786 stated:

The Shawnee nation do acknowledge the United States to be the sole and absolute sovereigns of all the territory ceded to them . . ..¹⁶

The Creek Treaty of August 7, 1790 stipulated:

The undersigned kings, chiefs, and warriors, for themselves, and all parts of the Creek nation within the limits of the United States, do acknowledge themselves, and the said parts of the Creek nation, to be under the protection of the United States of America, and of no other sovereign whosoever . . ..¹⁷

The Cherokee Treaty of July 2, 1791 also required an agreement by the Cherokee that they would not negotiate treaties with anyone else:

The undersigned chiefs and warriors, for themselves, and all parts of the Cherokee nation, do acknowledge themselves and the said Cherokee nation to be under the protection of the United States of America, and of no other sovereign whosoever; and they also stipulate that the said Cherokee nation will not hold any treaty with any foreign Power, individual State, or with individuals of any State.¹⁸

In 1784, pursuant to the Articles of Confederation under which the United States was formed prior to the Constitution, a committee led by James Duane proposed policies for treating with Native Americans. Duane objected to the use of the word treaty, ‘which seems too much to imply Equality.’¹⁹ Native American lands were taken to pay for Revolutionary War debts.²⁰

In 1790 Congress passed the Nonintercourse Act which prohibited Native Americans from selling their lands to anyone but the United States. [T]he chief American motive for the cessions [from Native American tribes] was to satisfy the expanding white population seeking new lands.²¹ During negotiations United States officials threatened to withhold trade goods if the tribes did not accept the offered treaties.²² [T]he treaties repeatedly established the dominant position of the United States . . ..²³

President John Adams ignored a treaty with Cherokees by establishing the Indiana Territory which encroached on their lands.²⁴

After President Thomas Jefferson acquired the Louisiana Purchase from France, which added millions of acres to United States territory,

Jefferson was anxious to speed up the process of freeing lands for American settlers. It was another part of his mandate to show strength to the West. William Henry Harrison, the territorial governor of Indiana, was instructed by Jefferson to purchase Indian lands or otherwise move tribes . . ..²⁵

Jefferson assumed that it didn’t matter to an Indian where he or she lived.²⁶ Jefferson demonstrated a dispassionate approach to Native Americans:

Jefferson ordered wholesale, widespread, and unequivocal displacement of Indians in the Trans-Appalachian regions. . ..²⁷

Jefferson further instructed Harrison:

Should any tribe be foolhardy enough to take up the hatchet at any time, the seizing the whole country of that tribe, and driving them across the Mississippi, as the only condition of peace, would be an example to others and a furtherance of our final consolidation.²⁸

Jefferson’s position regarding Native American options was quite limited:

For Jefferson, Indians had two choices: They could either assimilate into white society as yeoman farmers or remove themselves to the ‘Great Desert’ west of the Mississippi River.²⁹

Jefferson proposed a particularly subversive policy for acquiring Indian lands east of the Mississippi. He intended to increase Native American debts via trade which would lead them to sell their lands to pay off the debts.³⁰

Ultimately, Jefferson held out only two options to Indian people: Be absorbed into the United States and face cultural obliteration, or fight for Indian homelands and face military obliteration.³¹

On March 4, 1809, President James Madison stated in his first inaugural address that he intended

to carry on the benevolent plans which have been so meritoriously applied to the conversion of our aboriginal neighbours [sic] from the degradation and wretchedness of savage life, to a participation of the improvements of which the human mind and manners are susceptible in a civilized state . . .."³²

In the context of William Henry Harrison’s battle with the Shawnee at Tippecanoe, Madison referred to his aboriginal neighbours as savages.³³

By the administrations of James Monroe and John Quincy Adams, the United States had established policies that would lead to the dispossession of nearly all American Indian lands east of the Mississippi River.³⁴

In 1818, President James Monroe stated his approach to the Native American situation:

Experience has clearly demonstrated that independent savage communities cannot long exist within the limits of a civilized population. The progress of the latter has almost invariably terminated in the extinction of the former. It seems to be indispensable that their independence as communities should cease.³⁵

By his second term, Monroe was fully committed to his 1820 idea that Native American sovereignty over hundreds [sic] of square miles should cease, along with the tribes’ lifestyle. . .. Recognition of the tribes as separate nations was not working.³⁶

Monroe also actively pressured the removal of New York Senecas to acquire land to build the Erie Canal.³⁷

In August 1814, General Andrew Jackson dictated the Treaty of Fort Jackson which the Creeks were forced to sign ceding over twenty million acres of territory to the United States.³⁸ Andrew Jackson did not hide his animosity toward Native Americans:

They have neither the intelligence, the industry, the moral habits, nor the desire of improvement which are essential to any favorable change in their condition. Established in the midst of another and a superior race, and without appreciating the causes of their inferiority or seeking to control them, they must necessarily yield to the force of circumstances and ere long disappear.³⁹

Jackson apparently failed to recognize the Native Americans were not [e]stablished in the midst of the United States; they were already here and established when the white conquerors arrived.

From 1817 to 1847, over 170 treaties were negotiated with the Cherokee providing for their removal west and for cessions of land. In May 1830 Congress enacted the Indian Removal Act to force tribes to move west of the Mississippi River.⁴⁰ In 1856 Commissioner of Indian Affairs George Manypenny stated that one of the purposes of treaties was "for the gradual abolition