rather than a statement about tribal status. The 1871 Act was the prthe House of Representatives to end the Senate's monopoly over Ne.g., CONG. GLOBE, 41st Cong., 2d Sess. 2517 (1870) (statement favor of adopting a resolution to appoint a joint committee on Natsupra note 20, at 319 (explaining that in the early 1870s, "the HouIndian affairs"). That struggle culminated in the House's decision for all tribal treaties until the Senate agreed to make those agreemboth houses. Indian Appropriations Bill, H.R. 1169, 41st Cong.Sargent). That story, which is the best precedent for the modagreement, is worthy of further exploration.This cannot, however, explain the denial of Native American twentieth century. That requires a broader discussion of whReconstruction. See infra notes 372-384 and accompanying text.This content downloaded from 188.8.131.52 on Sat, 25 Mar 2017 23:24:14 UTCAll use subject to
2003] THE CHEROKEE REMOVAL 947Finally, the Reconstruction Framers thougof self-governance articulated in Worcester the Tribes citizenship and subjecting them tinstance, the Senate Report followed itsopinion by concluding "that an act of Congto treat the members of a tribe as subject toof the United States would be unconstitutional and void."368 As aresult, federal law could cover the Tribes only to the extent that it was"consistent with [the Tribes'] character as separate politicalcommunities or states."369 Indeed, a reasonable interpretation ofWorcester was that it mandated special treatment for tribes that wasinconsistent with equal citizenship.This last point illuminates the tricky problem of foldingWorcester's principles into the Fourteenth Amendment. Up untilnow, the discussion has proceeded on the assumption that the fitbetween these two milestones is seamless. But great legal texts fromdifferent eras rarely mesh perfectly. In some respects one can easilyintegrate John Marshall's opinion with John Bingham's amendment,but in other areas they are not compatible. While Worcester based itsequality analysis on group rights, Section 1 focused on individualrights. Likewise, Marshall reasoned that the Tribes possessed specialsovereign rights, while the Fourteenth Amendment proclaimed thatall Americans should be treated alike in their basic rights. TheReconstruction Framers, wisely or not, resolved these inconsistenciesby holding that the Tribes were not entitled to the citizenship grantedby Section 1.370 Thinking through the best way to join the lessons fromthe 1830s with those from the 1860s is the central task for courtsseeking to apply the Cherokee Paradigm of the Amendment.Accordingly, the distinction between the freedmen anTribes within Section 1 does not undermine a Cherokee readthe text. Not only was this distinction quite limited, but the li368. S. REP. NO. 41-268, at 9. Of course, the tribes could be allowed to retain somesovereignty and be citizens at the same time. Indeed, that is how tribes are treated today. But itis anachronistic to assume that the Reconstruction Framers would have seen that solution.