The 1871 act was the pr the house of representatives

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rather than a statement about tribal status. The 1871 Act was the pr the House of Representatives to end the Senate's monopoly over N e.g., CONG. GLOBE, 41st Cong., 2d Sess. 2517 (1870) (statement favor of adopting a resolution to appoint a joint committee on Nat supra note 20, at 319 (explaining that in the early 1870s, "the Hou Indian affairs"). That struggle culminated in the House's decision for all tribal treaties until the Senate agreed to make those agreem both houses. Indian Appropriations Bill, H.R. 1169, 41st Cong. Sargent). That story, which is the best precedent for the mod agreement, is worthy of further exploration. This cannot, however, explain the denial of Native American twentieth century. That requires a broader discussion of wh Reconstruction. See infra notes 372-384 and accompanying text. This content downloaded from 128.228.173.22 on Sat, 25 Mar 2017 23:24:14 UTC All use subject to
2003] THE CHEROKEE REMOVAL 947 Finally, the Reconstruction Framers thoug of self-governance articulated in Worcester the Tribes citizenship and subjecting them t instance, the Senate Report followed its opinion by concluding "that an act of Cong to treat the members of a tribe as subject to of the United States would be unconstitutional and void."368 As a result, federal law could cover the Tribes only to the extent that it was "consistent with [the Tribes'] character as separate political communities or states."369 Indeed, a reasonable interpretation of Worcester was that it mandated special treatment for tribes that was inconsistent with equal citizenship. This last point illuminates the tricky problem of folding Worcester's principles into the Fourteenth Amendment. Up until now, the discussion has proceeded on the assumption that the fit between these two milestones is seamless. But great legal texts from different eras rarely mesh perfectly. In some respects one can easily integrate John Marshall's opinion with John Bingham's amendment, but in other areas they are not compatible. While Worcester based its equality analysis on group rights, Section 1 focused on individual rights. Likewise, Marshall reasoned that the Tribes possessed special sovereign rights, while the Fourteenth Amendment proclaimed that all Americans should be treated alike in their basic rights. The Reconstruction Framers, wisely or not, resolved these inconsistencies by holding that the Tribes were not entitled to the citizenship granted by Section 1.370 Thinking through the best way to join the lessons from the 1830s with those from the 1860s is the central task for courts seeking to apply the Cherokee Paradigm of the Amendment. Accordingly, the distinction between the freedmen an Tribes within Section 1 does not undermine a Cherokee read the text. Not only was this distinction quite limited, but the li 368. S. REP. NO. 41-268, at 9. Of course, the tribes could be allowed to retain some sovereignty and be citizens at the same time. Indeed, that is how tribes are treated today. But it is anachronistic to assume that the Reconstruction Framers would have seen that solution.

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