"There are only two ways of telling the complete truth—anonymously and posthumously."Thomas Sowell

Monday, May 21, 2018

I Leave It To You—The Reader—To Decide

Amici discussed presents that President Jefferson received from Indian tribes that Lewis & Clark brought home from their great trek. Modern historians have described such gifts as “diplomatic gifts,”[62] that is, presents from foreign nations. Indeed, Jefferson personally described gifts from a Mandan tribal chief as coming from “his [that is, the Indian Chief’s] country,” not our country.[63] The Mandan tribe, which resided in and around present-day North Dakota, was—at that time—in every relevant sense a foreign nation.[64] The Mandan were not born in U.S. territory (i.e., it was not United States territory at the time they were born). There was no peace treaty between the Mandan and the United States. The Mandan had not sold or ceded any of their lands to the United States government. They were not made subject to any federal removal policy or placed onto any reservation. They were not subject to the supervision of any federal officer or administrator with express responsibility over their tribe. And, obviously, they had no voting rights. At this juncture, in American history, they were not (yet) integrated into the American polis in any meaningful way—they were not yet part of the American nation. 

Plaintiffs attempt to counter this evidence with another letter that President Jefferson wrote on another occasion to five other Indian tribes.[65] However, the Wiandots, Ottowas, Chippeways, Poutewatamies, and Shawanese tribes, who Jefferson referred to as “my red children . . . forming one family with the whites,” were situated in significantly different ways—both geographically and legally—than the Mandan were vis-à-vis the United States.[66] It is no surprise that Jefferson addressed these five tribes using familial language: these five tribes primarily resided East of the Mississippi in territory that was within the settled pre-Louisiana Cession borders of the United States, as well as in the area around the Great Lakes.[67] 

Plaintiffs’ rebuttal does nothing to discount Jefferson’s own description of the gifts from the Mandan tribe, which was located about a thousand miles away from the five tribes that were connected to the Ohio Valley. By contrast, many of these tribesmen in the Louisiana Cession and further West had never met Westerners, and Lewis and Clark’s Corps of Discovery explorers were certainly the first Americans that many had met.[68] Tribes such as the Mandan were in every relevant sense foreign, as Jefferson’s correspondence with Lewis plainly shows. Contrary to Plaintiffs’ contra-historical blanket assertion, not all Indian tribes are the same: they had, and still have, distinct cultures, languages, and histories. Plaintiffs’ treatment of all such groups and their gifts as indistinguishable amounts to—at best—gross historical oversimplification. Again: Jefferson kept the Mandan diplomatic gifts. He did not ask for congressional consent. That is some substantial reason to think that Jefferson (like President Washington and others) did not think the Foreign Emoluments Clause applies to presidents. DOJ could have, but did not address any of this evidence that bears directly on the meaning of the Foreign Emoluments Clause.  

Because there is no adversity in regard to this probative evidence .  . . Amici , Tillman and the Judicial Education Project, ask to participate at the scheduled oral argument. 


Seth Barrett Tillman, I Leave It To You—The Reader—To DecideNew Reform Club (May 21, 2018, 7:17 PM), https://reformclub.blogspot.com/2018/05/i-leave-it-to-youthe-readerto-decide.html

An extract from: Motion for Leave of Amici Curiae Scholar Seth Barrett Tillman and the Judicial Education Project to be Heard at Oral Argument, Senator Richard Blumenthal v. Donald J. Trump, in his official capacity as President of the United States of America, Civ. A. No. 1:17-cv-01154-EGS (D.D.C. May 21, 2018) (Sullivan, J.), Dkt. No. 52, https://ssrn.com/abstract=3177824.

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[62] See, e.g., Elizabeth Chew, Unpacking Jefferson’s Indian Hall, Discovering Lewis & Clark, https://perma.cc/6UUKTC5X.
[63] Letter from President Thomas Jefferson to Meriwether Lewis (Oct. 20, 1806), in 8 The Writings of Thomas Jefferson 1801–1806, at 476, 477 (Paul Leicester Ford ed., N.Y. The Knickerbocker Press 1897) (emphasis added), http://bit.ly/2KX7lxb.
[64] Mandan People, Encyclopaedia Brittanica (“Mandan, self-name Numakiki, North American Plains Indians who traditionally lived in semipermanent villages along the Missouri River in what is now North Dakota.”), http://bit.ly/2Ge0Q5k.
[65] Letter from Thomas Jefferson to Indian Nations (Jan. 10, 1809), National Archives: Founders Onlinehttps://perma.cc/Y2DF-CT97 (“I take you and your people by the hand and salute you as my Children; I consider all my red children as forming one family with the whites[.]”).
[66] Id. (using Jefferson’s spelling in the main text).
[67] See, e.g., History, Wyandotte Nation, https://perma.cc/FX4H-2HHX; Ottowa Indians, Ohio History Connectionhttps://perma.cc/DS8J-M8KZ; Chippewa Indians, Ohio History Connection, https://perma.cc/TRY7-TX8JPotawatomi History, Wheeling Historical Society & Museum, https://perma.cc/9HJX-5794; History, The Shawnee Tribe, https://perma.cc/9XWF-2UMV.
[68] See The Native Americans, PBS, https://perma.cc/522D-76DY.

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