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Forgotten Federal-Missionary Partnerships: New Light on the Establishment Clause

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Forgotten Federal-Missionary Partnerships: New Light on the Establishment Clause Notre Dame Law Review Volume 96 Issue 2 Article 5 12-15-2020 Forgotten Federal-Missionary Partnerships: New Light on the Establishment Clause Nathan S. Chapman Pope F. Brock Associate Professor of Professional Responsibility, University of Georgia School of Law, and McDonald Distinguished Fellow at the Center for the Study of Law and Religion, Emory University Follow this and additional works at: https://scholarship.law.nd.edu/ndlr Part of the Constitutional Law Commons, Religion Law Commons, and the Supreme Court of the United States Commons Recommended Citation 96 Notre Dame L. Rev. 677 (2020) This Article is brought to you for free and open access by the Notre Dame Law Review at NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized editor of NDLScholarship. For more information, please contact [email protected]. \\jciprod01\productn\N\NDL\96-2\NDL205.txt unknown Seq: 1 8-DEC-20 9:34 FORGOTTEN FEDERAL-MISSIONARY PARTNERSHIPS: NEW LIGHT ON THE ESTABLISHMENT CLAUSE Nathan S. Chapman* Americans have long debated whether the Establishment Clause permits the government to support education that includes religious instruction. Current doctrine permits states to do so by providing vouchers for private schools on a religiously neutral basis. Unlike most Establishment Clause doctrines, however, the Supreme Court did not build this one on a historical foundation. Rather, in cases from Everson v. Board of Education (1947) to Espinoza v. Montana Department of Revenue (2020), opponents of religious-school funding have claimed Ameri- can history supports a strict rule of no-aid. Yet the Court and scholars have largely ignored a practice that casts light on the historical understanding of the Establishment Clause: from the Revolution through the Civil War, the federal government partnered with missionaries to educate Native American students. At first ad hoc, the practice became a full-scale program with the Civilization Fund Act of 1819. Presidents Washington, Jefferson, Madison, and Monroe all actively participated. Intriguingly, no one objected to the partnerships on constitutional grounds. This is the first Article to place this practice in its cultural, political, and constitutional context, to consider its implications for the intellectual and political history of disestablishment, and to wrestle with its potential implications for contemporary church-state doctrine. © 2020 Nathan S. Chapman. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice. * Pope F. Brock Associate Professor of Professional Responsibility, University of Georgia School of Law, and McDonald Distinguished Fellow at the Center for the Study of Law and Religion, Emory University. I am grateful for the feedback that colleagues provided on various stages of this Article at workshops at the Annual Law and Religion Roundtable at the University of Pennsylvania, the Emory Center for Law and Religion, the Stanford Constitutional Law Center, and the Notre Dame Law School. I am also grateful for the many friends who have made suggestions, including Greg Ablavsky, Stephanie Barclay, Kent Barnett, Will Baude, Mary Sarah Bilder, Gerry Bradley, Sam Bray, Michael Broyde, Jud Campbell, Marc DeGirolami, Donald Drakeman, Carl Esbeck, Kellen Funk, Rick Garnett, Mark David Hall, Hillel Levin, Chris Lund, Sandy Mayson, Michael McConnell, Zach Price, Linda Przybyszewski, Audra Savage, Steve Smith, Mark Storslee, Kate Thorne, Lael Weinberger, and John Witte. Many thanks to William Gaskins and Chelsea Swanson for excellent research assistance and to T.J. Striepe and the other staff members of Alexander Campbell King Law Library at the University of Georgia. 677 \\jciprod01\productn\N\NDL\96-2\NDL205.txt unknown Seq: 2 8-DEC-20 9:34 678 notre dame law review [vol. 96:2 INTRODUCTION .................................................. 679 R I. THE WASHINGTON POLICY: “THE INSTRUMENTS TO WORK ON THE INDIANS”................................... 684 R A. The Colonial and Revolutionary Legacy .................. 684 R B. The Constitutional Framework ........................... 688 R C. The Washington Administration ......................... 688 R 1. The Washington-Knox Framework ................ 688 R 2. Reverend Samuel Kirkland ....................... 690 R 3. Reverend John Heckenwelder .................... 695 R D. The Jefferson Administration ............................ 696 R 1. Gideon Blackburn and the Cherokees ............ 697 R 2. The Kaskaskia Treaty ............................. 698 R E. The Madison and Monroe Administrations ............... 699 R II. THE CIVILIZATION FUND ACT OF 1819 ..................... 701 R A. Legislative History ..................................... 702 R B. The Act and Regulations ............................... 704 R C. Early Implementation................................... 706 R 1. Reverend Jedidiah Morse’s Report ................ 706 R 2. Early Expenditures and Political Challenges ...... 706 R 3. Administering Religion ........................... 710 R D. Removal, Reliance, and the End of the Program ........... 711 R E. Postscript on President Grant’s “Peace Policy” and Anti-Sectarianism ...................................... 713 R III. THE WIDESPREAD ASSUMPTION OF THE PARTNERSHIPS’ CONSTITUTIONALITY ...................................... 715 R A. The Attempt to Repeal the Civilization Act ................ 715 R B. Richard Mentor Johnson Embraces the Program............ 716 R C. Jefferson and Madison Critique the Civilization Program ... 717 R D. An Intriguing Challenge in Congress ..................... 719 R IV. A SHORT HISTORY OF RELIGIOUS DISESTABLISHMENT ........ 720 R V. THE MISSIONARY PARTNERSHIPS AS GOVERNMENTAL SUPPORT FOR EDUCATION ................................. 724 R A. “Indian Affairs” Exceptionalism ......................... 725 R B. A Pre-Secular Paradigm of Social Progress ................ 728 R 1. Christianity and American Republicanism ........ 729 R 2. Natural Versus Revealed Religion ................. 730 R 3. Civilization and “Savages” ........................ 731 R VI. LESSONS FOR THE HISTORY OF DISESTABLISHMENT .......... 733 R A. The Scope of Objections to Governmental Funding of Religious Instruction ................................... 733 R B. Do the Partnerships Support “Nonpreferentialism”? ......... 736 R C. Voluntariness ......................................... 738 R VII. TRANSLATION............................................. 739 R \\jciprod01\productn\N\NDL\96-2\NDL205.txt unknown Seq: 3 8-DEC-20 9:34 2020] forgotten federal-missionary partnerships 679 A. Uncontested Practice and Constitutional Construction ...... 740 R B. Contemporary Doctrine ................................. 743 R 1. The Principal Doctrine ........................... 743 R 2. The Direct/Indirect and Religious/Secular Distinctions ...................................... 743 R 3. Taxpayer Standing ............................... 745 R 4. Funding Foreign Religious Education ............ 746 R CONCLUSION: OF POLITICS, EDUCATION, AND SOCIAL PROGRESS ..... 746 R [Samuel Worcester] entered the aforesaid Cherokee nation in the capacity of a duly authorised missionary of the American Board of Commissioners for Foreign Missions, under the authority of the president of the United States . .1 INTRODUCTION Generations of constitutional scholars have studied Worcester v. Georgia as a landmark decision about the relative power of the federal and state govern- ments over relations with the Native American nations.2 But they have largely overlooked the federal-missionary partnership that gave rise to the case: Worcester was a clergy member authorized by the federal government to educate Cherokee students within the state of Georgia.3 This oversight is somewhat understandable—the partnerships were a relatively small compo- nent of federal–Native American relations during the early republic. Moreo- ver, at the time, they raised no constitutional objections. Yet for this reason they present a puzzle for the history of the separation of church and state: Why did a federal program that paid ministers to educate Native American students raise no objections from officials such as James Madison and Thomas Jefferson, officials who had objected so vehemently to a Virginia bill to fund churches and clergy salaries, and who had insisted on a strict applica- tion of the federal Establishment Clause?4 The answer, this Article argues, is that Americans throughout the late eighteenth and nineteenth centuries understood education to entail at least a modicum of religious instruction.5 They tacitly distinguished between the governmental funding of such education and the funding of churches for purposes of separation of church and state.6 This account dramatically revises the standard narrative of religious disestablishment that the Supreme 1 Worcester v. Georgia, 31 U.S. 515, 538 (1832). 2 See generally JILL NORGREN, THE CHEROKEE CASES: TWO LANDMARK FEDERAL DECISIONS IN THE FIGHT FOR SOVEREIGNTY (2004); see also GERARD N. MAGLIOCCA, ANDREW JACKSON AND THE CONSTITUTION: THE RISE AND FALL OF GENERATIONAL REGIMES 42–47 (2007); G. Edward White, The Marshall Court and Cultural Change, 1815–35, in 3–4 THE OLIVER WENDELL HOLMES DEVISE: HISTORY OF THE SUPREME COURT OF THE UNITED STATES 730–40, (1988). 3 See Worcester,
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