Unfortunately for the Cherokees, a month after Ross was elected principal chief Andrew Jackson was elected president of the United States, and Jackson was the most forceful advocate of Indian removal that had yet entered the White House. Thomas Jefferson, a student of the Enlightenment, had believed in the essential unity of the human race and regarded Indians as culturally inferior but capable of improvement. Jackson, and an increasing number of Americans in his day, believed in a hierarchy of races that left Indians permanently apart and inferior. Whatever they achieved, they were still Indians. Their cultural resilience and resistance proved they were incapable of changing with the times. The Cherokees and their supporters presented themselves as a modernizing Indian nation, with sovereign rights that the United States was bound to respect by the terms of its own treaties. Jackson and Lewis Cass, the governor of Michigan Territory who became Jackson’s secretary of war in 1830, presented the Cherokees as timeless savages, whose treaties did not have the same standing as treaties with other nations, and who must make way for civilized white people who would put their land to good use.25
FIGURE 4.5 John Ross. (From History of the Indian tribes of North America, with biographical sketches and anecdotes of the principal chiefs. Embellished with one hundred and twenty portraits, from the Indian Gallery in the Department of War, at Washington, by Thomas L. McKenney and James Hall, 3 vols. [Philadelphia: J. T. Bowen, 1848–50], Dartmouth College, Rauner Library)
Publication of the Cherokee Constitution, hailed in the North, spurred Georgia into action. Like other settler societies elsewhere in the world Georgia in the 1820s and 1830s sought to expand its sovereignty by subordinating the Native people within its territorial boundaries and asserting local control over the process of dispossessing them of their land. The Georgia Assembly adopted a resolution, which was to go into effect in June 1830, extending state jurisdiction over Cherokee country. The Cherokee Nation was divided into counties administered by local governments and presided over by state courts and “hundreds of Cherokee Indians found their way into Georgia’s courts.”26 Georgia demanded that the federal government carry out its obligations under the Compact of 1802 and begin negotiations to compel the Cherokees to cede those lands. “The lands in question belong to Georgia,” the Assembly declared. “She must and will have them.”27 Georgia carried out a systematic campaign of harassment and intimidation, culminating in an assault on Cherokee government. After gold was discovered in Cherokee country in 1829, several thousand prospectors flooded in to pan the streams. Elias Boudinot laid out the issue clearly in the pages of the Cherokee Phoenix in January 1829: “The State of Georgia has taken a strong stand against us, and the United States must either defend us in our rights, or leave us to our foe. In the former case, the General Government will redeem her pledge solemnly given in treaties. In the latter, she will violate her promise of protection, and we cannot, in future, depend consistently, upon any guarantee made by her to us, either here or beyond the Mississippi.”28 John Ross placed the matter before Congress (and “before the world”) as “a question of great magnitude”: could a state usurp “the most sacred rights and privileges of a weak, defenceless, and innocent nation of people, who are in perfect peace with the United States, and to whom the faith of the United States is solemnly pledged to protect and defend them against the encroachments of their citizens”?29 Boudinot, Ross, and Major Ridge were adamant that the Cherokees were opposed to removal and nothing could “induce them ever to enter into a treaty on the subject.”30 In January 1830 Major Ridge led a troop of the Light Horse, dressed and painted as if for war, in expelling squatters near the Georgia-Alabama border, an action that Georgia newspapers seized on for its propaganda value.31
Jeremiah Evarts, the secretary of the ABCFM, spent the last two years of his life (he died in May 1831) leading a moral crusade and orchestrating a petition campaign against removal. Writing under the name William Penn (the first governor of Pennsylvania was known for respecting Indian treaties), Evarts, in a series of widely circulated essays, reviewed the Cherokees’ sixteen treaties, “ratified with the same solemnity, as treaties between the United States and the powers of Europe,” to show they had been guaranteed title to the soil and sovereignty over their territory “till they voluntarily surrender their country; such an act on their part being the only way in which their title can be legitimately extinguished, so long as treaties are the supreme law of the land.” To implement removal would demonstrate to the world that “the great and boasting Republic of the United States of North America incurred the guilt of violating treaties.” Removal, said Evarts, was more than just a political question: “It relates to the great questions of the law of nations, and to fundamental principles of right and wrong. It implicates the reputation of our country throughout the civilized world; and will bear witness against the rulers and the people who sanction it, so long as the record of these transactions shall be preserved.” To implement removal would be a national calamity.32 Edward Everett, a representative from Massachusetts and later president of Harvard, agreed: apart from the injustice to countless Indians, removal was an assault on Indian treaties, on the treaty-making authority of Congress, and on the Constitution itself. It threatened the reputation of the nation in international affairs and threatened the union. It was, he said, “the greatest question that ever came before Congress, short of the question of peace and war.”33
Nevertheless, in May 1830, after extensive debate and a close vote in both houses, Congress passed the Indian Removal Act, authorizing the president to negotiate treaties of removal with all Indian tribes living east of the Mississippi. The Senate passed the bill by 28 votes to 19; the House of Representatives by 102 to 97. The voting involved political and moral issues and did not break down along pro- and anti-Indian lines so much as along regional and party lines. Some who voted against the bill did so out of opposition to Jackson rather than sympathy for the Indians; some who voted in favor of the bill did so in reluctant conviction that removal represented the Indians’ best, and perhaps only, chance of survival. Davy Crockett, the renowned Indian fighter from Tennessee, voted against the bill, arguing that it violated the treaty clause of the Constitution—a stand that cost him his seat in the House. Daniel Webster worked with Senator Henry Clay of Kentucky and other anti-Jacksonians against the bill, but he was more interested in impugning Jackson than in championing Indians. Like many politicians and businessmen who took up the Cherokee cause in the South, Webster profited by investing in lands obtained from Indians in the North. The act authorized the president to make removal treaties, but those treaties still had to be approved by a two-thirds majority in the Senate, where Webster vigorously opposed their ratification.34 In Jackson’s view, negotiating treaties with the tribes was absurd now that the power lay so emphatically with the United States; Indians should be treated as subjects, not as sovereign nations.
The government and its Indian agents presented removal as the benign policy of a generous father. The Cherokees would be well advised to accept it but they could choose to stay where they were: “There will be employed no force any way, but the force of reason.” At the same time, Jackson was adamant that while the federal government would try to keep intruders out of Cherokee country, it would not and could not interfere with a state exercising its sovereignty and its laws over the Indians within is borders.35 As soon as the Indian Removal Act became law, surveyors and squatters entered Cherokee country and Georgia stepped up its campaign of harassment. Beginning June 1, Georgia extended its laws over Cherokee lands; nullified the Cherokees’ constitution, laws, and court system; and prohibited Cherokee assemblies, including meetings of the National Council. Cherokees were forbidden to speak out against removal, to testify in court, or even to dig for gold on their own land. As far as Georgia was concerned, the Cherokee Nation had ceased to exist. Georgia created a police force—-the Georgia Guard—to patrol Cherokee country and handed out Cherokee lands to Georgian citizens in a state lottery.36
the Cherokee Nation has the right to establish its own form of Government, and to alter and amend it from time to time, according to its own sense of its own wants; to live under its own laws; to be exempt from the operations of the laws of the U. States, or of any individual state; to claim the protection of the U. States, and quietly to possess and enjoy its lands subject to no other limitation than that, when sold, they can only be sold to the U. States.
Jackson, said Clay, had announced a policy hostile to these principles “and thereby encouraged Georgia to usurp powers of legislation over the Cherokee Nation which she does not of right possess.”38
John Ross hired former attorney general William Wirt and other lawyers to represent his people’s interests. Wirt filed a series of test cases. He first obtained a writ of error from Supreme Court Justice John Marshall to stay the execution of a Cherokee named George Corn Tassel. A Georgia court had sentenced Corn Tassel to death for killing another Indian, a crime the Cherokees and their supporters argued should fall under Indian jurisdiction because it occurred in Cherokee country. In a special session, the Georgia legislature voted to defy the writ, and Corn Tassel was hanged. “The conduct of the Georgia Legislature is indeed surprising,” wrote Elias Boudinot in a passage prophetic of future events; “they … authorize their governor to hoist the flag of rebellion against the United States! If such proceedings are sanctioned by the majority of the people of the U. States, the Union is but a tottering fabric which will soon fall and crumble into atoms.”39
Three days before Tassel’s execution Wirt filed suit against Georgia before the Supreme Court of the United States. The Cherokees were the first Indian nation to bring a case in the highest court. In Cherokee Nation v. Georgia, the Court found that it lacked original jurisdiction, but Chief Justice John Marshall tried to define the status of the Cherokees—and by extension all Indian tribes—within the United States. The Cherokees, he said, were “a domestic, dependent nation,” who had retained some aspects of their sovereignty through treaties. He likened the Indians’ relationship to the government to that between a ward and a guardian. However, without a strong show of federal power to enforce United States laws protecting tribal sovereignty, the Cherokees remained vulnerable to Georgia’s assaults.
The Cherokees succeeded in getting their case into the Supreme Court the next year via a United States citizen. In March 1831, the Georgia Guard arrested nine missionaries for preaching in Cherokee country without having taken an oath of obedience to the laws of Georgia. Seven of the missionaries took the oath or left the state, but two, Samuel Worcester and Elijah Butler, refused to do either and were sentenced to four years of hard labor. Worcester and Butler petitioned the Supreme Court, which accepted the case. As US citizens, there could be no question regarding their standing. As in Cherokee Nation, Georgia refused to appear. In March 1832, Chief Justice Marshall, seventy-five years old and in poor health, rendered the verdict in Worcester v. Georgia. In a 6–1 decision the court found Worcester’s arrest was illegal. Georgia had no authority to execute its laws within an Indian nation protected under the treaty clause of the United States Constitution:
The constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words “treaty” and “nation” are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense.
The Cherokee Nation was “a distinct community, occupying its own territory … in which the law of Georgia can have no right to enter but with the assent of the Cherokees.” The Georgia law under which the missionaries were arrested was “void, as repugnant to the Constitution, treaties, and laws of the United States.”40 The Cherokee delegation in Washington and their supporters greeted the decision with jubilation.
Their elation was short-lived. It quickly became clear that Jackson was not going to enforce the decision. The case reaffirmed the supremacy of the federal government in dealing with Indians, which only redoubled Georgia’s efforts to drive the Cherokees into making a federal treaty. Now more than ever was the time to stick together, Ross said; a treaty with the United States could not take place “if our people continue to remain firm & to be united in the support of our common interests.”41 But divisions soon appeared. Ross and John Ridge returned to Washington to join the Cherokee delegation there. Ridge secured an audience at the White House and asked the president point-blank “whether the power of the United States would be exerted to execute the decision and put down the legislation of Georgia.” Jackson replied equally bluntly that it would not. He urged Ridge “to go home and advise his people that their only hope of relief was in abandoning their country and removing to the West.” The interview seems to have been a turning point for John Ridge. “From that moment,” wrote Indian agents Samuel Stambaugh and Amos Kendall, “he was convinced that the only alternative to save his people from moral and physical death was to make the best terms they could with the government, and remove out of the limits of the States.”42
Secretary of War Lewis Cass called the Cherokee delegation to his office and offered them a removal treaty. Meanwhile, the Cherokees’ white friends were giving the same advice. David Greene of the ABCFM, the Cherokees’ long-time allies and advocates, wrote John Ridge on May 3, 1832: “It makes me weep to think of it,” he said. “But if your friends in Congress think that all further effort in your behalf will be useless … then, for aught I can see, you must make the best terms you can, & go.”43 Twelve days later, the Cherokee delegation left for home.
In the fall of 1832, Georgia held another lottery to distribute Cherokee land among its citizens. Andrew Jackson’s victory over Henry Clay at the polls in November dashed any hopes that a change of administration might bring a change of policy.
“I have signed my death warrant”
Whether they bowed to the inevitable or saw an opportunity to advance themselves, the Ridges now took the position that the Cherokees’ best hope—indeed their only hope—was to try and negotiate terms for removal. Ridge finally entered the Presbyterian Church and accepted baptism in 1832.44 Elias Boudinot by this time also believed there was no alternative to removal. He explained his change of heart and his change of policy as patriotism: his intention was still the preservation of the Cherokee Nation but it was clear that if the people stayed where they were they would be destroyed. Better to give up the homeland than to see the people perish. So long as the people survived, the nation could survive, but now it could do so only in the West.45
A pro-removal group known as the Treaty Party began to coalesce around the Ridges and Boudinot. There was more to their action than a realization that the Cherokees had no choice. Cherokees who joined the Treaty Party tended to be better off economically than the majority of Cherokees but were not as well-to-do as the elite; those who took the lead, with the exception of Major and John Ridge, did not hold elective office, and a number had been defeated in their bids for tribal office. Invoking the rhetoric of Jacksonian Democrats, the historian Theda Perdue characterized the Treaty Party as members of “a rising middle class.” Like Jackson and his foll
owers they were moving up but they wanted more and felt a privileged elite was holding them back. Not surprisingly, Jackson cultivated this group to divide the Cherokee Nation, undermine its elected leadership, and ignore the will of the Cherokee majority. For the Treaty Party the removal crisis was also an opportunity to usurp political authority and to secure concessions for themselves by taking the lead in negotiating a treaty with the United States. For John Ridge, the crisis demanded leadership by John Ridge, not John Ross.46
Ross and the majority remained firmly against removal. They did not subscribe to Boudinot’s vision of a civilized Cherokee Nation that could survive and even prosper separated from their homeland. The West was not a land of opportunity to Cherokees; moving west meant heading in the direction of death. Lines quickly hardened between former allies. In 1832 the Cherokee Council met at Red Clay, just over the Tennessee border, rather than at New Echota (Georgia law criminalized Cherokee meetings within the state’s borders). Ross tried unsuccessfully to prevent public discussion of the treaty Cass had offered. In view of the crisis, the council decided not to hold national elections and passed a resolution continuing the same chiefs and officeholders in their positions. John Ridge believed he was better qualified than Ross and believed Ross was behind the move. Stressing the need to present a united front, Ross also opposed printing anything in the Phoenix that diverged from the antiremoval stance. Boudinot resigned: “Were I to continue as Editor,” he informed Ross, “I should feel myself in a most peculiar and delicate position.”47 The council subsequently expelled the Ridges and other members who favored removal. Boudinot and the Ridges accused Ross of despotism but Ross can be seen as acting in accordance with traditional consensus politics, which required dissenters to withdraw and maintain their silence so that the community could present a united front.48
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