1831
Page 14
Sergeant emphasized that it mattered little whether the Cherokee were inferior or dependent: a weak state is still a state, much as an amputee is still a man. The laws of Georgia had jeopardized the Indian right of self-government and right to property. The Cherokee Nation now came before the Court to address not an abstract question or a political issue but a legal problem—the protection of its rights as a foreign state against Georgia’s encroachment.
On Monday, Wirt addressed the Court. He covered many of the legal points made by his colleague, but in even more exhaustive fashion. The difference was not in degree of detail but in passion of argument. He implored the Court to uphold the conscience of the nation: “Are we so lost to character as to … make the tacit admission, that we hold ourselves bound by our engagements only so long as we can be compelled to fulfill them? … If such be the point of degeneracy to which we have already sunk since the age of Washington, farewell to the honor of the American name.” He begged the Court to strike a blow against the racism of the age: “It is not the tincture of a skin by which the rights of these people are to be tested. We are beginning to recover from our mistake on this ground, with regard to another unfortunate race. Let us not create for ourselves, and place in the hands of a just God, a new scourge of a similar description.” He demanded that the Court act without regard to whether the president would enforce its decision: “If the injunction shall be awarded, there is a moral force in the public sentiment of the American community which will, alone, sustain it, and constrain obedience … . For, if the judiciary is struck from the system, what is there of any value that will remain. Sir, the government cannot subsist without it. It would be as rational to talk of a solar system without the sun.”
In a soft voice, with the darkness of late day enveloping the Court, Wirt concluded: “The existence of this remnant of a once great and mighty nation is at stake, and it is for your honours to say, whether they shall be blotted out from creation, in utter disregard of all our treaties. They are here in the last extremity, and with them must perish forever the honor of the American name. The faith of our nation is fatally linked with their existence, and the blow which destroys them quenches forever our own glory: for what glory can there be of which a patriot can be proud, after the good name of his country shall have departed? We may gather laurels on the field and trophies on the ocean, but they will never hide this foul and bloody blot upon our escutcheon. ‘Remember, the Cherokee nation’ will be answer enough to the proudest boasts we can ever make.”12
Wirt’s speech left many in tears, but few observers believed he had succeeded in turning a question of state power into one of national honor. John Quincy Adams, who attended both days of oral arguments, thought that the “weight of the State will be too heavy for them [Sergeant and Wirt]. The old vice of the confederacies is pressing upon us—anarchy in its members. Whenever a State does set itself in defiance against the laws or power of the Union, they are prostrated. This is what the States having Indian tribes within their limits are now doing with impunity, and all the powers of the General Government for protection of the Indians, or the execution of the treaties with them, are nullified.”13
The Cherokee Nation did not have long to wait for the Court’s decision. On March 18, the final day of the session, Marshall read the majority opinion, two other justices offered concurring opinions, and Justice Story joined Justice Smith Thompson in a dissent. Though moved by the plight of the Indians, Marshall ruled that the Cherokee could not, “with strict accuracy, be denominated foreign nations.” He relied on the wording of the commerce clause (Congress had the power to “regulate commerce with foreign nations, and among the several states, and with the Indian tribes”) as evidence that the Indians were distinguishable from foreign states. Wirt had anticipated this argument and ingeniously suggested that this clause employed the word “foreign” only in a geographic sense as related to markets, not in a political sense related to sovereignty. Marshall, who had no rival when it came to ingenious solutions to seemingly intractable legal problems, found the Cherokee to be neither a foreign state nor a subject tribe but, rather, a “domestic, dependent nation.” As a result, their case could not be brought before the Court.
Compared with the concurring opinions, Marshall’s was a model of brevity and sympathy. William Johnson of South Carolina and Henry Baldwin of Pennsylvania rejected the petitioners’ claims in the strongest terms. Johnson thought it unlikely that the word “state” could possibly apply “to a people so low in the grade of organized society as our Indian tribes generally are … . [They are] wandering hordes, held together only by ties of blood and habit, and having neither laws or government, beyond what is required in a savage state.” Baldwin, a Jackson appointee to the Court, who in two years would suffer from a nervous breakdown, went even further. He refused to recognize the plaintiff at all and protested against any sort of judicial activism that might undermine the “full dominion” of the “sovereign power of the people of the United States” over their territory.
The decision left Marshall uneasy. Publicly, his opinion had hinted that the Court might consider a more limited case that focused on Cherokee property rights. Privately, he encouraged Smith Thompson and Joseph Story to write a dissent. The dissent, of course, would not alter the holding of the Court, but it could influence future rulings. Thompson, with Story concurring, argued that the Cherokee were a foreign state and that the Court held original jurisdiction. Even more directly than Marshall, Thompson announced that the Court could not rule on abstract questions, only on questions in which a law was in operation and threatened specific rights of person or property. As an example, Thompson cited the Georgia law authorizing the governor to take possession of gold and silver mines located in Cherokee territory. Privately, Story placed the tragedy in human terms. “I never in my whole life was more affected by the consideration that they and all their race are destined to destruction,” he confided to his wife. “I feel, as an American, disgraced by our gross violation of the public faith towards them. I fear, and greatly fear, that in the course of Providence there will be dealt to us a heavy retributive justice.”14
Months would pass before the dissent became widely known and Cherokee supporters could rally public opinion and plan another assault on Georgia’s laws. Until then, Jacksonians and Southerners offered their constituencies a slanted interpretation of the Court’s decision: “The Court has decided in favor of the views of the Executive … . A war of extermination was to be waged by the Union against the State of Georgia, to protect some ideal notions of Indian sovereignty; and the President was to be forced into these measures by the Supreme Court and the excitement produced on the public mind … . The Court has nipped in the bud this mad scheme of political ambition.”15
Shortly after the decision, the Cherokee delegation to Washington, headed by John Ridge, called on Andrew Jackson. Months later, some Democratic newspapers reported that Ridge had asked Jackson if “he was angry with them,” to which Jackson replied that he was only sorry they had been deluded by their friends. Ridge responded to the story, which was designed to humiliate the Cherokee. “Sooner than ask the President if he was angry with me,” wrote Ridge, “I would cut my tongue out of my mouth.” Rather, Jackson expressed surprise that the Indians would go to court. Ridge answered, “As a statesman and a warrior we do not believe you would blame the Cherokees for the efforts they have made to maintain their rights for liberty.”
Jackson lapsed into anecdote and reminded the delegation of the once mighty Catawba, who “took some of the Cherokee warriors prisoners, threw them in the fire, and when their intestines were barbecued, ate them—now they [the Catawba] were poor and miserable, and reduced in numbers, and such will be the condition of the Cherokees, if they remain surrounded by the white people.” A politician from Georgia was announced at that point, and the delegation rose to leave. As they departed, Jackson said, “You can live in your lands in Georgia if you choose, but I cannot interfere with the la
ws of that state to protect you.”16
Even as Jackson and Ridge spoke, events in Georgia were unfolding that would lead to another Supreme Court case. The evangelical impulses of the Second Great Awakening had led organizations such as the American Board of Commissioners for Foreign Missions to redouble their efforts among the Indians. On March 13, Samuel Worcester, a thirty-three-year-old Congregationalist missionary to the Cherokee, was arrested along with several other missionaries for violating a recently enacted Georgia law that prohibited the residence of whites in Indian territory, with the exception of government employees. In a Gwinnett County courtroom, Judge Clayton upheld the Georgia law but released the defendants on the grounds that they qualified as agents of the federal government. Governor Gilmer, intent on banishing the antiremoval missionaries from the territory, arranged with Jackson-administration officials to have Worcester removed from his position as postmaster at New Echota and to disavow any relationship between the government and the missionaries. In July, the state rearrested Worcester for refusing to leave Cherokee territory. In September, he, physician Elizur Butler, and nine others were convicted and sentenced to four years at Milledgeville Penitentiary.
The American Board of Commissioners for Foreign Missions hired Wirt and Sergeant and appealed the convictions to the Supreme Court. Beginning on February 20, 1832, the counsel replayed the arguments they had offered nearly a year earlier; once again, no one appeared for the state of Georgia. Worcester v. Georgia was an easier case to argue. Marshall had already indicated his desire to rule again on the Georgia laws; there were no jurisdictional issues, since this was a direct appeal from the decision of a state court; and public opinion in the climate of evangelical enthusiasm was particularly exercised by “the degrading manner in which the missionaries of the cross have been arrested, conducted in chains to trial, and consigned to the penitentiary.” Story gave more than a hint of how the Court would rule when he wrote his wife that Wirt’s argument was “uncommonly eloquent, forcible and finished.” “I blush for my country,” he concluded, “when I perceive that such legislation, destructive of all faith and honor towards the Indians, is suffered to pass with the silent approbation of the present Government of the United States.”17
Chief Justice Marshall, recovering from surgery and from the death of his wife, whispered the Court’s decision. The Cherokee Nation, he ruled, “is a distinct community, occupying its own territory, with boundaries accordingly described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokee themselves, or in conformity with treaties and acts of Congress.” Story felt proud. “The Court has done its duty,” he boasted. “Let the nation now do theirs. If we have a government, let its command be obeyed; if we have not, it is as well to know it at once, and to look to consequences.”18
Story, of course, knew what the nation knew—that the Court was powerless to enforce the decision. Jackson gloated that the ruling “has fell still born.” At first, the Cherokee rejoiced over the decision, but soon even their supporters advised them to sign a treaty and voluntarily move west. With Jackson’s re-election nearly certain, public political support for the Cherokee cause began to erode. And with South Carolina threatening nullification of a federal law, the president needed Georgia far more than he ever needed the Indians. For sixteen months, Worcester and Butler languished in jail. They refused to concede any wrongdoing or ask for a pardon. At last, they wore down and wrote the new governor, Wilson Lumpkin. Without repudiating their principles, they informed him that they would no longer pursue their case against the state. In January 1833, they left the penitentiary. That month, even the American Board of Commissioners for Foreign Missions, who had been zealously antiremoval, suggested that the Cherokee come to terms with the government.
Two factions emerged. John Ross, the chief of the Cherokee, encouraged resistance and opposed abandoning ancestral lands. Major Ridge, a Cherokee leader who had fought with Jackson against the Creek in the War of 1812, his son John Ridge, and his nephews Elias Boudinot and Stand Waite, advocated signing a treaty. Ross and Ridge were both wealthy slave owners acting for what each thought was in the tribe’s best interest, but the division between them would divide the Cherokee for decades. Jackson recognized Ridge’s minority faction and, in Ross’s absence, negotiated the Treaty of New Echota in 1835. The Senate ratified it by one vote. The vast majority of Cherokee opposed the treaty. When, after two years, fewer than two thousand had left, President Van Buren decided to compel removal.
Soldiers rounded up the Cherokee, placed them in camps, and sent them west in a series of forced marches that have come down to us as the “Trail of Tears.” Victimized by unscrupulous furnishing agents, extreme climates, and the rigors of making an overland journey to unknown territory, more than four thousand Indians died. They died of dysentery and pellagra, cold and hunger, brutality and despair. Both the rich and the poor suffered, especially women and children. Among the many victims was John Ross’s wife, Quatie, who in a snowstorm gave her blanket and her life to a freezing child. Prior to joining the Cherokee on the trail west, the Baptist missionary Evan Jones commented on the catastrophe that was unfolding: “Most of their faces, I fear, we shall not see again till the great day when the oppressor and the oppressed shall appear before the tribunal of the righteous judge. I have no language to express the emotions which rend our hearts to witness their season of cruel and unnecessary oppression. For if it be determined to take their land and reduce them to absolute poverty, it would seem to be mere wanton cruelty to take their lives also.”19
At the same time that the Cherokee appealed to the courts to preserve their homeland, a group of Indians in Illinois resorted to arms. In the spring, members of the Sauk tribe crossed to the east side of the Mississippi and returned to their ancestral village at Rock Island. Authorities believed that, through treaties signed in 1804, 1816, and 1825, the tribe had relinquished its rights to these lands. Settlers petitioned for protection from marauding Indians who “are Burning our fences destroying our crops of Wheat now growing by turning in all their Horses[.] They Also threaten our lives if we attempt to plant corn and say they will cut it up & That we have Stole their Lands from them and they are determined to exterminate us provided we don’t leave the country.” In May, the governor informed William Clark—the superintendent of Indian affairs, who, nearly thirty years earlier, had traveled with Meriweather Lewis to Oregon and back—that he was calling out the militia “to protect those citizens, by removing said Indians, peaceably, if they can: but forcibly, if they must. Those Indians are now, and so I have considered them, in a state of actual invasion of the State.”20
Clark immediately wrote to the commanding officer of the Western Department of the United States Army, Edmund Gaines, and informed him that, though most Sauk leaders had agreed to move to a new village on the Iowa River, west of the Mississippi, two bands of Indians, “after abandoning their old village … returned again in defiance of all consequences.” Gaines and six companies of infantry boarded a steamboat for Rock Island, prepared to use force to drive the Indians across the river.
Upon his arrival, Gaines found that the Indians were not “in a state of actual hostility,” and he called for a council with the chiefs and braves of the tribe. Keokuk, a fighter opposed to the band who had reoccupied Rock Island, was present, along with many other leaders. The house was nearly full when those Sauk in question arrived. They approached the meeting place “singing a war song, and armed with lances, spears, war clubs and bows and arrows, as if going to battle.” But at the doorway, the leader, Black Hawk, paused. He wanted the room cleared of everyone except a few other Indian leaders. After all, he was the main reason for the gathering. When Gaines complied, Black Hawk entered.21
Black Hawk was born in 1767, and he led his life at the tribal village of Saukenak. At age fifteen, he scalped a member of the rival Osage and established himself as a warrior. Year after year, t
he men hunted for food and raided rival tribes while the women cultivated several hundred acres of fertile land that extended to the Mississippi River. His head plucked free of hair except for a scalp lock at the top, Black Hawk’s name and appearance converged in his oval face and aquiline features. Even at age sixty-four, he looked stern and muscular.22
Major General Gaines addressed Black Hawk: “Your great Father at Washington is so much displeased with your conduct, that he will no longer suffer you to remain on the Rock River lands, & I have only to add that you must move off those lands.”
Black Hawk answered that his people “were unanimous in their desire to remain in their old fields—That they wished to raise their corn & would do it peaceably, as they had no evil at heart against the whites; but there the Great Spirit had placed them long ago & now they had no desire to leave their homes.”
Gaines became angry. “The Black Hawk,” he declared, “has received bad counsel & he has given bad counsel to his braves.” “Who is he,” he wondered, “that he should lead his people into difficulties? I have never heard of him as a Chief … . The world is wide enough for all of us: this is our part of it, & that [pointing west] is yours.”
Black Hawk responded: “You asked, ‘Who I am’—I am a Sauk; my fathers were great men, & I wish to remain where the bones of my fathers are laid. I desire to be buried with my fathers; why then should I leave their fields?”
Although his question remained unanswered, within several weeks Black Hawk consented to move across the river. The chiefs, especially his rival Keokuk, supported the migration, and the military forces arrayed against the tribe were formidable. On June 25, in anticipation of an assault by Illinois militia, Black Hawk and his followers deserted Saukenak during the night, a necessary action that left the warrior feeling humiliated. Once Gaines promised to provide provisions to get the tribe through the winter, Black Hawk signed the Articles of Agreement and Capitulation. “I touched the goosequill to this treaty,” he recalled, “and was determined to live in peace.”