Wirt mailed a copy of his complaint to John Ross in New Echota, who decided he would personally serve the papers on the governor of Georgia. Ross found a companion for the journey, a white man named George Lavender, who ran a store for Major Ridge; possibly the company of a white man would make it easier for the Cherokee chief to be taken as white and left unmolested. It took nearly a week in early winter to reach the capital of Milledgeville, a town of a few thousand dominated by its state capitol building, with its churchlike windows and crenellated roofline. Ross and Lavender rode into town on the day after Christmas and had the governor served with papers in the morning. If Governor Gilmer greeted Ross at all when the Cherokee delivered the papers, Ross did not record what was said. The Cherokee chief rode on with his companion to Augusta and served identical papers to the state attorney general, finishing the work in time to mail a report to William Wirt on New Year’s Day, 1831. “Mr. Lavender and myself are threatened with the Penitentiary for what we had done,” Ross reported. “We have some strong friends here and I shall treat those threats with silent contempt.” Someone gave the Cherokee chief shelter along the way, maybe friends from his trading days, or friends of his Georgia lawyers, or maybe even one of the wealthy slaveowning families whom Jeremiah Evarts had cultivated for contributions.
In the end it was the Georgians who treated the Cherokee suit with “silent contempt,” refusing to accept the Supreme Court’s jurisdiction and refusing to send a lawyer to argue the case. So it was that Wirt’s side alone appeared before the Supreme Court in March 1831, in the case known as Cherokee Nation v. Georgia. Justice Marshall presided over the chamber, backlit by a window behind him that looked out over the Capitol grounds. Squinting, perhaps, to see more than the silhouettes of the justices in front of him, Wirt argued his case. In a brief filed in advance, he had said Georgia’s laws were “repugnant to the constitution, laws, and treaties of the United States.” Wirt clearly felt the weight of the power arrayed against him. “If we could have perceived any other course of moral or professional conduct that remained for us … we should not have troubled your honours with this motion.” But Wirt knew he had to do his “duty” and “leave the issue to Providence.” He was in reality leaving the issue to Marshall, the man silhouetted at the window, who also had a duty to perform.
Marshall rejected the Cherokees’ lawsuit. He ruled against them even though he openly expressed sympathy for the Cherokee cause. He could not bring himself to accept the case that Wirt presented. Writing for the majority of the court, the chief justice refuted the idea that the Cherokees constituted a foreign nation. Their treaties with the United States made them a “domestic dependent nation,” rather like a state government. In later years, scholars suggested that Marshall felt that he could not push the issue too far; at the time of his ruling, hostile lawmakers in Congress were circulating ominous legislation that would take away some of the court’s authority. To avoid damage to his own institution, Marshall required a case so strong that his ruling would be indisputable. This case wasn’t it.
But if he disappointed the Cherokees, Marshall had not betrayed them. Examining Marshall’s ruling from his home in the Cherokee Nation, John Ross perceived what the chief justice did not say. He had never ruled against the substance of the Cherokees’ complaints, only against their legal standing. “The denial of the injunction has no bearing whatever upon the true merits of our cause,” Ross insisted, and the ruling was “conclusively adverse to the pretended claims of the President.” To make certain his people did not lose faith, Ross spent three weeks in April and May riding back and forth across the Cherokee Nation, speaking with any voter who wanted to see him. The “tattlers and intriguers” would claim there was “no hope left,” Ross told his people, but “you have … met oppression & injustice with fortitude & forbearance and I trust you will persevere in this prudent course; as it will not fail in due time to lead you to a safe deliverance.”
When considering why, in later years, his people stayed at Ross’s side through every defeat and disaster, seemingly willing to follow him even to their own doom, it is worth recalling this three-week journey by the principal chief. Accompanied by Cherokee leader George Lowrey and solid, strong Major Ridge, he saw his people at home—poor farmers and their families in modest cabins, living from harvest to harvest, the adults often illiterate, the children possibly learning to read in one language or the other. Ross paid attention to them. People remembered. Ross remembered too: he understood how devoted the people were to their homes, and knew that if he wanted their support, he must never forfeit their rights. He came to feel, as Jackson did, that the people spoke through him.
• • •
The months in which John Ross was urging his people to wait for deliverance were the same months in which Samuel Worcester was being urged to leave New Echota, then being arrested for the second time, and then scheduled for trial. If Worcester were convicted, his case might be the one that would propel the Cherokees back into the Supreme Court. Ross’s legal team knew this almost for a certainty, because they had been advised of it by Chief Justice Marshall, who now played a role in obtaining a second chance for the Cherokees’ cause.
Marshall was the man whom later generations would credit for establishing the court as a powerful branch of government. He did so in part simply because of his longevity. In his early twenties, during the Revolution, he had been a junior officer in George Washington’s army. In 1801, when Marshall was not quite forty-six, the defeated and departing President John Adams appointed him to the court; thirty years later Adams and nearly all the Revolutionary leaders were gone, but Marshall was where they had left him. The precedents he set—such as Marbury v. Madison, the 1803 case establishing the court’s authority to decide whether legislation was unconstitutional—would be maintained for decades by the very chief justice who set them. The Constitution did not explicitly grant or deny the court such power; most of its powers had been left to be determined by Congress. The very architecture of early Washington, DC, implied a court that was not quite the equal of the legislature or the executive; there was not a separate court building, leaving the justices for most of Marshall’s tenure tucked in their chamber on the ground floor of the Capitol, literally underneath the Senate. But by establishing his court as the arbiter of the meaning of the Constitution, Marshall sometimes pruned the other branches.
Shown in portraits with strong features and a confident expression, the silver-haired chief justice remained formidable deep into his seventies, a political as well as a judicial figure. During the summer of 1831 he exchanged letters with William Wirt, telling the Cherokees’ lawyer exactly what to do: identify an individual with proper standing whose rights were denied before a Georgia state court. The decision by the state court could be appealed to Marshall’s Supreme Court, which had the right to hear such appeals. This would create the basis for Marshall to draft a ruling that blocked Georgia from extending its laws over the Cherokees.
In many modern-day courtrooms it would be considered unusual, if not unethical, for a judge to give private strategic advice to a plaintiff with whom he sympathized. But concepts of ethics were different in 1831 (and even in later days, the Supreme Court would largely exempt itself from conflict-of-interest rules that applied to other courts). Marshall, part of Washington’s elite for as long as there had been a Washington, was comfortable showing his cards to another member of that elite in order to orchestrate the outcome he believed to be right. Wirt did not miss the significance of Marshall’s advice. He wrote to John Ross, advising his client to attempt the “experiment” of Marshall’s strategy. Ross, though struggling to pay the legal team’s bills (he was sending money whenever it came in, as little as $100 at a time), authorized the effort. The “experiment” turned out to be Samuel Worcester.
On September 16, 1831, Worcester was one of eleven missionaries who appeared as required for their state trial in Lawrenceville, Georgia, on charges of living without a state permit on Indi
an lands—or “unsettled areas,” as the Georgians called them. All eleven were convicted. All received sentences of four years “at hard labor” at the prison in the state capital. Governor Gilmer, apparently understanding the potential for disaster, persuaded nine of the eleven to accept clemency and leave the state. Two missionaries declined—a man named Elizur Butler, and Samuel Worcester. They were put to work making cabinets at the state prison at Milledgeville. Worcester did not complain much about conditions, however, and even found time to obtain northern newspapers and read them. Once, he read a newspaper stating that the two missionaries were being forced to assemble “lottery wheels,” the machines that Georgia was using for a lottery to parcel out Cherokee land to lucky white citizens. Worcester, with characteristic irony, wrote a letter to the editor to say it wasn’t true; the lottery wheels were being built at the prison, but the warden “studiously avoided calling on us to assist in that work,” since it might offend their feelings.
John Ross knew he had a case, and wrote to his lawyer Wirt about it in early October. The records of the trial were already on their way to Wirt, Ross assured him. Ross worried only that the state of Georgia would find some way to make the case moot.
Should the legislature of Georgia repeal the law under which the missionaries have been committed and liberate them … what effect will it have upon these cases? Will the S Court proceed to decide upon the question of the Constitutionality of the Law of Georgia exercising jurisdiction or not? Please to inform me.
Georgia, it turned out, was not yet willing to go to the extreme of repealing its law. William Wirt appealed to the high court in a case that came to be known as Worcester v. Georgia, and John Marshall with other justices heard the arguments on the Capitol’s ground floor on February 20, 1832.
There wasn’t much drama in the court; the defendant’s table was empty. Georgia again refused to send a representative. The drama came later, in Marshall’s written ruling. The chief justice posed as a reluctant participant, who had no choice but to address the case because it so clearly fell under his court’s jurisdiction. “This duty, however unpleasant, cannot be avoided,” Marshall wrote, overlooking his own role in making certain that the duty came his way.
Marshall reviewed the entire history of relations between the Indians and the settlers who had come from Europe. He had lived through a substantial part of that history, and had given it much thought. He began with a reference to “the right of discovery,” the initial basis of European claims in North America, essentially that colonial powers gained authority over land by exploring it.
America, separated from Europe by a wide ocean, was inhabited by a distinct People, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws. It is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer, rights in the country discovered, which annulled the pre-existing rights of its ancient possessors.
Marshall did not believe that the Europeans could become the owners of land simply by sending “adventurers” to go “sailing along the coast, and occasionally landing on it.” Nor did he accept that “nature” granted the Europeans the right to take the land simply because they believed they had a more sophisticated economy or civilization. It was true that the settlers and their descendants had gained control of much of the land through “power, war, conquest,” and that the United States now possessed rights that were “conceded by the world.” But there was no evidence that the Cherokee Nation had surrendered its remaining rights to its remaining land. Congress had approved a series of treaties with Indians, dating back as far as 1778, which again and again affirmed Indian nations in the possession of their land—and from this point on, Marshall could almost have been reciting his history from memory, for he was old enough to recall it. Here and there, the Indian treaties contained ambiguous phrases that might be interpreted to mean that the United States now owned all the land, and that the Indians were only to be “allotted” some of it, but Marshall did not believe the Indian leaders of past generations “who could not write, and most probably could not read,” would ever have understood such subtle interpretations, and could hardly have been said to have agreed to them. Indian nations were “distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial.” They still possessed rights, even if they had placed themselves under the protection of the United States. “Protection,” Marshall wrote acidly, “does not imply the destruction of the protected.” Georgia could not interfere in their affairs; Congress alone had, in the words of the Constitution, “the powers of war and peace; of making treaties, and of regulating commerce … with the Indian tribes.” The state law under which Samuel Worcester was imprisoned was “consequently void, and the judgment a nullity … repugnant to the constitution, laws, and treaties, of the United States.”
Marshall resolved the dissonance between the Indian map and the map of the United States. It is better said that he destroyed it. There really was no conflict. The states controlled those parts of the continent that had been gained through legitimate purchases, treaties, or war. Indian nations controlled the territories that remained. The federal government was supreme over both states and the Indian “domestic dependent nations,” which was exactly the role Marshall wanted for the federal government; he was an old Federalist, who believed in the value of a strong central authority. He was interpreting the law in a way that fit his own politics, but he was also relying on what the law, treaties, and facts demonstrated. Of all the era’s arguments over Indian removal, Marshall’s ruling was the clearest and best summary of what he called “the actual state of things.” The pressures that Georgia, and by extension the president, brought to bear on the Cherokee Nation were simply fraudulent pretensions. Would “these powerful considerations” produce the freedom of Samuel Worcester? Marshall answered simply: “We think they will.”
Twenty-five
Executive
When word of Marshall’s ruling reached the Cherokee Nation, people held feasts and dances. Elijah Hicks, a Cherokee politician, wrote that “every Indian knows now that he stands upon a solid foundation,” although Cherokees also knew “that immediate relief does not follow as a consequence” of the court’s decision. John Ross allowed himself a moment of celebration, the first that had been warranted in years. “Our adversaries are generally down in the mouth,” he wrote in a letter.
There are great rejoicings throughout the nation on the decision of the supreme court upon the Cherokee case. Traitors and internal enemies are seeking places where to hide their heads.
But there was also something discordant about the letter. Traitors? Internal enemies? Ross did not seem like a man triumphantly enjoying a feast.
The principal chief of the Cherokee Nation had reason to doubt that he could keep all of his people behind him. Some in the elite wondered how long they could continue on Ross’s course. Despite the ruling, Worcester was still hammering cabinets at the prison at Milledgeville. The Georgia Guard continued enforcing state laws in the Cherokee Nation. Cherokee legislators were no longer meeting in New Echota, fearing arrest for defying Georgia’s abolition of their government; they had to meet across the Tennessee line. “Georgia,” reported the Cherokee Phoenix, “has commenced her survey of the Cherokee country notwithstanding the decision of the supreme court. Our country is now overrun with surveyors, laying off the land into small sections of about two hundred acres. The gold region is to be laid off into lots of forty acres… . Five hundred and fifty men employed in surveying, marking trees, or otherwise.” The Phoenix cited a federal law forbidding surveys of Indian land, punishable by a $1,000 fine and a prison term of up to twelve months. Federal authorit
ies did nothing to enforce it. The surveyed lots were to be apportioned among white citizens through a random drawing, using the “lottery wheels” being built at the Milledgeville prison.
And then word came from Washington that Justice Marshall’s ruling might not have been as conclusive as Marshall believed it should be.
At the time of the ruling, the annual Cherokee delegation was in Washington, and received an invitation to meet with Supreme Court justice John McLean. He was a member of the court majority that had just ruled in the Cherokees’ favor. He had even gone so far as to write an opinion concurring with Marshall’s ruling. The Cherokees may have thought that they would be greeting an ally. But McLean was a new justice on the Supreme Court, having recently been appointed by President Andrew Jackson, who could not have been pleased with his appointee’s action. Now it fell to Justice McLean to be the one to deliver a message from the administration.
The delegates reported back to Ross, who later summarized what he had learned: “It was [McLean’s] firm belief that we are not to realize what we expected from the decision of the court. It was however the duty of the court to have done what they did, but the executive would not sustain them.” Jackson’s appointee to the court was saying that Jackson would refuse to enforce the law. McLean then moved to close off the Cherokees’ next avenue of hope: it was an election year, yet even if Jackson were to lose his job it would make no difference. “Allowing there should be a change in the administration of the govt. he explained the impossibility of enforcing the decision unless Georgia voluntarily submitted.” Another avenue was closed: “Were the missionaries released, it would not amount to a withdrawal of the laws of the states from our Territory.” Finally, McLean offered some advice to the Cherokee Nation: “to unburden itself by a removal.”
Jacksonland: A Great American Land Grab Page 24