“White Sand and Red Clay:

U.S.-Cherokee Relations, 1796-1838”

© Steven J. Schwartzberg, 2011

 

 

      The efforts of the United States to promote democracy in other countries have included notable successes, such as the occupation of Japan that began in 1945.[1]  They have also included notable failures, such as the occupation of the Dominican Republic that began in 1916.  This latter was an effort that paved the way, after a brief democratic opening, for the long-term dictatorship of Rafael Trujillo when an American-trained police force, intended to be apolitical, became instead a dictator’s power base.[2]  What I want to talk with you about tonight involves the first American effort to promote democracy among another people.

      The first effort on the part of the United States to contribute to the expansion of the commonwealth of liberty by more than the authority of example, and the persuasiveness of rhetoric, involved American relations with American Indians.  Writing to the Cherokees in 1796, President George Washington urged that they study with the advice and material assistance of a federal agent, “those things which are found good by the white people, and which your situation will enable you to adopt.”  He particularly emphasized intensive farming, but also mentioned the workings of the American government and stressed that “the experiment made with you may determine the lot of many nations.  If it succeeds, the beloved men of the United States will be encouraged to give the same assistance to all the Indian tribes within their boundaries.”[3]  Washington was convinced that the security and economic interests of the United States and the Cherokee nation alike would be best served by the progress of civilization among both.

      The extraordinary renaissance that the Cherokees came to enjoy in the early nineteenth century was due overwhelmingly to their own efforts and creativity, but in decisive part to American civility as well.  By 1826, Elias Boudinot, soon to become the editor of a bilingual Cherokee and English newspaper could declare: “I can view my native country, rising from the ashes of her degradation, wearing her purified and beautiful garments, and taking her seat with the nations of the earth.”[4]  The horrific end of this Cherokee renaissance, at the hands first of the state of Georgia and then of the federal government, is testimony to the incivility, and indeed the grotesque brutality, of which America has proved capable.  The theft of the Cherokees’ homeland, and their forced march to what would later become Oklahoma—a forced march that cost the lives of more than one in ten of those making the journey—is part of a brutality that has been ongoing with greater or lesser harshness in American relations with American Indian nations ever since, and that has antecedents stretching back for centuries before.[5]  It is remarkable that it can be met with the attitude conveyed in the following comment from the Cherokee citizen and jurist Steve Russell, who, after noting that an almost bottomless well of collective guilt “keeps the modern beneficiaries of genocide from finishing the job,” writes: “We know the colonists could not now go home if they were so disposed.  Our lot is intertwined with the colonists as black South Africans are with the British and the Dutch.  They have nowhere to go.  While they have not historically been the best of neighbors, they are still our neighbors and we must do our best to civilize them.”[6]

      The contrast between civility in accomplishments, and civility in conduct toward others, is a contrast that might be considered throughout the history of American foreign relations into the present.[7]  The successes of American policy in helping promote democracy might be linked to a combination of civility in both of these senses and the failures of American policy in this regard to a failure to keep them combined.  But matters are, of course, more complex than such a simplification will allow.  The successes of American civil interventions in the past, and of such prodemocratic American military interventions as those undertaken in Grenada in 1983 and Panama in 1989, or for that matter the postwar military occupations of Germany and Japan, all depended primarily on the strength and skill and luck of local democratic allies who saw themselves, with considerable justice, as representing their nations.[8]  It was to their successes that the United States contributed and it was their victories that made American policy successful.      

      If we ask how we, the American people, seeing ourselves as so civilized, could have done something so barbaric as what was done in the 1830s, there is an immediate answer involving racism and greed.  I do not mean to suggest that it is inaccurate, for its basic truth is undeniable, but I do intend to show why it is inadequate.  To understand removal—the term of the day for “ethnic cleansing”—one must understand that it was seen by many of its champions as a moral course of action, indeed as one of advantage to the Indians as well as to the whites who would get their lands, and as a benevolent alternative to the more naked exercises of racism and rapacity that many Georgians were advocating and undertaking.  To say that this sense of the “benevolence” of removal involved self-deception does not diminish its causal importance in the chain of events.  Nor was this deception simply “manufactured” by a few evil greedy and racist men who knew better.  It was one among several possible outgrowths or interpretations of long established traditions as to what constituted correct and decent relations vis-à-vis American Indians.  There were other outgrowths or interpretations of the past; interpretations that maintained that what was proposed would be—as in fact it proved to be—a radical break with tradition and a national disgrace that “the waters of the ocean of Time can never wash out.”[9]  The fight between the advocates of these interpretations was bitterly and closely contested.  The President went one way and the Supreme Court went another.  Key decisions in Congress were decided by a single vote.  An organized public opinion emerged on the subject and the overwhelming majority of those who petitioned and memorialized the Congress—more than a million people in a country of twelve million—were opposed to removal.[10]  They were described as an emerging “Christian party in politics,” although their more secular opponents also claimed to speak in the name of “christianity and civilization.”[11]  Yet it remains no mere coincidence that the white man who stood most firmly against removal, the lawyer and publicist Jeremiah Evarts, who organized public opinion while writing under the pseudonym “William Penn,” should also have been a leader in the opposition to mail delivery on the Sabbath.  Evarts and many of his allies, as the historian John Andrew has observed, stood for a Christian republicanism at odds with the unrestrained expansiveness associated with Jacksonian liberalism.[12]

      The possibility of civil war over the question of removal was raised in the Congressional debates and appeasement of the state of Georgia was a factor in the eventual Congressional support for removal.  Those voting for removal were responding favorably to Georgian initiatives, or to President Andrew Jackson’s favorable response to those initiatives.  They included Georgia’s effort to extend its state laws over the Cherokee territory that it claimed was within its boundaries.  The Georgians were simultaneously championing a vehement version of “state’s rights”—one at odds with what proved to be the Supreme Court’s interpretation of the Constitution—and asking the federal government to appropriate large sums of money to underwrite the costs of removal.  They were engaged in a coercive assault on Cherokee sovereignty and nationality while claiming to be merely defending their rights in the face of the emergence of a Cherokee government—with a new written constitution—that claimed that it owned its own land.  Indeed, that claimed that its territory had been solemnly guaranteed to the Cherokee nation by the United States in numerous treaties.

      In what follows, while sketching the broader context, I will come to focus particular attention on the Congressional debate over removal.  The Congress, it should be stressed at the outset, was not voting on a project to remove the Cherokees by force and violence—although that is ultimately what was done—but rather on an authorization and an appropriation with which to seek to bribe the Cherokees and their native American neighbors to exchange their homelands for financial compensation and territory in the West where they would allegedly be free from the incursions of hostile whites and corrupting white influences.  The initial use of coercion and the threat of further violence was Georgia’s and not—at least not superficially—that of the Congress.  It took a fraudulent treaty in 1835, and peaceful resistance to that treaty by the Cherokee nation, to bring the United States to the use of force and violence in 1838.  The whole horrific tragedy unfolded in slow motion and there is no way to claim that the evil the United States perpetrated was not deliberately done.  But the central issue as it was debated in the Congress in 1830 was one of Cherokee rights versus Georgia’s rights, one of the obligations of the nation to both parties, and one of the legitimate authority of the federal government.  The historian A. J. Langguth has described the fight over removal as the nation’s first civil war—a war fought with angry words—and lost by the North in contrast with the second civil war—a war fought with cannon and guns—that crushed the South.  He also notes that the Cherokee nation and their native American neighbors lost a higher percentage of their citizens than any Southern state in this second civil war and suffered still more severely in the first.[13]

      There was widespread agreement across the American political spectrum in the early nineteenth century that the United States had been more civil in its conduct toward the native peoples than the Spanish conquistadores had been.  Just as Americans in more recent decades have been convinced that the United States was more civil in its conduct toward other countries than Nazi Germany or Soviet Russia.  If pressed to state how, they would have stressed the contrast between conquering the Indians and violently seizing their territory from them, as the Spanish did, and gradually purchasing the Indians’ lands from them as Americans had done.  Yet they also realized that even this more civil policy had been bad for the American Indians.  Many saw a trajectory that would end in the disappearance of American Indians in the not too distant future.[14]

      The first documented epidemic hit the Cherokees in 1697.  The number of Cherokees fell from around 30,000 before 1697 to around 11,000 by 1715 and perhaps as few as 7,000 by the mid 1760s.[15]  They suffered further from fighting on the British side in the Revolutionary War.  But the United States, making peace in the treaties of Hopewell in 1785 and Holston in 1791, sought to deepen this peace and make it permanent by contributing to Cherokee civilization.[16]  Return J. Meigs, who arrived in Cherokee territory with the nineteenth century and served there as federal agent until his death in 1823 at the age of 83, conveyed the practical character of the foreign aid of his day in a letter reporting on his first eighteen months: “I distributed 13 Mattocks, 58 plough irons, 44 Corn hoes, 204 pairs cotton cards, 215 spinning wheels, 28 [cotton] Reels, 4 looms, 53 sheep.”  The following year included the provision of 60 plow irons, 112 small axes, 150 corn hoes in addition to dozens of brass pots, tin kettles, blankets, rolls of thread, yards of calico cloth, needles and scissors.  These and other supplies were paid for in part by Congressional appropriation and in part out of an annuity established by the sale of Cherokee lands.[17]

      By 1809, when Meigs commissioned a census, the Cherokee population had increased to 12,395.  This was in addition to a body of about 1,000 Cherokees who had moved west.  The eastern Cherokees owned some 6,500 horses, 19,000 black cattle, 19,000 swine, 1,000 sheep, 1,500 spinning wheels, 400 looms, and 500 plows.  They had cultivated land with numerous houses and barns, 13 gristmills and 3 sawmills.  Modeling themselves on the surrounding white society, they also owned 583 African American slaves.[18]  By 1826, there were 13,963 Cherokees in the east plus three to four thousand in the west.  The eastern Cherokees owned some 7,600 horses, 22,000 black cattle, 46,000 swine, and 2,500 sheep.  They also owned 1,277 slaves.[19]  By 1835, the census recorded 16,542 Cherokees in the East of whom 77.27 percent were “full blooded,” 201 were intermarried whites, and 1,592 were slaves.  These people raised well over half a million bushels of corn on some 44,000 cultivated acres.[20]  Butter and cheese were seen on Cherokee tables, almost every home grew cotton for its own use, and some families grew cotton for export.  There were numerous orchards with peach and apple trees as well as quince, cherry and plum.  There were roads, ferries, and trading stores.  There was a saltpeter mine and powder mills.  Silversmiths, blacksmiths, wheelwrights, carpenters and armorers could be found in the nation.[21]  “The mass of the Cherokee people,” the missionary Samuel Worcester observed, “have built houses and cultivated lands with their own hands.  There may be a few families among the mountains who depend mostly on the chase for support, but I know not one of them.”[22]

      Developments in the spheres of culture and politics were equally dramatic.  Though missionary schools made a major contribution to the emergence of literacy among the Cherokee, the truly revolutionary figure was the son of an absentee Dutch father and a Cherokee mother.  Known as George Gist or George Guess or more widely as Sequoyah, he fought under Andrew Jackson in the War of 1812 and was deeply impressed at the white soldiers’ use of “talking leaves.”[23]  Over the next dozen years, he struggled to find a way of expressing the Cherokee language in writing, eventually developing an eighty-six-symbol syllabary.  “The Cherokee seem partial to Guess’ plan of writing,” the missionary Daniel Butrick observed in 1823, “They can generally learn it in a day and in a week become writing masters and transact their business and communicate their thoughts freely and fully on religious and political subjects by writing.  They will doubtless be generally acquainted with this plan of reading and writing in the course of one year.”[24]  The naming of the ancient trees of California as sequoia gigantea in Sequoyah’s honor is fitting.[25]  It was and remains an extraordinary accomplishment.

      According to the 1835 census, slightly more than one in two of the households in the Cherokee Nation had at least one reader of Cherokee, while nearly one in five had an English reader.[26]  Some missionaries, like Samuel Worcester, sought to learn Cherokee believing this to be the quickest way to spread the gospel.  Others, like John Gambold, were more arrogant and even hostile to Cherokee culture: “It is indispensably necessary for their preservation that they should learn our Language and adopt our Laws and Holy Religion.... it seems desirable that their Language, Customs, Manner of Thinking, etc. should be forgotten.”[27]  The combination of Christian imperialism and Christian benevolence had considerable effect, though by no means as much as it might have if there had been less of the former and more of the latter.  By 1830, out of a Cherokee population of perhaps 15,000, there were 1,028 Methodists, 180 Congregationalists, 61 Baptists and 46 Moravians.[28]  They included leading figures in the community.

      The transformation in the leadership of the Cherokee Nation during this period was truly remarkable, particularly as it came under incessant pressure from the surrounding white society, and the United States government, for additional sales of Cherokee lands.  As William McLoughlin, the best historian of the subject has written, this first great Cherokee renascence “was the rebirth of that people in the image of the United States, yet with a difference.”[29]  Notions of justice rooted in clan revenge were replaced or softened as a police force and a system of courts emerged.  Ultimately, an elected bicameral legislature was established and a written constitution, modeled in some ways on that of the United States, was adopted.  Enormously talented leaders came to the fore such as the elected principle chief John Ross and the editor of the Cherokee Phoenix, Elias Boudinot.  Together with his cousin, John Ridge, Boudinot had attended the Foreign Mission School in Cornwall, Connecticut where both had fallen in love with, and married, white women—to the consternation of many in that New England community which contributed ultimately to the closing of the school.[30]  By blood, which was not how Cherokee Indians measured these things, John Ross was only one eighth Cherokee.[31]  His great grandfather was a Scottish trader who had married a Cherokee woman, their daughter had married another Scottish trader and their daughter, in turn, had married Daniel Ross, John’s father.[32]  Something of the extraordinary support Ross’ leadership enjoyed among the Cherokees is evident in his maintaining his position throughout the period of removal and for decades beyond.

      In the late eighteenth century the Cherokee government was decentralized with numerous chiefs who might meet together in council.  Under pressure from Meigs, the federal agent, they moved from operating by consensus to operating by majority rule.  With the help of a chief named Doublehead, Meigs then persuaded the majority of those at one meeting—although by no means a majority of the chiefs—to sell 5.2 million acres of Cherokee hunting grounds in Tennessee.  The nationalist feeling against this sale cost Doublehead his life.[33] 

      The greatest source of pressure for further land sales was from the state of Georgia.  And it is in the way he met this pressure that President Thomas Jefferson bears a heavy burden of responsibility for the removal that would eventually take place.  In 1802, Georgia signed a compact with the United States in which it ceded its claims to the territories that became Alabama and Mississippi in return for $1,250,000 and a commitment on the part of the United States to extinguish all Indian title to lands within the state of Georgia “as soon as the same can be peaceably obtained on reasonable terms.”[34]  The negotiating history of the compact shows that Georgia originally asked for the United States to extinguish all Indian title “within fifteen years.”[35]  Jefferson might well have believed that the language to which he agreed would allow the Cherokees to stay on their own lands for as long as they refused to sell them, but if so he did not make that clear to the Georgians.  He did say to a visiting Cherokee delegation during his administration that, “I sincerely wish you may succeed in your laudable endeavor to save the remnant of your nation by adopting industrious occupations, and a Government of regular law.  In this you may always rely on the counsel and assistance of the United States.”[36]

      But ultimately, when it came to Indians—although not to African Americans—Jefferson was an integrationist.  He was undoubtedly deeply moved when a group of visiting Cherokees told him that they hoped “the magnanimity of the United States will not suffer 10,000 human beings to be lost between whom and the white people the Great Spirit has made no difference except in the tint of their skin.”[37]  That Jefferson sympathized is clear from the following comment that he gave to a visiting delegation in 1808:

When once you have property, you will want laws and magistrates to protect your property and person.... You will find that our laws are good for this purpose; you will wish to live under them, you will unite yourselves with us, join in our great councils and form one people with us, and we shall all be Americans; you will mix with us by marriage, your blood will run in our veins, and will spread with us over this great continent.[38]

 

      Jefferson’s integrationism was at odds with the intense racism of the frontier whites that Meigs had to deal with, and their constant efforts to settle on Cherokee land.  “Should this disposition to make intrusions on Indian land increase,” Meigs noted in 1809, “they will perhaps at last put the few troops here at defiance.  These intruders are always well armed, some of them shrewd and desperate characters, having nothing to lose and hold barbarous sentiments towards Indians.... With these people remonstrance has no effect; nothing but force can prevent their violation of Indian rights.”[39]  But intense racism was not simply a phenomenon among white squatters on Cherokee land; it permeated the entire system of justice in the states bordering the Cherokee nation.  Here is Meigs again from a letter of April 1812:

It is a fact that they [the Indians] cannot have justice done to them in the courts of law.  The judges are just and liberal ... as far as related to distributive justice, and would deal out rewards and punishments to all men without being influenced by the accidental difference of the colour of the skin, but a jury impaneled in the frontier Counties dare not bring in a Verdict to take the life of a citizen for Killing an Indian.  The Indians are ... condemned and executed on the testimony of any white citizen of common character and understanding when at the same time a white man can kill an Indian in the presence of 100 Indians and the testimony of these hundred Indians to the fact amounts to nothing and the man will be acquitted.[40]

 

      Jefferson’s integrationist vision also faced opposition from some of the Cherokees.  In a religious incident that was a prelude to the revival of a measure of traditionalist sentiment in 1811, three Cherokees saw a vision of a band of Indians riding black horses in the sky and beating a drum.  The apparitions rode down out of the sky to them saying they had a message from the Great Spirit for their people: “You yourselves can see that the white people are entirely different beings from us; we are made from red clay; they, out of white sand.  You may keep good neighborly relations with them, just see to it that you get back from them your old Beloved Towns.”[41]

      The return of the hunting grounds Doublehead and others had sold, and with them the towns on those lands, was not to take place.  Nor was any effort made to regain them by violence.  Even the traditionalists among the Cherokees sought “good neighborly relations.”  The situation among the Creek Indians was different.  There violence was stirred among some of the Creeks, known as the Red Sticks.  Influenced by Tecumseh and his brother Tenkswatawa’s efforts to form a confederacy of Indian tribes against further white expansion, the Red Sticks joined with the British in the War of 1812.[42]  In this war the Cherokees fought on the side of the United States together with Andrew Jackson’s forces and those of the majority of the Creek nation.  Yet the war proved a disaster not only for the Creeks, but also for the Cherokees.  Not least because of what it did for the fortunes of Andrew Jackson.

      The six hundred Cherokee warriors who fought in the war were credited with saving the lives of about a thousand white militiamen, and were praised for their bravery and heroism by many officers, including Jackson, but they were initially denied the equal pay and pensions they had been promised.  Worse yet, the withdrawing militia forces wrought devastation on Cherokee farms by shooting Cherokee farm animals for sport.  Protesting to President James Madison, seven leading Cherokee military men wrote as follows:

Father, your officers treated us as friends embarked in a common cause with them, acting against a common enemy, and we felt honored and felt an emulation not to be outdone in all the offices of friendly communication; but we have now to state to our father that a great many white young Warriors, not feeling the ties that should bind them strong by the principle of subordination [to their officers] and feeling liberty in the extreme, it relaxed into licentiousness, and they destroyed our Cattle, sheep, and hogs, and in some instances our horses, for mere sport or prejudice founded only on the differences in shades of complexion.[43]

 

But the hardest blow was when the treaty that Jackson signed with the Creeks ceded 2.2 million acres of Cherokee land.  The federal agent to the Cherokee, Return Meigs, to his credit, protested against these developments.  When Jackson dismissed the Cherokee charges against his soldiers, claiming that, “No confidence can be placed in the honesty of an Indian,” Meigs produced affidavits from white officers in Jackson’s army documenting more than $22,000 in damages.  For a while, the Cherokees won support for their position from President James Madison.  But when the federal government signed a treaty with the Cherokees in 1816 acknowledging the mistake on the 2.2 million acres, and granting compensation for damages from militia depredations after the war, it provoked a wave of public opposition from Western public opinion and the claim that white settlers on those lands would not be removed by a militia that sympathized with them.[44]

      In this environment, the federal government insisted on new negotiations with the Cherokees.  As early as 1808, Meigs had floated the idea of the Cherokees agreeing to an exchange of land and moving west.[45]  Now, in correspondence with Jackson in 1816, he sought to suggest that the Cherokees were “in a state of minority,” really didn’t know what was best for themselves, and that they could not survive where they were.[46]  The idea of removal was also championed in 1816 by Tennessee Governor Joseph McMinn who argued that those who chose to leave should be furnished with a new rifle gun, some powder and lead, and that those who chose to remain should be allotted 640 or 1,000 acres of land to a family and given all the rights and obligations of a “free citizen of color” in the states in which they reside.[47]  Responding to such suggestions in a memorial to Jackson and the other treaty commissioners, the Cherokee delegation declared:

We are now distressed with the alternative proposal to remove from this country to the Arkansas or stay and become citizens of the United States.... We are not yet civilized enough to become citizens of the United States nor do we wish to be compelled to move to a country so much against our inclination and will... You tell us to speak freely and make our choice.... Our choice is to remain on our lands and follow the pursuits of agriculture and civilization.[48]

 

      The treaty that emerged on 8 July 1817 was vague.  Although providing for both allotment and removal, it did not require every Cherokee to make that choice.  373,000 acres were ceded to Georgia and 278,000 acres went to Tennessee, in exchange for which a tract of similar size was to be provided to the Cherokees in Arkansas.  Between the Panic of 1819, which dried up federal funds to pay for removal, and strong Cherokee opposition to removal, only a few thousand Cherokees agreed to move west.  A second treaty was signed on 27 February 1819 in which the annuity was split between the two branches of the Cherokee people with two thirds going to the eastern Cherokees.  In these two treaties, the Cherokees ceded some four million of their remaining fourteen million acres.  And the United States promised to remove white intruders from the remaining Cherokee land.  The Cherokee delegation expressed the firm hope to President James Monroe, as they left Washington, that “you will not solicit us for more land” in the future.[49]

      When the federal government again sought removal in 1822, the Cherokee National Committee sent a letter to Washington indicating that they would not meet with the commissioners.  Meigs was shocked and considered it “little short of a declaration of independence.”  As the historian William McLoughlin notes, “The skill with which [the Cherokees] handled treaty negotiations with the federal government from 1822 to 1828 provides the best evidence of the nation’s political maturity.”  Efforts to bribe Cherokee leaders were met with insistence that the promised benefits be put in writing whereupon the efforts were then publicized.  When commissioners were finally allowed, at a place of the Cherokees choosing, they were firmly rebuffed.  To demands that they choose between allotment and removal, the Cherokees noted that they had already refused the latter and considered the former specious: “We find opposition, fraud, and every species of injustice” raised against those who accepted allotment. 

When the commissioners, angry and frustrated, said that the land the Cherokees occupied belonged to the United States by “discovery” and “by conquest,” the Council answered calmly: “Our title has emanated from a Supreme source which cannot be impaired by conquest or by treaty” and if the United States had title to it, “why should [it] purchase, time after time, by treaties, lands to which you would wish to convince us we have no title?”  Did the treaty commissioners’ threat of withdrawing protection for Cherokee boundaries mean that the government “will trample justice under foot?”[50]

 

      President Monroe, to his credit, issued a statement on 30 March 1823 that the Cherokee nation had refused to sell any more: “In their present temper they can be removed only by force,…and there is no obligation on the United States to remove the Indians by force.”  Moreover, he added, “an attempt to remove them by force would be, in my opinion, unjust.”[51]  Taking the initiative, the Cherokees then sent a delegation to Washington to reiterate their position and to suggest that the United States compensate Georgia for its claim on Cherokee lands with lands taken from the territory recently acquired in Florida.  They insisted that they were “the original inhabitants of America” that they had a right to remain as a separate community as long as they chose, and that they would consider integration once “the whole nation” was completely civilized and not before.[52]

      The new written constitution that the Cherokees adopted in July 1827, begins as follows:

We the representatives of the people of the Cherokee Nation, in Convention assembled, in order to establish justice, ensure tranquility, promote our common welfare, and secure to ourselves and our posterity the blessings of liberty; acknowledging with humility and gratitude the goodness of the sovereign Ruler of the Universe, in offering us an opportunity so favorable to the design, and imploring His aid and direction in its accomplishment, do ordain and establish this Constitution for the Government of the Cherokee Nation.[53]

 

      The boundaries of the nation, embracing the lands described as solemnly guaranteed and reserved forever to the Cherokee Nation by the treaties concluded with the United States, were defined precisely by Article 1, Section 1, and it was indicated that they “shall forever hereafter remain unalterably the same.”[54]  Outrage was rampant in Georgia.  Basing its position on a twisted interpretation of state’s rights, a twisted interpretation of international law, and a twisted interpretation of the 1802 compact with the United States—about all three of which there will be more to say later—Georgia’s legislature essentially threatened war with the Cherokees.  It declared in December 1827 that while Georgia would not “attempt to improve her rights by violence until all other means of redress fail…. if the United States will not redeem her pledged honor; and if the Indians continue to turn a deaf ear to the voice of reason and friendship, we now solemnly warn them of the consequences.  The lands in question belong to Georgia.  She must and she will have them.”[55]

      In siding with Georgia, Andrew Jackson argued that what the Cherokees had done in establishing their new government was a violation of that clause in the Constitution that declares that “no new state shall be formed or erected within the jurisdiction of any other state” without the consent of its legislature.  That the Cherokee nation was within the jurisdiction of the state of Georgia was a claim with which the Supreme Court would ultimately disagree.  But Jackson clearly believed this claim and sought to make it resonate.  In his first annual message to Congress, on 8 December 1829, Jackson asked whether the people of Maine would permit the Penobscot tribe to erect an independent government within their state, whether the people of New York would permit each remnant of the six nations within her borders to declare itself an independent people under the protection of the United States, whether the Indians could establish a separate republic on each of their reservations in Ohio.  And if so, whether it would be the duty of the federal government to protect them in the attempt.  Jackson then sought to present his removal program as one of generosity and benefit to the Southern Indians:

the fate of the Mohegan, the Narragansett, and the Delaware is fast overtaking the Choctaw, the Cherokee, and the Creek. That this fate surely awaits them if they remain within the limits of the states does not admit of a doubt. Humanity and national honor demand that every effort should be made to avert so great a calamity…. As a means of effecting this end I suggest for your consideration the propriety of setting apart an ample district west of the Mississippi, and without the limits of any state or territory now formed, to be guaranteed to the Indian tribes as long as they shall occupy it, each tribe having a distinct control over the portion designated for its use. There they may be secured in the enjoyment of governments of their own choice, subject to no other control from the United States than such as may be necessary to preserve peace on the frontier and between the several tribes. There the benevolent may endeavor to teach them the arts of civilization, and, by promoting union and harmony among them, to raise up an interesting commonwealth, destined to perpetuate the race and to attest the humanity and justice of this government.  This emigration should be voluntary, for it would be as cruel as unjust to compel the aborigines to abandon the graves of their fathers and seek a home in a distant land. But they should be distinctly informed that if they remain within the limits of the states they must be subject to their laws. In return for their obedience as individuals they will without doubt be protected in the enjoyment of those possessions which they have improved by their industry. But it seems to me visionary to suppose that in this state of things claims can be allowed on tracts of country on which they have neither dwelt nor made improvements, merely because they have seen them from the mountain or passed them in the chase. Submitting to the laws of the states, and receiving, like other citizens, protection in their persons and property, they will ere long become merged in the mass of our population.[56]

 

      Less than two weeks after Jackson’s speech, the Georgia legislature passed a law, refining one it had passed the year before, that promised to extend its jurisdiction over the Cherokees.  Although it did not use the word “nullification”—a word and a concept that has sickeningly become popular again in some quarters—the Georgia legislature essentially sought to nullify the treaty obligations of the United States to the Cherokee nation and, indeed, sought to nullify the political existence of the Cherokees as a distinct people.  “And be it further enacted,” the seventh article read, “That after the first day of June next, all laws, ordinances, orders and regulations of any kind whatever, made, passed, or enacted by the Cherokee Indians, either in general council or in any way whatever, or by any authority whatever of said tribe, be, and the same are hereby declared to be null and void and of no effect, as if the same had never existed.”[57]  The law also denied the Cherokees the right to testify against white men or to prospect for the gold that had recently been discovered on Cherokee lands.[58]  Ultimately, six million dollars would be minted from Cherokee gold, money that could have helped contribute further wonders to the accomplishments of the nation had it not been stolen and the nation driven into exile.[59]  Alabama and Mississippi soon followed Georgia’s lead and extended their states’ jurisdiction over the Indian nations that they claimed were within their territory.

      The opening skirmish in the battle over removal in the Congress began on 25 January 1830 with a resolution from New Jersey’s Senator Theodore Frelinghuysen.  He asked the Senate to request the Secretary of War to furnish information on the progress of civilization during the past eight years among the Cherokee, Creek, and Choctaw nations.  Georgia’s Senator John Forsyth parried by suggesting that the inquiry should be extended to cover all of the Indian tribes within the United States.  Frelinghuysen replied that the argument for removal was exclusively an appeal to humanity on the grounds that the situation of the Indians was daily deteriorating and their population decreasing.  He said that justice required a correct statement of the situation and wished it to be shown to the Senate that in fact the Cherokees had established for themselves a civil government and were entering on the arts of peace, agriculture, commerce and mechanics.  He did not want the delay that a larger inquiry would entail.  In this first test of strength between the two sides, the Senate was equally divided and the president of the Senate cast the deciding vote on behalf of Senator Forsyth’s amendment.[60]

      Forsyth next moved, on 8 March 1830, to have Georgia’s remonstrance against treaties formed by the United States with Indians in that state, and various other papers, published.  Frelinghuysen moved an amendment to print as well the laws recently passed extending Georgia’s jurisdiction over the Cherokee Indians.  Forsyth countered by demanding that the laws of all the states towards Indians within their boundaries be published claiming that “[we] will show that we have acted towards the Indians with more humanity—more justly, more kindly, and more generously, than any of them.” Once again, Forsyth’s side was victorious in a vote of 21 to 20.[61]

      When the removal bill reached the floor of the Senate, on 9 April 1830, with its provision for an exchange of lands with the Indians residing in any of the states or territories, and their removal west of the Mississippi river, Frelinghuysen offered an amendment that struck at the heart of Georgia’s program of coercion: “That, until the said tribes or nations shall choose to remove, as by this act is contemplated, they shall be protected in their present possessions, and in the enjoyment of all their rights of territory and government, as heretofore exercised and enjoyed, from all interruptions and encroachments.”  And that their rights “shall be stipulated for, secured, and guaranteed, by treaty or treaties, as heretofore made.”[62]

      Speaking in support of his amendment, Frelinghuysen argued that the very character of the United States was at stake: “We, whom God has exalted to the very summit of prosperity—whose brief career forms the brightest page in history; the wonder and praise of the world; freedom’s hope, and her consolation; we, about to turn traitors to our principles and our fame—about to become the oppressors of the feeble and to cast away our birthright!  Sir, I hope for better things.”[63]  Frelinghuysen traced the history of American treaties with the Cherokees and their solemn guarantees of Cherokee lands, stressing the Indians’ ownership of their own lands and the civility with which this ownership had been respected in the past: “It is a subject full of grateful satisfaction, that, in our public intercourse with the Indians, ever since the first colonies of white men found abode on these Western shores, we have distinctly recognized their title, treated with them as owners, and in all our acquisitions of territory, applied ourselves to these ancient proprietors, by purchase and cession alone, to obtain the right of the soil.”[64]

      Quoting the great Swiss jurist Emerich de Vattel, Frelinghuysen argued that the rule of international law on the subject of the Cherokees’ political rights was clear: “one community may be bound to another by a very unequal alliance, and still be a sovereign State.  Though a weak State, in order to provide for its safety, should place itself under the protection of a more powerful one, yet, if it reserves to itself the right of governing its own body, it ought to be considered as an independent State.”[65]  The Southern Indians had never relinquished this right and it had always been recognized by the United States.  By treaty, he observed, American citizens resident on Cherokee lands were subject to Cherokee authority.  Quoting the text of the Treaty of Hopewell, he noted that any American citizen resident on Cherokee lands six months after ratification of the treaty forfeited the protection of the United States “and the Indians may punish him or not as they please.”[66]  Under the Constitution of the United States, these treaties were declared “to be the supreme law of the land, any thing in the constitution or laws of any state to the contrary notwithstanding.”[67]  In the words of the Treaty of Holston in 1791, “The United States solemnly guarantee to the Cherokee nation all their lands not hereby ceded.”[68]  These treaties were submitted to the Senate, and Georgia, “by her able representatives in the Senate, united in the ratification of these same treaties, without, in any single instance, raising an exception, or interposing a constitutional difficulty or scruple.”[69]  This was also true of the similar treaties made with the Creeks, Choctaws, and Chickasaws.  How can Georgia, after all this, Frelinghuysen asked, desire or attempt, and how can we quietly permit her, to invade the property, rights, and liberty of the Indians?  “How can we tamely suffer these States to make laws, not only not ‘founded in justice and humanity,’ ‘for preventing wrongs being done to the Indians,’ but for the avowed purpose of inflicting the gross and wanton injustice of breaking up their Government—of abrogating their long cherished customs, and annihilating their existence as a distinct people?”[70]

Sir, our fears have been addressed in behalf of those states whose legislation we resist: and it is inquired with solicitude, would you urge us to arms with Georgia?  No, sir.  This tremendous alternative will not be necessary.  Let the General Government come out, as it should, with decided and temperate firmness, and officially announce to Georgia, and the other States, that if the Indian tribes choose to remain, they will be protected against all interference and encroachment; and such is my confidence in the sense of justice in the respect for law, prevailing in the great body of this portion of our fellow-citizens, that I believe they would submit to the authority of the nation.  I can expect no other issue.  But if the General Government be urged to the crisis, never to be anticipated, of appealing to the last resort of her powers; and when reason, argument, and persuasion fail, to raise her strong arm to repress the violations of the supreme law of the land, I ask, is it not in her bond, sir?  Is her guarantee a rope of sand?  This effective weapon has often been employed to chastise the poor Indians, sometimes with dreadful vengeance, I fear; and shall not their protection avail to draw it from its scabbard?....Let such decided policy go forth in the majesty of our laws now, and, sir, Georgia will yield.  She will never encounter the responsibilities or the horrors of a civil war.  But if she should, no stains of blood will be on our skirts; on herself the guilt will abide forever.[71]

 

      Georgia’s Senator Forsyth began his response, on 15 April 1830, by noting that Frelinghuysen clearly intended the Indians in New York, New England, Virginia and elsewhere to be left to the tender mercies of those states while the arm of the federal government was to be extended to protect the Choctaws, Chickasaws, Creeks, and especially, the Cherokees from the anticipated oppressions of Mississippi, Alabama and Georgia.  To the claim that the bloodshed would be on Georgia’s head if the Executive were to adopt the course recommended by Frelinghuysen, Forsyth replied that “although we dread no responsibility, I have so much kindness for the Senator as to wish to satisfy him, that there is no occasion for an assault upon us, notwithstanding he displayed so little sympathy for the whites—a circumstance not wonderful, however—having exhausted all his sympathy upon the red men, none for the whites could be reasonably looked for from him.”[72]  A more sympathetic view of Georgia’s position, Forsyth suggested, would be sufficient to vindicate it.

      Quoting the Treaty of Hopewell, Forsyth maintained that the United States had obtained the power of legislation over the Cherokees: “For the benefit and comfort of the Indians, and for the prevention of injuries or oppressions on the part of the citizens or Indians, the United States in Congress assembled, shall have the sole and exclusive right of regulating trade with the Indians, and managing all their affairs in such manner as they think proper.”[73]  This power, he then argued, the United States had ceded to Georgia in the compact of 1802.  According to that compact, the United States “cede to the State of Georgia, whatever claim, right or title, they may have to the jurisdiction and soil of any lands, lying within the United States, and out of the proper boundaries of any other State, and situated south of the Southern boundaries of the States of Tennessee, North Carolina, and South Carolina and east of the boundary line herein above described, as the Eastern boundary of the territory ceded by Georgia to the United States.”[74]

      As to Frelinghuysen’s claim that the Cherokee Indians were the owners of the soil, Forsyth responded that he had thought the “European doctrine of the right conferred by the discovery of new countries, inhabited by barbarous tribes” was well known.  “The lands, the streams, the woods, the minerals, all living things, including the human inhabitants, were all the property of, or subject to, the Government of the fortunate navigator, who, by accident or design, first saw the before unknown country.”[75]  Here I might draw your attention to the connection between Andrew Jackson’s belief that the Indians had no claim to land ownership simply from seeing lands from the mountains and Forsyth’s belief that Europeans could make such claims simply by seeing them from a ship. 

      Forsyth argued that under the Constitution the Congress was not intended to have any special authority over those Indians that were taxed and subjected to State laws, but rather only to regulate commerce with tribes of Indians not taxed, and contended that “If their separate existence as a tribe is destroyed by State legislative enactments, the control of the Government of the United States, even over the commerce with them is at an end.”[76]  Forsyth then came to an equally twisted and essential part of his argument:

That the President has made, with the advice and consent of the Senate, various contracts with Indians and called them treaties, is not to be denied.  That various contracts have been made with Indians, by States and individuals, under the superintendence of the United States, is certain; they have been submitted, too, to the Senate, voted upon as, and have been called, treaties.  What I assert is, that these instruments are not technically treaties, supreme laws of the land, superior in obligation to State constitutions and State laws.  Can it be believed that the stern jealousy of the State Governments gave to the United States the power to use a miserable fragment of the population of a State, to extend, indefinitely, their authority, and narrow that of the State Government?... How, then, can a contract made with a petty dependent tribe of half starved Indians be properly dignified with the name, and claim the imposing character of, a treaty?[77] 

 

      As for those who would make claims on behalf of the Cherokee government, that government was of no consequence except as it operated to improve the Indians moral, physical, and intellectual conditions.  But in fact it sanctioned polygamy, allowed horse thieves to be put to death by the rightful owner in the heat of passion, and interfered, by severe penalties, with the personal rights of its people, to remain or to remove at their pleasure, to sell or retain their improvements at their own discretion.

It is for this Government, he desires to compel the President to make war upon a State.  For disputing its authority and annulling its laws, he calls down upon Georgia the thunder of Divine wrath.  Verily, sir, it requires the exertion of some forbearance, to dismiss this subject without farther remarks upon the opinions and sentiments which the gentleman has expressed.  For his misapplied, and, if successful, mischievous efforts, I trust he will receive the appropriate reward: that not the poor Cherokees who remove to the West, only, may look back to bless him, but that he may receive the blessings of all the Cherokees, of those who remain and those who remove.  For his prejudiced examination, and unjust condemnation of our cause, our curses will not follow him.  Charitably believing in the purity of his motives, giving him credit for honest but mistaken zeal, if unable to correct, we can at least pardon his errors.[78]

 

      Noting that Forsyth’s strong language and triumphant tone had made “an evident impression upon the members of the Senate,” Maine’s Senator Peleg Sprague suggested that Forsyth’s arguments be carefully examined.[79]  He then proceeded to systematically take them apart.  The power given to the United States by the Treaty of Hopewell was strictly personal and fiduciary.  To illustrate the point, Sprague drew an analogy.  By the Constitution, “Georgia has given the United States the right to legislate, in certain cases, over her citizens, for their benefit; for example, to organize, arm, discipline, and call forth her militia.  Can the United States transfer this right to South Carolina, or any other sovereign?”[80]  As for the right of discovery under international law, it “confers no claim or right against the natives, the persons discovered, but only as between discoverers.”[81]

We are next told that the constitution recognizes the right of the respective State Legislatures to pass their laws over, and annihilate these communities, by that clause in the first article, which provides that an enumeration of inhabitants, as a basis for representation, shall be made “excluding Indians not taxed”…. By what imaginable process could these words “Indians not taxed,” produce the magical effect of annulling the Treaty of Hopewell, then existing in full force?  Let us substitute the word aliens for Indians.  The clause would then exclude “aliens not taxed.”  Will it be contended that foreigners existing as a nation, with whom we had treaties as such, would be subject to the laws of a State?  Would it not apply exclusively to the aliens, who had separated themselves from the nation and mingled with our citizens?[82]

 

      As for the idea that treaties with Indians were not treaties, Sprague contended that this amounted to nothing less than the assertion “that every President and every Senate have been guilty of usurpation, in extending the treaty-making power beyond its legitimate objects: for if these contracts are not treaties, within the true meaning of the constitution, they could be made only by the authority of Congress.  But the President and the Senate alone—the treaty-making power—have always negotiated them, ratified them, and by proclamation announced them to the nation as the supreme law of the land.”[83]  To the claim that Georgia was being unfairly singled out and the repeated question as to why it could not extend its laws over the Indians as other states had done, Sprague replied: “our treaties—our treaties.  The Indians object, and the United States have solemnly promised, to interpose at their request.  In no other instances have they opposed State legislation, and demanded our interposition.  This is a sufficient answer.”[84]

Sir, we cannot wholly silence the monitor within.  It may not be heard amidst the clashings of the arena, in the tempest and convulsions of political contentions; but its ‘still small voice’ will speak to us—when we meditate alone at eventide—in the silent watches of the night—when we lie down and rise up from a solitary pillow—and, in that dread hour, when, ‘not what we have done for ourselves, but what we have done for others’ will be our joy and our strength; when—to have secured, even to the poor and despised Indian a spot of earth upon which to rest his head—to have given him but a cup of cold water, in charity, will be a greater treasure than to have been the conquerors of kingdoms, and lived in luxury upon their spoils.[85]

 

      Attempting to deflect the implication that the advocates of the bill were unfriendly to the Indians, Mississippi Senator Robert Adams insisted that they wished the Indians to make a free and voluntary choice.  “The friends of this measure do not wish to vest power in the President of the United States to assign a district of country west of the Mississippi, and, by strong arm, to drive these people from their present abode, and compel them to take up their residence in the country assigned to them.”[86]  But the idea that the Indian title could be awakened from its “sleep of ages” and urged as “prior and paramount to that of civilized nations” Adams rejected.  Those who were convinced that civilized man had lawlessly usurped the territory and dominion of the barbarian should show some consistency and “call them back from the deep wilderness to which they have been driven.”[87]  That they had left by treaty and by cession was poor excuse: “for I am sure that, if the history of these transactions could be truly known, it would appear, that, if the one originated in force, the other was obtained by fraud.”[88]  This was how barbarians were dealt with.  “Whilst the tribes were warlike and powerful, no matter what were the stipulations of treaties; no matter how much those treaties infringed the legislative rights of the States; all acquiesced: all submitted.  But as soon as they became reduced to a handful; as soon as their power was lost, and they were no longer formidable, they fell from the cognizance of the General Government, and became subject to the control and legislation of the States.”[89]

      To this vision of inveterate savages who enjoyed rights relative to civilized people only when powerful, as a temporary expedient on the part of temporarily overawed states, Rhode Island’s Senator Ascher Robbins replied with an appeal to international and natural law:

It is said … that the Indian is an inveterate savage, and incapable of civilization.  Admitting this to be the fact, which I by no means do admit, what has it to do with the question, whether his nation is sui juris, and competent to make a treaty.  Is the Indian right less a right because the Indian is a savage?  Or does our civilization give us a title to his right?  A right which he inherits equally with us, from the gift of nature and of nature’s God.  The Indian is a man, and has all the rights of man.  The same God who made us made him, and endowed him with the same rights; for “of one blood hath he made all the men who dwell upon the earth.”  And if we trample upon these rights, if we force him to surrender them, or extinguish them in his blood, the cry of that injustice will rise to the throne of God and there, like the blood of Abel, will testify against us.  If we should be arraigned for the deed before his awful bar, and should plead our boasted civilization in its defence, it would, in his sight, but add deeper damnation to the deed, and merit but the more signal retribution of his eternal justice.  As to the civilization of the Indian, that is his own concern in the pursuit of his own happiness; if the want of it is a misfortune, it is his misfortune; it neither takes from his rights nor adds to our own.[90]

 

      These were the basic arguments that emerged in the Senate.  The final vote was not even close.  First Frelinghuysen’s amendment was voted down and then, by 28 to 19, the removal bill was approved.  New England’s Senators voted 11 to 1 against it; southern Senators voted 18 to 0 for it.  The rest of the country was more evenly divided: 8 against and 10 for.[91]  The vote in the House would be much more closely contested.  In the Senate, Frelinghuysen’s tactical mistake of threatening civil war in combination with the vehemence and self-confidence of Forsyth’s response set the tone.  The dynamic in the House, which began its argument after the Senate had already voted, was much different.

      I will not try here to recreate something of the debate in the House, as I have sought to do for the Senate—the debate in the House was much longer and more intricate.  I will only note that when the first key vote was taken, on an amendment to have an exploratory mission survey the quality of the land in the West before any further decision was made, the vote was 99 to 98 against the amendment, and that the final vote for the bill was 102 to 97.[92]  As a matter of their honor, it is worth stressing that about one in five Southern Congressmen voted against the bill, including Davy Crockett who would later lose his Congressional seat in part as a result.[93]

      The Cherokees were not inclined to surrender at their defeat in Congress, turning their hopes instead toward the Supreme Court.  They hired William Wirt, a lawyer whose gifts of oratory were sufficient for him to have been chosen to deliver the eulogy of Thomas Jefferson and John Adams before a joint session of Congress in 1826, and John Sergeant who would later run for vice-president on Henry Clay’s National Republican ticket in 1832.[94]  Georgia’s officials, in keeping with their exaggerated view of their state’s rights, refused to acknowledge the legal papers served on them by Chief John Ross and refused to appear before the Supreme Court to present oral arguments.  Wirt and Sergeant argued that the Cherokees were a foreign nation with a right to sue Georgia under article three of the Constitution.  In a significant dissent, Justices Smith Thompson and Joseph Story agreed, arguing that, “the Cherokees compose a foreign state within the sense and meaning of the constitution, and constitute a competent party to maintain a suit against the state of Georgia.”[95]  Chief Justice John Marshall, however, was unwilling to have the Supreme Court try to directly control the legislature of Georgia in its “exertion of its physical force” and wrote a majority opinion claiming that, “If it be true that the Cherokee nation have rights, this is not the tribunal in which those rights are to be asserted.  If it be true that wrongs have been inflicted, and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future.”[96]

      In The Cherokee Nation v. The State of Georgia, Marshall dodged jurisdiction in part through a slight of hand in which he claimed that the framers of the Constitution could not have had Indians in mind as foreign nations because the Indians’ habits and usages in their intercourse with their white neighbors had never led them to the idea of appealing to an American court of justice.  As the jurist Jill Norgren has observed this “was nothing more than a falsification of history.  Since the middle of the seventeenth century Native Americans had been frequent litigants in colonial courts.”[97]  But, like the Georgians, Marshall had no difficulty in coming up with a novel legal theory that minimized, if not quite so severely as that of the Georgians, both the import of the actual history of numerous treaties and the distinctive accomplishments of the Cherokee nation:

Though the Indians are acknowledged to have an unquestionable, and, heretofore, unquestioned right to the lands they occupy, until that right shall be extinguished by voluntary cession to our government; yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations.  They may, more correctly, perhaps, be denominated domestic dependent nations.  They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases.  Meanwhile they are in a state of pupilage.  Their relation to the United States resembles that of a ward to his guardian.[98]

 

      Implicitly denying Georgia’s claim that the Cherokees had lost their right to their lands because they were within the boundaries of Georgia, Marshall in effect claimed that they had lost their right to standing because they were within the boundaries of the United States.  As a matter of international law, neither Georgia’s claim nor Marshall’s appears to have much merit.  Marshall’s opinion did note that a majority of the justices were convinced that the Cherokees were “a distinct political society, separated from others, capable of managing its own affairs and governing itself,” and he further conceded that, “They have been uniformly treated as a state from the settlement of our country.”[99]  They simply weren’t, according to Marshall’s dubious reasoning, “a foreign state in the sense of the constitution.”  But a “proper case” with “proper parties,” Marshall suggested, might allow the Court to decide the question of right between the Cherokees and Georgia.[100]

      Elias Boudinot, in the aftermath of the Supreme Court’s decision, in April 1831, was clearly discouraged and wrote in the Cherokee Phoenix that it was more blessed to suffer than to be the oppressors: “If the white man must oppress us—if he must have the lead, and throw us penniless upon the wild world, and if our cries and expostulations will avail nothing, let it be so.  We are in the path of duty, and the Judge of all the earth will vindicate our cause in his own way and in his own good time.”[101]  Chief John Ross maintained his faith in American justice: “Upon the whole, I view the opinion of the Court as regards our political character & the relations we sustain towards the United States, as being conclusively adverse to the pretended rights which have been asserted by Georgia over us, under the countenance of the President…. I sincerely believe that a foundation is laid upon which our injured rights may be reared & made permanent.”[102]  And if a favorable Supreme Court decision was all it took to establish the law of the land in the United States, Ross’ belief in American justice would have been vindicated in 1832. 

      Refusing to take an oath of loyalty to Georgia as a condition for working on Cherokee territory, the missionaries Samuel Worcester and Elizur Butler were arrested by the Georgians and sentenced to four years at hard labor.  Considering these proper parties, and this a proper case, Marshall finally showed some spine in his opinion when the case reached the Supreme Court:

The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and in which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with acts of congress.  The whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States.  The act of the state of Georgia, under which the plaintiff in error was prosecuted, is consequently void, and the judgment a nullity.  Can this court revise, and reverse it?  If the objection to the system of legislation, lately adopted by the legislature of Georgia, in relation to the Cherokee nation, was confined to its extra-territorial operation, the objection, though complete, so far as respected mere right, would give this court no power over the subject.  But it goes much further.  If the review which has been taken be correct, and we think it is, the acts of Georgia are repugnant to the constitution, laws, and treaties of the United States.  They interfere forcibly with the relations established between the United States and the Cherokee nation, the regulation of which, according to the settled principles of our constitution, are committed exclusively to the government of the union.  They are in direct hostility with treaties, repeated in a succession of years, which mark out the boundary that separates the Cherokee country from Georgia; guarantee to them all the land within their boundary; solemnly pledge the faith of the United States to restrain their citizens from trespassing on it; and recognize the pre-existing power of the nation to govern itself.[103]

 

      While this seemed an almost complete vindication of the Cherokee position, in fact it was less than meets the eye in the way of practical relief for the Cherokee nation.  The Supreme Court ordered the Georgia superior court to reverse its decision and free Worcester and Butler.  But even this proved far too much for that court which refused to do so, claiming that the Supreme Court of the United States had exceeded its authority.  Georgia’s Governor Wilson Lumpkin was more blunt, claiming that he would hang the missionaries rather than “submit to this decision made by a few superannuated life estate Judges.”[104]  The Supreme Court, without waiting to find out whether the Georgia superior court had obeyed its mandate, adjourned on 17 March 1832.[105]  Meanwhile another “state’s rights” crisis emerged with South Carolina claiming that it could nullify a tariff adopted by the United States Congress.  Presented with the argument that continued resistance on their part would strengthen South Carolina’s political position and risk the union, and doubtful that continued resistance would be efficacious, Worcester and Butler agreed to accept pardons from Governor Lumpkin in January 1833.[106]  Whereupon some South Carolina officials denounced Georgia for “sneaking out of a fight.”[107]

      Georgia’s insistence on its version of state’s rights, in the face of a Supreme Court decision outlining what a majority of the Court considered the law of the land, discouraged many of the Cherokees’ white allies.  Some of these allies, including Senator Frelinghuysen, now began to suggest that the Cherokees should strike the best deal possible and move west.[108]  John Ross, however, would hear none of this and forbade discussion of the possibility of accepting removal in the pages of the Cherokee Phoenix, calling for a “unity of sentiment and action for the good of all,” and leading Boudinot to resign as editor in August 1832.[109]  Even Boudinot’s defense of his position was denied publication:

In one word, I may say that my patriotism consists in the love of the country, and the love of the People. These are intimately connected, yet they are not altogether inseparable. They are inseparable if the people are made the first victim, for in that case the country must go also, and there must be an end of the objects of our patriotism. But if the country is lost, or is likely to be lost to all human appearance, and the people still exist, may I not, with a patriotism true and commendable, make a question for the safety of the remaining object of my affection?[110]

 

      Earlier that year, the Secretary of War, Lewis Cass, had outlined the terms of a treaty of removal to a visiting Cherokee delegation.  The National Council had overruled Ross and agreed to hear the terms when the delegation returned.  But the Council also voted to suspend elections and declare themselves, and Chief Ross, legitimate until such time as Georgia’s proscription had ended.  John Ridge, who had intended to challenge Ross in the coming election, became increasingly opposed to Ross’ leadership.  Together with Boudinot, and his father Major Ridge, John Ridge formed a party known to be resigned to a treaty.  Georgia, meanwhile, began to survey Cherokee land assigning numbers to each plot for use in a lottery.  By November 1832, “fortunate drawers” were swarming into the nation.  As Theda Perdue and Michael Green have observed, “This was theft authorized by state law, but theft nonetheless, of millions of acres of land.”[111]  Our people are being “robbed and whipped by the whites almost every day,” John Ridge wrote to Ross in February 1833, “we all know, upon consultation in Council, that we can’t be a Nation here, I hope we shall attempt to establish it somewhere else!”[112]

      Yet even Ridge and Boudinot were opposed to the fraudulent treaty that John Ross’ brother Andrew signed in June 1834, surrendering all Cherokee lands in the east for a twenty-four year annuity of twenty-five thousand dollars a year.  And, for once, the Senate of the United States sided with the Cherokees and refused to ratify the treaty when the Jackson administration presented it.[113]  Meanwhile, Georgia’s Governor Lumpkin had written an open letter to Georgia’s Senator Forsyth in which he claimed that “before the close of the year it may become necessary to remove every Cherokee from the limits of Georgia, peaceably if we can, forcibly if we must.”[114]

      Visiting the Secretary of War in early 1835, John Ross indicated that the Cherokee nation would accept twenty million dollars, plus losses from earlier treaties, and a guarantee of federal protection for the five years it would take to organize the emigration.  But the most that even sympathetic members of the Senate would agree to was five million dollars.  The Jackson administration appointed the Reverend John F. Schermerhorn to travel to the Cherokee Nation and work out a treaty.  Schermerhorn met with the Ridge faction and put together a draft, but before he could present it to the National Council, Ross said he would like to see Schermerhorn’s formal commission.  When Schermerhorn couldn’t produce one, Ross ruled that he would have to lead a delegation to Washington for negotiations, as no treaty commissioners were present.  Then, for good measure, he asked whether those assembled were willing to sell their land for five million dollars and received a rousing “No.”  Refusing to respect the authority and legal processes of the Cherokee Nation, Schermerhorn organized an unauthorized meeting promising blankets and food to those who came.  Only a few hundred people turned up, but among them was the Ridge faction and it agreed to sign Schermerhorn’s treaty.  “We can die,” Boudinot observed, knowing that he was signing his death warrant, “but the great Cherokee nation will be saved.”[115]

      Ross met this betrayal with yet another effort to persuade the Senate of the United States to reject a fraudulent treaty, an effort that included a petition signed by thousands of Cherokees.  When the fraudulent treaty came before the Senate in May 1836, former President John Quincy Adams called it an “eternal disgrace upon the country.”[116]  But the Senate voted thirty-one in favor and fifteen opposed, ratifying by one vote more than the two-thirds needed.[117]  Under the terms of the treaty, the Cherokees had until 23 May 1838 to depart.  Engaging in a mixture of peaceful resistance and continued negotiation, Ross saw the Senate increase appropriations for removal to $6,647,067 but continue to reject his appeal for an extension of the deadline.  When President Martin Van Buren agreed to Ross’ appeal, and sought to move the deadline to May 1840, Georgia’s Governor George Gilmer went ballistic and threatened to call out his state militia of two thousand men and let “the consequences” be on Van Buren’s head.  Van Buren backed down.[118]

      Arriving in Cherokee territory with two thousand soldiers, Brigadier General John E. Wool sought to encourage the Cherokees to enroll to move west: “Why not abandon a country no longer yours?  Do you not see the white people daily coming into it, driving you from your homes and possessing your houses, your cornfields and your ferries?”[119]  But he got nowhere with his efforts and reported that it was futile to talk with the overwhelming majority of Cherokees who were “almost universally opposed to the treaty and who maintain that they never made such a treaty.”[120]  Even his offers of food and clothing were refused because to accept them could be interpreted as accepting the treaty.  Ultimately, Wool requested a transfer as his duties violated his sense of honor.[121]  General Winfield Scott replaced him.

      Three days after the treaty’s deadline, Scott’s troops began to coerce the Cherokees into thirty-one forts, beginning what missionary Daniel Butrick described as “that work which will doubtless long eclipse the glory of the United States.”[122]  Making a claim for abandoned property in 1842, a widow named Ooloocha recounted her experience: “The soldiers came and took us from home.  They first surrounded our house and then they took the mare while we were at work in the fields and they drove us out of doors and did not permit us to take anything with us not even a second change of clothes, only the clothes we had on, and they shut the doors after they turned us out.”[123]  Many who had been relatively well off were reduced to abject poverty overnight.  Some had the shock of seeing Cherokee graves dug up by thieves in search of silver jewelry.  Scott wrote later of how the Cherokees “had obstinately refused to prepare for the removal.  Many arrived [at the forts] half-starved, but refused the food that was pressed upon them.  At length, the children, with less pride, gave way, and next their parents.”[124]  Conditions in the forts were terrible, and those in the camps that replaced them, much the same.  Dysentery and fever, whooping cough and measles, led to premature deaths.  And American soldiers, with easy access to alcohol, debauched and raped Cherokee women.[125]  Finally, in July 1838, the Cherokee National Council passed a resolution placing Ross and his Washington delegation in charge of the removal effort.  Scott readily agreed and gave Ross until November to get ready.  Cherokee leadership made removal less vicious than it might have been, but it was still brutal beyond belief.  Among those who died was John Ross’ wife Quatie.  Ross supervised the departure of 13,149 Cherokees, by his count.  Arrivals in Indian Territory, as counted by an American official there, came to 11,504.  The difference of 1,645 does not include those who died in the camps in the summer of 1838 or those who died among the groups removed by the army before Ross took over.[126]

      Looking back, it is painfully clear that three Congressmen voting the other way in the House of Representatives in 1830 would have defeated the removal bill.  Georgia might have sought to engage in “ethnic cleansing” on its own, but the dynamic in the country would have been different.  The so-called “Christian party in politics” would have been energized by its legislative victory—and outraged at such an effort by Georgia—rather than demoralized by defeat and acquiescent.  The ascendancy of a different spirit in the country would have had implications for everything from the 1832 elections to the future of slavery to the prospects of war with Mexico.  In an important sense, the very character of the country would have been different.  The loss of this character, together with the horrors the Cherokees and their native American neighbors experienced, was part of the true cost of the decision Congress took in 1830 at the urging of Andrew Jackson.  It was Jackson’s siding with Georgia that initially released the ugly forces within that state from the moral restraint that had partially constrained them.  It was this sense of release, and of Presidential support for their position, that rapidly degenerated into what they took as something of a license to do evil after Congress’ decision in 1830.  Ultimately, the degeneration in the moral standards not only of Georgia, but of the country as a whole, a degeneration compounded by the Senate’s ratification of the fraudulent treaty of 1835, culminated in the American use of force and violence against the Cherokees in 1838.

      The rest of the world, looking at the history of US-Cherokee relations, and at the great gulf in military power between the United States and any other country on earth, may reasonably ask what will be the United States’ approach to any of its treaty obligations if they become inconvenient, especially those involving self-restraint.  Frelinghuysen asked whether the guarantee of the United States was a rope of sand.  The time may come when others around the world may ask that question again—indeed many already have, especially, in recent years, with regard to American commitments under the Geneva Conventions.[127]  There has been civility, in both senses of the word, in the history of American foreign relations, though by no means as much as there could have been.  But the superiority of civility in conduct toward others over civility in accomplishments has not always been foremost in the thinking of either American officials or the American people.  Preoccupied, at times, by our sense of the superiority of our accomplishments—and desirous of sharing them with all the world—we have undertaken both beneficial interventions and harmful ones.  I have suggested that civility in conduct toward others, or its lack, may help explain why some of these interventions have been successful and others failures and even tragedies.  At the beginning of the incivility toward the Cherokees that led to such extreme and increasing brutality over the course of the 1830s was a refusal to listen to what the Cherokees themselves had to say.  While racism and greed played a major role in this refusal, so did the arrogant presumption among those who saw themselves as more benevolent that they were entitled by their accomplishments to assume the role of guardian and to treat the Cherokees as wards.  This presumption did not necessarily involve racism, although it was often connected with racism through the belief that these accomplishments were only those of white Americans and not of human beings as such.  But it is of no comfort now—not even to Georgians, and certainly not to the Cherokees—that the color of the rope of sand our word and our guarantees amounted to in the 1830s was white.

 

 


[1]  “It would be difficult to find another cross-cultural moment more intense, unpredictable, ambiguous, confusing and electric than this one.  The Americans arrived anticipating, many of them, a traumatic confrontation with fanatical emperor worshippers.  They were accosted instead by women who called ‘yoo hoo’ to the first troops landing on the beaches in full battle gear, and men who bowed and asked what it was that the conquerors wished.  They found themselves seduced (far more than they realized) by polite manners as well as by elegant presents and entertainments.  Most of all, they encountered a populace sick of war, contemptuous of the militarists who had led them to disaster, and all but overwhelmed by the difficulties of their present circumstances in a ruined land.  More than anything else, it turned out, the losers wanted both to forget the past and transcend it.”  John W. Dower, Embracing Defeat: Japan in the Wake of World War II (New York: W.W. Norton, 1999), pp. 23-24.  See also Steven Schwartzberg, “The ‘Soft Peace Boys’: Presurrender Planning and Japanese Land Reform,” The Journal of American-East Asian Relations, Volume 2, Number 2 (Summer 1993), pp. 185-216.

[2]  See Marvin Goldwert, The Constabulary in the Dominican Republic and Nicaragua: Progeny and Legacy of United States Intervention (Gainesville: University Press of Florida, 1962).

[3]  George Washington, “Talk to the Cherokee Nation,” 29 August 1796, http://millercenter.org/scripps/archive/speeches/detail/3941. (accessed 17 September 2010).

[4]  Quoted in William McLoughlin, Cherokee Renaissance in the New Republic (Princeton: Princeton University Press, 1986), p. 288.

[5]  Theda Perdue and Michael D. Green, The Cherokee Nation and the Trail of Tears (New York: Viking, 2007), pp. 139-140.  Francis Paul Prucha, The Great Father: The United States Government and the American Indians in two volumes (Lincoln: University of Nebraska Press, 1984).  The “paternalism” whose importance Prucha stresses, might be considered as a compound of American civility with American racism, greed, fearfulness, ignorance, self-centeredness, and desire to dominate.

[6]  Steve Russell, Sequoyah Rising: Problems in Post-Colonial Tribal Governance (Durham: Carolina Academic Press, 2010), pp. 48, 148.

[7]  My thoughts on civility are closely related to those expressed in Edward Shils, The Virtue of Civility: Selected Essays on Liberalism, Tradition, and Civil Society (Indianapolis: Liberty Fund, 1997).  By the virtue of civility, Shils means the virtue of the citizen—the virtue of concern for the common good.

[8]  Civil interventions are nonviolent efforts to decisively affect regime maintenance or regime change in another country that are informed by a commitment to democratic solidarity.  In an earlier work, I examined successful American civil interventions in Cuba in 1944, Brazil in 1945, Ecuador in 1947, and Costa Rica in 1948, and a civil intervention that ultimately proved counterproductive in Argentina in 1945-1946.  Steven Schwartzberg, Democracy and U.S. Policy in Latin America during the Truman Years (Gainesville: University Press of Florida, 2003).  On the invasions of Panama and Grenada, see Robert A. Pastor, Exiting the Whirlpool: U.S. Foreign Policy Toward Latin America and the Caribbean second edition (Boulder: Westview Press, 2001), pp. 93-98, 186-194.  See also Stephen Kinzer, Overthrow: America’s Century of Regime Change from Hawaii to Iraq (New York: Henry Holt and Company, 2006), pp. 219-238, 239-259.

[9]  William Wirt, quoted in Leonard J. Sadosky, Revolutionary Negotiations: Indians, Empire, and Diplomats in the Founding of America (Charlottesville: University of Virginia Press, 2009), p. 215.

[10]  “Recently great efforts have been made to excite the public mind into a state of unreasonable and jealous apprehension in their behalf.  The evidences of these efforts are before us in petitions that have been pouring in from different parts of the country.  The clergy, the laity, the lawyers, and the ladies, have been dragged into the service and united to press upon us.”  Senator John Forsyth of Georgia, 15 April 1830, United States Senate, 21st Congress, 1st Session, Register of Debates, p. 326.  Text in Library of Congress, “A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774-1875,” http://memory.loc.gov.cgi-bin/ampage (accessed 13 December 2010).  According to former Georgia Governor Wilson Lumpkin’s recollection: “Northern fanatics, male and female, had gone to work and gotten up thousands of petitions, signed by more than a million, of men, women, and children, protesting against the removal of the poor, dear Indians, from the states where they were located to West of the Mississippi.” A. J. Langguth, Driven West: Andrew Jackson and the Trail of Tears to the Civil War (New York: Simon and Schuster, 2010), p. 119.

[11]  “An attempt is making in the Eastern States to create a great deal of sympathy for this people; and the attempt is making, so far as I can discover, by what is termed the ‘Christian party in politics.’” Senator John Forsyth of Georgia, 15 April 1830, United States Senate, 21st Congress, 1st Session, Register of Debates, p. 327.  One Congressman maintained that the Indians had no right “to exclude others from seeking this continent as a resting place from persecution and want, and making it the land of civilization and christianity.”  Congressman Wayne, 24 May 1830, United States House of Representatives, 21st Congress, 1st Session, Register of Debates, p. 1124.

[12]  See John A. Andrew III, From Revivals to Removal: Jeremiah Evarts, the Cherokee Nation, and the Search for the Soul of America (Athens: University of Georgia Press, 1992).

[13]  A. J. Langguth, Driven West, p. 396.

[14]  Not everyone regretted this possibility.  In a Cabinet meeting on 22 December 1825, according to President John Quincy Adams’ recollection, Secretary of State Henry Clay argued that “it was impossible to civilize Indians; that there never was a full-blooded Indian who took to civilization.  It was not in their nature.  He believed they were destined to extinction, and, although he would never countenance inhumanity towards them, he did not think them, as a race, worth preserving.  He considered them as essentially inferior to the Anglo-Saxon race, which were now taking their place on this continent.  They were not an improvable breed, and their disappearance from the human family will be no great loss to the world.”  Quoted in Andrew, From Revivals to Removal, p. 143.  But by 1831, Clay had become convinced that the Cherokee nation would become “a civilized, Christian and prosperous community.” Quoted in Langguth, Driven West, p. 179.  And by 1836, Clay was a leading figure in the fight in the Senate against the fraudulent New Echota treaty.

[15]  Perdue and Green, The Cherokee Nation and the Trail of Tears, p. 11.  Langguth places emphasis on the smallpox epidemic of 1738 as having cut the population to seventeen thousand and cost the shamans much of their traditional authority.  Langguth, Driven West, p. 26.

[16]  “Treaty with the Cherokee,” 28 November 1785. | 7 Stat., 18, http://digital.library.okstate.edu/kappler/vol2/treaties/che0008.htm (accessed 12 March 2011).  “Treaty with the Cherokee,” 2 July 1791. | 7 Stat., 39. | Proclamation, 7 February 1792 http://digital.library.okstate.edu/kappler/vol2/treaties/che0029.htm (accessed 12 March 2011).

[17]  William G. McLoughlin, Cherokee Renascence in the New Republic (Princeton: Princeton University Press, 1986), pp. 47, quotation 68.

[18]  McLoughlin, Cherokee Renascence, p. 171.

[19]  McLoughlin, Cherokee Renascence, p. 295.

[20]  Theda Perdue and Michael D. Green, The Cherokee Removal: A Brief History with Documents second edition (Boston: Bedford/St. Martin’s, 2005), p. 50.

[21]  Langguth, Driven West, p. 71; McLoughlin, Cherokee Renascence, p. 278; Congressman Edward Everett of Massachusetts, 19 May 1830, United States House of Representatives, 21st Congress, 1st Session, Register of Debates, p. 1071.

[22]  Quoted in Langguth, Driven West, p. 166.

[23]  Langguth, Driven West, p. 68.

[24]  Daniel Butrick's journal, 22 February 1823, quoted in McLoughlin, Cherokee Renascence, p. 353.

[25]  Langguth, Driven West, p. 255.

[26]  Perdue and Green, The Cherokee Removal, p. 50.

[27]  Quoted in McLoughlin, Cherokee Renascence, pp. 353-354.

[28]  McLoughlin, Cherokee Renascence, p. 382

[29]  McLoughlin, Cherokee Renascence, p. xix.

[30]  Andrew, From Revivals to Removal, pp. 133-137.

[31]  On “race” and Cherokee identity, and indeed on “race” generally, see Russell, Sequoyah Rising, pp. 105-123.

[32]  Langguth, Driven West, p. 42.

[33]  McLoughlin, Cherokee Renascence, pp. 103-104.

[34]  Perdue and Green, The Cherokee Nation and the Trail of Tears, p. 55.

[35]  Senator John Forsyth of Georgia, 15 April 1830, United States Senate, 21st Congress, 1st Session, Register of Debates, p. 330.

[36]  Quoted in Congressman Henry Storrs of New York, 15 May 1830, United States House of Representatives, 21st Congress, 1st Session, Register of Debates, p. 1009

[37]  Quoted in McLoughlin, Cherokee Renascence, p. 178.

[38]  Quoted in McLoughlin, Cherokee Renascence, p. 37.

[39]  Quoted in McLoughlin, Cherokee Renascence, p. 154.

[40]  Quoted in McLoughlin, Cherokee Renascence, p. 52.

[41]  Quoted in McLoughlin, Cherokee Renascence, pp. 168,180.

[42]  McLoughlin, Cherokee Renascence, pp. 179, 188-190.

[43]  Quoted in McLoughlin, Cherokee Renascence, p. 196.

[44]  Quoted in McLoughlin, Cherokee Renascence, pp. 196-197, 201.

[45]  “The land now held by the Cherokees on the south side of the River Tennessee is at least equal to an oblong 100 by 200 miles... there is at least 14,000,000 acres.  Suppose the U. States should give them land equal to one half by estimation [in Arkansas] having some natural boundaries, and buy the other half at one and one-half cents per acre, say total 105,000 dollars.... When this sum is considered separated from the object it appears great, but when compared with the result of the whole exchange, it shrinks to nothing, for in a very few years only a partial sale of the lands acquired will bring millions into the Treasury.” Quoted in McLoughlin, Cherokee Renascence, p. 136.

[46]  Quoted in McLoughlin, Cherokee Renascence, pp. 203-204.  Meigs comments went beyond this to denounce Cherokee visions of sovereignty and independence as “fictitious,” their ideas of a federal guarantee of their lands as a mistaken hope that they could constitute “an empire within an empire,” and insisted that they were a “conquered” people.  All of these were ideas that Jackson would later articulate.

[47]  Quoted in McLoughlin, Cherokee Renascence, p. 212.

[48]  Quoted in McLoughlin, Cherokee Renascence, p. 230.

[49]  McLoughlin, Cherokee Renascence, pp. 231, quotation 256-257.

[50]  McLoughlin, Cherokee Renascence, pp. quotation 303-305.

[51]  Perdue and Green, The Cherokee Nation and the Trail of Tears, p. 56.

[52]  McLoughlin, Cherokee Renascence, pp. quotation 307-308.

[53]  “Constitution of the Cherokee Nation,” 26 July 1827, text in Theda Perdue and Michael D. Green, The Cherokee Removal: A Brief History with Documents second edition (Boston: Bedford/St. Martin's, 2005), p. 60.

[54]  Ibid.

[55]  Quoted in Perdue and Green, The Cherokee Removal, p. 75.

[56]  Andrew Jackson, first annual message to Congress, 8 December 1829, http://millercenter.org/scripps/archive/speeches/detail/3632 (accessed 4 March 2011).

[57]  Quoted in Perdue and Green, The Cherokee Removal, p. 76.

[58]  Langguth, Driven West, p. 141.

[59]  Perdue and Green, The Cherokee Nation and the Trail of Tears, p. 106.

[60]  25 January 1830, United States Senate, 21st Congress, 1st Session, Register of Debates, pp. 42-43.

[61]  8 March 1830, United States Senate, 21st Congress, 1st Session, Register of Debates, pp. 245, quotation 246, 247.  Forsyth did offer the qualification that Mississippi was more generous in extending to the Indians all the rights of citizenship.

[62]  9 April 1830, United States Senate, 21st Congress, 1st Session, Register of Debates, p. 309.

[63]  Ibid, p. 312.

[64]  Ibid.

[65]  Ibid, p. 313.

[66]  Ibid.

[67]  Ibid, p. 314.

[68]  Ibid, p. 315.

[69]  Ibid, p. 316.

[70]  Ibid. 

[71]  Ibid, p. 320.

[72]  15 April 1830, United States Senate, 21st Congress, 1st Session, Register of Debates, p. 325.

[73]  Ibid, p. 326.

[74]  Ibid.

[75]  Ibid, p. 333.

[76]  Ibid, p. 336.

[77]  Ibid.

[78]  Ibid, p. 339.

[79]  17 April 1830, United States Senate, 21st Congress, 1st Session, Register of Debates, p. 344.

[80]  Ibid.

[81]  Ibid, p. 345.

[82]  Ibid, p. 348.

[83]  Ibid, p. 350.

[84]  Ibid, p. 355.

[85]  Ibid, p. 357.

[86]  20 April 1830, United States Senate, 21st Congress, 1st Session, Register of Debates, p. 359.

[87]  Ibid, p. 361

[88]  Ibid.

[89]  Ibid, p. 364

[90]  21 April 1830, United States Senate, 21st Congress, 1st Session, Register of Debates, p. 376.

[91]  McLoughlin, Cherokee Renascence, p. 437.

[92]  25 May 1830, United States House of Representatives, 21st Congress, 1st Session, Register of Debates, pp. 1133, 1135; McLoughlin, Cherokee Renascence, p. 437

[93]  Langguth, Driven West, p. 248.

[94]  Langguth, Driven West, p. 145; Perdue and Green, The Cherokee Nation and the Trail of Tears, p. 86.

[95]  Quoted in Jill Norgren, The Cherokee Cases: The Confrontation of Law and Politics (New York: McGraw-Hill, 1996), pp. 107-108.

[96]  The Cherokee Nation v. The State of Georgia, 30 U.S. (5 Peters) 1 (1831), text in Norgren, The Cherokee Cases, p. 169.

[97]  Norgren, The Cherokee Cases, p. 101.

[98]  The Cherokee Nation v. The State of Georgia, 30 U.S. (5 Peters) 1 (1831), text in Norgren, The Cherokee Cases, p. 167

[99]  Ibid, p. 166.

[100]  Ibid, p. 169.

[101]  Elias Boudinot, The Cherokee Phoenix, 16 April 1831, quoted in Bethany Schneider, “Boudinot’s Change: Boudinot, Emerson, and Ross on Cherokee Removal,” ELH, Vol. 75, No. 1 (Spring 2008), pp. 151-177.

[102]  Quoted in Norgren, The Cherokee Cases, p. 110.

[103]  Samuel A. Worcester v. The State of Georgia, 31 U.S. (6 Pet) 515 (1832), text in Norgren, The Cherokee Cases, pp. 184-85.

[104]  Quoted in Norgren, The Cherokee Cases, p. 122.

[105]  Norgren, The Cherokee Cases, p. 123.

[106]  Norgren, The Cherokee Cases, p. 128.

[107]  Norgren, The Cherokee Cases, p. 130.

[108]  Norgren, The Cherokee Cases, p. 124.

[109]  Quoted in Langguth, Driven West, p. 197; Perdue and Green, The Cherokee Nation and the Trail of Tears, p. 98.

[110]  Elias Boudinot, letter to the editor of the Cherokee Phoenix, 2 October 1832 [refused publication at the time], in Theda Perdue, Cherokee Editor: The Writings of Elias Boudinot (Knoxville: University of Tennessee Press, 1983), p. 172.

[111]  Perdue and Green, The Cherokee Nation and the Trail of Tears, pp. 97-99

[112]  Quoted in Perdue and Green, The Cherokee Nation and the Trail of Tears, pp. 101-102.

[113]  Langguth, Driven West, pp. 214-215.

[114]  Quoted in Perdue and Green, The Cherokee Nation and the Trail of Tears, p. 104.

[115]  Langguth, Driven West, pp. 214-234, quotation 234.

[116]  Quoted in Langguth, Driven West, p. 239

[117]  Langguth, Driven West, p. 239; Perdue and Green, The Cherokee Nation and the Trail of Tears, p. 113.

[118]  Langguth, Driven West, pp. 268-69.

[119]  Quoted in Perdue and Green, The Cherokee Nation and the Trail of Tears, p. 121.

[120]  Quoted in Langguth, Driven West, p. 244.

[121]  Langguth, Driven West, p. 255.

[122]  Quoted in Langguth, Driven West, p. 280.

[123]  Quoted in Perdue and Green, The Cherokee Nation and the Trail of Tears, pp. 123-124.

[124]  Quoted in Langguth, Driven West, p. 281.

[125]  Perdue and Green, The Cherokee Nation and the Trail of Tears, pp. 126-127.

[126]  Perdue and Green, The Cherokee Nation and the Trail of Tears, p. 139.

[127]  See Jane Mayer, The Dark Side: The Inside Story of How the War on Terror Turned into a War on American Ideals (New York: Doubleday, 2008).