4: The Trail of Tears: Prologue
Legal and Political Struggle Over Cherokee Removal
This Unit is
divided into two parts. The first is "1721-1832 Legal and Political
Struggles Over Cherokee Removal." The second is "Events
Leading up to the Trail of Tears." The lesson’s lectures
are extensive and searching with the “find” function
of a browser may reward individuals who are looking for specific
information: e.g., the Treaty of New Echota, or Jackson (for President
Andrew Jackson’s attitude and actions toward the Cherokee,)
or Marshall (for Justice Marshall’s opinion.) The author of
the lectures is Julia Coates, Instructional Designer, Cherokee Nation.
1: 1721-1832 Legal and Political Struggles Over Cherokee Removal.
- What were
the fundamental political and legal arguments which proponents
and opponents of Indian removal used to justify or defeat the
policy? Which documents are most significant in addressing this
- How did
the legal and political actions in the removal era contribute
to both defining and restricting Indian sovereignty in the United
States for subsequent generations? Which documents indicate this?
this lesson, students will be able to:
four positions on Indian Removal: the Cherokees’, the majority
of the Senate’s, a powerful minority senator’s, and
the Chief Justice of the Supreme Court’s.
and connect the important legal precedents in the United States
that established federal Indian law and the relationship between
the United States and tribes.
the violations that occurred in this relationship during the removal
era, and also the ways in which it was upheld.
removal in the context of states’ rights.
selections in this lesson plan have been chosen for their historical
accuracy and, unity, and the complexity of argument. Teachers should
take special care to help the students clarify their discoveries
of assumptions and arguments, and to relate these to evidence. The
issues are complex enough so that more than one reasonable answer
may be given by students, and teachers should encourage the discovery
of political and legal implications that may be inferred, not merely
cited, from the documents.
Removal, commonly known as the Trail of Tears, was the most dramatic
event to that date in the long legal parrying between the Cherokees
and Great Britain, at first, and later the United States. This lesson
will examine the point and counterpoint – the interweaving
of political and legal exchanges between the various national, tribal,
and state governments that had occurred for more than a century,
and finally resulted in forcing the Cherokees from their ancient
homelands. While it is most typical in such lessons to consider
the legal and political actions of the United States, the Cherokees
were also making internal legal and political shifts that both contributed
to and countered the situation, and any thorough examination of
the story should place the Cherokees, as well, squarely at the center
of events, rather than as merely reacting to federal legal and political
Treaty of 1721
The legal interaction
between this tribal people and the imperializing nation began in
1721 when the Cherokees entered into a treaty with the British colonial
government of South Carolina. In that treaty, the Cherokees ceded
a little more than 2000 square miles of their more-than-126,000-square-mile
territory to South Carolina. They did so because British colonists
had encroached onto Cherokee lands and had established homesteads
there. Britain wanted to give title and deed to these lands to its
colonists, but it wasn’t clear that Britain itself held title
and deed – in fact, it seemed that most likely they did not.
To clarify that point, the colonial government requested a cession
of land from the Cherokees and the Cherokees complied, presumably
because the treaty merely legalized an already-existing situation
– the colonists were already established on the land.
Treaty of 1721 is very significant to the Cherokees today because
it marked the first legal recognition of the Cherokees as a government.
While it is common to think of the Cherokees as a race, an ethnic
group, or a culture or heritage, many people overlook the governmental
aspect of Cherokee existence. But, as Principal Chief Chad Smith
of the Cherokee Nation (1999-present) has stated, treaties are not
made between racial groups; treaties are not made between ethnic
groups; and treaties are not made between heritage associations.
Treaties are agreements entered into by two or more governments1.
Treaties are also documents recognized in international law. When
Great Britain, by its colony of South Carolina, entered into a treaty
with the Cherokees, they were legally acknowledging the existence
of a Cherokee governing structure. Thus it is accurate to state
that the international recognition of Cherokee sovereignty dates
back almost three hundred years to 1721.
the mid-1700s, the Cherokees entered into a total of ten treaties
with colonial governments of Great Britain and Americans. All of
these treaties involved cessions of land as British colonists, many
later calling themselves “Americans,” continued to encroach
into Cherokee territories. By the 1770s, the terms of these treaties
also began to be more punitive of the Cherokees as military conflict
between Cherokees and frontiersmen escalated. Undoubtedly the Cherokees
came to regard the treaties as instruments through which the United
States asserted its power, rather than mutually respectful negotiations.
As their military efforts to resist were overwhelmed by numbers
and force, the Cherokees began to seek other ways to meet the increasing
power of the United States.
understood the significance of treaties. They knew from experience
that government and law were important social structures. Over centuries
they had developed internal systems of law that relied heavily on
their cosmological beliefs, as well as personal and collective senses
of honor. Although their concepts of what formed the basis of law,
and how law and government were to be enacted, shifted over the
years, the Cherokees continued to believe in the power of law and
government to both represent them and defend their interests in
the world. This very Cherokee characteristic can be prominently
seen throughout the removal era crises.
1785 Treaty of Hopewell
By the mid-1780s,
by its victory in the Revolutionary War, the United States had taken
over as the “successor in interest” to all the lands
the Cherokees had ceded to Britain, as well as the obligations Britain
had made by treaty with the Cherokees. The Cherokees were now dealing
with Americans and the United States instead. The first evidence
of the new legal relationship between the two governments was the
1785 Treaty of Hopewell.
established several important legal bases that were asserted prominently
throughout the struggle preceding the Trail of Tears. In the treaty’s
third article, it was acknowledged that “…the Cherokees
[are] under the protection of the United States of America, and
of no other sovereign whosoever.” Article Four defined the
boundaries of the Cherokee territory, and Articles Five, Six, and
Seven defined jurisdictions. Significantly, the Cherokees retained
all jurisdictional authority within their territory, except in the
case of capital crimes involving a Cherokee and an American. Even
as they became a protectorate of the United States, the Cherokees
also retained most of their own governmental authority.
is of great significance. It reads “…the United States
in Congress assembled shall have the exclusive right of regulating
the trade with the Indians, and managing all their affairs in such
manners as they think proper.” At first glance, it appears
that the United States is taking over management of the Indian governments.
But when understood in the context of what the United States was
trying to achieve by it, the article indicates an internal political
tension within the United States that had severe impacts on the
Cherokees in the removal era.
From its origin,
the United States has experienced a political tension between those
who believed that a strong, centralized federal government should
have superseding authority and those who desired to continue the
colonial tradition of virtually autonomous government by individual
colonies, which were now styled as states under the new American
nation. These two positions are familiar to students of the American
political system, and have been termed “federalism”
and “states’ rights,” and the tension ultimately
resulted in the American Civil War in the 1860s.
Nine, the federalists, who dominated in the Congress, insured that
regulation of any aspect of the commercial and legal relationship
between Americans and the Cherokees would be the exclusive right
of the Congress, that is, the federal government. Almost the exact
same language appears in the Commerce Clause of the US Constitution,
ratified a few years after this Treaty, and so this exclusive Congressional
right (termed a “plenary right”) was extended to the
federal relationship with all the Indian nations. As defined in
this Treaty and, later, in the US Constitution, lacking Congressional
permission to do so, individual states cannot assert any regulatory
authority over the Indian nations2. This
became a critical and contentious point in the removal era.
of this treaty is also of interest. It states, “That the Indians
may have full confidence in the justice of the United States respecting
their interests, they shall have the right to send a deputy of their
choice, whenever they think fit, to Congress.” In the 1700s,
“deputy” was the common language to describe the representatives
to the Continental Congress. Thus this treaty gives the Cherokees
the right, as a protectorate of the United States, to send a representative
to the Congress.
1790 Trade and Intercourse Act
In 1790, the
Congress reaffirmed and elaborated the plenary rights established
in the US Constitution – that only Congress could regulate
the commercial and political relationship with Indian nations. In
passing the Trade and Intercourse Act, Congress legislated in Section
4 “…That no sale of lands made by any Indians or any
nation or tribe of Indians within the United States, shall be valid
to any person or persons, or any state, whether having the right
of pre-emption to such lands or not, unless the same shall be made
and duly executed at some public treaty, held under the authority
of the United States” (Meredith, 2001:83-85). By federal law,
states could not take possession of Indian lands. Once again, that
right was retained exclusively by Congress.
1791 Treaty of Holston
In the second
federal treaty between the United States and the Cherokees, the
Treaty of Holston of 1791, the protectorate relationship between
the Cherokees and the United States was restated. But the Cherokees
were in a moment of crisis as Cherokee towns were abandoned as encroachment
by Americans continued and frontiersmen and Cherokee warriors continued
to skirmish. In this treaty, we have one of the first indications
of the intention of the Cherokees to shift the battlefield to the
legal and political arena. In the opening paragraph of the treaty,
the negotiators for the Cherokees are described as being “of
the Cherokee Nation of Indians” (emphasis added),
and at Article One, nationality is reaffirmed: “…all
the individuals composing the whole Cherokee Nation of Indians.”
Ever after, this government would be referred to as a national
government – the Cherokee Nation. The Cherokees continued
to describe and define their nationality and sovereignty over the
next forty-five years, and the defense of their nation would be
the basis for their resistance, as well as their own internal divisions,
during the removal period.
Expansionism and the 1802 Georgia Compact
As a new century
opened, American settlers were moving further and further west.
Desiring to accommodate this expansion, the United States sought
to acquire lands west of Georgia, the future states of Alabama and
Mississippi. These lands had been given to the colony of Georgia
in the mid-1700s, by a charter from Great Britain. Georgia agreed
to relinquish these lands to the United States in return for a promise
from the United States that it would protect the “integrity”
of Georgia proper by extinguishing any ownership of lands within
Georgia still claimed by Indian nations (the Cherokees and the Creeks)
and granting Georgia a pre-emption right – a first right of
ownership – of those lands after Indian claims had been quieted.
Georgia needed the United States to do this on their behalf because,
under the terms of the 1790 Trade and Intercourse Act, Georgia could
not take possession of Indian lands itself. In 1802, this agreement
was cemented in a document called the Georgia Compact.
to extinguish title to Indian lands within the limits of Georgia
by treaty, the Compact strongly implies that the United States will
also remove Indians from the state. The western lands of Alabama
and Mississippi were transferred to the United States, but the United
States initially made only suggestive efforts to relocate Cherokees
from Georgia, as the state waited patiently but with growing exasperation
Compact was unquestionably the source of consternation among the
Cherokees, as were internal events. After several very coercive
and successful attempts in 1805-06 by the US Indian Agent to the
Cherokees, Return J. Meigs, to entice and even bribe Cherokee chiefs
into making additional cessions of land, the Cherokee Council, which
began to style itself as a “National Council” took additional
steps to assert nationhood.
One of the
most dramatic steps taken by the Council was to issue an edict to
the Cherokees that henceforth (after 1805) anyone ceding Cherokee
lands without the permission of the entire National Council would
be killed for that action3. The situation
was seen by the Cherokees as critical enough to attach a death penalty
to the violation, but the action also represents a strong move on
the part of the Cherokees to further centralize their system of
law and government, to establish a nation, as a response to the
increasingly coercive suggestions by the United States that the
Cherokees should remove to lands west of the Mississippi River.
Only a few
years later, in 1808, the Cherokees adopted their first written
statute (in English), establishing a law enforcement unit, an institution
that had not existed under older Cherokee systems of clan law. Over
the next ten years, through much effort and many challenges, the
Cherokee National Council continued to promote a dramatic shift
in the thinking of the Cherokee people about the nature of law and
government. Spurred by 1) continuing US demands for land, 2) internal
Cherokee dissension and the emigration to Arkansas Territory of
about 1000 Cherokees who were somewhat dissident to the new nationalist
sentiment – in effect, voluntarily enacting the very removal
the US sought to encourage, and 3) federal betrayals of other promises
made in exchange for Cherokee military assistance during the War
of 1812, the nationalist ideals of the Cherokee Council actually
strengthened and solidified among the population. In 1817, the Council
legislated major changes in the governing structure of the Cherokee
Nation by the passage of the Reform Act. This Act, which many regard
as the precursor to the first Cherokee Constitution, employed the
language of nationality, defining citizens and citizenship requirements,
as well as significantly restructuring the Cherokee government as
a national government. The moment seems sharp, but in fact it was
the culmination of almost twenty-five years of conceptual shifts
among the Cherokees.
had noted and applauded these shifts as an assimilative acceptance
of “civilization” on the part of the Cherokees. What
seems to have gone unnoticed by many is the fact that the Cherokees
were intent on positioning themselves to mount the strongest possible
defense of their land and society on legal and political terms that
the United States would understand.
The legal relationship
between the Cherokee Nation (all Indian nations) and the United
States had developed over the years through a number of treaties,
constitutions, and legislative acts on both sides. As the pressures
to remove the Cherokees increased, the legal basis for how that
could or could not be achieved had seemingly already been established.
Crisis Intensifies: 1827-1832
that clearly had taken note of the Cherokees’ growing assertions
of nationality was the state of Georgia. The state had long anticipated
the federal extinguishment of Indian titles within Georgia and the
removal of Indians from the state. But as the US languished in fulfilling
that promise, and the Cherokees made rapid adaptations to strengthen
their own political standing, Georgia officials became alarmed.
By 1829, Georgia began to pass very restrictive laws attempting
to extend their jurisdiction over the Cherokees. Although many observers
view 1829 as the date when the crisis over Indian removal intensifies,
Georgia was in large part reacting to the strongest legal move the
Cherokees had made to that date – the ratification of their
first Constitution in 1827. Another perspective views this powerful
and provocative maneuver on the part of the Cherokees in 1827 as
the actual event that provokes an intensification of state and federal
There had been
debate and opposition among the Cherokees themselves to the establishment
of constitutional government. The dissension had been quelled, but
it had its impact in that the National Council ultimately ratified
a more conservative document than they had been considering. In
the end, the 1827 Constitution made no sweeping changes in Cherokee
government – those dramatic changes had been achieved by the
1817 Reform Act. The Constitution simply fine-tuned and made permanent
a Cherokee government that essentially already existed in the most
was irate. A tribal legislative act that defined the internal terms
of government to the Cherokees was one thing. But a constitution
was something quite different. It was a proclamation to the outside
world of Cherokee nationality. Most significantly to Georgia, by
this document, the Cherokees had legally defined their remaining
land base (over half of which was in Georgia) and had pronounced
to the world their exclusive legal and governmental authority within
that territory. Georgia, which had long held expectations of claiming
that same land, decided it would no longer wait for the superseding
authority of the United States to extinguish Indian title. Georgia
decided it was time to strike on its own.
The state perhaps
believed that it was an opportune moment to do so. Two events had
occurred in 1828 that may have encouraged Georgia. In that year,
Andrew Jackson, a proponent of Indian removal, was elected President
of the United States. Also in that year, the approximately 4500
Cherokees who had already emigrated to Arkansas Territory in earlier
years had agreed to exchange those lands for lands even further
west, in the newly designated “Indian Territory,” what
later became the state of Oklahoma. The government of the Cherokee
Nation had received those lands in a cession by the 1828 Treaty.
The United States had firmly established a large western land base
for the Cherokees and it was clearly the intention of the US that
all of the Cherokees would ultimately be removed to that western
took office in 1829. Later that year, Georgia passed the first of
two state laws designed to challenge Cherokee assertions of territory
and national jurisdiction. The second law was passed a year afterwards
and together the two acts are known as the Georgia Harassment Laws.
In the first law, Georgia proclaimed Cherokee lands within the state
were thereafter to be organized as five counties of the state of
Georgia. It outlawed the functions of the Cherokee government within
the limits of Georgia and asserted state law over the Cherokees.
It established the Georgia Guard, a group of sixty men who were
paid by the state to patrol the Cherokee Nation. In actuality, the
Georgia Guard was largely unregulated and had free rein to enact
Georgia’s unstated intentions – to harass and terrorize
the Cherokees to the point that they would agree to remove simply
to escape the Guard’s systematic theft and brutalization.
The Georgia act also denied the Cherokees legal recourse through
the state courts by pronouncing them “incompetent” to
testify against a white person.
law targeted the Cherokee courts specifically. It prohibited them
from functioning within the limits of Georgia and outlawed court
orders from Cherokee courts located in any of the other states (AL,
TN, or NC). The 1830 law also regulated American labor in the Cherokee
Nation. Thereafter it required all Americans who wished to work
in the Cherokee Nation to swear an oath of allegiance to Georgia
and be licensed by the governor. This section of the law was directed
specifically at the missionaries who worked among the Cherokees,
whom Georgia feared were encouraging Cherokee resistance, as some
were. Finally, both laws coerced Cherokee emigration by ordering
that the Georgia Guard cease their activities against a Cherokee
household whenever that Cherokee had enrolled himself and his family
of the Cherokee population of 18,000 lived in Georgia in 1830. After
the passage of the Harassment Laws, life for those Cherokees became
particularly difficult. They were subject to surprise invasions
by Guardsmen, who might destroy their fields, loot their possessions,
beat them, and even drive them out of their abode. This fate threatened
not only the common everyday Cherokee family, but also the wealthier
and high status Cherokees. Joseph Vann, one of the wealthiest Cherokees
of the time, was thrown out of his home, as was John Ross, the Principal
Since the laws
also prevented the functions of the Cherokee government, the National
Council moved the site of its annual fall council meeting from the
Cherokee capital at New Echota, Georgia to Red Clay, Tennessee after
1829, since the councilors were subject to arrest by the Georgia
Guard if they attempted to meet in Georgia. John Ross, who lived
at the Head of the Coosa River in Georgia, was also prohibited by
the Georgia laws from acting as Principal Chief within the limits
of Georgia. Ross was arrested several times throughout the early
1830s. Although he was never tried and convicted (the sentence for
violation of any of the sections of the Harassment Laws was four
years at hard labor in a Georgia prison), Ross did spend a total
of several weeks imprisoned by Georgia.
Although these laws seemed to be in violation of the US Constitution
and the 1790 Trade and Intercourse Act, both of which declared that
only the federal government could regulate anything about the relationship
with Indian nations, Georgia was hoping that under a pro-removal
President, the United States would do nothing to stop Georgia. The
federal response was even more encouraging than Georgia could have
hoped. Not only did the President ignore Georgia’s aggressive
actions, in 1830, his supporters in the Congress also introduced
legislation designed to support Georgia’s efforts. The Indian
Removal Act of 1830 was the first move on the part of the Jackson
administration to fulfill the promise the United States had made
to Georgia twenty-eight years earlier in the Georgia Compact.
Removal Act did not mandate forced removal of eastern tribes to
lands west of the Mississippi River, but it did represent a commitment
on the part of the United States to implement Indian removal as
federal policy. On the surface, the Act encourages voluntary removal,
but the Congressional and national debate that swirled around the
consideration of the Act lasted for months. It was clearly understood
that the implications of the Act went much deeper and engaged questions
about the Indians’ title to lands, federal “civilization”
efforts, political morality, international law, and national honor.
It was also
understood that the Act was a comment on Georgia’s attempt
to legislate over the Cherokees. Supporters of the Indian Removal
Act supported states’ rights and refuted the assertion of
superseding jurisdiction of federal law and federal courts over
state institutions, and thus were supportive of Georgia taking matters
into its own legislative hands. Opponents of the Indian Removal
Act were more federalist in their sensibilities, favoring centralized
national institutions that would set Indian policy, through Constitution
and federal statutes such as the Trade and Intercourse Act. Ironically,
support of this legislation placed states’ rights advocates
(who were generally proponents of Indian removal) in the position
of establishing a centralized federal policy initiative, something
they were generally not inclined to do.
have called the Indian Removal Act the most controversial piece
of legislation ever considered by the Congress to that time. The
debate raged for months. Although Jackson supporters clearly dominated
in both houses of Congress, enough of them were uneasy with the
legislation, particularly in the House of Representatives, to suspect
that the vote would be uncomfortably close.
intensity was not an indication of deep national concerns about
the well-being of Indians. Although much of the rhetoric on both
sides argued their position as in the best interests of the Indians,
the Act was seen by many as a harbinger of the direction of the
United States itself. Was the country not required to follow the
rule of international law? And what of its own Constitution and
laws? Could the nation claim any pretense of morality and honor
if it enacted this policy, or was replacement of the Indians by
a more industrious people (as another argument went) not the natural
and ordained course of humanity?
for most Americans, the debate was primarily part of the larger
tension around the states’ rights issue that also included
the increasingly contentious issues of tariffs and slavery. The
Cherokees were well aware that their cause was not, in fact, at
the forefront of a debate that was ostensibly about their destiny.
Many of their supporters in the Congress were perennial opponents
of the populist Jacksonian vision – Henry Storrs, Edward Everett,
Daniel Webster, as well as the often unreliable Henry Clay, who
supported the policy of Indian removal as often as he repudiated
it. A stronger, more vocal supporter was the New Jersey Senator
Theodore Frelinghuysen, who had close ties with the American Board
of Commissioners for Foreign Missions, a New England society that
had numerous missionaries among the Cherokees, including Samuel
Worcester, a close associate of Cherokee Phoenix editor
Elias Boudinot. (See Textual Sources, below.)
however, cultivated any support they could find, even if the motivation
for that support differed from their own primary interests. They
lobbied heavily and used their new newspaper to build support and
alliances with sympathetic Americans. The church members and missionary
societies of the north and New England generally supported the Cherokee
cause, as did the liberal and progressive reformists of the country.
Many of the nation’s intellectuals, philosophers, artists,
and writers, such as Ralph Waldo Emerson, made public appeals on
behalf of the Cherokees. And the more federalist-minded population,
who tended to be concentrated in New England, also supported the
Cherokee cause, and this was reflected in the support of their elected
were aligned with each of these positions. The Jacksonian Democrats
were generally the party of states’ rights populists, and
the federalist Whigs were generally in opposition. When the Indian
Removal Act came up for a vote in the late spring of 1830, the Senate
voted solidly along party lines, and the Act passed comfortably
with 28 in favor and 19 opposed. But in the House, where Jackson
supporters also dominated, the vote was much closer -- 102 in favor
to 97 opposed -- and its passage resulted only after last-minute
bullying and coercion of Congressmen by Jackson himself. The Indian
Removal Act was one of the first legislative indications of ideological
divisions within the country -- divisions that would only deepen
and solidify over the next thirty years, ultimately leading to the
American Civil War.
The terms of
the Indian Removal Act indicated that removal would be voluntary
and that a cession of eastern lands by a tribe would be compensated
by a cession of lands in a public territory west of the Mississippi
to be reserved exclusively for occupancy and ownership by Indian
nations. Thus removal was styled as an “exchange” of
homelands for new lands. The Indian nation would receive guaranteed
title to the new lands, and additional monetary compensation would
be provided for individuals for personal property that could not
be moved to the west. Removal expenses and resettlement costs would
be borne by the United States.
From the Cherokee
perspective, Section Three eventually became the most crucial article
of the Act. This provision states “…that the United
States will cause a patent or grant to be made and executed to [the
Cherokees] for [their new lands].” When a small group of Cherokees
illegally entered into a removal treaty several years later, they
were insistent that this guarantee of a land patent was fulfilled.
In 1838, the Cherokee Nation was issued a patent for their new lands
in the Indian Territory which assured them “fee simple”
ownership of their new lands. Fee simple is the highest title that
exists in real estate. The patent clarified that the Cherokees held
exclusive, outright, unrestricted ownership of the land in a real
estate sense. Given the debate surrounding the Indian Removal Act
about whether the Cherokees actually had this kind of title to their
original lands, the Cherokees were adamant that their title to their
new lands should be solidly documented in American law.4
Indian Removal Act reads, on the surface, as a fairly benign piece
of legislation, upon its passage in 1830, the Cherokees clearly
understood that the United States had just made official a policy
that many scholars today, such as archaeologist Dr. Brett Riggs
from the University of North Carolina 5 and
Professor Anthony J. Hall of the Native American Studies Department
at the University of Lethbridge, Canada,6
would describe as the ethnic cleansing of southeastern tribes from
their homelands. In 1994, the Indigenous Peoples’ Working
Group at the United Nations Economic and Social Council in Geneva,
Switzerland issued a Declaration on the rights of indigenous peoples,
which included the right to not be subjected to dispossession of
their lands, territories, or resources, which the Group described
as an act of “ethnocide and cultural genocide.”7
United States Indian policy in the 1830s thus violated what is now
regarded as a fundamental right of indigenous nations.
Cherokees Go To Court
With the passage
of the Indian Removal Act, the Cherokees moved another strategy
to the forefront. They had long considered taking their grievances
into federal court. But problems identifying an incursion against
them that was strong enough to carry a court challenge to fruition,
as well as selecting an attorney, had been formidable. With the
legislative establishment of removal as policy, and Georgia’s
increasing belligerence, the Cherokees, encouraged by supporters
among the missionary societies, now actively sought an attorney.
It proved difficult to find someone who did not have a mixed record
on the subject of Indian sovereignty, and that was true of the man
they finally retained, William Wirt. Wirt was the former attorney
general of the United States and arguably the most prominent attorney
in the nation.
As Wirt began
to prepare legal arguments, Georgia enacted an apparently blatant
incursion against Cherokee sovereignty. In 1829, a murder had occurred
within the boundaries of the Cherokee Nation (but now claimed by
Georgia as within its limits). The accused killer was a Cherokee,
George Corn Tassels, as was the victim. The Cherokees had arrested
Corn Tassels and were holding him when Georgia literally kidnapped
Corn Tassels from the Cherokees. Acting on the Harassment Laws it
had passed in 1829 and 1830, Georgia claimed that it had exclusive
jurisdiction and placed Corn Tassels on trial in a state court,
where he was found guilty and sentenced to be hanged. The Cherokees
appealed the case to the Georgia Superior Court which, predictably,
upheld the lower court’s jurisdiction and conviction.
Upon this decision,
Wirt moved the case into the federal courts by appealing for a writ
of error, including a stay of execution, with the US Supreme Court
under the Court’s authority to review state court and legislative
decisions that appeared to be in violation of the Constitution.
Although this kind of review is understood today to be well within
the Court’s power, this authority faced numerous challenges
in the early years of the country, and Georgia had already refused
to appear in a national/federal court some years before. This, too,
became an issue of states’ rights.
Corn Tassels before the Court’s review could take place, thus
rendering the writ moot. However, the Cherokees instructed Wirt
to proceed with an original jurisdiction claim, on the grounds that,
under the Constitution, the Court had the authority to hear disputes
between a state and a foreign nation. The first premise on which
the case rested, then, and which first had to be demonstrated to
the Court, was that the Cherokee Nation was a foreign nation. If
the Court accepted this status of the Cherokee Nation, then it followed
that Georgia laws did not apply over the Cherokee Nation, and that
Georgia’s actions were in violation of treaties and the US
of the Court was a 5-2 decision that was favorable to Georgia (the
Court had only seven justices on it in this era). Chief Justice
John Marshall authored the Court’s opinion. In addition, two
additional justices, Johnson and Baldwin, wrote separate opinions
of concurrence. Initially, neither of the two dissenting justices
wrote an opinion, but because the states’ rights question
was so heavily implicated in this case, one of them, Justice Thompson,
was finally prevailed upon to offer a written dissent.
In his written
opinion, John Marshall indicated that he had been closely examining
the treaties between the United States and the Cherokees. He had
noticed that the Cherokees had the right to send a deputy to Congress.
In his decision, he writes, “[The Cherokees] acknowledge themselves…to
be under the protection of the United States. They admit that the
United Sates shall have the sole and exclusive right of regulating
the trade with them, and managing all their affairs as they think
proper; and the Cherokees in particular were allowed by the Treaty
of Hopewell, which preceded the constitution, ‘to send a deputy
of their choice, whenever they think fit, to Congress.’”
This was not directly pertinent to the final decision in this case,
but it demonstrates that this treaty right has been reiterated in
a Supreme Court decision.
language for this case results from Chief Justice Marshall directly
addressing Wirt’s first premise -- that the Cherokee Nation
is foreign nation. Marshall said… “ 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 a voluntary cession to our government; yet it may well be doubted
whether those tribes which reside within the United States can,
with strict accuracy, be denominated foreign nations. They may,
more correctly, perhaps, be denominated domestic dependent nations.”
This is the significant language from this case. Marshall had denied
the assertion by Wirt that the Cherokee Nation was foreign; instead
he stated that they were to be regarded as a “domestic dependent
nation.” This was the first time the phrase had ever been
used, coined at this historic moment by John Marshall, but the implications
were unclear. Obviously he was using the phrase to refer to the
tribal nations, but beyond that he gave few indications of the meaning
or parameters of this category. Nevertheless, the designation of
tribal governments as “domestic dependent nations” remains
one of the cornerstones of federal Indian law.
“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.” Here we have the second precedent
and cornerstone contained in this decision. In these last sentences,
Marshall stated that the United States was the guardian and the
Indian nations were the wards of that guardian. Today, more legal
terminology is employed to describe that guardianship: we say that
the United States is the “trustee” of the Indian nations
and their citizens, thus the language of “trust” emerges.
For example, the US government holds lands “in trust”
for Indian nations, and is managing “trust accounts”
for individual citizens of Indian nations concerning the leases
of their lands, etc. This leads to the legal elaboration and policy
directive that the United States has a “trust responsibility”
to the Indian nations. Today the trust responsibility is defined
very broadly, to include things such as free health care, educational
assistance, assistance with housing, etc., to the citizens of Indian
Nation v. Georgia is an important case, because the two concepts
that result from this case – (1) that the Indian nations are
“domestic dependent nations” and (2) that the United
States has a “trust responsibility” to the Indian nations
– form the basis for all federal Indian law that followed.
But the Cherokee Nation “lost” this case. They did not
lose, because the court ruled in Georgia’s favor. Rather,
they lost because the entire case had been set up so that the first
premise – the Cherokee Nation is a foreign nation –
had to be accepted by the Court before the rest of the case could
proceed. When the Court struck down this first premise, the remainder
of the case crumbled, and the Court never addressed the question
that the Cherokees really wanted answered: could the state of Georgia
assert jurisdiction over the Cherokee territory and its citizens?
The Court was
actually looking for a way to sidestep this question. Georgia’s
assertion of jurisdiction was a direct enactment of states’
rights concepts. The US Constitution says that only Congress can
pass regulatory laws over the Indian nations, and Georgia was challenging
that by its actions. Thus this case was a blatant attempt on the
part of a state to set itself above federal regulation. The President
of the United States, Andrew Jackson, representing the executive
branch of the federal government, was a strong proponent of Indian
removal. Indications were that the Court and Chief Justice John
Marshall were sympathetic to the Cherokee cause. However, Marshall,
representing the judicial branch of the federal government, did
not want to engage in direct conflict with the executive branch.
He found a way to evade the central question by denying the premise
that the Cherokee Nation was a foreign nation.
Nation had not “lost” the case because the Court agreed
with Georgia. The decision had been favorable to Georgia only in
the sense that the Court did not accept the first premise that the
Cherokee Nation was a foreign nation. Thus this particular case
was rendered moot, but the possibility still existed that the Cherokees
could ultimately prevail. After all, the Court had not upheld Georgia’s
laws and jurisdiction over the Cherokees. They had not actually
entertained at all the question to which the Cherokees sought a
the Cherokees and their attorneys could devise another strategy,
events turned in their favor. In 1832, missionaries working within
the Cherokee Nation were arrested under sections of the Georgia
Harassment Laws that required Americans to be licensed by the state
before they could work among the Cherokees. The largest group of
missionaries working in Georgia was from the American Board of Commissioners
for Foreign Missions. When the Georgia law was passed, they requested
guidance from their board of directors in New England as to how
they should proceed. Their board gave them little in the way of
advice, and so as the missionaries were still contemplating their
response, Georgia authorities moved into the Cherokee Nation and
arrested eleven of them.
Placed on trial
by the state, the missionaries, as expected, were convicted of violating
Georgia law and were sentenced to four years at hard labor in a
Georgia penitentiary. At this point, most of the missionaries accepted
pardons and swore the oath of allegiance to the state. But two missionaries
held firm, hoping that by their action they could provide the Cherokees
with the necessary strategy to approach the federal court once again.
These two, Rev. Samuel Worcester and Dr. Elizur Butler (who was
a physician as well as a missionary), refused to accept the state’s
pardon and began serving their sentences.
aghast when Georgia actually threw men of the cloth in prison! The
story ran in newspapers across the country, generating what Wirt
and his co-counsel, John Sergeant hoped for – strong and sympathetic
plaintiffs carrying the legal banner on behalf of the Cherokee Nation.
With these events, Wirt filed the next of the Cherokee Cases, Worcester
v. Georgia, in 1832. The technical issue in this case was whether
the missionaries had been tried and convicted under state laws that
violated the Commerce Clause of the US Constitution, a clause which
reserves the right of regulating the Indian nations exclusively
language from this decision can again be found in John Marshall’s
majority opinion, as the Chief Justice voted with the majority in
this case as well. In the text of this decision, Marshall addressed
the Cherokees’ right of self-government: “…The
very fact of repeated treaties with [the Cherokees] recognizes their
[right to self-government]; and the settled doctrine of the law
of nations is, that a weaker power does not surrender its independence
– its right to self-government, by associating with a stronger,
and taking its protection. A weak state, in order to provide for
its safety, may place itself under the protection of one more powerful,
without stripping itself of the right of government and ceasing
to be a state. Examples of this kind are not wanting in Europe…”
Marshall was noting that although the Cherokees had indeed placed
themselves as a protectorate of the United States, this is no way
meant that they did not still get to govern themselves within their
own territory. He pointed out that there were many small nations
in Europe who had done the same thing – attached themselves
to a larger nation for its protection – but that didn’t
mean that they didn’t still get to govern themselves. They
did, and Marshall said it was no different for the Cherokees.
on the point several paragraphs later. “The Cherokee Nation
then is a distinct community, with boundaries accurately described,
in which the laws of Georgia can have no force, and which the citizens
of Georgia have no right to enter, but with the assent of the Cherokees
themselves, or in conformity with treaties and the 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
of the state of Georgia, under which the plaintiff in error was
prosecuted, is consequently void, and the judgment a nullity.”
With this definitive language, Worcester and Butler won this case,
and by extension, the Cherokee Nation was also successful. It could
not be clearer. The language is unambiguous: The laws of the state
cannot have any effect and the citizens have no right to enter the
Cherokees’ territory without the consent of the Cherokees
or the federal government. The Cherokees had just had their sovereign
rights of self-government upheld by the highest court of the nation!
this case clarified the point left ambiguous by the earlier 1831
decision in Cherokee Nation v. Georgia. In that case, John
Marshall had established that the Indian Nations were not regarded
by the Court as “foreign” nations, but were rather “domestic
dependent nations.” However, the jurisdictional status of
“domestic dependent nations” was not clarified by the
earlier case. On the ladder of law and jurisdictions in the United
States, there are descending rungs of supremacy of jurisdictions.
On the highest rung, is the federal level of law and jurisdictions,
with the states on the rung just below that (although states’
rights proponents were certainly contesting this), with county and
municipal levels of law occupying rungs below the state. The Cherokee
Nation had argued that they were on an entirely different ladder,
that they were “foreign.” When the Court denied this,
they made it clear that the tribal levels of law and jurisdiction
are on the same ladder as the federal government and the states,
but the Court didn’t state what rung the tribal governments
occupied. Were they above the state? Below the state? This was the
question the Cherokees had wanted addressed, but it had gone unanswered
But by the
Worcester case in 1832, the Cherokee Nation had its response:
the tribes were on a rung above the state. States could not assert
jurisdiction over tribes or within tribal territories. This has
led to the concept that the tribal nations have a “status
higher than states,” which is also another general cornerstone
of Federal Indian Law. Although subsequent cases and policies have
eroded this assertion greatly, it still holds true as a general
tenet. The states still cannot regulate or assert jurisdiction over
tribal nations or their citizens within their own territories.
initially generated great excitement among the Cherokees. Elias
Boudinot wrote at the time that the question was settled once and
for all as to who was right and who was wrong. But as President
Jackson indicated that he did not feel bound to enforce the Court’s
decision, Georgia understood correctly that it had been given “free
rein” by President Jackson. It refused to release the missionaries,
and the harassment of Cherokees in northern Georgia actually increased
after 1832. Large emigrations of Cherokees to Arkansas from the
southeast in 1832 and 1833 resulted, as many people were forced
out of their homes and refugeed. By 1834, Georgia had actually implemented
a lottery whereby the state was giving away Cherokee lands. To that
date there had been no federal treaty to dispossess the Cherokees
of their lands, and yet settlers were already moving in with “legal”
documents allegedly giving them title to individual plots of Cherokee
lands. Cherokee jubilation soon turned to dismay and disbelief.
And with the refusal of the President to enforce a Supreme Court
decision, the unity of the Cherokees broke.
1 This is one of the reasons Indian nations
are particularly adamant that the treaties that have been made with
them by the United States be honored. These documents represent
the historical acknowledgment of numerous Indian governments that
exist across the continent.
2 This point is not well understood by Americans
today. The best example of this is the confusion on the part of
many people as to why Indian nations can have gaming operations
that are not normally allowed by state law, and why they are not
required to pay state taxes on those, and other, enterprises.
3 In 1807, a Cherokee chief, Doublehead,
was killed by three other members of the National Council for breaking
this law and accepting bribes from the US Indian Agent.
4 The Cherokees and the other four of the
Five Tribes in the Indian Territory (Creeks, Choctaws, Chickasaws,
and Seminoles) were the only Indian nations in the country who held
fee simple title to their lands. This placed them in a different
category of landholding than any other tribe, most of whom were
on reservations – lands that are held in trust by the United
States on behalf of that tribe -- and thus land in which the United
States could still assert a legal interest, if it so desired. The
United States had minimal legal interest that it could assert over
the lands of these Five Tribes in the Indian Territory, which is
unquestionably the reason these tribes were able to develop the
republics that they did during the middle and late 1800s. They self-governed
their nations with a far greater degree of autonomy than most other
tribes were allowed to in that century.
5 Dr. Riggs works specifically with Cherokee
archaeological sites and has stated, “We have to be realistic
about this history. This was ethnic cleansing, in America.”
6 Dr. Hall has written extensively on this
subject. See “Ethnic Cleanising and Genocide in North America
and Kosovo” at http://www.yvwiiusdinvnohii.net/articles/EthnicCleanising990411.htm
7 See “Draft Declaration on the Rights
of Indigenous Peoples,” UN Doc. E/CN.4/Sub.2/1994/2/Add.1
(1994) at http://www1.umn.edu/humanrts/instree/declra.htm
The 1802 Articles
of Agreement and Cession (Georgia Compact).
From DeTocqueville: 1829 Cherokee Petition to Congress,
Harassment Laws (the full text of the laws are contained within
the written text of the Worcester v. Georgia decision).
The Indian Removal
Act of 1830, from Howard Meredith’s A Short History of the
Native Americans in the United States, pg. 85-86.
Senator from New Jersey. Indian Removal Debate 1830; Speech Before
the Senate, Part 1.
Nation v. Georgia.
V. Georgia, Chief Justice John Marshall’s opinion, from
Howard Meredith’s A Short History of the Native Americans
in the United States, pg. 87-90.
on the Rights of Indigenous Peoples, U.N. Doc. E/CN.4/Sub.2/1994/2/Add.1
In the following sections, “Questions for Analysis,”
“Discussion,” and “Suggested Papers,” students
should use references from the Introduction and the texts above
and below to support their responses.
Questions for Analysis
specific actions on the part of the United States does Senator Frelinghuysen
describe as contradictory to the federal-tribal relationship? How
do the Georgia Harassment Laws relate to that relationship and how
to they factor into the US-tribal contradictions?
• How is the idea of “civilization” being used
rhetorically by federal proponents of Indian removal? By opponents?
The Cherokees? Which argument seems strongest to you? In your opinion,
are there other interests motivating each position?
• Two of the arguments made both for and against Indian removal
were based on (a) the Indians’ right to self-government and
sovereignty and (b) the “progress” being made towards
civilization. How do proponents and opponents of removal use each
of these arguments? Which argument is stronger for opponents? For
Although Discussion Topics also rely on textual references, they
also allow for a broader reading and the use of students’
Indian Removal Act has been described as the most controversial
piece of legislation of the first half of the 1800s. Is there any
requirement in the Act that tribes must remove? If so, how is it
to be enacted? If not, what was the purpose of the Act? Why do you
think it was so controversial?
• How do you think the Indian Removal Act would be regarded
by contemporary Americans if it was being introduced today? Are
you aware of other national or world events that may have some similarity?
How and why? And how are they different?
• Do you think the Cherokees were successful in building a
nation? Why or why not? Was this a good way for them to defend themselves?
Are there other things they could have done that would have been
Optional Question for Discussion: Tying the Units Together
• In the
United Nations Indigenous Peoples’ Working Group Draft Declaration
of 1994, Part II, Article 7 addresses the rights of indigenous peoples
to not be subjected to five forms of “ethnocide and cultural
genocide.” Do these five forms (a through e) describe actions
taken by the United States toward the southeastern tribes, including
the Cherokees. Why or why not? What about Articles 9 and 10?
The Suggested Paper Topics should combine both textual references
and original thought.
John Marshall’s argument seem to rely on any of the same arguments
as Frelinghuysen’s? Allowing for the difference in length,
which writer has the stronger argument?
• In the Cherokee Nation v. Georgia case, the Supreme
Court ruled that the Cherokee Nation was not a foreign nation. Why
was that a difficult concept for the Court to accept? Which federal
and tribal documents would indicate this?
Supplemental Reading for Teachers or Students:
sources with almost diametrically opposed views of Jackson’s
role and view of the Cherokees may be found in Thurman Wilkins’
Cherokee Tragedy, the Ridge Family and the Decimation of a People
and John Ehle’s Trail of Tears, the Rise and Fall of the
Cherokee Nation. Read Chapter 11 of Wilkins and Chapter 15
of Ehle. These chapters contain differing views of the same incident
involving a meeting of Jackson, the Cherokee and Georgians. Teachers
may wish, also, to consult each work for the reactions to Marshall’s
2 - Events Leading Up To the Trail of Tears
- What were
the goals of the Ridge and Ross parties for the Cherokee Nation
and people? How did each propose to achieve these goals?
- Why did
removal become such a divisive question among the Cherokees?
this lesson, students will be able to:
the reasons for the severe divisions within the Cherokees after
the 1832 Supreme Court decision.
the shift in Ridge-Boudinot thinking from pre- to post-1832.
the rhetorical strategies of “civilization” as used
by all sides.
general Carroll’s rhetorical strategy on pg. 5-6 of Frelinghuysen’s
For the Cherokees,
the Supreme Court decision in their favor was the culmination and
pinnacle of their efforts of the previous thirty to forty years.
But as it soon became apparent that President Jackson would do nothing
to enforce the Court’s decision, Cherokee jubilation turned
as quickly to dismay and stunned disbelief. Many among the Cherokees’
leaders, who had been quite admiring of the United States’
system of law and government, had difficulty accepting that they
could go to the highest Court in the country, receive a favorable
decision, and yet the law and the decision would not be respected
or enforced. Some leaders continued to place faith in the United
States to ultimately uphold the Cherokee cause; others swallowed
the bitter pill of disillusionment and developed a cynical pragmatism.
The Cherokees had employed their best strategy in going to federal
court, and it had been successful. But as it became apparent that
their success was to no avail, the question before the Cherokees
was what to do next? It was a question that would split the Cherokee
and John Ridge had been in New England still trying to build support
among Americans for the Cherokee cause when the Court’s decision
was rendered. They quickly traveled to Washington DC, where Boudinot,
as editor of the Cherokee Phoenix, beginning to write and
send articles back to the Cherokee Nation to inform the people of
their victory. Boudinot’s writings from this time indicate
his sense of hope and optimism. In a letter to his brother, Stand
Watie, who was acting as editor in Boudinot’s absence, he
wrote “…so far as the question of [Cherokee] rights
were concerned[, t]he question is for ever settled as to who is
right and who is wrong…”. In Boudinot’s view,
the Cherokees were at last gloriously and decisively vindicated.
was a bit more cautious, although jubilant as well. But as the days
passed and it became more evident that President Jackson would not
act on the Court’s decision, and as Georgia refused to release
the imprisoned missionaries, Cherokee support within the Congress
also began to erode. As more and more of their staunchest political
allies in the House and Senate, and even one of the Supreme Court
justices who had voted in their favor, began to advise the Cherokees
of the futility of their efforts, the hopes of Ridge and Boudinot
eroded. Gradually, and apparently independently of each other, each
began to have doubts about the continuing ability of the Cherokees
to defend their land and sovereignty in the southeast. The Cherokee
Nation lobbyists who were also in Washington, John Martin and William
Shorey Coody (who was Chief John Ross’ nephew) seemed to arrive
at a similar opinion. Ridge and Boudinot may have spoken to each
other privately at some point, as they seemed to be in agreement
by the time they returned to the Cherokee Nation, that they should
speak to Ridge’s father, Major Ridge, and try to convince
him to shift his anti-removal position.
Major Ridge to advocate the relinquishment of Cherokee lands and
to accept removal was no small feat. Throughout his career the elder
Ridge had stood staunchly opposed to land cessions, had once even
been involved in the killing of a corrupt Cherokee chief who had
ceded land without Council permission. But Ridge also had a high
regard for his son’s intelligence, education, and political
insight. Major Ridge, probably the most longstanding and influential
member of the Cherokee National Council, was convinced, as were
others, and with his switch in position, the unity of the Cherokee
In the years
between 1832 and 1835, and continuing throughout the Trail of Tears
in 1838-39 and its aftermath, the tensions and divisions between
the two positions intensified. The Ridge Party now advocated removal
to the Indian Territory as the only hope of saving the Cherokee
Nation as a government and a society. The Ross Party, led by Principal
Chief John Ross, continued to hope for a resolution that would allow
the Cherokees to remain in their southeastern homelands. Although
the Cherokee leadership was severely divided as to what the best
course of action was, the Cherokee people continued to solidly support
the Principal Chief as representative of their stubborn refusal
to leave their lands.
society was already beginning to be very diverse. Intermarriage
with whites had been extensive throughout the 1700s – some
have suggested it was a Cherokee strategy to quickly rebuild their
population after devastating losses in smallpox epidemics -- and
had continued into the 1800s. By the 1830s, about 25% of the Cherokee
population was racially mixed, including many members of the National
many of the prominent chiefs had made the economic shift from the
old Cherokee hunter-warrior tradition to livelihoods as planters
and businessmen. Others were descended from some of the first traders
who had married into the Cherokees. Together they constituted a
class of relatively wealthy Cherokee people, some of whom were also
in the National Council, but many others who were not. Because of
the extensive intermarriage, a proportion of the Cherokee population
had some exposure to and acceptance of more Euroamerican cultural
values, and some of these people were among the wealthy class while
others were not. Likewise, some among the wealthy class did not
have much exposure at all to Euroamerican norms and values.
were subsistence farmers, very self-reliant people who produced
everything that they needed to feed, house, and clothe themselves.
Although they did not have much more than basic material goods,
they were not dependent on anyone else to provide for them. Some
Cherokees had adopted Christian practices, most had not, and still
others combined both Christianity and ceremonial beliefs. Some Cherokees
spoke English, most did not, and although the number of bilingual
Cherokees was small overall, it was increasing. In sum, the Cherokee
society was complex and most households and individuals exhibited
a mix of Cherokee and Euroamerican characteristics.
divisions that arose among the Cherokees at this time are often
described in terms of race (mixed-bloods and fullbloods) or socioeconomic
class (elites and subsistence farmers), the categories are too simplistic
to address the complexity and diversity of the Cherokee society.
Most of the grassroots Cherokee people supported the position of
the Ross Party in absolute opposition to removal. The divisions
existed primarily among the leadership and the elites among the
Cherokees, about half of whom agreed with the Ridge Party’s
perspective that removal was inevitable and the best way to save
the Cherokee Nation and people, and the other half agreeing with
the grassroots Cherokees and firmly opposed to removal under any
circumstances. But both sides could agree on the ultimate goal of
saving the Cherokee government, culture, and society from destruction.
Ross Party remained resistant to removal, they had no strategy after
the Court’s decision was ignored. Their hoped seemed to be
that if they could hold out until the next election in 1836, Andrew
Jackson would not run again, and a new president would come into
office. Perhaps, they thought, the Court’s decision would
be enforced by another president. Given time, they perhaps believed
they could sway more public support to their cause, the Indian Removal
Act could be repealed, and federal removal policy could be changed.
But the strategy was weak and there were too many variables that
were beyond the Cherokees’ control.
The Ridge Party
wanted to present their position to the Cherokee people and explain
why they now believed that removal was the only hope of saving the
Cherokee government and society. But John Ross and members of the
Council feared that this would only lead to greater internal divisions
among the Cherokees and that the United States would exploit those
divisions. They forbade Boudinot from printing the Ridge Party’s
views in the Cherokee Phoenix. Boudinot resigned in protest.
began to deteriorate in the Cherokee Nation. Georgia escalated its
harassment of the Cherokees, and significant emigrations of Cherokees
to the Indian Territory occurred in 1832 and 1833 as the Georgia
Guard continued to systematically dispossess Cherokees of their
homes. Still others remained in the Cherokee Nation, but withdrew
into the Smoky Mountains, living in deplorable conditions, hungry
and essentially homeless. The state implemented a lottery and began
to award Cherokee lands. Suddenly, lottery winners appeared on Cherokee
doorsteps holding deeds to their properties. Some allowed the Cherokee
occupants to stay, content to simply charge them “rent”
to continue to occupy their own homes.
As the pressures
to remove continued to grow, and as harassment escalated, Principal
Chief Ross began to explore other possibilities – accepting
US citizenship and politically assimilating, forming their own Indian
state, even removing to Mexico. All of these options were rejected
as unfeasible. Although their frustration was immense and they endured
severe provocations, Ross continued to counsel restraint and passive
resistance on the part of the Cherokees, understanding that any
act of violence or retaliation on their part was almost certain
to bring a military response from Georgia, the United States, or
both. Federal troops were sent into the situation to quell the Indian
uprising that Georgians feared would erupt. They found the Cherokees
steadfastly at work in their fields, tending to their stock and
caring for their families. Almost to a person, the Cherokees kept
By early 1834,
various delegations of pro-removal Cherokees were traveling to Washington
to negotiate removal treaties with the United States. Among the
delegates was Andrew Ross, John Ross’ brother, a vocal supporter
of Cherokee removal who was determined to enact a treaty. Soon,
however, disagreements arose between Andrew Ross and Major Ridge,
who felt that Ross was too inclined to negotiate a mediocre, flawed
treaty that would not fully serve the Cherokees’ interests.
Ridge and his nephew, Elias Boudinot, withdrew their support from
Andrew Ross’ effort, concerned for the well-being of their
Nation and people. Their desire was to negotiate the strongest possible
treaty, with the best terms imaginable for the Cherokees.
at some point the United States would accept a treaty signed by
the minority faction, and that the Senate would consider or even
enact its ratification, John Ross journeyed to Washington in early
1835, ostensibly to negotiate a treaty, but probably to engage in
stalling tactics, still hoping to endure until the 1836 election.
He asked for unreasonable sums in payment for the Cherokees’
last piece of land, and used other devices as well. US commissioners
charged Ross with intentionally delaying the negotiations and the
In the meantime,
John Ridge led a second delegation to Washington which was warmly
received by officials in the War Department. A mutual decision was
reached that the Ridge group would negotiate a viable treaty, strongly
supportive of the interests of the Cherokee Nation, but also acceptable
to the United States. It was agreed that the treaty would then be
taken to the Cherokee Nation and presented directly to the Cherokee
people for their approval, in an attempt to override the Ross administration’s
opposition. As some of those who had participated in the development
of the Cherokee Constitution and laws, the Ridges certainly understood
that this action would be in violation of both.
leadership was profoundly frustrated by their inability to present
their position to the Cherokee people. Unable to make their case
through the newspaper, frequently restricted from speaking to larger
crowds at Council and other meetings, the Party felt silenced and
shunned. Having great faith in the intelligence of the Cherokee
people, they were certain that when presented with all the facts,
the people themselves would see the wisdom of the course of action
counseled by the Ridges. Desiring to make their case and present
the treaty to the Cherokee people for their approval, the Ridges
called several meetings throughout the summer of 1835, hoping to
draw the Cherokee public. In most cases, John Ross was able to thwart
mid-summer 1835, the Ridges were able to present their case. They
spoke at length, they spoke eloquently, and at last they were satisfied
that their position had been clarified to the Cherokee people. They
were confident that the vote would go in favor of a treaty. US Commissioners
stood by with the treaty, prepared to witness to the approval of
the Cherokee people. But when the vote was taken, the thousands
of Cherokees assembled voted overwhelmingly to reject he treaty
– any treaty. The Ridges could no longer claim that the Cherokee
people would not support them because they did not have the facts.
were made to shift the position of the Cherokee people and the Ross
government at the October 1835 General Council meeting at Red Clay,
TN. There was general agreement on the part of the people to send
another delegation to Washington to negotiate. The people seem to
have understood that they had rejected the proposition of a removal
treaty. At any rate, they entrusted their leaders, with the Principal
Chief at the head of the delegation, to represent their desires.
commissioners remained in the Cherokee Nation. Undermining the insistence
of the Cherokee leadership that any treaty should be negotiated
in Washington, they called for another meeting at New Echota in
December 1835, and advised that Cherokees should be there to accept
the treaty. Less than 300 people attended the meeting at New Echota,
most of them pro-removal Cherokees. Nevertheless, the 1835 Treaty
of New Echota was finalized and signed by a relative handful of
Cherokees, none of whom was authorized to do so by the Cherokee
National Council.(See Textual Sources, below.)
The treaty was taken to Washington and the following month, in January
1836, the Senate began to debate ratification of a treaty that was
opposed by 90% of the Cherokee people and was signed by twenty men
who were not authorized by their government to do so.
of New Echota, the removal treaty of the Cherokees, was always considered
by the Cherokees to be a fraudulent treaty, since it was neither
negotiated nor ratified by the National Council, as required under
Cherokee Constitution and law. There are several indications of
its fraudulent nature, beginning at the opening paragraph. The negotiators
of the Treaty are called “the Chiefs Head Men and People of
the Cherokee tribe of Indians.” However, this government had
been called the Cherokee Nation ever since 1791, but here the language
reverts back to that of a tribe. And never have the “People
of the…tribe” negotiated a treaty. These are the first
indications of the fraudulence of this Treaty.
describes the various delegations that went to Washington throughout
1835 to indicate how the treaty was developed. Articles 1 and 2
are describing the exchange of land. The Cherokees would give up
their last remaining last in the east. They would be paid $5 million,
and an additional $600,000 would be allowed for the expenses of
the removal of the Nation. In exchange, the Cherokees would receive
approximately 15 million acres of land in the Indian Territory.
Many people have disagreed that this was an exchange of land since,
in fact, the Cherokee Nation already owned these lands. These lands
had been ceded to the Cherokee Nation in 1828 in exchange for lands
in Arkansas, which had been exchanged to the Cherokee Nation for
still earlier cessions of land in 1817-1819. The Cherokee Nation
was thus exchanging for lands it already owned, and the only additional
piece granted at this time was a small tract is southeastern Kansas,
called the “Neutral Lands.” The United States’
position was that when it had ceded this large area of territory
to the Cherokee Nation, it was with the understanding that someday
all of the Cherokees would be relocated to that area.
5 and 6, we see the usual promises: “The United States hereby
covenant and agree that the lands ceded to the Cherokee Nation in
the foregoing article shall in no future time without their consent
be included within the territorial limits or jurisdiction of any
State or Territory.” And at Article 6, “Perpetual peace
and friendship shall exist between the citizens of the United States
and the Cherokee Indians.” Also, about mid-way through Article
6, “…[the Cherokees] shall also be protected against
interruption or intrusion from citizens of the United States who
may attempt to settle in the country without their consent; and
all such persons shall be removed from the same by order of the
President of the United States.” This is limiting the amount
of jurisdiction the Cherokees would be able to exercise over American
intruders into their country. The Cherokees had to call on the United
States to take intruders out; the Cherokees were not allowed to
do it themselves. Sometimes intruders were removed, but borders
are usually very permeable, and governments frequently have difficulty
policing borders. The Cherokees borders of 1835 were very permeable,
and even when intruders were removed, they could easily return.
Cherokee Nation always considered that this was an illegal treaty,
it has obviously been held to its terms. But certain other terms
of the treaty have never been fulfilled. At Article 7, in the last
three lines, “…it is stipulated that [the Cherokees]
shall be entitled to a delegate in the House of Representatives
of the United States whenever Congress shall make provision for
the same.” This is the third time this had been legally reaffirmed
by the United States. The first was in the Treaty of Hopewell, where
it stated more vaguely, “a deputy to Congress.” It was
reiterated by John Marshall in the 1831 decision in Cherokee
Nation v. Georgia. This time it is much more specific –
it states “a delegate to the House of Representatives”
and states that Congress will make financial provision for it.
10 some one-time awards to the Cherokee Nation from the United States
are stated: “The sum of fifty thousand dollars to constitute
an orphans’ fund the annual income of which shall be expended
toward the support and education of such orphan children as are
destitute of the means of subsistence. The sum of one hundred and
fifty thousand dollars in addition to the present school fund of
the nation shall constitute a permanent school fund, the interest
of which shall be applied annually by the council of the nation
for the support of common schools and such a literary institution
of a higher order as may be established in the Indian country.”
The “institutions of a higher order” that are mentioned
were the Cherokee National Male and Female Seminaries. Thus this
is the provision by which the very famous Seminaries were established.
were very elite institutions. Every year, more Cherokees applied
to these schools than they were able to accept. Only twenty-five
girls and twenty-five boys could be accommodated each year at these
schools. They offered a college-preparatory education, and for many
years were the finest schools of their kind west of the Mississippi
River. The Female Seminary was also the first school of its kind
west of the Mississippi.
But for most
Cherokees, it was the system of “common schools” --
the day schools -- that were the more important institution. These
schools, which offered free, public, compulsory, co-educational
instruction to all Cherokee children through the eighth grade insured
that almost all Cherokees had at least an eight-grade education
in the 1800s (and many people had more than that). Overall, the
Cherokees were thus a better-educated people in the 1800s than were
Americans. These schools, in which the Cherokee language/syllabary
were primarily employed, were the first system of free, compulsory,
co-educational instruction known to the world.
in Article 10 are not being given and then spent by the Cherokees.
Instead, investment funds are being created, with the United States
as the fund manager. Thus the Cherokee Nation was supporting these
schools and other institutions largely through the earnings that
were being generated by these funds. It was a sophisticated manner
of making the money work for them, especially for this era.
14, pensions are being granted to Cherokee veterans who fought and
were wounded in the War of 1812 – those Cherokees, for instance,
who fought with Andrew Jackson at the battle of Horseshoe Bend,
is giving the timeline for removal. It stipulates that the Cherokees
have two years from the date of ratification of this treaty in which
to move west to the Indian Territory. This treaty was ratified on
May 23, 1836. The roundup for the forced removal began on May 23,
1838 – exactly two years to the day. The intent of the United
States was that the Cherokees should have time to gather their possessions,
remove in small groups, in relative ease and comfort. If the Cherokees
had done this, they might have saved a great deal of personal property
and thousands of lives as well. Sometimes, the fact that they did
not ready themselves is attributed to poor leadership on the part
of John Ross. But many others saw that Ross was expected to represent
the desires of the Cherokee people, and their own deep resistance
to removal was likely the reason he did not urge them to get ready
17 it states, “All stipulations in former treaties which have
not been superseded or annulled by this shall continue ion full
force and virtue.” This places the Treaty of 1835 into the
long legal continuum of treaties that have been made between the
Cherokee Nation and Great Britain/the United States (Britain’s
successor in interest). The unbroken chain of internationally-acknowledged
governmental status of the Cherokee Nation is thus stated.
At the bottom
of the treaty, we can see the names of the twenty individuals who
signed this treaty. Among them are the familiar Treaty Party families
– the Ridges, the Fosters, the Bells, the Adairs, The Boudinots,
the Starrs. All of these are very solid pro-treaty families. There
are other families represented here that were divided on the question.
These are families such as the Rogers, the Gunters, and the Foremans.
And of course we see the name of Andrew Ross, the Principal Chief’s
brother. This is a strong indication of how divisive this removal
question was among the Cherokee people. Not only did it divide Cherokees
from other Cherokees, but it divided families themselves, and this
was so even in the family of the Principal Chief.
was taken to Washington, where two months later, in March 1836,
John Ridge and Stand Watie, who had been in Washington with a delegation
led by John Ross at the time the treaty was signed at New Echota,
broke with the Ross delegation and added their signatures to it
* * * * * * * * * * * *
A number of missives were developed in the months and years afterwards
pertaining to the Treaty of 1835. These documents indicate the kind
of information that was available to the US Senate as they considered
ratification of this Treaty. For instance, when Chief Ross was first
informed that some Cherokees had placed their signatures on a treaty,
he does not seemed to have been especially concerned. But as it
became apparent that the Senate was actually going to consider ratifying
what the Cherokees viewed as an illegal document, Cherokee protest
began to manifest. The Cherokees circulated several letters as petitions,
including one that was presented to the Senate in 1836, that reads
the citizens of the districts of Aquohee and Taquohee, in the
Cherokee nation, are informed that, on the 21st of December, 1835,
certain individual Cherokees assembled at New Echota, and without
any authority from the council or people of the nation, entered
into an agreement with the Reverend Mr. Schermerhorn, under the
name of a treaty, but the provisions of which, all the lands of
the Cherokees are ceded. Their government and laws abolished,
their private improvements, the property of indidviuals alienated
from their rightful owners, without their consent, and all their
rights, as freemen, wrested from them, and left to the discretionary
disposal of strangers.
we are further informed, that this compact is to be presented
to the Senate of the United States for ratification, as a treaty,
we, the undersigned, do, with the deepest anxiety and the most
respectful earnestness, appeal to the Senate of the United States
against the ratification of the same; and in entering our protest
before that honorable and august body, we again humbly solicit
their attention to the following points, on account of which we
so urgently deprecate the ratification of said instrument. viz.
the persons who are represented as acting on behalf of the Cherokees,
in this matter, are wholly unauthorized, and the circumstance
of a few individuals making a treaty vitally affecting the liberties,
the property, and the personal rights of a whole people, appears
to us so utterly repugnant to reason and justice, and every dictate
of humanity, that we come to the Senate of the United States with
full confidence that, under such circumstances, the voice of weakness
itself will be heard in its cry for justice. To the basis of said
instrument, and most of its details, we entertain insuperable
objections; but being fully persuaded that an instrument so unwarranted
will not be sanctioned by the Senate, we deem it unnecessary to
recite the particular provisions which it contains, as we feel
all assurance of the justice and magnanimity of the august body
before whom we humbly presume to present our grievances.1
was signed by 3352 Cherokees, but others were signed by still more,
including one that contained over 15,000 signatures, representing
nearly all of the Cherokee population. The Senate had these documents
to consider as they debated ratification of the Treaty.
In March 1836,
Major William Davis, an agent of the War Department, wrote a letter
to his superior, the Secretary of War. Indian Affairs were housed
in the War Department in the 1800s, and as a federal official Davis
had been sent to observe and report on the situation.
paper…called a treaty is no treaty at all, because not sanctioned
by the great body of the Cherokees and made without their participation
or assent. I solemnly declare to you that upon its reference to
the Cherokee people it would be instantly rejected by nine-tenths
of them and I believe by nineteen-twentieths of them….the
delegation taken to Washington by Mr. Schermerhorn had no more
authority to make a treaty than any other dozen Cherokees accidentally
picked up for that purpose. 2
and others were contained in a confidential document provided to
the Senate the following month. Even the federal agents acknowledged
the opposition of 90-95% of the Cherokee people and transmitted
their observations to the Senate.
of Davis’ letter is prophetic:
now warn you and the President that if this paper of Schermerhorn’s
called a treaty is sent to the Senate and ratified you will bring
trouble upon the Government and eventually destroy this (the Cherokee)
nation. The Cherokees are a peaceable, harmless people, but you
may drive them to desperation, and this treaty cannot be carried
into effect except by the strong arm of force.3
views stand in contrast.
conceive of the acts of a minority to be so reprehensible and
unjust as are represented by Mr. Ross. If one hundred persons
are ignorant of their true situation and are so completely blinded
as not to see the destruction that awaits them, we can see strong
reasons to justify the action of a minority of fifty persons to
do what the majority would do if they understood their condition,
to save a nation from political thralldom and moral degradation.4
succinctly expresses the position of the Treaty Party.
As the commander
of the East Tennessee Volunteers, the federal force that was sent
into the Cherokee Nation to keep the peace in case of an Indian
uprising, Brigadier General R.G. Dunlap also provided his observations
to the press.
visited all the posts within the first three states and gave the
Cherokees (the whites needed none) all the protection in my power...My
course has excited the hatred of a few of the lawless rabble in
Georgia, who have long played the part of unfeeling petty tyrants,
and that to the disgrace of the proud character of gallant soldiers
and good citizens. I had determined that I would never dishonor
the Tennessee arms in a servile service by aiding to carry into
execution at the point of the bayonet a treaty made by a lean
minority against the will and authority of the Cherokee people…I
soon discovered that the Indians had not the most distant thought
of war with the United States, notwithstanding the common rights
of humanity and justice had been denied them.5
It is exceedingly
rare that a career military officer expresses shame about the order
they have been given, or trepidation about orders that may be given
in the future. Dunlap has not quite stated this either, but he has
come very close to it. In this respect, Dunlap is representative
of many of the military officers who were charged with enacting
Indian removal. Many were very uncomfortable with their role in
the situation and demonstrated great sympathy for the Cherokees
they encountered in the course of their duties.
Wool was another officer sympathetic to the Cherokees’ situation.
Wool would probably have been given the order to round up the Cherokees
in 1838, but he had been court-martialed several months earlier
for undermining the authority of the militia in Alabama. Although
the charges against him were dismissed, Wool ultimately resigned
his position in the Army, thus abandoning his military career, rather
than continue to carry out a policy about which he had deep reservations.
About a year
before he was court-martialed, however, Wool had commanded a force
that had been sent into the Cherokee Nation to bring food and supplies
to the Cherokees who were being systematically dispossessed of their
homes, many of whom were refugees in the Smoky Mountains, homeless
and living in conditions of hunger and exposure. In a rather amazing
account, Wool reported the reactions of the Cherokees to his effort
and also the previous efforts of others.
I called them
(the Cherokees) together and made a short speech. It is, however,
vain to talk to a people almost universally opposed to the treaty
and who maintain that they never made such a treaty. So determined
are they in their opposition that not one of all those who were
present and voted at the council held but a day or two since,
however poor or destitute, would receive either rations or clothing
from the United States lest they might compromise themselves in
regard to the treaty. These same people, as well as those in North
Carolina, during the summer past, preferred living upon the roots
and sap of trees rather than receive provisions from the United
States, and thousands, as I have been informed, had no other food
for weeks. 6
agent of the War Department, John Mason, provides some insight as
to why John Ross did not prepare the people to remove during the
two years between the ratification of the Treaty and the roundup.
officers say that, with all his power, Ross cannot, if he would,
change the course he has heretofore pursued and to which he is
held by the fixed determination of his people. He dislikes being
seen in conversation with white men, and particularly with agents
of the Government. Were he, as matters now stand, to advise the
Indians to acknowledge the treaty, he would at once forfeit their
confidence and probably his life. Yet though unwavering in his
opposition to the treaty, Ross’s influence has constantly
been exerted to preserve the peace of the country, and Colonel
Lindsay says that he (Ross) alone stands between the whites and
bloodshed. The opposition to the treaty on the part of the Indians
is unanimous and sincere, and it is not a mere political game
played by Ross for the maintenance of his ascendancy in the tribe.
It is an interesting
comment on John Ross’ chieftaincy. Ross held office for thirty-nine
years, the longest term of any Cherokee chief. Significantly, Ross
was the first Principal Chief elected by a popular vote of the Cherokee
people themselves. Until the 1827 Constitution, the Cherokee National
Council had been selecting the Principal Chief, and the office was
primarily a spokesperson that represented only that which he was
sanctioned to represent by the overall Council. Ross was the first
Principal Chief to occupy the executive branch of a tri-partite
Constitutional Cherokee government, an office that was given more
influence and power than ever before. During his thirty-nine years
in office, Ross solidify the power of the position, but the removal
era was still relatively early in his administration, and in some
respects, he was still acting in the older style of chief, as representative
and spokesperson for the will of the people, rather than someone
who acts to influence them.
especially in the northern and New England states, also voiced their
support for the Cherokees. In one of the most eloquent appeals,
the great American literary figure Ralph Waldo Emerson wrote to
President Martin Van Buren in the spring of 1838, shortly before
the roundup began. After the non-enforcement of the Supreme Court
decision by President Jackson, the last, weak strategy of the Cherokees
had been to simply until 1836, when there would be another election
and a new president would come into office. But Martin Van Buren
had been Jackson’s Vice-President and his chosen successor,
and the policy of Indian Removal continued. Emerson protested.
now appears that the government of the United States choose to
hold the Cherokees to this sham treaty, and are proceeding to
execute the same. Almost the entire Cherokee Nation stand up and
say, “This is not our act. Behold us. Here are we. Do not
mistake that handful of deserters for us;” and the American
President and the Cabinet, the Senate and the House of Representatives,
neither hear these men nor see them, and are contracting to put
this active nation into carts and boats, and to drag them over
mountains and rivers to a vast wilderness beyond the Mississippi.
As a paper purporting to be an army order fixes a month from this
day as the hour for this doleful removal. (See Textual
In the name
of God, sir, we ask if this be so. Do the newspapers rightly inform
us? Men and women with pale and perplexed faces meet one another
in the streets and churches here, and ask if this be so. We have
inquired if this be a gross misrepresentation from the party opposed
to the government and anxious to blacken it with the people. We
have looked at the newspapers of different parties and find a
horrid confirmation of the tale. We are slow to believe it. We
hoped the Indians were misinformed, and that their remonstrance
was premature and will turn out to be a needless act of terror.
It has sometimes
been suggested that Ross and the Cherokees were naïve in their
hope and their apparent disbelief that the United States would actually
remove them. But Emerson’s paragraphs indicate that some in
the American public are also disbelieving. And yet Indian removals
had already occurred and the American public seems not to have known
about it. The Creeks, Choctaws, and Chickasaws had already been
removed; the Seminoles were fighting a bloody war against it in
the Florida swamps. But it was the Cherokees and their legal and
political fight that had brought American public attention to the
question. And many were horrified that this could be happening.
his letter with disturbing questions.
On the broaching
of this question, a general expression of despondency, of disbelief
that any good will accrue from a remonstrance on an act of fraud
and robbery, appeared in those men to whom we naturally turn for
aid and counsel. Will the American government steal? Will it lie?
Will it kill? – We ask triumphantly. Our counselors and
old statesmen here say that ten years ago they would have staked
their lives on the affirmation that the proposed Indian measures
could not be executed; that the unanimous country would put them
down. And now the steps of this crime follow each other so fast,
at such fatally quick time, that the millions of virtuous citizens,
whose agents the government are have no place to interpose, and
must shut their eyes until the last howl and wailing of these
tormented villages and tribes shall afflict the ear of the world.9
is very powerful and the disbelief is likewise apparent. The author
asks very sharp questions: Will the American government steal? Will
it lie? Will it kill? These are questions that many Americans have
repeatedly posed over many generations as the government and society
continue to debate, define and refine democratic foundations and
conclusion is equally strong and provocative.
feeble the sufferer and however great the oppressor, it is in
the nature of things that the blow should recoil upon the aggressor.
For God is in the sentiment, and it cannot be withstood. The potentate
and the people perish before it; but with it, and its executor,
they are omnipotent.
I write thus,
sir, to inform you of the state of mind these Indian tidings have
awakened here, and to pray with one voice more that you, whose
hands are strong with the delegated power of fifteen millions
of men, will avert with that might the terrific injury which threatens
the Cherokee tribe.
was penned some years before Emerson was widely known, but his genius
is already apparent. He represents another community of people who
supported the Cherokees as the Cherokees entered the fight against
the ratification of the Treaty of New Echota. The debate continued
for about six months – a very long time to debate the ratification
of an Indian treaty. The Cherokees lobbied heavily, aligning with
their supporters including the missionary societies and other church
groups, the reform-minded liberal and progressive people of the
day, the “intelligentsia” – artists, writers,
academics, philosophers – and the people of the north generally,
who supported the Cherokees out of an opposition to states’
rights, the question heavily implicated in the policy of Indian
removal. On the day of the vote, the Cherokees believed they had
enough votes to defeat the treaty. But at the last minute, two circumstances
shifted. A Senator who had committed to voting against the Treaty
was ill and did not vote. And Senator White of Tennessee, who had
told the Cherokees he would vote against the Treaty changed his
mind at the last minute and voted in favor of it. If neither of
these things had happened the Treaty might have been defeated by
the Cherokees and their allies. But instead, on May 23, 1836, the
Treaty of New Echota, regarded as an illegal treaty by the Cherokee
Nation and its people, was ratified by a difference of one vote.
In our time,
we frequently hear expressions of “one vote doesn’t
matter,” “my vote doesn’t count,” one vote
doesn’t make a difference.” But Cherokees know what
one vote means. One vote stood between the Cherokees and the Trail
1 H.R. No 286, 24th Congress, 1st Session,
2 Senate confidential document, April 12,
1836, pg. 200.
4 National Intelligencer, May 22, 1838.
5 National Intelligencer, May 22, 1838.
6 Letter from General John Wool to Adjutant-General
Jones, February 1837.
7 September 25, 1837
Ralph Waldo Emerson
to Martin Van Buren, April, 1838.
1829 Cherokee Petition to Congress,
Senator from New Jersey. Indian Removal Debate 1830; Speech Before
the Senate, Part 1.
of Tears, the Rise and Fall of the Cherokee Nation by John
Ehle, pg. 275-278.
The Treaty of
Emerson Letter to President Martin Van Buren. http://www.rwe.org/comm/index.php?option=com_content&task=view&id=79&Itemid=252
Tragedy, the Ridge Family and the Decimation of a People, by
Thurman Wilkins. From Chapter 11, pg. 265-69, 272-76, and 285-289.
Editor, the Writings of Elias Boudinot, ed. Theda Perdue, pg.
108-145 and 162-174.
In the following sections, “Questions for Analysis,”
“Discussion,” and “Suggested Papers,” students
should use references from the Introduction and the above texts
to support their responses.
Questions for Analysis
Boudinot is a strong proponent of federal civilization policy. How
does he use “civilization” as an argument previous to
1832? After 1832?
• Compare the remarks of generals Carroll and Coffee contained
in Frelinghuysen’s speech (pg. 5-6) with the reports of the
military officers and War Department agents on the scene after 1835.
How are they different? Why do you think that is? Where does General
William Carroll’s name appear again, and what does that indicate
about his rhetorical remarks from 1829 (in Frelinghuysen)? Which
military accounts seem most valid to you and why?
Although Discussion Topics also rely on textual references, they
also allow for a broader reading and the use of students’
the terms in the Treaty of New Echota strong or weak for the Cherokees?
Why? Relate your response to specific articles of the Treaty.
• The Treaty Party’s position in favor of removal is
summarized in the Introduction as stated by Elias Boudinot. Paraphrase
his argument. Do you think his reasoning is valid? If so, does it
justify their action in signing the treaty? Why or why not?
• What were the Treaty Party’s goals? John Ross’?
Were they similar or different, and how?
• 90% of the Cherokee people supported John Ross’ leadership
and anti-removal position. With such an overwhelming majority, why
do you think this issue became so divisive among the Cherokees?
• John Ross was sometimes accused of naivete and of having
unjustifiable faith during the removal crisis. But Ralph Waldo Emerson’s
letter indicates that Ross was not alone in his disbelief that removal
would actually be enacted. Do you think they were naïve, or
are there other reasons they continued to have hope?
• Why did the Cherokee people refuse to prepare to remove
when it appeared to be inevitable?
• Paraphrase the conclusion of Emerson’s letter. What
is he saying? Do you agree or disagree?
Questions for Discussion: Tying the Units Together
was the goal of federal civilization policy when it was originally
developed in the late 1700s? How has use of the policy changed by
the time of the removal era and why?
have seen the part that Cherokee myths and Cherokee arguments about
property played in their traditions of life and governance. Using
materials from Units 1, 2, or 3, would you argue that the Cherokee
factions were trying to solve their problems in accord with their
traditions, in accord with views of life, in accord with their adaptations,
or didn't these matter?
Units 1-3, do you think Americans abided by their traditions, selfish
motives, or was the American response mixed? Was law upheld, bent,
broken? Depending on your characterization, how did Americans feel,
How might they feel now? Why this difference, if any?
• In Units
1-3, you have seen traditions of debate and discussion as part of
Cherokee life. Do you think these traditions informed Cherokee feelings
and views as the Treaty of New Echota was signed? How would you
make those connections (or why do you think there was a disconnection)
between the materials in Unit 4 and the materials in Units 1-3?
The Suggested Paper Topics should combine both textual references
and original thought.
proponents and opponents of removal claimed to have the Indians’
best interests in mind. Adjusting for length, compare Andrew Jackson’s
letters and statements with Elias Boudinot’s early writings
(pre-1832). How are the arguments similar and how are they different?
In general, who can best determine what is in the Indians’
best interest, in your opinion?
• The Ridge-Boudinot group was viewed as traitorous by many
Cherokees of their time. How would you define a “traitor?”
Do you think they were traitors? Base your argument on textual references.
• Compare the Cherokee petition of 1829 and the 1836 petition
by the Cherokees. What differences in style do you see? Why do you
think they are different? What is the basis of the argument in each?