Introduction

Lessons:

Links:

Introduction

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.

Lesson 1: 1721-1832 Legal and Political Struggles Over Cherokee Removal.

Guiding Questions

• 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 question?
• 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?
  

Learning Objectives

After completing this lesson, students will be able to:

• articulate 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.
• identify and connect the important legal precedents in the United States that established federal Indian law and the relationship between the United States and tribes.
• articulate the violations that occurred in this relationship during the removal era, and also the ways in which it was upheld.
• address removal in the context of states’ rights.

The textual 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.

Introduction:

The Cherokee 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 efforts.

The 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.

However, the 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.

Throughout 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.

The Cherokees 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.

The 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.

This Treaty 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.

Article Nine 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.

In Article 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.

Article Twelve 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.

The 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.

The 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.

American 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.

In agreeing 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

Rising Cherokee Nationalism

The Georgia 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.

Many observers 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.

The Crisis Intensifies: 1827-1832

One entity 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 actions.

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 significant aspects.

Georgia, however, 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 territory.

Andrew Jackson 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.

The second 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 for removal.

About half 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 Chief.

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.

The Indian 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.

Some observers 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.

The debate’s 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?

Ultimately, 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.)

The Cherokees, 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 representatives.

Political parties 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

Although the 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.

The 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.

Georgia executed 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 Constitution.

The decision 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.

The pertinent 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.

Marshall continued, “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 nations.

Cherokee 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.

The Cherokee 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 response.

But before 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.

Americans were 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 to Congress.

The pertinent 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.

Marshall expounded 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 United States.

“The act of the state of Georgia, under which the plaintiff in error was prosecuted, is consequently void, and the judgment a nullity.” 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!

In addition, 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 in 1831.

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.

The decision 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.

Julia Coates
Instructional Designer
Cherokee Nation

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.” See http://nativevillage.org/Archives/2005/Nov.%202%202005%201%20160/Nov%202,%202005%20News%201%20160%20%20V1.htm

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 .

Textual Sources

The Treaty of Hopewell.
www.yale.edu/lawweb/avalon/ntreaty/chr1785.htm

The Treaty of Holston.
www.yale.edu/lawweb/avalon/ntreaty/chr1791.htm

The 1802 Articles of Agreement and Cession (Georgia Compact).
http://memory.loc.gov/cgi-bin/ampage?collld+llsp&fileName=028/llsp028.db&recNum+123

From DeTocqueville: 1829 Cherokee Petition to Congress,
http://xroads.virginia.edu/~HYPER/DETOC/toc_indx.html

The Georgia Harassment Laws (the full text of the laws are contained within the written text of the Worcester v. Georgia decision). http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=31&page=515

The Indian Removal Act of 1830, from Howard Meredith’s A Short History of the Native Americans in the United States, pg. 85-86.

Theodore Frelinghuysen, Senator from New Jersey. Indian Removal Debate 1830; Speech Before the Senate, Part 1.
http://www.yvwiisudinvnohii.net/history/tfdbat.txt

Cherokee Nation v. Georgia.
http://www.mtholyoke.edu/acad/intrel/cherokee.htm

Worcester 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.

Draft Declaration on the Rights of Indigenous Peoples, U.N. Doc. E/CN.4/Sub.2/1994/2/Add.1 (1994),
http://www1.umn.edu/humanrts/instree/declra.htm

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

• What 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 proponents? Overall?

Although Discussion Topics also rely on textual references, they also allow for a broader reading and the use of students’ original thoughts.

Discussion Topics:

• The 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 more successful?

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.

Suggested Papers:

• Does 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:

Two scholarly 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 opinion.

Lesson 2 - Events Leading Up To the Trail of Tears

Guiding Questions:

• 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?

Learning Objectives:

After completing this lesson, students will be able to:

• articulate the reasons for the severe divisions within the Cherokees after the 1832 Supreme Court decision.
• describe the shift in Ridge-Boudinot thinking from pre- to post-1832.
• address the rhetorical strategies of “civilization” as used by all sides.
• address general Carroll’s rhetorical strategy on pg. 5-6 of Frelinghuysen’s speech.
  

Introduction:

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 Nation.

Elias Boudinot 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.

John Ridge 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.

Convincing 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 leadership shattered.

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.

The Cherokee 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 Council.

In addition, 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.

Most Cherokees 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.

Although the 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.

Although the 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.

The situation 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 the peace.

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.

Fearful that 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 negotiations deteriorated.

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.

The Ridge-Boudinot 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 their efforts.

Finally, in 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.

Additional attempts 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.

However, US 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.

The Treaty 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.

The preamble 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.

At Articles 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.

Although the 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.

At Article 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.

The Seminaries 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.

The awards 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.

At Article 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, and others.

Article 16 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 to go.

At Article 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.

The treaty 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 as well.

* * * * * * * * * * * *

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

Whereas, we, 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.

And whereas, 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

This letter/petition 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.

Sir, that 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

This statement 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.

The conclusion of Davis’ letter is prophetic:

“…I 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

Elias Boudinot’s views stand in contrast.

We cannot 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

This quotation 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.

I forthwith 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.

General John 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

A confidential 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.

…The 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. 7

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.

Many Americans, 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.

…It 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 Sources, below.)

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.

Emerson concluded 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

The imagery 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 principles.

Emerson’s conclusion is equally strong and provocative.

…However 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.

This letter 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 of Tears.

Julia Coates
Instructional Designer
Cherokee Nation

1 H.R. No 286, 24th Congress, 1st Session, 107-108

2 Senate confidential document, April 12, 1836, pg. 200.

3 Ibid.

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

8 Ralph Waldo Emerson to Martin Van Buren, April, 1838.

9 Ibid.

Textual Sources

From DeTocqueville: 1829 Cherokee Petition to Congress,
http://xroads.virginia.edu/~HYPER/DETOC/toc_indx.html

Theodore Frelinghuysen, Senator from New Jersey. Indian Removal Debate 1830; Speech Before the Senate, Part 1.
http://www.yvwiisudinvnohii.net/history/tfdbat.txt

The Trail of Tears, the Rise and Fall of the Cherokee Nation by John Ehle, pg. 275-278.

The Treaty of New Echota.
http://thomaslegion.net/treatyofnewechota.html

Ralph Waldo Emerson Letter to President Martin Van Buren. http://www.rwe.org/comm/index.php?option=com_content&task=view&id=79&Itemid=252

Cherokee Tragedy, the Ridge Family and the Decimation of a People, by Thurman Wilkins. From Chapter 11, pg. 265-69, 272-76, and 285-289.

Cherokee 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

• Elias 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’ original thoughts.

Discussion Topics:

• Are 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?

Optional Questions for Discussion: Tying the Units Together

• What 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?

• You 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?

• Reviewing 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, then?
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.

Suggested Papers:

• Both 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?