"Our Right of Sovereignty will not be yielded": Georgia and the Cherokee Removal, 1802-1832, by Jarod H Roll, 20 April 1999
The Treaty of New Echota, signed on December 29, 1835, officially removed the Cherokee nation west of the Mississippi river.1 In 1838, the year stipulated for removal, 17,000 Cherokee embarked on an 800-mile journey west. Hardship (illness, exposure, starvation) during the exodus cost approximately 8,000 Cherokee their lives.2 For this reason, the route taken by the Cherokee nation became known as the "Trail of Tears." The removal of the Cherokee nation represents a monumental tragedy in the history of America. The Cherokee, however, were not removed easily. In 1802, Georgia initiated efforts to gain title to Cherokee land within the state. The actions of Georgia in the thirty years prior to the Treaty of New Echota initially prompted and ultimately forced the Federal government to commit absolutely to a policy of removal of the Cherokee nation.
On March 25, 1828, the Augusta Chronicle & Advertiser pragmatically commented, "sad experience . . . ought to read this melancholy lesson to the Cherokees . . . the foot of the white man is continually treading upon their heals." "It is better for them," the Georgia newspaper concluded, "to remove west of the Mississippi." Georgia's demand for removal, however, did not stem from humanitarian concern. Georgia argued that the Cherokee nation wrongfully occupied state land. They contended that in 1802 the federal government had guaranteed removal. By 1828, settlers itched to enter Indian land, and Georgia, in turn, awaited action from Washington. The federal government, however, did not produce the expected results quickly. Neither Georgia nor Washington anticipated the level of resistance the Cherokee nation sustained. Nevertheless, Georgia forcefully held the federal government to its removal guarantee. The Cherokee nation relentlessly defended its land, including two appeals to the United States Supreme Court, from the claim of Georgia. The conflict reached stalemate in 1832. Only the President, either by use of force or acquiescence toward Georgia, could resolve the issue. Andrew Jackson chose to uphold the original agreement with Georgia and ignore any legitimate claim the Supreme Court had granted the Cherokee.
The Georgia land cession of 1802, commonly referred to as the Compact of 1802, formed the basis of demands for Cherokee removal. In the compact, Georgia ceded to the federal government the land that is today Mississippi and Alabama. For this cession, the federal government agreed to "extinguish, for the use of Georgia, as early as . . . can be peaceably obtained, on reasonable terms, the Indian title to all . . . lands within the State of Georgia."3 The agreement immediately gave Georgia a point of argument. The legitimacy of that point, however, remained dubious. The federal government had no guarantee that it could peaceably extinguish Cherokee title. Georgia insisted that title had not only been promised by the full faith of the government, but essentially had been awarded in part by the very nature of the agreement.4 To Georgians, the Cherokee, "retained the soil, only, as possessary occupants."5 The federal government, conversely, pursued the exact wording of the agreement. Obtaining the land on "peaceable and reasonable terms," however, proved difficult to accomplish. After fifteen years of "patience," the state became restless. The Treaty of 1817 caused an uproar in Georgia, resulting in a memorial to Congress protesting the lack of federal results.
The Treaty of 1817 intended to encourage Cherokee emigration west of the Mississippi, but instead it intensified Georgia's demand for removal. In the treaty, the federal government offered potential emigrants land in the west equal to that being surrendered in the east and provisions for the journey. These stipulations were available to any tribal member6 The government considered the treaty to be in direct accordance with the Compact of 1802. To the disgust of Georgia, however, the treaty also offered, "to each and every head of any Indian family residing east of the Mississippi . . . who may wish to become citizens of the United States . . . a reservation of six hundred and forty acres of land . . . in which they will have a life estate."7 To Georgia this treaty provision directly contradicted the agreement of 1802.8 State officials contended that the government had possessed the power to extinguish Indian title within Georgia and had not only lost the opportunity, but had also provided the legal means for Indians to remain. "It appears . . . that the United States are endeavoring to fix the Cherokee Indians upon the soil of Georgia," declared George Gilmer in a protest to Congress, "and thereby render it impossible for them ever to comply with their contract with the State."9 The Gilmer memorial represented Georgia's first protest of federal Indian policy.
On January 19, 1824, the Cherokee nation proclaimed that no more cessions would be made. This proclamation, along with sustained passivity by the federal government, intensified the Georgia protest. In a letter to President Monroe, the Cherokee nation declared that it had "come to a decisive and unalterable conclusion not to cede away any more land."10 Secretary of War John C. Calhoun quickly responded that because of the compact with Georgia, the federal government was obligated to extinguish Cherokee title. "The Legislature and Executive of Georgia," wrote Calhoun, "now press the fulfillment of that stipulation," creating a need for extinguishment, "with the utmost possible earnestness."11 Principal chief John Ross reminded Calhoun that due to the nature of the compact with Georgia, the obligation could never be met without Cherokee consent.12 Georgia did not take this resistance seriously. The decision to cease land cessions, seemed to Governor George M. Troup, the product of greedy mixed-blood chicanery.13 To him, the Cherokee had no choice but to emigrate; remaining in Georgia was an impossibility. Not only would the state, proclaimed Troup, never allow Indian settlement within its bounds, but the integration of the Cherokee into Georgian society would place them on the same level as the "negro . . . a point of degeneracy below which they could not fall."14 Troup asserted that the United States, by reinforcing Indian residence in Georgia, was not upholding its obligation. He was not alone in his belief. Georgia congressional representatives concluded "if the Cherokees are unwilling to remove, the causes of that unwillingness are to be traced to the United States."15
In April 1824, a congressional committee, upheld Georgia's claim to the Cherokee land. The committee, investigated the progress of Cherokee title extinguishment, revealed that almost two-thirds of Cherokee land within the state had been acquired by treaty. That amount, however, represented all that could be "peaceably obtained on reasonable terms."16 The committee concluded that, "justice should be done to Georgia . . . Indian claim should be extinguished, even should force be required."17 The Treaty of 1817, coupled with Cherokee refusals to cede land, intensified the conflict between the federal government and Georgia. Georgia's semi-belligerent response caused the federal government to re-evaluate its position on the Cherokee. The re-evaluation produced a policy that favored Cherokee removal regardless of the means. As Georgia fervently sought the extinguishment of Indian land claims, however, the Cherokee nation intensified its defense.
The Cherokee drafted a national constitution on July 27, 1827. The document established a republican form of tribal government. The newly formed constitution established "the Sovereignty and Jurisdiction of this government" over the land of the Cherokee.18 The tribe's assertion of independence directly defied Georgia. Insisting that the land fell under its sovereign domain, the state was outraged. Georgia's explosion was illogical, as the constitution made the tribe no more the sovereign entity than it had previously been19 The state, however, protested bitterly. Citing the United States' constitution, Georgia politicians claimed that no new state could be erected within the bounds of any previously existing state, which is exactly what they believed the Cherokee had done.20 Public outcry accompanied political protest. Georgians mocked the constitution as the product of a "pretended advanced state of civilization."21 Not only did Georgia refuse to recognize the legitimacy of the document, but they demanded that the Cherokee experiment end immediately. "Here, within our own territory, upon the land forming a part of our sovereign property, is a Government exercising authority independent of ours . . . this state of things cannot endure," roared The Athenian. In response to the continued effort by the Cherokee to retain the land, Georgia sought measures to first, neutralize and dismantle the newly formed government and secondly, to quicken removal westward.
Georgia extended legal jurisdiction over Cherokee land on December 19,1829. The legislation subjected the Cherokee to Georgia civil and criminal law, made all laws passed by tribal councils void, rendered all government action of the nation illegal and set penalties for those persuading the Cherokee not to emigrate west.22 These stipulations seriously hindered and disrupted the operation of the Cherokee government. Although this effect was intended, Georgia politicians claimed otherwise. "It was the duty of Georgia . . . to show to the world," declared a state representative, "that we were not disposed to oppress these people, but to extend as much humanity as they deserve."23 Others, however, expressed serious opposition to the Georgia law. An author, writing under the alias "William Penn," led the scathing attack. "The Indians had better stand to their arms and be exterminated," fired Penn, "than remain to be trampled as the serfs of Georgia."24 Wilson Lumpkin, a Georgia congressman, asked Americans not to view the state's action wrongly. "The inhumanity of Georgia," Lumpkin claimed, "is nothing more nor less than the extension of her laws and jurisdiction over this . . . misguided population."25 Lumpkin continued, "in humanity, forebearance, and liberality towards the Indians, Georgia has no superior."26 The Georgia law of 1829 intensified the national debate on Indian removal. The religious and the reform minded led the attack on Cherokee expulsion. At the core of Georgia's argument, however, was not morality, but the right of a state to employ sovereign power over its domain. Newly elected Andrew Jackson supported Georgia. Jackson's policy would prove central to resolution of the conflict.
"To extinguish the Indian title," Jackson wrote Calhoun in 1820, "justice can be done the Indians, and the pledge of the Union to Georgia."27 Jackson's career as a military man had brought him into continual conflict with southeastern Indian tribes. After viewing the carnage wrought by warfare between Indians and settlers, Jackson undoubtedly thought it best that the Indians be removed. The Georgia law provided the President national opportunity to formalize his opinion. On December 8, 1829, Jackson issued a statement concerning the future of the Indian nations.28 Here, Jackson adamantly upheld Georgia's right to extend jurisdiction over the Cherokee. The Cherokee constitution, Jackson bluntly stated, "would not be countenanced by the Executive of the United States."29 The President feared that continued white encroachment and destruction of traditional Indian resources would lead to Indian degeneracy and cultural extinction: "Humanity and national honor demand that every effort should be made to avert so great a calamity," Jackson urged.30 To avoid this occurrence, the eastern tribes had to be encouraged to remove west, where they would be free of white encumbrances. "But they should be distinctly informed," Jackson concluded, "that if they remain within the limits of the States they must be subject to their laws."31 Jackson did not stop with declaration alone. On May 26, 1830, the President signed the Indian Removal Act.32 Under the act, Jackson became the sole arbiter of Indian removal policy. The executive could deal with the Cherokee as he desired. The Cherokee appealed the constitutionality of the Georgia law to the United States Supreme Court. Jackson's response to the court mandate revealed his intentions.
In 1831, the Cherokee nation appealed its case to the Supreme Court of the United States. The tribe was confident that Chief Justice John Marshall, a staunch Federalist opposed to states' rights, would render a favorable decision. A major question arose concerning the legitimacy of the case: if the Cherokee nation represented a foreign nation, did it have the right to bring suit against a state? Marshall's decision addressed exactly that.33 In The Cherokee Nation vs. The State of Georgia, Marshall discoursed on the true nature of the Cherokee nation. He claimed that the Cherokee did not represent a foreign nation, but a "domestic, dependent nation."34 Marshall concluded his decision by saying, "an Indian tribe . . . cannot maintain an action in the courts of the United States."35 Although Marshall denied the injunction, he alluded to the possibility that if a proper case arose, the court would consider the Cherokee situation. "If courts were permitted to indulge their sympathies," Marshall added, "a case better calculated to excite them can scarcely be imagined."36
The opportunity to "indulge their sympathies" came in 1832. Worcester vs. The State of Georgia, brought before the Supreme Court in 1832, appealed the case of two missionaries arrested on Cherokee land for violating the Georgia law of 1829.37 Unlike Nation vs. Georgia, the case fell under the court's jurisdiction. The decision, however, considered the constitutionality of Georgia's extended sovereignty, under which the missionaries were being detained. In his decision, Marshall declared the Cherokee nation a "distinct community, occupying its own territory," in which Georgia laws had no relevance. "The acts of the State of Georgia," Marshall continued, "are repugnant to the constitution, laws, and treaties of the United States," and, "consequently void."38 Georgia's claim to Cherokee land had been deemed unconstitutional. Technically, Marshall's decision represented a monumental victory for the Cherokee nation. In reality, however, the magnitude of the case depended on the reaction of President Jackson and Georgia. Sensing the coming conflict, Marshall asked rhetorically, "will these powerful considerations avail?"39 He felt optimistic. Georgia felt otherwise.
Georgia simply refused to obey the decision. State officials viewed the court's action as a flagrant violation of Georgia's sovereign rights.40 The state prepared itself to resist all federal means of enforcement. "I have . . . been prepared to meet this usurpation of federal power," Governor Lumpkin defiantly stated, "with the most prompt and determined resistance, in whatever form its enforcement might . . . [be] attempted."41 "The states of this union never did," Lumpkin continued, "and never will permit their political rights to be suspended upon the breath of the agents . . . to whom they have delegated limited powers."42 Georgia's defiance created a conflict that only the President could resolve. Georgia invested hope in a man whom it had helped elect in the presidential election of 1827, as "a staunch friend of State Rights."43 The fate of the Cherokee nation rested with Andrew Jackson.
In response to Georgia's obstinacy, Jackson remained, defiantly in his own right, inactive.44 The President actually displayed joy at the inability of his long-time political enemy, John Marshall, to see the Court's decision obeyed. "The decision of the supreme court has fell still born," Jackson exulted, "and it . . . cannot coerce Georgia to yield to its mandate."45 Not only did Jackson refuse to enforce the mandate, but he also admitted that if Georgia moved violently against the Cherokee, he would be powerless to save the tribe from annihilation.46 Jackson believed that removing the Cherokee nation would serve the best interest of both the Indians and Georgia.47 His unwillingness to uphold the rights prescribed the Cherokee nation by the Supreme Court or to protect the Cherokee from encroaching Georgia militia, prompted a few tribal members to re-evaluate the condition of the nation and treat for removal. Under intense pressure from Jackson, a minority group of Cherokee negotiated and signed the Treaty of New Echota. Although non-representative of the entire Cherokee nation, Jackson claimed the treaty had the majority support of the tribe and pushed its ratification through the Senate.48 Despite continued protest, the Cherokee nation was removed from the state of Georgia.
In 1789 General Henry Knox had considered the status of the Indian tribes in a letter to George Washington, commenting that "as population shall increase and approach the Indian boundaries . . . in a short period, the idea of an Indian on this side of the Mississippi will only be found in the page of the historian."49 General Knox proved to be prophetic. In Georgia, as the white population crowded and began to penetrate Indian land, legislators sought a means to rid the state of the Cherokee nuisance. For thirty years Georgia vigorously fought for the expulsion of the Cherokee nation from those lands. Simultaneously defending and exerting its sovereign right, Georgia brought pressure to bear on the federal government. Prompted by the actions of Georgia, President Jackson banished the Cherokee nation west of the Mississippi.
1 R. S. Cotterill, The Southern Indians: The Story of the Civilized Tribes Before Removal (Norman, OK: University of Oklahoma Press, 1954), 239. Hereafter referred to as Southern Indians. Also in Carl J. Vipperman, "The 'Particular Mission' of Wilson Lumpkin," The Georgia Historical Quarterly 66, no. 3 (1982): 313. Also see University of Georgia, "Treaty of New Echota," <http://www.cviog.uga.edu/Projects/gainfo/chertrea.htm/newechot.htm.>, 16 Apr 1999.
2 Jill Norgren, The Cherokee Cases: The Confrontation of Law and Politics (New York: McGraw-Hill, 1996), 143. Referred to hereafter as Cherokee Cases.
3 Articles of agreement and cessation, 24 April 1802, in American State Papers, Public Lands, 2 vols. (Washington, 1834), vol. I, 125-26.
4 G.M. Troup to John C. Calhoun, 28 Feb 1824, in Ibid., Indian Affairs, vol. II, 475. Referred to hereafter as ASPIA.
5 The Athenian (Athens, GA), 14 July 1829.
6 The Treaty of Cherokee Agency, 8 July 1817, in ASPIA, vol. II, 129-30. Also see University of Georgia, "The Treaty of 1817," <http://www.cviog.uga.edu/Projects/gainfo/chertrea.htm/cheragen.htm.>, 16 Apr 1999.
7 ASPIA, II, 130.
8 George Gilmer to the United States House of Representatives, 7 Jan 1822, in Ibid., 259. Also see Georgia Delegation to President John Quincy Adams, 10 Mar 1824, in Ibid., 476.
9 Gilmer to House, in Ibid., 260.
10 Cherokee Delegation to President James Monroe, 19 Jan 1824, in Ibid., 473.
11 John C. Calhoun to Cherokee Delegation, 30 Jan 1824, in Ibid.
12 Ross, Lowery, Ridge and Hicks to John C. Calhoun, 11 Feb 1824, in Ibid., 474.
13 Troup to Calhoun, in Ibid., 475.
14 Ibid., 475-76.
15 Georgia to Adams, in Ibid., 476.
16 Indian Reservations in Georgia, in Annals of Congress, 18th Congress, 1st Session, April 1824 (Washington, 1842), 2350.
17 Ibid., 2352. 18 Constitution of the Cherokee Nation, in Cherokee Phoenix (New Echota, GA), 21 Feb 1828.
19 Cotterill, Southern Indians, 236.
20 John Forsyth to John Quincy Adams, 26 Jan 1828, in The Athenian (Athens, GA), 18 Apr 1828.
21 Augusta Chronicle and Advertiser (Augusta, GA), 4 Aug 1827.
22 The Georgia Law of December 19, 1829, in Louis Filler and Allen Guttmann, eds., The Removal of the Cherokee Nation: Manifest Destiny or National Dishonor? (Boston: D.C. Heath and Company, 1962), 18-21. Referred to hereafter as Removal of the Cherokee.
23 Augusta Chronicle and Advertiser (Augusta, GA), 20 Dec 1828.
24 Wilson Lumpkin, The Removal of the Cherokee Indians from Georgia, ed. by Robert Fogelson and Richard Rubenstein, vol. 1 (New York: Arno Press and The New York Times, 1969), 72. Hereafter referred to as Removal from Georgia.
25 Ibid., 77.
26 Ibid., 85.
27 John Spencer Bassett, ed., Correspondence of Andrew Jackson, vol. 3 (Washington, D.C.: The Carnegie Institute of Washington, 1929), 31-32. Hereafter referred to as Correspondence of Jackson.
28 Andrew Jackson, "The Condition and Ulterior Destiny of the Indian Tribes," in Filler and Guttmann, eds., Removal of the Cherokee, 14.
29 Ibid., 16-17.
30 Ibid., 17.
32 The Constitutionalist (Augusta, GA), 4 June 1830.
33 Norgren, Cherokee Cases, 101. Also see The Cherokee Nation v. The State of Georgia, in Filler and Guttmann, eds., Removal of the Cherokee, 62. Also see The Cherokee Nation v. The State of Georgia, 30 U.S. (5 Peters) 1-80 (1831).
34 Nation v. Georgia, in Filler and Guttmann, eds., Removal of the Cherokee, 63.
35 Ibid., 64.
36 Ibid., 62.
37 Samuel A. Worcester v. The State of Georgia, in Ibid., 69-78. Also see Samuel A. Worcester v. The State of Georgia, 31 U.S. (6 Peters) 515-597 (1832).
38 Ibid., 77.
40 George M. Troup to The Georgia Journal, 5 Mar 1832, in Ibid., 79. Also see Wilson Lumpkin, "Annual Message to the Georgia Legislature, 1832", in Lumpkin, Removal from Georgia, 104.
41 Lumpkin, Removal from Georgia, 104.
43 Augusta Chronicle and Advertiser (Augusta, GA), 26 Sept 1827.
44 Ulrich Bonnell Phillips, "The Expulsion of the Cherokees," in Filler and Guttmann, eds., Removal of the Cherokee, 10.
45 Bassett, ed., Correspondence of Jackson, vol. 3, 430.
47 Jackson's second Annual Message, 6 Dec 1830, in Filler and Guttmann, eds., Removal of the Cherokee, 49-52.
48 Cotterill, Southern Indians, 239.
49 Henry Knox to George Washington, 7 July 1789, in ASPIA, vol. 1, 53.