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5.  William G. McLoughlin, "Georgia's Role in Instigating                  Compulsory Indian Removal"

    Most historians today agree that the citizens of Georgia played a primary role in the shameful episode of Indian removal on "The Trail of Tears."  But it is not easy to explain what motivated the Georgians.   it began in a sincere effort to make up for the Yazoo fraud, compounded by a misreading of the famous "Georgia Compact" with President  Jefferson in 1802 that ceded Georgia's western land to the federal government in exchange for Jefferson's promise to remove all Indians from Georgia's soil "as soon as the same can be peaceably obtained on reasonable terms."  In part, Indian removal stemmed from the invention of the cotton gin and the start of the industrial revolution which made the rich black soil of the Deep South incredibly valuable - too valuable, many felt, to be left to "savages."  Perhaps also the cause lay in the betrayal of American friendship by the Indians themselves when, having pledged peace to the United States after the Revolution, they broke that pledge by siding with Tecumseh and the British in the War of 1812.  Some might find the cause in racism - the belief that Indians were not, as Jefferson had said, "equal to the European in mind and body" but rather were, as most scientists believed after 1815, an inferior race doomed to extinction in competition with the superior Anglo-Saxon and Celtic breeds.

    My own view is that, while all of these factors were important in contributing to the demand for Indian removal, the primary long-range cause was the rise of romantic nationalism and the concomitant rise of s strong sense of states' rights.  Ironically, the Cherokees and other southeastern tribes shared in this same sentiment - their sense of independent nationhood grew at the same rate and with the same conviction as did the sense of the sovereign rights of the state of Georgia and the national chauvinism of the United States of America.  The Trail of Tears were an early battle (along with Nullification and Interposition) in the long and tragic effort to reconcile the ambiguities of the federal system written as a necessary compromise into the constitution of 1787.

    The point of this essay is to clarify how compulsory Indian removal by what, in the end, was an unconstitutional and immoral betrayal of Indian treaties (alleged in the Constitution to be "the supreme law of the land") was instigated by the citizens of Georgia in their efforts to assert what they considered their constitutional right, as a sovereign state, to assume jurisdiction over all the inhabitants living within their borders.  Regardless of treaties, regardless of a ruling of the United States Supreme Court, and confident of their racial supremacy and their rights under the sacred "compact" with President Jefferson, the legislators of Georgia asserted in December 1827 that "the lands in question belong to Georgia.  She must and will have them."  the election of Andrew Jackson, a year later, soon made this assertion the law of the land, forcing 150,000 Native Americans to leave their ancestral homes and march 800 miles westward, across the Mississippi, to live henceforth in what the cartographers of the nation then describes as "The Great American Desert."  Maybe, in the end, the primary cause of Indian removal was what Alexis de Tocqueville called "the tyranny of the majority" but Andrew Jackson described as "vox populi, vox dei."

    When President Jefferson agreed in 1802 to bail out the state of Georgia from the claimants against the Yazoo frauds in exchange for Georgia's ceding its western land (later the states of Alabama and Mississippi) to the federal government, most people believed that the Indians (particularly the Creeks and Cherokees in Georgia) would soon become civilized and Christianized.  With government gifts of plows, hoes, spinning wheels, and looms, the Indians would become yeoman farmers; with missionary assistance, they would be educated and converted to Christianity.   Then they would sell off their hunting grounds and be incorporated as citizens, thus ending forever the old tribal claims.

    Integration of Native Americans as full and equal citizens proved to be more difficult than anyone realized.  As slavery revived in the South with the cotton boom, as science rationalized racial inequality, and as the expansion of the nation westward assumed the mythic glow of manifest destiny for the white man, the rapid progress of the Cherokees and Creeks toward "civilization" became a problem rather than a solution.  Many Native Americans accepted at first the policy of integration, but after 1815 they began to see that white Americans were losing faith in it.  in 1824, when John C. Calhoun as Secretary of War asked Governor George Troup whether Georgians would accept Native Americans as equal citizens, Troup replied that the state would not.  The only status Georgia would give and Indian was equivalent to that of a freed slave, a person of color, and as such he could not vote, hold office, send his children to public schools, serve in the militia, or testify in court against a white man.  Troup assumed that most Indians would eventually fall into the status of slavery; none could rise.  At this point, Calhoun became an exponent of voluntary removal, and President John Quincy Adams pushed this policy from 1824 to 1828.

    Meanwhile, the Cherokees, who occupied over 7,200 square miles of land in northwestern Georgia (inhabited by 6,000 - 7,000 of their people), were fully aware of the hostility that whites on the frontier felt toward their presence.  they adopted after 1819 a vigorous program of nationalism, refusing to cede another foot of soil, refusing to grant any right-of-ways for canals or horsedrawn railways which Georgians so desperately wanted, refusing to fulfill, thereby, the integration program implicit in  the Georgia Compact.  What was worse, from Georgia's viewpoint, was the decision of the federal government to provide funds to promote Indian civilization and education, to grant "reserves" of 640 acres to certain advanced Cherokees on Georgia's soil and call the Indians "citizens of the United States,"  to allow missionaries to set up large and seemingly permanent establishments and Indian schools on Georgia's land.  The crisis over who controlled the land within the sovereign state of Georgia - the federal government, the Indians, or the Georgians - reached a crisis in 1827 when the Cherokee Nation adopted a constitution modeled on that of the united States and asserted that the Cherokees expected to remain permanently on their won land under their own government (which under their treaties they had perfect right to do).

    When the Cherokees refused in October 1827 to discuss with treaty commissioners either a land session in Georgia or permission for Georgia to build canals through their nation, and when it became clear that President John Quincy Adams had no intention of doing anything about the Cherokees' constitution, the Georgians decided it was time to take matters into their own hands.  To vent their anger and to provide the people of the United States with a new and simple remedy for "the Indian Question," the Georgia legislature passed a series of resolutions in December 1827 designed to explain to the Cherokees exactly what their status was within the boundaries of Georgia.  The first of these resolutions stated that "the absolute title to the lands in controversy is in Georgia," and "she may rightfully possess herself of them when and by what means she pleases."   "We are aware that the Cherokee Indians talk extravagantly of their devotion to the land of their fathers," said the legislators, and Georgia was well aware that "they have gone very far toward convincing the General Government that negotiations with them in view of procuring their relinquishment of title to the Georgia lands will be hopeless," but such was not the case.  The intransigence of the Cherokees would change "if the General Government will change its policy toward them and appraise them of the nature and extent of the Georgia title to those lands and what will be the probable consequence of their remaining refractory." However, if the "General " (i.e., federal) government was unwilling to act, then Georgia's government could and would.  the General government was to be allowed just one more chance to fulfill its sacred obligation under the Compact of 1802, and it was given a deadline to meet that ultimatum.

    Asserting that "the policy which has been pursued by the United States toward the Cherokee Indians has not been in good faith toward Georgia," the legislators demanded that the federal government once again reopen frank and serious "negotiations with the Cherokee Indians upon this subject" and explain to them that Georgia would magnanimously allot one-sixth of the Cherokee area within Georgia to those cherokees who chose to reside on their land as personal reserves (to be held as their private property under state law).  Of course Georgia would not rescind the law denying Indians the right to testify in its courts, and, although the resolutions did not say so, these Cherokee citizens of Georgia would have only the precarious status of freed slaves.

    Finally, Georgia's resolutions of 1827 stated that, if the Cherokees failed to cooperate in this final effort to extinguish their title to all their land within the boundaries of Georgia, then the state would exercise its sovereign power by "taking possession of, and extending our authority and laws over, the whole of the lands in controversy."  Let there be no mistake:   "The lands in question belong to Georgia.  She must and will have them."  Georgians had fought and died in the Revolution to free their land from the British and their Indian allies, and fought again in 1812-1825 against the same foes.  By virtue of these just wars, "Georgia has the right to extend her authority and laws over her whole territory and to coerce obedience to them from all description of people be they white, red or black."  (The term "white" in this last phrase was a veiled reference to the missionaries in the Cherokee Nation whom the Georgians suspected of encouraging the Cherokees to believe that the land was theirs and that the federal government would permanently protect their right to it).

    These resolutions were received with wild enthusiasm by virtually all the citizens of Georgia.  Three years earlier, Hugh Montgomery, the federal Indian agent living among the Cherokees, had explained these strong feelings to the War Department with reference to the continuing intrusion of Georgia frontiersmen onto the soil of the Cherokee Nation.  "The prevailing idea in Georgia, especially among the lower class, is that they are the Rightful owners of the soil and that the Indians are mer Tenants at will; indeed, sir, there is only one point on which all Parties, both high and low, in Georgia agree, and that is that they all want the Indian Lands!"  Montgomery was a Georgian and knew whereof he spoke.

    Yielding to the electoral winds of constitutional doctrine blowing form the west, John Quincy Adams instructed his Secretary of War, James Barbour, to sound out the cherokees once again "on the subject of ceding their land or any portion of it within the limits of Georgia."  Barbour relayed the message to Agent Montgomery, and one day when John Ross, the Principle Chief of the Cherokees,was at the agency, Montgomery read the letter to him.  Ross looked silently at Montgomery for some time, and then remarked grimly that he supposed "the Government took it for granted that the Indians were not in earnest."

    Two months before this incident, Thomas L. McKinney, head of the Office of Indian Affairs in the War Department, had managed to work out a treaty with a group of 3,000 Cherokees who had previously moved to Arkansas - a treaty he believed might yet solve the Indian question before the election in November.   The need for this treaty arose from the failure of the government to fulfill properly and completely the promise it had made in 1817 to grant to the western Cherokees perpetual ownership of a tract of land in Arkansas equal to their proportionate share of the eastern part of the nation.  Incomplete surveys in the four states in which land had been ceded for this purpose by the eastern cherokees prevented the government from knowing just how large a tract grant to the emigrants.  Moreover, in 1818, President Monroe had promised that the Cherokees in Arkansas would be given "a western outlet" to Mexican territory but now white settlers not only crowded in on the eastern borders of the Arkansas Cherokees but had also moved around behind them and blocked the possibility of an outlet to the West.  Moreover, the white citizens of Arkansa Territory seemed as determined to try to move the western Cherokees totally out of their boundaries as the citizens of Georgia were to remove the eastern Cherokees.   John C. Calhoun had suggested in 1825, just before Monroe left office, that the Arkansas Cherokees should seriously consider moving farther west, but they had refused.   They had sent delegations to Washington in 1826 and 1827 to try to get their boundaries in Arkansas permanently settled, to have their outlet surveyed, and to obtain the removal of white intruders on their land, but nothing had been done for them.   They had not even been fully reimbursed for the costs of their removal, as the government had promised.

    In April 1828, their delegation was still bargaining with Barbour in Washington about these matters.  He tried to tell them that Monroe had not promised them a western outlet, but McKenney was able to confirm their claim.  However, neither Barbour nor President Adams wanted to remove the white settlers in Arkansas who now blocked the western outlet.  McKenney's alternative was to press the delegates to make a new treaty to remove them even farther west (into what would later become Oklahoma).  The western Cherokee delegates opposed this idea, and said they had not been authorized by their council to negotiate a new treaty but simply to conclude the old one.  The western Cherokees, like those in the East, had passed a law authorizing the death penalty for any chiefs who ceded land without proper authorization of the full Council.  The delegates consisted of fifteen chiefs, the most influential of whom were George Guess (Sequoyah), James Rogers, Thomas Maw, Thomas Graves, Georgie Morris (or Marris), John Looney, J.W. Flory, and Black Fox.  When they asked why McKenney could not simply have their promised tract surveyed (including the outlet) and why the white intruders could not be removed, McKenney noted that so far as he could tell, they were entitled only to 3,917,784 acres.  The delegation believed that much more than that was due to them.  For six weeks in April and May 1828, McKenney wrangled with the delegates, holding out to them the promise of a tract of seven million acres farther west (in Oklahoma) if they agreed to leave Arkansas.  He said that otherwise they would have to wait until the eastern surveys were completed.  He also threatened that the government might never be able to give them their outlet if they did not take it on these terms, because soon too many whites would have settled west of them.   Frustrated and worn out, the delegates finally yielded on the condition that whatever they agreed to would be valid only when ratified by the full Council in Arkansas.   On May 6, 1828, they signed a treaty which, McKenney assured President Adams, would lead to the rapid removal of the eastern Cherokees as well as settle the problem in the West.  Adams submitted it for ratification by the senate without waiting for the Cherokee Council in Arkansas to consider it.

   

    Ostensibly this treaty concerned only the problems of the western Cherokees; no delegates from the eastern Cherokees were present at the signing of the treaty nor were they informed of its negotiation or asked to ratify it.   The treaty granted the Arkansas Cherokees seven million acres in what is now northeastern Oklahoma (then the western part of Arkansas Territory) plus an outlet (or strip of land) fifty-five miles wide extending from this area due west to the Mexican border (then at the western edge of what is now Oklahoma); they were also to receive $50,000 for the land they now occupied in Arkansas and $2,000 per year for three years to help them resettle on the new tract.  In addition, the government agreed to reimburse each Cherokee in Arkansas for the appraised value of the improvements he had made on the land there.  The treaty included a promise that this seven million acres would remain the land of the Cherokees "forever."

    The most important point of this treaty for McKenney and Adams, and ultimately for the eastern Cherokees, was a clause in which the westerners had very little real interest.  They had not objected, however, when McKenney artfully suggested its insertion.  This clause, Article 8, stated that in order "that their Brothers yet remaining in the States may be induced to join them" on their new tract, it was agreed "on the part of the United States that each Head of family" now residing in the East "who may desire to remove West, shall be given,on enrolling himself for emigration, a good Rifle, a Blanket, a Kettle, and five pounds of tobacco" as "just compensation for the property he may abandon" in the eastern nation.  Furthermore, "the cost of emigration" was to be "borne by the United States" as well as the cost of   "provisions for twelve months after their arrival" on the new tract.   McKenney told the western Cherokees that he had to include this clause because he was giving them a much larger tract than their numbers entitled them and further emigration would help him to justify the treaty.  Furthermore, he pointed out, with every new emigrant the westerners would be entitled to a larger proportion of the annuity paid to the nation each year; it was assumed that the Cherokees were still one nation and that this sum was perennially open to revision, neither of which claims would the eastern Cherokees accepted.  McKenney's cleverest trick, and one which he considered particularly astute considering the pressures the Georgians were placing on Adams, was to promise that every head of family that took four persons with him and who "migrated from within the chartered limits of the State of Georgia" would be paid $50 (or $10 per individual if there were more than five in the family) upon his arrival in the new tract.

    President Adams was delighted with the treaty and immediately authorized Hugh Montgomery to make this new opportunity for emigration known to the eastern Cherokees and to start enrolling emigrants.  Montgomery was instructed to take special care to induce emigration from the Georgia area of the Cherokee Nation, because "the obligation of the United States in the compact with Georgia created [the] obligations which led to such a treaty."  But the only way the treaty of 1828 could fulfill that compact was under the assumption, not stated in the treaty, that for each emigrant an equivalent proportion of Cherokee land in the Georgia area would have to be ceded.  If enough emigrants could be enrolled, the Cherokees in the East would be told that they must cede all of their land in Georgia.  "Much is expected of you," McKenney told Montgomery, for on the agent's ability to induce a large-scale emigration depended Adam's response to the Georgia legislature's resolutions in 1827 and, perhaps, his reelection.

    Adams was so pleased with this arrangement that he authorized McKenney to pay $500 each to James Rogers and Thomas Maw, two of the Arkansas delegation, to return home by the way of the eastern nation where they were to spend several weeks or more as secret agents of the government inducing their friends and relatives to enroll for emigration.  In explaining this plan to Montgomery, McKenney warned him that much of Rogers's and Maw's success "will depend upon keeping the object of [their] visit a secret."

    Because of Georgia's claims, Adam's desperation, and McKenney's artifice, the Cherokees were thus faced with their third removal crisis in the summer of 1828.  they soon became aware of the treaty and obtained a copy.  Elias Boudinot, the Cherokee editor of the nation's bilingual newspaper, The Cherokee Phoenix, printed it in full in July and wrote a blistering editorial:  "If our emigration is to be effected, we had rather that a treaty was made with us directly."  the government could hardly expect their cooperation with a treaty made behind their backs.  the Cherokees then appointed a group of chiefs to travel throughout the nation explaining the treaty to their people and urging them to resist it.  this committee visited every town and village in the summer of 1828 to argue that no one who loved his country should enroll for emigration and to point out that from past experience little reliance could be placed upon the government's promises of assistance to them in emigrating.  The chiefs noted that false promises had been made to Cherokee emigrants in 1809-1810 and in 1817-1819; one had only to look at the sad plight of their brethren who had settled in Arkansas under firm promises of government help and protection and who now ere being forced to give up all their fine homes and farms to move even farther west.  Boudinot emphasized this experience in his editorial in the Cherokee Phoenix

Thus it happened to the Cherokees in Arkansas to whom a beautiful talk was       given promising peace and happiness and now, scarcely ten years are passed,       and they [the whites] have become weary of them [in Arkansas].  But those to        whom this delusive promise was first made do not now remember it.  Glass and       Tutsalah [two chiefs of the original emigrants] now sleep.  I pity those                  Cherokees who have gone from us.  Our wandering blood will be extinguished far away from us.   But let us learn. Let us hold fast to he country which we yet retain.  Let us direct our efforts to agriculture and to the increase of wealth and to the promotion of knowledge.

This editorial declared that the history of the Arkansas Cherokees was "proof of the uselessness of this emigrating scheme."   As for the inducements McKenney offered to promote removal, Boudinot declared them "trifling" - an insult to the Cherokees:  "A blanket has lost its former value with us; so has the rifle and the kettle, and the mention of five pounds of tobacco in a treaty where the interest of  nation of Indians is supposed to be concerned, looks to us too much like jesting."

   Nonetheless, the treaty seemed to be a major coup for John Quincy Adams in the battle to get around the stubbornness of the Cherokee Council.  The people of Arkansas were pleased to have the Cherokees removed farther west.  Georgia's Congressional delegation supported McKenney's suggestion that the $50,000 Congress had recently appropriated to try one more negotiation for land with the Cherokee Council should now be applied to promoting the emigration plan in the treaty.  Those, like Calhoun, who favored colonizing all the Indians east of the Mississippi in an "Indian Territory" were pleased that the Cherokees might be the avant garde of this effort.  McKenney boasted to the Reverend Thomas Stuart of Mississippi:  "Indians, I have found, are only children, and can be properly managed by being treated as such."

   Unfortunately for the eastern Cherokees, there was another shortage of food during the summer of 1828, and heavy rains that spring had produced flooding which held up the planting and thus  the summer corn harvest.  Jacob Scudder, a white trader in the Georgia area, told Montgomery in August that the Cherokees in Georgia were"literally starving."   Many of them were so demoralized by harassment from Georgia's intruders who constantly stole their livestock that they had not bothered to plant anything.  They were "living on Tarpon and Frogs," Scudder said, and "a very great proportion of the Indians in that quarter will go" west.

   McKenney prepared for a great exodus.  He ordered blankets and kettles from Joseph Lopez Dias in New York City and 500 rifles from Henry Derringer in Philadelphia for those who would enroll.   He told Montgomery to make contracts for flatboats, keelboats, and provisions to move the emigrants (once gathered at the agency) down the Tennessee and Ohio and Mississippi and up the Arkansas River to their new homes.  The federal Indian agent among the Arkansas Cherokees, Col. Edward W. Duval, was instructed to have supplies ready at a depot in the new tract to assist the emigrants when they arrived.  To assist Rogers and Maw in their clandestine efforts to promote enrollment in Georgia, McKenney printed copies of the resolves of the Georgia legislature and told them to distribute these as evidence of the futility of trying to hold onto their land in the East.   These reprints were to be employed, McKenney said, "not as threats to intimidate individuals but as inducements rather for them to accede to the wishes of the General Government."

     In June 1828, Adams replaced James Barbour as Secretary of War with Peter B. Porter, a general from upstate New York.  Porter had been a war hawk in 1812 and a bitter opponent of Tecumseh.  He had no doubt that total removal of all the Indians east of the Mississippi was both necessary and desirable.  His appointment was an effort to convince the western states that Adams was wholeheartedly behind Indian removal.   Adams gave full support to McKenney's effort to promote emigration among the cherokees and assured the Georgia congressmen that they need not to continue to push for a treaty with the eastern Cherokees for total extinction of Cherokee title to land in their state because "the machinery for the accomplishment of the same object was contrived in and has been set in motion under the later Treaty with the Cherokees of Arkansas" . . .

    . . . On October 31, Montgomery reported that six months of emigration efforts had resulted in almost total failure.   "We have on the [enrollment] register but eleven persons and four or five of them have no family."  Most of these "want a part of the price of their improvement before they go to relieve them from debt."  this was a far cry from the thousands McKenney had expected and prepared for.  The Cherokees seemed to have successfully resisted the third attempt to remove them.  That fall their council and the council of the western Cherokees voted to send delegations to Washington to put some end to the problems raised by McKenney's treaty.

    When Peter Porter made his annual report on Indians Affairs to President Adams in November 1828, he fully endorsed removal of all the Indian tribes "into a colony consisting of distinct tribes or communities but placed contiguous to each other and connected by general laws which shall reach the whole.  Let the lands be apportioned among families and individuals in severalty" and let administrators and superintendents "assist them in forming and administering a code of laws adapted to [their] state of civilization."  The most surprising part of Porter's report was an attack upon the missionaries and missionary schools supported by the Education Fund.  Mission schools had created, he said, a group of "half-educated" Indians who, "finding no outlet for their intellectual skills and attainments among their degraded people," either become useless drunkards or "obnoxious" troublemakers.  As for the missionaries, Porter said they were little more than "agents [who] are operating, more secretly to be sure, but not with less zeal and effect, to prevent such emigration" and thus to thwart the benevolent intentions of the government.  Their reason for wanting to prevent Indian removal was that "missionaries and teachers with their families . . . having acquired principally by the aid of this [the government's Indian education] fund, very comfortable establishments [among the Indians] are unwilling to be deprived of them by the removal of the Indians."

    In his December 2 report to Congress on the Indians, President Adams noted that "we have been far more successful in the acquisition of their lands than in imparting to them the principles or inspiring them with the spirit of civilization."  This was proof of the failure of the old Indian policy of George Washington and his successors.  Adams saw no good deriving from the Education Fund that was designed to carry out that integration policy.   Although the Cherokees might have been cited as an exception to the evaluation, Adams had no difficulty explaining why they too should be removed: "When we have had the rare good fortune of teaching them the arts of civilization and the doctrines of Christianity, we have unexpectedly found them forming in the midst of ourselves, communities claiming to be independent of ours and rivals of sovereignty within the territories of our Union."  In short, the more successfully an Indian nation acculturated itself, the more dangerous it became to American expansionism.  The Cherokees revitalization might have been hailed by Adams as a remarkable achievement for the Indians as well as the crowning success of America's philanthropic civilization program.  Instead, he portrayed it as a grievous failure.

    Congress did not pass the proposal for Indian colonization in the West which Adams and Porter introduced in January 1829, because Adams was then a lame-duck president.  Andrew Jackson had been elected in November 1828, and everyone knew that after his inauguration on March 4 he would have his own plan for removing the Indians.  That plan was predictable.  The State of Georgia in effect provided the basis for it in a series of laws passed by its legislature toward the end of December 1828, when it is was clear that McKenney's emigration plan was a flop.  Georgia's program for the Indians was not really new.  colonel return J. Meigs, Montgomery's predecessor as federal agent to the Cherokees, had proposed it as early as 181 and several times thereafter.  However, the program was unworkable so long as the presidents of the United States believed that treaties were the supreme law of the land and that, under their treaties, the Indians had the right to refuse to cede land or remove to the West.  Given this belief, there was no way the government could coerce them.  Georgia's laws of December 1828, assumed that, under Andrew Jackson, these previous presidential assumptions would no longer apply.  Treaty obligations, and even the trade and intercourse laws with the Indians, would be abandoned.

    The key law passed by Georgia stated that the terms outlined in it would not take effect until June 1, 1830, presumably to give the Cherokees two years to remove to the West if they did not like what the new policy had in store for them.   The law then asserted that "all laws of this state . . . are extended over" the territory claimed by Indians within Georgia's boundaries.  That land was to be surveyed within the next two years by the state and divided into counties.   "After the first day of June, 1830," all Indians residing in those areas "shall be liable and subject to such laws and regulations as the legislature may hereafter prescribe."  When this happened, "all laws, usages, customs made, established and enforced in the said territory by the said Cherokee Indians be, and the same are hereby on and after June 1, 1830, declared null and void."  In short, on that date, Cherokee tribal existence in the East would cease.  All the laws, the constitution, the court system as well as the old unwritten customs of the Cherokee Nation (such as tribal ownership of land) would be ended.  Cherokees would thenceforth be subject to the same laws as other Georgians except that, being savages and heathens and people of color, "no Indian or descendent of an Indian residing within the Creek or Cherokee nations of Indians shall be deemed a competent witness or party to any suit in any court created by the constitution or laws of this state to which a white man may be a party."

    Georgia's action was part of the same states' rights feeling that asserted itself in South Carolina over the Tariff of Abominations in 1828 and, following Calhoun's South Carolina Exposition, led to the nullification of the tariff.   Nationalistic feelings, it seemed, had inspired not only the United States and the Cherokees and the Creeks but also the southern states.  James W. Moore, congressman from Georgia, in denouncing the Cherokee constitution, had said that "sovereignty over soil is the attribute of States, and it can never be affirmed of tribes living in savage conditions."  Georgia, however, was in a civilized condition, and according to its governor, George M. Troup, "Georgia must be sovereign upon her own soil, within her chartered limits; she ahs made no surrender of her territorial sovereignty and jurisdiction by entering into the Union."

    The Cherokees had feared the worst when they learned that Jackson had been elected.  The editor of the Cherokee Phoenix said in the issue of December 10, 1828, that it was now certain Jackson would be the next President.  the voice of the white electorate had spoken, and by their majority opinion, the fate of the Indians seemed sealed.  Thus, the editor said, "republican tyranny expels" the Indian from his homeland.

    The Cherokee Council sent a delegation to Washington in January 1829 to discuss McKenney's treaty, but it realized that the matter was now out of Adam's hands.   The delegation decided to stay on in the city until Jackson was inaugurated and talk to him.  The members were surprised that Adams had nothing to say about Georgia's open defiance of the Constitution and its treaty power.  to make matters worse, the State of Alabama had followed Georgia's example in January 1829 and had said that it too planned to extend its jurisdiction over all the Indian lands within its borders.  A few days after Jackson's inaugural, the Cherokees went to speak with is Secretary of War, John "Eaton.  Their first question was what reaction President Jackson would have toward the laws passed by Georgia in "defiance of the Laws of the United States and the most solemn treaties existing" between the Cherokees and the government.  they were told they would have to wait for Jackson himself to answer that.  He did so in April, when he instructed Eaton to tell the waiting Cherokee delegates that the federal government would never assert its authority against the sovereign power of the State of Georgia with regard to the land or people within its borders.  Did the Cherokees really expect otherwise, Eaton asked?  Did they think the government would

step forward to arrest the constitutional act of an independent State exercised within her own limits?  Should this be done and Georgia persist in the maintenance of her rights and authority the consequences might be that the act would prove injurious to us and, in all probability, ruinous to you.  The sword might be looked to as the arbiter in such interference.  But his can never be done.  The President cannot and will not beguile you with such expectation.  The arms of this country can never be employed to stay any State of the Union from those legitimate powers which attach and belong to their sovereign character.

Eaton went on to explain to the Cherokee delegates that, these being the unalterable political realties, the president advised them to remove as soon as possible to the seven-million-acre tract that had been designated for them in the treaty of May 6, 1828.   the Cherokees in Arkansas, he reminded them, had now accepted this choice and withdrawn their initial objections to the the treaty several months earlier.  The western Cherokees were already in the process of removing to the new tract, and the eastern Cherokees should do likewise.

    Eaton then proceeded to draw the State of Tennessee into the effort to remove the Cherokees on the terms which its congressman, James Mitchell, had suggested to McKenney the preceding summer.  Realizing that Rogers, Maw, and Montgomery had been ineffective in pushing the emigration plan, Eaton appointed two new secret agents:   former governor William Carroll of Tennessee and General John Coffee, Jackson's old friend.  As Eaton said in his letter to Carroll in May, 1829:

A crisis in our Indian Affairs has arrived.  Strong indications are seen of this in the circumstances of the Legislatures of Georgia and Alabama extending their laws over the Indians within their respective limits; these act, it is reasonable to presume, will be followed by other states interested in those portions of their soil now in the occupancy of the Indians.  In the right to exercise such jurisdiction,the Executive of the United States fully concurs and this has been officially announced to the Cherokee Indians.

therefore, Eaton continued, the President wished to ask Carroll if he would "undertake to enlighten the Cherokees and Creeks" on the necessity of emigration.  "In your progress through their Country, it would be well to ascertain, if you can do so without disclosing the purpose of the Executive," whether or not the Cherokees manifested "a willingness to negotiate for a cession" of their land under these new circumstances.  The President, though upholding the rights of the states to assume control over Indian land, nevertheless wished to be helpful to   the Indians in this situation.  If they were to cede their land to the federal government, he would be able to pay them for it and to assist them in moving to the West; surely that was preferable to coming under the jurisdiction of Georgia and Alabama (and ultimately Tennessee and North Carolina).  "The President views the Indians as the Children of the Government.  He sees what is best for them."  Carroll's mission was really "a work of mercy," Eaton said; in his view, "there is no doubt, however, but the mass of these people would be glad to emigrate, and there is as little doubt buy that they are kept from this exercise of their choice by their Chiefs and other interested and influential men amongst them [the missionaries] who, tenacious of their authority and their power, and unwilling to forgo their gainful positions, keep them under the ban of their dictation."  Carroll's task was to work on the self-interest of the well-disposed in order to assist "the real Indians" against their chiefs.  Bribery, he implied, might be in order.  "It becomes therefore a matter of necessity, if the General Government would benefit these people, that it move upon them in the line of their own prejudices and, by the adoption of any proper means, break the power that is warring with their best interest."  In Carroll's private talks with those influential chiefs who were disposed to emigrate (or to encourage others to emigrate), Eaton told Carroll, "offers to them of extensive reservations in fee simple and other rewards" should be made that would, "it is hoped, result in obtaining their acquiescence" to a total cession of Cherokee land in the East.  "Go to them as a friend," Eaton urged; "enlarge on their corporate degradation as a people and the total impossibility to their ever attaining to higher privileges while they retain their present relations to a people who seek to get rid of them."

    The Cherokees never saw this letter, but they knew well enough what was in store for them.  They had boasted John Quincy Adams's effort to remove them in 1828; but now they faced a more formidable foe, and they had few friends.  Probably the missionaries in the field would try to help, but the mission boards that employed them were cautious about becoming involved in politics.  Perhaps the churchgoing public in the East could be aroused out of humanitarian concern.  And some would defend treaty rights against states' rights from constitutional principles.  But the vast majority of the public had already spoken in favor of Jackson.  In the end, the Cherokees found only one real source of power that might uphold them - the Supreme Court of the United States, still led by that old Federalist appointee and arch foe of Jackson, John Marshall of Virginia.

    John Marshall did not fail them, although it was not until 1832 that the Cherokees were able to get a test case decided.  In that case, brought by two missionaries from Massachusetts (Samuel A. Worcester and Elizur Butler), the Court ruled that Georgia's law asserting state sovereignty over the Cherokees' land was unconstitutional.  Marshall declared the treaty power of the federal government supreme, and treaties placed the cherokees under federal jurisdiction.  But Andrew Jackson was not one to be overawed by rulings of the supreme Court.  He declined to enforce Marshall's decision because he thought Georgia was right.  When the voice of the people reelected Jackson in November 1832, the doom of the Cherokees was sealed, and so that of every other Indian tribe between the Appalachians and the Mississippi.   Compulsory Indian removal became the new Indian policy of the United States.   Someday, Jackson said, perhaps the Native Americans might become sufficiently "civilized" and "Christianized" to enable them to be integrated as citizens, but for the foreseeable future, they would have to live on reservations provided by the government.

    Georgia had won its battle.  The manifest destiny of white Christian America marched onward toward the Pacific - and even beyond.  But the question of nationalism and states' rights still had many battles ahead - not, however, battles in which the Native Americans would play a part.  Their status was settled.   For the rest of the century, it was the African Americans whose fate rested upon the next stage in the controversy over the meaning of the constitution and who could be an American citizen.