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John Ross and the Cherokee Indians
Chapter VIII - The Removal Bill

In October, 1828 Ross entered upon his duties as chief executive of the Cherokee republic. Although engrossed with the business of organizing the government and readjusting the old order of things to suit the new conditions, he followed with keen interest the absorbing question of the day, the presidential election, which held such portentous possibilities for the Cherokee Nation.' Georgia also realized these possibilities, and scarcely a month had elapsed after the result of the election was known when her legislature passed two acts intended to paralyze the Cherokee government. The first added Cherokee lands to certain northwestern counties of Georgia; the second extended the laws of the state over these lands after January 1, 1830, the Cherokee laws and customs, to be null thereafter.

The Cherokees, aglow with patriotic pride and ambition, had no intention of submitting to such humiliation. The General Council, in session at New Echota, determined to appeal to the President of the United States for protection against the State. It passed a resolution declaring the Georgia laws null and void, and framed a memorial to the national executive protesting against that state's legislation, contrasting it with her profession of belief in the liberty and rights of man. The memorial recalled the guarantee of the United States to the Cherokees; pleaded that the Cherokees, an innocent party not responsible for the compact with Georgia, were compelled to suffer for it; called attention to the advancement of the people due largely to their proximity to civilizing influence, insisted that benefits to be gained by removal were purely visionary, and asked the President to protect them in their treaty rights.

The delegation bearing the memorial arrived at the capital in the winter of 1829, to find themselves unable to get any satisfaction from the retiring administration. Hoping against hope for greater success in dealing with an executive who proclaimed justice his cardinal doctrine they determined to wait and present their cause to President Jackson. They attended the inaugural ceremonies, and doubtless it filled them with renewed hope to hear him say, on that occasion, that it would be his sincere and constant desire to observe towards the Indians, a just and liberal policy, and to give that humane and considerate attention to their rights and their wants which was "consistent with the habits of our government and the feelings of the people." The last clause they were not yet prepared to interpret and appreciate. The Georgia contingent in Congress understood it better.

More than a month wore away before the delegation finally secured a hearing with the Secretary of War. Any hopes which the President's message had aroused were dispelled by Major Eaton when, on April 18, he assured them that no remedy remained for their troubles but removal. If they wanted a home they could call their own they must go west, for there the President could guarantee the soil to them "as long as trees grew and waters run." The Cherokees contended that their people had been happy and prosperous in the land of their fathers and that removal would bring retrogression and disaster upon the tribe; they did not want to move. The executive mind was made up just as firmly, however, and in May the delegation returned home to report the failure of their mission. Before leaving Washington, they had been encouraged by statesmen of the north and east to believe that Congress at its next session would come to their relief. An extra session of Council, called to hear the report of the delegation, therefore drew up memorials to the national legislature, praying for relief and protection on the ground of treaty obligations.

But Congress did not meet for several months. Meanwhile to help along the removal project the President determined to send a secret agent among the Cherokees and the Creeks to see what could be done in the way of securing individual acquiescence, with the view as later events proved, to building up a party favorable to removal with which a treaty could be negotiated. He selected for this delicate mission General William Carroll, then candidate for governor of Tennessee, and a man supposed to have considerable influence with the Indians. His instructions, to conceal from even the chiefs the official character he carried with him, and the suggestion that presents to the amount of not more than $2000 be distributed to the poorer Indians, the chiefs' children and even the chiefs themselves with the object of attaching them to him, indicate the trend of the administration in dealing with the Indians. General Carroll went to the Cherokee Nation, saw the conditions there and reported to the War Department, on November 19, that the Cherokees were too intelligent and "too well posted on current news of the day to be kept in ignorance of the motives and methods of those who came among them." He paid a high tribute to Cherokee civilization and expressed the opinion that they were encouraged by eastern newspapers to believe that the people did not support the President in his views on removal, and that Congress, at the next session, would sustain them in their protests against the encroachments of Georgia.

That was enough for President Jackson. Determined to forestall the Cherokees and their friends, he sent a message to Congress December 8, in which he advocated Indian removal on the ground that the rights of a sovereign state were being interfered with, and stated in reply to the protest of the Cherokees against the extension of Georgia laws over them, that the attempt of the Indians to establish an independent government in Georgia and Alabama would not be countenanced.

Both the House and the Senate promptly took up the question, and all through the winter the Removal Bill brought out much bitter feeling and some memorable discussions in defense of the Indians. In the Senate it was the main topic of discussion in the committee of the whole for three weeks. Frelinghuysen of New Jersey and Sprague of Maine ably opposed it on the ground of the binding force of treaty obligations, and upon general principles of justice and humanity. Forsythe, of Georgia, McKinley, of Alabama, and White, of Tennessee, appealing to sectional prejudice, defended it on the theory of the state's right to the soil within its limits. In the House, the fallacy of pretending to remove the Indians for their own good from a community where they had comfortable homes, cultivated fields, churches and schools, to a wilderness where they would be surrounded by savage tribes, was exposed by Storrs of New York, in a speech remarkable for its logic and forensic power. He attacked the President for arrogating to himself authority never conferred upon him in presuming to deliver to Congress an opinion on state authority, and for seeking to annul treaties, some of which he himself had negotiated.

As the discussions in the national legislature revealed the situation of the Indians the indignation of the country at large was aroused, and protests '.poured in upon Congress. One from Adams County, Pennsylvania, praying for the protection of the Indians is particularly worthy of notice. It declared that the Cherokees were an independent nation entitled to all the rights of such, except so far as surrounded by treaty. The treaties of Hopewell and Holston had taken place before the compact with Georgia was entered into. In this compact Georgia had explicitly acknowledged the existence of the Indians as a nation with whom the United States were to hold treaties, and extinguish their title as soon as the same could be done on peaceable and reasonable terms, and by such acknowledgment admitted the validity of former treaties which guaranteed their existence and protection. The treaty of Hopewell was older than the Constitution. The Constitution in declaring treaties the supreme law of the land directly recognized the right to treat with Indians, and treaties, regularly negotiated with them, were as sacred as any law of the land.

In spite of protests and hot debate the Removal Bill passed in May,18 and was promptly signed by the President. It was, in the words of Senator Benton, "one of the closest and most earnestly contested questions of the session, and was carried by an inconsiderable majority."

A new complication was added to the Cherokee troubles in July 1829, when deposits of gold, found on Ward's Creek in the northwestern part of the nation, caused the value of their land to increase enormously. Treasure seekers from the surrounding states flocked into the gold region in such numbers that, within a year, three thousand disorderly white men were prospecting for the precious ore on Cherokee soil. They found the business very profitable. Early in October, 1830, the New York American reported that two hundred and thirty thousand dollars worth of gold had been received in Augusta, alone, during the last nine months; and Mr. Templeton Reid was coining and stamping, at his mint in Gainsville, Georgia, a hundred dollars of gold every day. These gold diggers were intruders operating unlawfully under an enactment of the Cherokee Nation prohibiting anyone to settle or trade on their land without a permit from Cherokee officials, and under a Federal intercourse law prohibiting anyone from settling or trading on Indian territory without a special license from the proper United States authorities.

The gold diggers paid no attention to either the Cherokee or Federal laws. A period of lawlessness prevailed in which the Cherokees who had joined eagerly in prospecting got the worst of the bargain. Governor Gilmer, always with an eye single to the interests of his state, issued a proclamation in which he warned all persons, even Indian occupants, from trespassing upon Georgia soil, and especially from taking any gold or silver from the land. The Indians, considering that they had a right to do what they would with their own, paid no attention to the proclamation. Thereupon the Georgia authorities arrested and roughly haled them off to prison. The United States troops, sent into the country in 1829 to quell the tumult, when appealed to, refused to give the Indians any protection, on the ground that state laws were not to be interfered with.

When the Georgia legislature convened in October, it immediately proceeded to pass laws for the gold region. October 29, the governor wrote to the President asking that the troops be removed, since Georgia had extended her jurisdiction over that region. This request was granted and the troops went into winter quarters leaving the state a free hand. The legislature next proceeded to establish a guard of sixty men, stationed at the agency to keep down disorders in the gold region; it then passed an act making it unlawful for the Cherokee Council to meet except for the purpose of ceding land, while a penalty of four years' imprisonment was fixed for Cherokee judges who presumed to hold court. The same law provided that all white persona residing in the Cherokee country on March 1, 1831, or thereafter, without a license from the governor of Georgia, should be guilty of misdemeanor, the penalty being not less than four years' imprisonment; the governor was allowed to license those who would take an oath to support and defend the constitution and laws of Georgia and to demean themselves uprightly as citizens of the State.

Further legislation followed in the next few years providing for the mapping out of the Cherokee territory into counties, and for surveying it into land lots of 160 acres each, and gold lots of forty acres each. These lots were put up and distributed among white citizens of Georgia, each receiving a ticket. While each Cherokee was allowed a reservation of 160 acres, no deed was given, and possession of it depended upon the pleasure of the state legislature. Contests over these lottery claims were inevitable. Provision was made for those arising among white people. A law forbidding anyone of Indian blood to bring suit, ,or testify against a white man, made it impossible for the Indian to defend his rights in any court or to resist the seizure of his homestead, or even of his dwelling house, under penalty of imprisonment at the discretion of the Georgia courts. Another law, making invalid any contract made by an Indian unless established by the testimony of two white men, practically cancelled all debts due from white men to Indians. The purpose of these laws was not far to seek. Georgia was "building fires around the Cherokees" to force them to remove. White men who entered the Cherokee country in armed bands, called "Poney-clubs," seized horses and cattle and drove them off, ejected families from their homes and set fire to their houses, turning the occupants out in bleak weather to seek shelter where they might. These were but some of the atrocities perpetrated by the Georgians. When the perpetrators were arrested and brought to trial, the cases were dismissed on the ground that no Indian could testify against a white man.

The conscience of the whole country was aroused as the situation of the Indians became known. Criticism of national Executive and Legislature became too uncomfortable for the President. He had intended that removal should be accomplished with less notoriety. Therefore in order further to disable them and prevent them from employing attorneys, sending delegates to Washington and publishing the Cherokee Phoenix, Jackson issued instructions through the War Department to Indian agents in 1830, that henceforth annuities were to be distributed among families and individuals. The annuity was a sum of money paid annually by the United States to the Cherokees in consideration for land cessions made at various times after the treaty of Hopewell. It amounted at this time at $10,000, two-thirds of which was due to the eastern nation. Since 1819 it had been turned over to a national treasurer, elected by the tribe, and used for the support of the government and for other national expenses. As a per capita payment, it amounted to about forty-two cents, a sum less than the expense of a trip to the agency to "draw" it. The Cherokees refused to receive it in this fashion and, although they voted time after time that it should be paid in the usual way to their treasurer, it was withheld and allowed to accumulate in a Nashville bank for five years, while the Council was forced to raise loans on the credit of the nation, and to issue due bills for the payment of salaries. The United States commissioners used the annuities as a pretext for assembling the tribe for the purpose of urging removal, much to their inconvenience and annoyance. But neither the withholding of annuities nor the encroachment upon their territory by state authority facilitated the object aimed at by Georgia. The Cherokees, conscious of their rights and of the support of public opinion, refused to remove or even to treat for a small cession of land.

When it became evident that the object of Georgia's hostile legislation, the Removal Bill, and the President's suspension of annuities, all looked toward forcible removal, Chief Ross, acting on the suggestion of such men as Webster and Frelinghuysen, determined to appeal for redress to the Supreme Court. He employed ex-Attorney General Wirt and Mr. Sargeant as counsel, who, in January, 1831, introduced a, motion before the Supreme Court for an injunction to prevent the execution of the objectionable laws of Georgia.

This motion was reached on the docket of the Supreme Court early in March.27 The bill set forth the complainant to be the Cherokee Nation of Indians, a foreign state, not owing allegiance to the United States, nor to any state of the Union, nor to any prince, potentate or any state other than their own; reviewed the various treaties between them and the United States by which their lands were guaranteed to them, treaties which the Cherokees had always faithfully observed; claimed for themselves the benefit of the clause in the Constitution declaring treaties the supreme law of the land; complained of the violation of the treaties by the state of Georgia; claimed the protection of the United States against the state, and asked the court to declare null and void the laws of Georgia which interfered with the ancient rights and privileges of the tribe. The motion for injunction was denied on the ground that the Cherokee Nation was not a foreign state in the sense of the Constitution, and could not maintain an action in the courts of the United States, Chief Justice Marshall and Justice Story dissenting from the opinion of the majority of the court.

The laws of 1830 in regard to white persons residing in the Cherokee Nation were aimed at gold diggers and intermarried white men suspected of encouraging opposition to removal. But a week after the passage of the law, the whole body of missionaries in the Cherokee Nation brought themselves under its ban by holding a meeting at New Echota, where they passed resolutions exonerating themselves from the charge of meddling in Indian politics, and declaring their conviction that removal of the Indians would seriously retard their progress in civilization, and that the extension of Georgia's jurisdiction would work an immense and irreparable injury. When called upon to retract or leave the nation they refused to do either, whereupon Dr. S. A. Worcester and J. Thompson, two ordained missionaries and Isaac Proctor, a teacher, with others were arrested by the Georgia Guard, chained together in pairs and taken to headquarters, seventy or eighty miles away, with considerable military display designed to impress the Indians. After a preliminary trial they were dismissed on the ground that they were agents of the United States as dispensers of the civilization fund. Governor Gilmer dissented from the opinion of the judge. After communicating with Secretary Eaton, he found that seven of the nine missionaries residing in the Cherokee Nation were supported entirely by the American Board, and that only one of them, Dr. Worcester, who was postmaster at New Echota, could in any way be considered an agent of the United States. Dr. Worcester was particularly objectionable to Georgia because of his connection with the Cherokee Phoenix which had published a number of articles exposing the true situation in regard to removal and the aggression of the state, appealing strongly to the sympathy of the north and east. He was at once deprived of his secular office in order to make him fully amenable to Georgia laws. Thereupon the missionaries were again arrested with great cruelty and brought before a Georgia tribunal where Dr. Worcester and Mr. Elizur Butler, refusing to accept the governor's pardon by taking an oath of citizenship, were sentenced to four years' hard labor in the penitentiary where they were compelled to wear prison garb and work on the rock pile. The missionaries, with Mr. Wirt as counsel, appealed to the Supreme Court which, in 1832, rendered the decision declaring unconstitutional those laws by which Georgia had extended her jurisdiction over Indian territory, and the one under which Dr. Worcester was indicated.88 News of the decision reaching the Cherokees late in March was like "a shower of rain on thirsty vegetation," says Elijah Hicks. The feeling of depression and uncertainty vanished like the mists before the sun. The decision was celebrated by dances and feasts. The young people were merry, the older ones contented and happy. Once more the Cherokees seemed standing upon a solid foundation.

Georgia was prepared to fight rather than submit to this decision. The President found himself in a dilemma, and the whole country looked on to see what he would do. To South Carolina he declared, "The laws of the United States must be executed. Those who told you that you might peaceably prevent their execution have deceived you. Their object is disunion, and disunion by armed force is treason." Mr. Ross, who, it would seem, had some ground for hope, confided to the Council in October, 1838, that since the Supreme Court had decided the Cherokee case favorably, and the President had declared the supremacy of the Constitution and the laws of the United States over state authority, there was every reason to believe that he would ultimately enforce the treaties and intercourse acts for their protection. "The people of the United States owe Jackson a deep debt of gratitude," says an eminent American historian. "His name—a name of power for many years to come—was joined with the idea of union, and the supremacy of the Constitution." It was the supremacy of the Constitution as President Jackson chose to interpret it, however, that the doughty general would defend so gallantly, and not as the Supreme Court interpreted it. The highest tribunal of the land had spoken, and its decision had been a victory for the Cherokees and for justice. The Chief Executive of the United States is said to have dismissed the subject quite cavalierly with the words, "John Marshall has made his decision, now let him enforce it. Verily, consistency is not a jewel that adorns Andrew Jackson's crown, if, perchance, he wears one.

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