Brent Savage
HIST 4070
Professor Gagnon
25 April 2003
Scarred by both injustice and heartless racism, the history surrounding United States Native American policy constitutes one of the blackest periods in our nation’s short past. Although countless travesties have been committed in the names of progress and American expansion, few specific instances capture the heat and absolute urgency of the time as the Federal Supreme Court case Cherokee Nation v. Georgia (1831). Resting on the shoulders of this single lawsuit was the issue of Native American sovereignty. Entwined deeply within the presented arguments were the passionate issues of states’ rights along with the future authority of the Supreme Court itself. This single, landmark case, Cherokee Nation v. Georgia, had the potential to either bolster the Native American cause or tear down any hope of advantageous legal action. As seen through the example of events leading toward and surrounding Cherokee Nation v. Georgia, unquenchable greed, intense racism, and partisan politics ultimately lead to the betrayal of the Cherokee.
If the Cherokee had ever wished to be overlooked, the discovery of gold in North Georgia hurriedly crushed their hopes. As word spread, both the citizens and state officials of Georgia became enveloped in the so-called gold fever. Prospectors began flooding into Cherokee territory, and by 1828, the Georgia Legislature had passed a number of extension laws designed to expand Georgia’s control over the Cherokee Nation.1 Georgia quickly moved to ban the Cherokee form mining gold within their own territory, and increasingly hungry for this new found wealth, Georgia governor George Gilmer began to push the Federal government to remove the local Native American populations.2 With the local white residents growing ever lustful for gold, it soon became clear that any remaining hope for the Cherokee Nation rested on the United States Federal Government. This epic struggle between Native American and Georgian would ultimately culminate in Cherokee Nation v. Georgia.
Many separate instances led to this historic clash. Countless broken treaties as well as the steady encroachment of white settlers served to heighten tensions between the Cherokee and United States governments. As stated, the discovery of gold within the foothills of North Georgia greatly amplified the political pressure to remove the Cherokee from their ancestral lands, and as the pressure mounted, Georgia law makers instituted a number of extension laws placing the Cherokee Nation under the total jurisdiction of the state. The Georgia legislature declared that after June 1, 1830 “all laws, usages, and customs made, established and enforced in the said territory by the Cherokee Indians” would become null and void.3 Prior to this declaration, the Cherokee Nation had been allowed the freedom of self government. Aside from surrendering certain rights of foreign diplomacy and international commerce to the United States Federal government, the Cherokee were fully independent. Desperate to retain their rightful homeland, the Cherokee restructured their entire civilization. In the vain hope of acceptance, the Cherokee Nation even adopted a constitution and judicial system modeled after that of the United States. 4 Thus, through the institution of these new extension laws, the Georgia legislature essentially dismantled the Cherokee judicial system and destroyed the sovereignty of the Cherokee populace.
On a federal level, Congress had been no more gracious. Georgia, along with other interests, had been lobbying Congress for years, and within the early months of 1830 the Senate and House of Representatives had narrowly passed the Indian Removal Act of 1830. 5 This Act, as history shows, falsely guaranteed Native Americans perpetual ownership of new lands west of the Mississippi River on the condition that they would quickly emigrate westward. On top of this ‘guarantee’ the United States government offered to pay tribes for the land they were leaving, fund the move, and provide for their expenses one year upon arrival in the new territory.6 Just barely passing the House with a vote of 102 to 97 the removal bill split the nation almost directly down its political center.7
Perhaps increasing pressure from their respective constituents drove these elected officials to abandon the Cherokee, but this is unfortunately doubtful. In truth, racism was widespread throughout the United States. As more memorably forced upon African slaves, the barbaric ‘science’ of race was applied to Native Americans throughout the land. This general racist sentiment hangs over every broken treaty, but to exemplify the depth through which this repulsive outlook flowed throughout the general American belief system one can turn to a wealth of individual quotes. Certainly one of the most damning utterances came from the mouth of Henry Clay. Always wanting to side against his bitter political enemy Andrew Jackson, Clay and his emerging Whig party were in strong opposition of the Indian Removal Act of 1830. Despite this Clay stated Indians were “essentially inferior to the Anglo-Saxon Race” and “they [Indians] were not an improvable breed, and their disappearance from the human family will be no great loss to the world.”8 It seems nothing less than extraordinary that a man capable of making these remarks would chose to fight for the protection of Indian aboriginal lands. On both sides of the argument, for and against relocation, white ‘intellectuals’ largely thought themselves racially superior to Native Americans. Governor George Gilmer of Georgia accused those of mixed blood of stirring up the “pure-blooded” Indians. Gilmer thought that Indians without a mixed ancestry were not “intelligent or moral enough to maintain devotion to ideological principles.” 9 Gilmer indisputably felt that it was the white element of the non-“pure-blooded” Native Americans that gave them their reasoning capabilities. While not every American held these views of racial supremacy, they were unquestionably and firmly rooted within the common philosophy. Perhaps if the House had voted on whether or not they believed the Anglo-Saxon ‘race’ was superior to the Native American ‘breed’, instead of the unjust Indian Removal Bill, the outcome might have been far more one sided.
Passage of the Indian Removal Bill required the signature of the President. Unfortunately for the Cherokee, the notorious Indian fighter and champion of the Seminole War held the coveted office. Andrew Jackson not only backed the passage of the Indian Removal Bill, he actively worked toward making the proposed bill permanent law. Time after time Jackson had made clear his contempt for the Native American. In a December, 1830 speech to Congress, Jackson asked what kind of man would “prefer a country covered with forests and ranged by a few thousand savages to our extensive Republic [...]?”10 Upon passage of the Indian Removal Act, Jackson gained enormous power in respect to Indian affairs. As specifically stated within the act, the President now had the authority to divvy up land west of the Mississippi and allot it to particular Indian tribes as he saw fit.11 The Indian Removal Act was a slap in the face to the Cherokee who had continually pleaded Jackson and the national government for assistance.
As exemplified, Andrew Jackson was particularly well known for his bigoted views. Richard Longaker even suggests that Jackson’s well known sympathy for the white cause “was a major factor in his electoral success there [Georgia] in 1828.”12 Responding to a Cherokee solicitation for help concerning the Georgia extension laws Andrew Jackson writes, “[I have] no power to protect them [Cherokee] against the laws of Georgia.”13 While not spewing bias rhetoric, Jackson states that he has “no power” to intervene. Old Hickory, enemy of the states’ rights Southerner, the same man who played a key role in negotiating nine of eleven treaties which stripped the southern Indian tribes of their ancestral lands,14 claimed he had no authority to assist the Cherokee. If that were not enough, Jackson then dispatched federal troops to aid Georgia in upholding their questionable extension laws.15 Assuming there had been significant doubt within Jackson’s mind as to the legality of interfering with Georgia’s extension laws, when later given unquestionable authority to halt Georgia’s extension laws he did nothing. Instead of supporting the Supreme Court’s decision in Worcester v. Georgia (which shall be further discussed later), Jackson simply remarked, “John Marshall has made his decision; now let him enforce it.”16 The abhorrent truth is that Jackson simply did not want to help the Cherokee. Enforcing disliked Federal treaties or contrary Supreme Court decisions was not on Jackson’s agenda.
With Jackson, Federal Indian policy made a marked shift form that of assimilation to segregation. Former President, John Quincy Adams, went as far as to accuse Jackson of not faithfully defending the United States Constitution, laws and treaties because “the Executive of the United States is in league with the State of Georgia.”17 As shown through the infamous 1832 Bank Veto as well as Worcester v. Georgia, Jackson had no qualms letting his personal feelings override the will of the Legislative or Judicial branches of the United States government. There is no doubt Jackson detested Native Americans. Racism had thus infiltrated the most respected, powerful office of American politics.
This toxic combination of widespread racism, partisan politics, and the voracious Southern appetite for land all came to a figurative boiling point in Cherokee Nation v. Georgia. This one, final trail seems the last stand for a struggling Cherokee nation. John Ross, the primary chief of the Cherokee Nation, hired a brilliant team of lawyers headed by William Writ to argue the Cherokee case. Writ petitioned the United States Supreme Court to strike down Georgia’s extension laws on the grounds that they were unconstitutional and violated the sovereignty of the Cherokee people. Writ passionately argued that the Cherokee Nation was a foreign state because “They owe no allegiance to your constitution; have no voice in you laws….They pay you no taxes….They take no part in your foreign wars. […] And if they are not are not citizens of the United States, what can they be but a foreign nation, a foreign state, in the sense of the constitution?”18 By way of a carefully constructed argument, Writ noted that the Cherokee treaty of Holston required anyone who wished to travel through Cherokee lands to obtain a passport. Writ then pointed out that if the Cherokee Nation were not sovereign, this provision was completely unnecessary.19 Writ powerfully ended his argument with a heart wrenching appeal to the court’s collective conscience. Fully utilizing his renowned oratory skills, Writ spoke of a broken race grasping hopelessly at former treaties and broken promises.20
Ironically, the hunger for Cherokee land proved that many American citizens were quite willing to deny Native Americans the same inalienable they held on such a high pedestal. In many cases, the arguments made by Writ mirror those made by the patriots of the American Revolution. The Georgia legislature declared that “on pain of imprisonment for four years hard labor […] the Cherokee were proscribed from assembling for the purpose of holding court, legislating or ‘for any other purpose whatsoever.’”21 Thus, the Cherokee people were denied the freedom of assembly granted within the U.S. constitution. The Cherokee were subject to Georgia laws, but were denied the freedoms of every other Georgia citizen. Furthermore, the Cherokee had no voice in the creation of Georgia State law, bringing to mind the public outrage that accompanied the lack of representation in the British parliament during the years leading to the American Revolution. Certainly, nothing aside from an inferior, racist view of American Indians led to these laws, for, without the crutch of racism, no individualistic American could stand behind these edicts with clear conscience.
Despite the brilliant arguments presented by the Cherokee Nation, the Supreme Court decided in favor of the State of Georgia. In this benchmark, 4 to 2 decision, Justices John Marshall, Henry Baldwin, William Johnson, and John McLean concluded that the Cherokee Nation lacked the standing of a foreign state as defined by the U.S. constitution. Justices Joseph Story and Smith Thomson favored on the side of the Cherokee and offered the dissenting opinion. Although a controversial issue, it seems that without the strong political pressure, Justices McLean and particularly Marshall may have sided with the Cherokee. According to Tim Garrison, author of The Legal Ideology of Removal, “Marshall was cognizant that Congress was considering a resolution to repeal section 21 of the Judiciary Act of 1789, which gave the Supreme Court the power to review and reverse state court decisions.” Marshall thus feared siding with the Cherokee would “further antagonize those in Congress who wanted to circumscribe the jurisdiction of the Court.” Marshall even second guessed his own ruling after reviewing the case. Only having four days to form and write his decision, Marshall wrote, “The judge who pronounced that opinion had not time to consider the case in its various bearings.” By then, it was far too late.22
Justice Johnson’s argument was immensely shaped by the racist philosophy of the time. Arguing that the term ‘State’ could not be applied to “a people so low in the grade of organized society as our Indian tribes most generally are,”23 Johnson shows his preconceived bias against Native Americans. In fact, Johnson’s decision was solely based on an argument that highlighted “the differences between whites and Indians.” Like many of the era, Johnson believed in a graduated hierarchy of governmental institutions. The supposedly wild, hunter-gatherer like band was placed at the bottom, while the republic or newly contrived democracy was placed at the theorized forefront of human achievement. Johnson did acknowledge the fact the Cherokee had adopted a democratic government modeled after that of the United States, but as of yet, Johnson felt the Cherokee had not reached that “fixed state of society” that would allow them to rightfully question the “American claim to the continent”.24 Again, bigotry and politics are shown to be inseparable from the esteemed offices which govern the United States.
Justice Henry Baldwin also had a record of bigotry. Prior to his appointment to the Federal Supreme Court, Baldwin had served in the United States Congress. Although Baldwin was from Pennsylvania, he had very close ties to the American South. Abraham Baldwin, Justice Henry Baldwin’s half brother, had served as a Georgia delegate to the Continental Congress, Constitutional Convention, and U.S. Senate. Thus, as a Congressman, Baldwin voted against the Missouri Compromise in the hopes of extending slavery into the new U.S. territories. As a Supreme Court Justice, Baldwin would later back the majority opinion in Prigg v. Pennsylvania (1842) which upheld the Fugitive Slave Act.25 Like Justice Johnson, Baldwin was far from open-minded.
Turning to one of the Cherokee Nation v. Georgia dissenters, racism can still be found. Although Justice Joseph Story was prepared to strike the Georgia extension laws as unconstitutional, later events still mark him as prejudice. Justice Story not only backed the majority opinion in Prigg v. Pennsylvania, he wrote it. One must not mistake Justice Story’s favorable view regarding the Cherokee’s case as altruistic, for in supporting the Fugitive Slave Act, Story agreed that African American slaves were the private property of their owners.26 In both the majority and dissenting opinions, racism can sadly be found.
The United States Supreme Court has a long history of bigoted decisions. From Dred Scott to the Cherokee Nation, personal politics and individual belief systems have influenced every decision made on the bench. As unfortunate as the events surrounding Cherokee Nation v. Georgia are, there is no doubt that the individual biases held by each Justice infiltrated each verdict.
Many historians argue that Worcester v. Georgia (1832) was the genuine final stand of the Cherokee Nation. The Worcester decision essentially asserted that the extension laws imposed on the Cherokee by the Georgia legislature were unconstitutional.27 Despite the appearance of a victory, the fate of the Cherokee had already been sealed a year earlier with the decision of Cherokee Nation v. Georgia. Although the majority under Marshall now declared the Cherokee to exist outside Georgia law, the Cherokee Nation still carried the label of a “domestic dependent nation.” Every dependent must have its guardian; thus, the Cherokee had only shaken the authority of the individual state. The larger, more formidable power still exerted control over the Cherokee Nation. Though the Cherokee no longer answer to Georgia, the United States Federal government still held enormous power over its dependent. As previously exemplified, both the Executive and Legislative branches were pro removal. As history has shown, Georgia simply ignored the Supreme Court’s ruling. Andrew Jackson, furious the court had moved against his will made the notorious quote, “John Marshall has made his decision; now let him enforce it.”28 Although the Cherokee seemed to have won a victory, nothing came from it.
While gold and the ever-increasing desire for arable land forced the conflict of Cherokee Nation v. Georgia, the stain of racism and socially accepted bigotry forced the unjust outcome. The Cherokee were now doomed to be pushed from their ancestral land and forced along the infamous trail of tears. Americans everywhere turned their backs quite willingly on their fellow human beings. One can only speculate as to the outcome without the respective stains of bigotry and greed, but without a doubt, the Cherokee along with many other Native American tribes would still live among us in their rightful, ancestral homes.
1. Walter H. Conser, Jr. “John Ross and the Cherokee Resistance Campaign, 1833-1838,” The Jornal of Southern History 44 (1978): 194.
2. Tim A. Garrison, The Legal Ideology of Removal: The Southern Judiciary and the Sovereignty of the Native American Nations (Athens: University of Georgia Press, 1999), 119 & 271
3. Garrison, 103-104.The Jornal of Southern History
4. Vine Deloria, Jr. and Clifford Lytle, American Indians, American Justice (Austin: University of Texas Press, 1983), 27-30.
5. Garrison, 107-108
6. U.S. Congress, “Indian Removal Act of 1830,” n.d., 7. Garrison, 108
8. Garrison, 25
9. Garrison 128
10. Mary E. Young, “Indian Removal and Land Allotment: The Civilized Tribes and Jacksonian Justice,” The American Historical Review 64 (1958): 31.
11. U.S. Congress, “Indian Removal Act of 1830,” n.d., 12. Richard P. Longaker, “Andrew Jackson and the Judiciary,” Political Science Quarterly 71 (1956): 343.
13. John Eaton, “Letter to the Cherokee explaining President Jackson’s position,” (18 April 1829).
14. “Indian Removal: 1814-1856”n.d., 15. Garrison, 127
16. Longaker, 341
17. Charles F. Adams, ed., The Memoirs of John Quincy Adams (Philadelphia, 1876) VIII, 262-263. As cited by Longaker, 344.
18. Garrison, 129-134
19. Garrison, 271
20. Richard Peters, Case of the Cherokee Nation (1831). Richard Peters was the Supreme Court’s reporter during Cherokee Nation v. Georgia.
21. Garrison, 129. Here Garrison cites Acts of the Georgia General Assembly, (21 December 1830).
22. Garrison, 134-135
23. Garrison, 141
24. Garrison, 141. First quote is taken by Garrison from Johnson’s Cherokee Nation v. Georgia decision. Second quote is Garrison’s.
25. Garrison, 136
26. “Prigg v. Pennsylvania: Supreme Court of the United States (1842),” 41 U.S. 539. 27. David E. Wilkins, American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice (Austin: University of Texas Press, 1997), 275-276.
28. Longaker, 341