To what extent did the verdicts in Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832) reflect wider and / or popular views in Jacksonian America about White - Indian relations?
Within the remit of this essay, I will demonstrate that, through the precise wording of the opinions given in the Supreme Court cases of Cherokee Nation v. The State of Georgia (1831) and Worcester v. The State of Georgia (1832), the Justices of the court, under Chief Justices John Marshall, refuted more than they endorsed certain critical aspects of President Andrew Jackson’s federal Indian policy. It is my intention to further demonstrate that the relationship between white civilisation and American Indian civilisation, after being a ‘political football’ for some time, was manipulated by the Jackson administration, and that the Supreme Court decisions in the aforementioned cases failed to fulfil the Court’s constitutional remit of trying to keep the executive in check.
I will initially establish that the language they used with regard to the ‘civilising’ force of (Eurocentric) American society placed them at odds as a body with President Jackson and his administration, in that the Supreme Court did not align itself to the necessary Jacksonite preamble of removal to west of the Mississippi River for such a change to occur.
From the first European settlers in North America, the white man had tried to ‘civilise’ the ‘savage’ Indian: this fact alone acts as a marker of difference between the two cultures. Therefore one can expect that Western ideas of sovereignty with regard to the Indian tribes and nations would not fit comfortably with the latter: it is my intention to illustrate that not only was sovereignty (or supposed sovereignty) a central concern (albeit implicitly) of the Justices, but that their efforts to uphold it fell woefully short due to the Court misunderstanding the importance of tribal sovereignty to the Cherokees. Such a disaster was made worse in the face of hostility from both the Federal Government and the State Government of Georgia towards the Cherokees.
The debate over tribal sovereignty is critical as it composes a key element of the ‘foreign nation’ issue. Attacks upon Cherokee sovereignty were attacks upon their very right to call themselves a ‘nation’. Certainly the Jacksonites refused to acknowledge them as such, and Georgians and Georgia state legislators even less so.[1] I further show that Marshall and the Justices acted in the best interests of the Cherokee Nation (in terms of morality), even in the 1831 case, and would have announced the Cherokees ‘foreign’ if it were not for the commerce clause in the Constitution.
I then conclude that, although the Cherokees sought a friend in Chief Justice John Marshall, they indeed found a man very different from Old Hickory in the White House who was trying to remove them forcibly from their spiritual lands. Nevertheless, regardless of their acceptance of aspects of white culture (including the ratification of a constitution), their ties to sovereignty, and their ability to govern themselves, they were, in the end, let down and betrayed by the highest court in the United States. The body of the U.S. Government designed to curtail excessive executive and legislative extremes within the borders of the United States failed to define the white - Indian relationship explicitly and conclusively enough, allowing the other two branches of Government to ravage a nation which had once sought protection under it.
Chief Justice Marshall, it ought to be noted, was not unaccustomed to presiding over constitutionally significant Supreme Court cases (Marshall was in charge for Marbury v. Madison in 1803, let us not forget). As his judicial stint drew towards a close, he took it upon himself to define, for the benefit of the Federal Government, the apparently novel political relationship of the tribal nations with the United States.[2] This striving towards an almost conclusional definition of an undoubtedly complex relationship requires close scrutiny of Marshall’s cases involving American Indian tribes. Emphasis upon the refutation and verification of popular notions of White - Indian relations is necessary to place the cases and Marshall within the wider historical context of Jeffersonian America. How does the peculiar relationship between the American Indian tribes and the United States manifest itself in Supreme Court cases through the middle decades of the nineteenth century, a century which was engulfed initially by the issue, and later the execution of, both forced and voluntary removal of indigenous peoples?
Ever since Europeans had ‘discovered’ North America, they generally considered themselves as being more ‘civilised’ than the Native tribes and nations they found there. They defined their ‘civilised’ way of life through the existence of this new ‘savage’ Other. After the United States had won its freedom from Great Britain, president after president had spoken of ‘civilising’ the Indians. When Jackson assumed the presidency, he continued the country’s quest to civilise the Natives, but his method of doing so was inextricably linked to their prior removal west of the Mississippi. Whereas separation had once been one of a number of options for southern Indian tribes, Jackson made it compulsory. More extreme than Jackson were the politicians who advocated removing the Indians and leaving them there. Some, known as gradualists, emphasised the need to ‘civilise’ the natives. Jackson put the two together. As Weeks notes, “[o]nce physically separated from Americans, Indians would no longer impede white settlement and enterprise. At that point Gradualists would have sufficient time to implement their civilisation measures successfully.”[3]
The Marshall court had to take into account the manner in which ‘white civilisation’ was being constantly pushed on the Cherokees. At the very least, the Justices had to acknowledge that it was a force of some magnitude, due to Samuel A. Worcester, the named defendant in the second of the Cherokee cases, being a missionary trying to spread western ‘civilisation’ in the Cherokee nation when his initial detention was made. Nevertheless, specific mentions of the quest to bring Eurocentric ‘civilisation’ to that particular nation were made by the Justices. In delivering the opinion of the Court, Chief Justice Marshall observed that the Cherokee Nation was “in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian.”[4] Embedded in the word ‘pupilage’ is the notion not only of a hierarchical relationship, but a relationship where one nation assumes the role of the teacher, and the other nation becomes the pupil. Marshall’s use of the word ‘pupilage’ is fundamental because education was critical to the entire programme of civilisation. On a national scale, Marshall invokes the idea that the Cherokees were currently in a learning process, guided by the United States, and this ideology was as present on the ground as it was in the upper echelons of the U.S. Government. By the time the second Cherokee case was decided by the Supreme Court, the education of Indians was being funded by the Federal Government to the tune of $21,000 a year.[5] Chief Justice Marshall kept the judiciary in line with the legislature in speaking of the Cherokees assuming a position akin to pupilage: since 1818 education had been seen by the House Committee on Indian Affairs as a useful means of influencing future Indian - white relations.[6] This position gained strong momentum with the appointment, within the executive, of Thomas McKenney to the head of the Indian Bureau as Andrew Jackson first assumed office in 1828.
Some doubt may remain as to whether Marshall, in delivering the opinion of the court, was merely making an observation as to the current state of things, or whether he was actively supporting such a position in doing so. If some doubt remains, a firmer endorsement of such a position can be found in the supporting opinion of Justice Johnson. With regard to agricultural education, Johnson observes: “it is said, that we have extended to them the means and inducement to become agricultural and civilized. It is true: and the immediate object of that policy was so obvious as probably to have intercepted the view of ulterior consequences.”[7] The means and ways of agriculture were undoubtedly a characteristic of Western civilisation if the hunter-gatherer culture was the survival method of the ‘savage’ Indians. Unlike the theoretical overall goal of ‘civilisation’, agricultural living could be more easily observed and taught and measured. To that extent, the introduction of farming had been something of a success among the Cherokees.[8] So much so, in fact, that Jeremiah Evarts, the secretary of the American Board of Commissioners for Foreign Missions, used this newfound agriculture as a theme against Indian removal to west of the Mississippi. His argument was based around fears that such removal to vast open land would counteract the Cherokees adaptation of Western farming methods.[9] Evarts was the Christian talisman of the campaign against the removal of the Cherokees to west of the Mississippi. Justice Johnson’s statement puts him in alignment with the man who, as Francis Prucha has put it, “became the single most important opponent of President Jackson on the Indian removal issue.”[10]
How did this new ‘civilised’ behaviour of the Cherokee nation change white - Indian relations, if at all? Justice Thompson comments in his dissenting opinion that “[the Cherokee nation] retains its usages and customs and self government, greatly improved by the civilization which it has been the policy of the United States to encourage and foster among them.”[11] If these tribes ‘retained their customs,’ then one has to ask: is a conflict here between American and Cherokee customs? It appears that, for Thompson, the federal policy with regard to The Civilisation Programme is yet to have a usurping effect with regard to traditional / historic Cherokee life. In his view, the two work together in equality, each one contributing to a life ‘greatly improved’ than the one which preceded it.
The peculiarities of this equality were not unique, however. Indeed, this opinion aligns itself among other views of the time: it garners support in the face of the force of white supremacy, and its unquestioned superiority to every other race. At a time when the ideology of white supremacy was making the enslavement of Africans the norm, some men of influence still managed to question the effect of white supremacy towards American Indians, especially the five ‘civilised’ tribes. In 1830, the Daily National Journal of Washington, D.C. began an editorial-style analysis of the current situation with: “If there be really that unmeasurable moral and intellectual difference between the citizens of the United States, and the Cherokee and other civilised Indians, which the Georgia and Jackson logicians pretend that there is, we think it ought to be evident in the intercourse which takes place between us.” This cuts to the heart of the debate, asking to see, once and for all, the difference - the visible, tangible difference - between the ‘civilised’ Cherokee, and the ‘civilised’ American. The editorial draws distinct parallels between the editor of the Cherokee Phoenix and the United States Secretary of War, freely mentioning them in the same breath, as if they were cut from the same cloth. As the article continues, it openly invites the reader to draw comparisons between the two (and exclude any differences there may be), thus attacking the current relationship between Indians and Americans as cultivated by federal and state legislative and executive policy makers:
The letter which we publish a few days since from the Secretary of War to the Cherokee nation, is, we presume, intended by the Government of the United States, to be the standard of our intellectual and moral capacity. Whether high or low, it is to be received as the standard on the one side. On the other, the Editor of the Cherokee Phoenix has exhibited the Indian standard of moral and intellectual character, and as our readers have formed their opinions of Mr. Eaton’s letter, we think it due to the Indians that the language of their Editor should also be read. It may be mortifying to our pride, as we set ourselves so far above our red brethren, and consider them beyond the reach of civilization, to see our Secretary of War put here [illegible] by a Cherokee Editor - not with the tomahawk and scalping knife, or any such savage appendage, but with the pen, that only weapon to which moral and intellectual capacity resorts, either for offensive or defensive warfare; but we must bear the mortification. Let our readers peruse the criticism of the Cherokee, and make their own comments.
We published in our last copy a letter from the Secretary of War to the agent of the Creek nation, and which was forwarded to the agent of the Cherokees as [illegible] applicable to them. It is indeed applicable to the people of this nation, if the criterion which Mr. Eaton sets forth is to be taken as correct …
It is for the candid reader to say whether such logic is worth any thing, or, in other words, whether the refusal of the terms contained in the Indian bill will make the Indian a perfect savage. And put him beyond the possibility of reform; for the whole communication is but a series of false premises and arguments to prove that an “Indian will still be an Indian,” - that he cannot be civilised … [12]
There can be little doubt that political motivations were present when composing such a piece as this. One has to enquire, though, if a newspaper editor would be willing to question the unquestionable by probing the validity of white supremacy, just to spite a president who’s popularity was, at the time, definitely under the microscope?[13] It seems to me more likely the unforgiving nature of the policies put into effect by the Jacksonites were raising such difficult questions within the factions of American society left rueing the initial election of Jackson himself.
Regardless of how this sudden scepticism of white supremacy arose, the author of the piece (who remains unnamed) asked for readers to ‘bear the mortification’ of seeing themselves in the same light as the Cherokees: he highlights the indifference between the white man and the red man, but instead of dwelling upon it, he asked the reader to move on, to look to the future, to ‘peruse the criticism of the Cherokee, and make their own comments’ and their own judgement by considering both, equally.
The alleged savagery of the Cherokee nation is considered by both the author of the newspaper piece and the Justices of the Supreme Court as being a previous state of existence. The change, they agree, has been made. Justice Thompson speaks of “the progress made in civilization by the Cherokee Indians”[14] in the past tense, acknowledging that any possible social change white America could ask the Cherokees to make has been done: to the same end, the newspaper article of the previous year states that no longer is warfare done ‘with the tomahawk and scalping knife, or any such savage appendage, but with the pen, that only weapon to which moral and intellectual capacity resorts.’ The progress of the Indians in the direction of Eurocentric American life, whether it was the adoption of Western methods of farming, the establishment of a constitution, the use of the pen as a diplomatic weapon in place of a knife, or the retention of aspects of traditional culture as parallel to adaptation to certain aspects of white American life - this progress was a strong line of argument for the anti-Jacksonites in the presidential campaign of 1832, and for the twenty four previous months and longer they highlighted it, in order to suggest that the policies of the Jackson administration, the Federal Government, and the state of Georgia were warped into a condition where Indian removal was the only possible outcome, regardless of whatever action had been taken / was to be taken in the future by the statesmen of the Cherokee nation. From the wording of their opinions in the Cherokee cases, the Justices aligned themselves within this school of thought, along with publications such as the Daily National Journal and, of course, the Cherokee Phoenix: John Marshall, a long-time critic of Andrew Jackson’s, was quite at home there.
By 1832 the Cherokee issue was in the presidential election debating circle dwarfed, admittedly, by the debate over the national debt and Jackson’s attitude and actions towards the second Bank of the United States. It remained, however, a campaign issue, and ultimately cost the incumbent some votes. Most of these votes were in the north east of the United States, and thus mattered very little, but it was there, among northern philanthropists, that the idea of letting the Cherokees stay garnered the most support. Justice McLean, being only an Associate Justice of the U.S. Supreme Court, could take a more outspoken stance than John Marshall, who, as Chief Justice delivering the opinion of the Court, had to walk a finer line - McLean was able to sum up the developments of the Cherokee nation and speak openly about letting them stay on their ancestral land. In his opinion in the Worcester case, he wrote: “are not those nations of Indians who have made some advances in civilization, better neighbours than those who are still in a savage state?”[15] The word ‘neighbours’ has connotations of the Cherokee nation becoming a state of the Union, alongside and separate from Georgia. Regardless of whether he meant to imply this or not, Justice McLean now felt confident to manipulate the ‘civilising’ adaptations of the red man as a vehicle for allowing him to stay upon him spiritual home.
In his American Indian Sovereignty and the U.S. Supreme Court, David Wilkins suggests two main dimensions of tribal sovereignty: the first is a political/legal dimension, and the second is a broader cultural/spiritual dimension.[16] The breadth of this second element does not always stop it from being easily lost amongst the finer legal and political details of studies focusing on Supreme Court cases involving American Indian tribes. When sovereignty is so largely and strongly assumed from cultural and spiritual traits unique to the indigenous North American nations, the sovereignty manifests itself in ways not akin to Western legal thought and can appear out of place in Western legal procedures.
Chief Justice John Marshall observed in 1831’s Cherokee Nation v. Georgia opinion that “the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist no where else.”[17] This peculiarity, I believe, was derived as much from the uniqueness of the construction of American Indian sovereignty as it was from the fumbling attempts of the United States judiciary (and the wider Federal Government) to wrestle some meaning out of it. At a time when two of the three branches of the Federal Government (as well as State Governments such as Georgia) were pushing hard for the removal of the Cherokee nation, these ‘peculiar and cardinal distinctions’ become of the utmost importance and today they demand a lot of attention with regard to how they work in favour of but also against the sovereignty of the Indians in question.
The crusade towards the removal of American Indian nations was well under way by the time Chief Justice Marshall re-examined and reiterated his Doctrine of Discovery in 1832’s Worcester v. Georgia case. The formal positioning of the Federal Government at the time of the opinion was far from one of outright hostility towards the Indian tribes: up until the last five years, Indians usually sold lands to the settlers as they demanded it, allowing the President and Congress to portray the cession as one which had been voluntary. The treaties the Indians signed showed no signs of the agitation and threats which had often preceded its writing.[18]
The treaty remained the central form of communication and interpretation of power between Indian tribes and the Federal Government, but with the election of Andrew Jackson to the presidency in 1828 their importance was dented somewhat: for years, Jackson had considered the making of treaties with the Indians a farcical activity at best, and in March 1817 he complained to the then President James Monroe of the absurdity of making treaties with the Indians.[19] Nevertheless, treaties remained of great significance to the judiciary, even if the head of the executive had little time for them. This difference in attitudes is imperative: not only does it highlight the political gulf between Marshall and Jackson, it also serves as an identifier as to each man’s stance on the question of Indian sovereignty. Jackson loathed the concept of the treaty because it suggested the Indians had jurisdiction, power, authority, and legitimate sovereignty over where they resided.[20] Marshall liked the concept of the treaty for the very same reason, as is evident in the Cherokee case opinions. In ruling on Worcester v. Georgia, Marshall carefully describes his Doctrine of Discovery through his reciting of the Treaty of Hopewell from 1785. His description of the wording is worth noting:
The English, the French, and the Spaniards, were equally competitors for their friendship and their aid. Not well acquainted with the exact meaning of words, nor supposing it to be material whether they were called the subjects, or the children of their father in Europe; lavish in professions of duty and affection, in return for the rich presents they received; so long as their actual independence was untouched, and their right to self government acknowledged, they were willing to profess dependence on the power which furnished supplies of which they were in absolute need, and restrained dangerous intruders from entering their country.[21]
Marshall’s emphasis of the Cherokee’s ease with acquiring any title which the settlers were wishing to apply to them should be considered only alongside his later observation that “it [is] reasonable to suppose, that the Indians … could not write, and most probably could not read [and] certainly were not critical judges of our language.”[22] Whether he intended to or not, Marshall implies that those who were wording the treaty - the settlers - did so in a way which gave two different meanings to the settlers and the Indians. To use Marshall’s example, the Indians would not distinguish between ‘allotted’ and ‘marked out’ land. The inclusion of the former rather than the latter would be interpreted by judicial authorities as land which had been given from one party to another (from the settlers to the Indians) rather than just assumed by the Indians.
Also manifested in the above quote is the notion that the Cherokees were, in fact, ‘domestic dependent nations.’ It was this assertion a year earlier in Cherokee Nation v. Georgia that resulted in Marshall deciding not to decide the case, so to speak. It was a case in which he could not agree with the counsel’s argument that the Cherokee’s were a sovereign foreign nation as defined by the Constitution, yet nor could he agree with the administration’s defence (although no counsel for Georgia turned up to either of the Cherokee cases) that the tribes were at the mercy of Georgia.[23] For a Supreme Court Chief Justice who had set out to contextualise and give substance and meaning to the relationship of the Federal Government to the American Indians, Marshall’s inability and unwillingness to conclusively rule either way in the first of the two Cherokee cases led him to undertake two unusual measures. First, he urged the dissenting Justice Thompson to write an opinion (which he initially did not plan to do), and, second, he included in his own opinion guidance for how to bring another case before the Supreme Court.[24]
On initial inspection, Chief Justice Marshall’s examination of sovereignty in relation to the Cherokee nation and its relationship to the United States appears inconsistent from one case to the next. In 1831’s Cherokee Nation case, he writes that “[t]hey never have been recognised as holding sovereignty over the territory they occupy,”[25] but twelve months later he was quoting Swiss philosopher Vattel and asserting that “‘Tributary and feudatory states,’ says Vattel, ‘do not thereby cease to be sovereign and independent states, so long as self government and sovereign and independent authority are left in the administration of the state.’”[26] How can the two co-exist together? Had Marshall’s personal opinion altered so much in less than twelve months?
The critical difference between the two centres on the way in which each case came to the Supreme Court. In 1831 the Cherokee nation filed as a sovereign nation independent of the United States (hence the case name), but Marshall felt that the Commerce clause (“To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes”[27]) of the Constitution was proof enough that the Cherokees were not, in the eyes of the Constitution, a foreign nation. So while they were not a sovereign, independent nation, they did still retain the right to sovereign authority and self-government.
Nevertheless, Marshall later asserts that it “cannot be questioned that the right of sovereignty, as well as soil, was notoriously asserted and exercised by the European discoverers.”[28] Marshall’s observation is purely that: an observation. This observation was, however, a desired reality for many pro-Jackson newspapers. In 1830, the Louisville Public Advertiser, which at the time was the most powerful newspaper in Kentucky,[29] showed no willingness to halt the sweeping away of the ‘red man’ by the ‘white tide’. In support of removal to West of the Mississippi River, the Advertiser remembers that “the increase of the whites … caused the tribes of the north to be swept from the face of the earth, as with a “sweeping pestilence” - and the tribes of the south must inevitably “share the same fate,” unless they consent to emigrate beyond the Mississippi.”[30] The lack of sentimentality for the loss of many indigenous peoples and so many varied and numbered unique cultures further emphasises the force of the white invasion of North America: one which, for not only the Louisville Public Advertiser, but for many Jacksonites, was set to continue in the coming decade.
Moreover, Marshall’s brief historical observation is not followed by any statement asserting that such a trend either does or should continue by 1831. The statement holds within it one word upon which it pivots: notoriously. The word carried with it the same meaning in 1831 as it does today: “with depreciative or unfavourable connotations.”[31] Without the word, the statement becomes ambivalent towards to Indians, but with its inclusion, Marshall takes a stance against the prolonging of such policies, highlighting their ‘notoriousness’. He takes the first tentative steps towards defending Indian sovereignty, which was nullified under European sovereignty, but in a case where he was ruling them not a sovereign nation in the guise of the Constitution, he was limited in what he could say.
The Jacksonites’ acceptance of the utter inevitability of the indigenous peoples of the south suffering the same fate as the tribes who used to inhabit the north of the United States is not shared by the Justices of the Supreme Court. It is against such single-minded views that they were writing. Through the entire editorial, at no point is assimilation and the retaining of their historic sovereignty over their ancestral lands even thought of as a possible alternative solution to annihilation. Indian claims to sovereignty appear utterly futile in the face of such harsh sentences, but newspapermen who opposed the Jacksonites understood the situation differently.
The Norwich Courier newspaper took an educated stance towards Chief Justice Marshall’s non-decision in the 1831 Cherokee Nation case. It understood the legal correctness of the decision taken by Marshall, but observed that it did not really matter at all. [32] What should be of the utmost concern was the morality of the Cherokee cause. Chief Justice Marshall was in full agreement with this, as early on he stated that “if courts were permitted to indulge their sympathies, a case better calculated to excite them can scarcely be imagined.”[33] As the contention of the sovereignty of the Cherokee nation got in the way of the morals, a new case seemed inevitable, and once it came in the form of Worcester v. Georgia, Marshall intended to indulge himself.
As the debate over the Cherokee nation’s claim to sovereignty with regard to their spiritual lands continued through 1830, the Baltimore Republican dragged up old sentiments of John Quincy Adams from 1802, in which he asks: “[b]ut what is the right of a huntsman to the forest of a thousand miles, over which he has accidentally roamed in quest of prey?”[34] This is another instance where the cultural divide between the European immigrants to North America and the native peoples manifests itself in relation to the definition, understanding and execution of ‘sovereignty.’ Whereas white Americans had established individualism as a fundamental trait of life in the New World, inherent as it was in ‘life, liberty and the pursuit of happiness,’ such a term as ‘individualism’ was most foreign to tribesmen who were living in a culture where the tribe was sovereign. Adams was spectacularly missing the point in asking what the relationship of the huntsman to the forest was, for the huntsman himself had no sovereignty over the forest in the slightest. The emphasis of such a question should have been on the relation of the collective to the land.[35] Tribal nations, whether Adams cared to admit it or not, carried with them a measure of inherent sovereignty.[36]
Adams’s failure to grasp, understand, and implement tribal sovereignty to any significant degree is far from unique. Within Supreme Court rulings there is a long history of a failure to recognise it, and it dates back to 1831’s Cherokee Nation v. Georgia case.[37] It was in his opinion of this case that Chief Justice Marshall made an unwise (and racist) comparison to sovereignty among different European nations: “[t]hey have in Europe sovereign and demi-sovereign states and states of doubtful sovereignty. But this state, if it be a state, is still a grade below them all.”[38] For a man who had already come to the fair conclusion that their relationship to the United States was that of a ‘ward to a guardian’, Marshall implies that their tribal sovereignty, and the tribes claim to this land which was now considered to be a part of the state of Georgia, is simply not equal to the sovereignty of European nations. Wilkins is quite clear that tribal sovereignty is different from European notions of sovereignty, but Marshall makes it worthless in the face of the latter, stating it is ‘a grade below them all’.
This lack of recognition for the value of tribal sovereignty and complete misunderstanding of the concept, along with its comprehensive difference from European sovereignty, was rife throughout America in the 1830’s. As one historian, Marques James, has noted, “on a frontier the violation of an Indian treaty was regarded as a prerogative of the superior race.”[39] Indian sovereignty could not be expected to fair any better. The Supreme Court’s inability to defend what it could only misinterpret made it, at best, ineffective, and at worst, ignorantly racist. What James also touched upon here, is the notion of dominance that the Federal Government carried out of such treaty-making negotiations, and such ascendancy was infused in Justice Baldwin’s opinion of the Cherokee Nation case (Baldwin’s opinion concurred with Marshall’s opinion). “To correctly understand the constitution,” wrote Baldwin, “we must read it with reference to this well known existing state of our relations with the Indians; the United States asserting the right of soil, sovereignty, and jurisdiction, in full dominion; the Indians oecupant [sic], of allotted hunting grounds.”[40]
But not everybody was so enthralled by the state of current events. One Mr. Adams,[41] in a memorial for a large number of citizens from New York to Congress, described a changed American attitude towards white - Indian relations to the legislature at the same time that Chief Justice Marshall decided Worcester v. Georgia case in 1832. The Carolina Observer happily published the text of what was said, with statements pertaining to Georgia’s “equal disregard for the Union, and the rights of the Indians.”[42] Both Indian rights, including their sovereignty, and the state of the Union were, in the eyes of Mr. Adams and the other memorialists, equally tarnished. Whilst it is too big a leap to presume that these men considered regard for the Union and regard for Indian rights and Indian sovereignty as being due equal consideration, it is clear they understood that there was a relationship between the two: a crushing of Indian rights would be a severe blow to Federal Government, as Indian rights were (supposedly) protected in countless treaties between the two, and independent from State Governments. In 1832 the American Revolution and the war against ‘big’ Government were still within living memory, but some men, such as these memorialists, realised that a Union between the separate states still had to have some power drawing them together as one.
The relationship between the Cherokees and the whites is undoubtedly a complex one. Chief Justice Marshall’s willingness to consider and acknowledge the effect of the ‘civilising’ force of western methods of farming gave him a broader view than Jackson afforded himself. Justice Johnson’s alignment with humanitarian Jeremiah Evarts gave himself (and the wider Supreme Court bench) a position confounding the federal policy being churned out by the executive and the legislature; and Justice Thompson went as far as giving an opinion with the beginnings of questioning white supremacy. To speak of savagery as a previous state of existence credited the Cherokee nation with the ability to evolve in ways which the European Americans thought to be progressive. The Supreme Court Justices acknowledged and recognised it, but could do nothing to enforce it.
Ultimately, the Justices lack of clarity with regard to sovereignty in the face of Jackson’s hostility let the Cherokees down. Whilst it is true the Justices did not share the same opinion of some Jacksonite newspapers that the annihilation of the southern tribes was a forgone conclusion, they did not define tribal sovereignty explicitly enough to take a meaningful stance against such an outcome. The Bench’s willingness to consider the text of treaties (especially the Treaty of Hopewell) carefully was more than Jackson was willing to do, but their failure to draw meaningful conclusions in favour of Indian sovereignty as existing on behalf of the Cherokee nation made their efforts yet another step on the road towards the Trail of Tears. As Rogin put it, “white policy makers imagined Indian destruction as an abstracted and generalized process removed from human control and human reality.”[43] The branch of the Federal Government which is supposed to keep the executive and legislature in check failed to make them think again and recognise both the strength of tribal sovereignty and the strides in ‘civilisation’ the Cherokees had taken to remain on their land. Their failure with regard to the former stemmed from their inability to comprehend it.
Notes
1 Gagnon writes: “[p]rior to his [1828] election as President, Jackson had already decided to treat the numerous Indian tribes, and their citizens, within the borders of the United States as citizens of the United States rather than as sovereign and independent nations.” Joshua A. Gagnon, “The “Great American Desert”: The Congressional Debate on the Indian Removal Act of 1830,” thesis, University of Maine at Farmington, 2006.
2 David Wilkins, American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice, (Austin, TX: University of Texas Press, 1997): 21. Although Wilkins makes this point specifically in relation to the case of Cherokee Nation v. Georgia, it applies, I feel, to a number of major cases involving Indians, certainly all the cases he presided over mentioned here in this paper.
3 Joseph Weeks, Farewell, My Nation: The American Indian and the United States in the Nineteenth Century, (2nd edn.: Wheeling, IL: Harlan Davidson, 2001): 42.
4 Cherokee Nation v. Georgia, 30 U.S. 1, 5 Pet. 1, 8 L.Ed. 25 (1831) 17.
5 Donald N. Satz, American Indian Policy in the Jacksonian Era, (2nd edn.: Norman, OK: Red River Books, 2002): 247.
6 Ibid., 247.
7 Cherokee Nation v. Georgia, 23.
8 For a thorough account of Indians and the introduction of Western farming methods, see Janet A. McDonnell, The Dispossession of the American Indian: 1887 - 1934, (Indianapolis, IN: Indian U.P., 1991), esp. Ch 2, “Putting the Land to Work: Indian Farming and Stockraising.”
9 Francis P. Prucha, The Great Father volume 1: The United States Government and the American Indians, (London: The University of Nebraska Press, 1984): 203.
10 Francis P. Prucha, “Protest by Petition: Jeremiah Evarts and the Cherokee Indians”, in Proceedings of the Massachusetts Historical Society 97, (1985): 46.
11 Cherokee Nation v. Georgia, 60.
12 “The Cherokees,” Daily National Journal (Washington, DC). Nov. 9, 1830.
13 Kenneth Penn Davis notes, with regard to the election of 1832, that “[i]t was suggested by many that Jackson would be defeated by Henry Clay,” illustrating that Jackson’s popularity was far from universal throughout his entire time in office. Kenneth Penn Davis. “Chaos in the Indian Country: The Cherokee Nation, 1828-35.” The Cherokee Indian Nation: A Troubled History. Ed. Duane H. King. Knoxville, TN: University of Tennessee Press, 1979: 138.
14 Cherokee Nation v. Georgia, 55.
15 Worcester v. Georgia, 31 U.S. 515, 6 Pet. 515, 8 L.Ed. 483 (1832) 590.
16 David Wilkins, American Indian Sovereignty and the U.S. Supreme Court, 20.
17 Cherokee Nation v. Georgia, 16.
18 Joseph C. Burke, “The Cherokee Cases: A Study in Law, Politics, and Morality”, in Stanford Law Review 21, 3 (Feb. 1969): 501.
19 Francis P. Prucha, The Great Father volume 1, 192.
20 Ibid., 192.
21 Worcester v. Georgia, 546-7.
22 ibid., 552.
23 Satz, 45.
24 Burke, “The Cherokee Cases,” 516.
25 Cherokee Nation v. Georgia, 22.
26 Worcester v. Georgia, 561.
27 “The Constitution of the United States,” Article 1, Section 8, Clause 3.
28 Cherokee Nation v. Georgia, 22.
29 John E. Kleber, The Encyclopaedia of Louisville, (Louisville, KY: University Press of Kentucky, 2001): 655.
30 “Indian Sovereignty,” Louisville Public Advertiser. Feb. 26, 1830.
31 “notoriously, adv.” OED Online, Sept. 2009, Oxford University Press, Jan. 17, 2009,
32 The Norwich Courier article is reprinted under the heading “Indian Question,” Cherokee Phoenix. Apr. 30, 1831. “[T]his decision affects not in the slightest degree the moral question as to the treatment of the Indians,” wrote the editor of the Courier.
33 Cherokee Nation v. Georgia, 15.
34 Reprinted under the title “Indian Title to Sovereignty,” Louisville Public Advertiser. July 13, 1830.
35 Asking such a question as this would have drawn Adams closer to the answer that the tribe was sovereign over the forest, not the individual huntsman. Such an answer of course, would have been most undesirable towards the policy of his administration in 1802.
36 David Wilkins, American Indian Sovereignty and the U.S. Supreme Court, 19-20.
37 Ibid., 126.
38 Cherokee Nation v. Georgia, 26-7.
39 Marquis James, The Life of Andrew Jackson, (New York, NY: Garden City Publishing Co., 1940): 549.
40 Cherokee Nation v. Georgia, 40.
41 This Mr. Adams is not John Quincy Adams, for he was deceased six years before this. This Mr. Adams remains unnamed.
42 “Congress: House of Representatives,” Carolina Observer. Mar. 13, 1832.
43 Michael P. Rogin, Fathers and Children: Andrew Jackson and the Subjugation of the American Indian, (New York, NY: Alfred A. Knopf, 1975): 247-8.
Bibliography
Brady, Cyrus T. The True Andrew Jackson. London: J.B. Lippincott Co., 1906.
Burke, Joseph C. “The Cherokee Cases: A Study in Law, Politics, and Morality.” Stanford Law Review. 21. 3 (Feb. 1969): 500 - 531.
Cave, Alfred A. Jacksonian Democracy and the Historians. Gainesville, FL: University of Florida Press, 1964.
Cherokee Nation v. Georgia, 30 U.S. 1, 5 Pet. 1, 8 L.Ed. 25 (1831).
“Congress: House of Representatives.” Carolina Observer. Mar. 13, 1832: np.
Davis, Kenneth Penn. “Chaos in the Indian Country: The Cherokee Nation, 1828-35.” The Cherokee Indian Nation: A Troubled History. Ed. Duane H. King. Knoxville, TN: University of Tennessee Press, 1979. 129 - 147.
Gagnon, Joshua A. “The “Great American Desert”: The Congressional Debate on the Indian Removal Act of 1830.” thesis. University of Maine at Farmington. 2006.
Gammon, Samuel R. The Presidential Campaign of 1832. Baltimore, MD: Johns Hopkins Press, 1922.
“Indian Question.” Cherokee Phoenix. Apr. 30, 1831: np.
“Indian Sovereignty.” Louisville Public Advertiser. Feb. 26, 1830: np.
“Indian Title to Sovereignty.” Louisville Public Advertiser. July 13, 1830: np.
James, Marquis. The Life of Andrew Jackson. New York, NY: Garden City Publishing Co., 1940.
Kleber, John E. The Encyclopaedia of Louisville. Louisville, KY: University Press of Kentucky, 2001.
McDonnell, Janet A. The Dispossession of the American Indian: 1887 - 1934. Indianapolis, IN: Indian U.P., 1991.
“notoriously, adv.” OED Online. Sept. 2009. Oxford University Press. Jan. 17, 2009. http://dictionary.oed.com/cgi/entry/00327592?single=1&query_type=word&queryword=notoriously&first=1&max_to_show=10>
Prucha, Francis P. Indian Policy in the United States: Historical Essays. London: The University of Nebraska Press, 1981.
---. The Great Father volume 1: The United States Government and the American Indians. London: The University of Nebraska Press, 1984.
---. “Protest by Petition: Jeremiah Evarts and the Cherokee Indians.” Proceedings of the Massachusetts Historical Society. 97 (1985): 42 - 58.
Rogin, Michael P. Fathers and Children: Andrew Jackson and the Subjugation of the American Indian. New York, NY: Alfred A. Knopf, 1975.
Satz, Donald N. American Indian Policy in the Jacksonian Era. 2nd edn.: Norman, OK: Red River Books, 2002.
“The Cherokees.” Daily National Journal (Washington, DC). Nov. 9, 1830: np.
Weeks, Joseph. Farewell, My Nation: The American Indian and the United States in the Nineteenth Century. 2nd edn.: Wheeling, IL: Harlan Davidson, 2001.
Wilkins, David. American Indian Sovereignty and the U.S. Supreme Court: The Masking of Justice. Austin, TX: University of Texas Press, 1997.
Williams, Robert A. The American Indian in Western Legal Thought: The Discourses of Conquest. Oxford: Oxford U.P., 1990.
Worcester v. Georgia, 31 U.S. 515, 6 Pet. 515, 8 L.Ed. 483 (1832).
No comments:
Post a Comment