Jacksonland: A Great American Land Grab (24 page)

When considering why, in later years, his people stayed at Ross’s side through every defeat and disaster, seemingly willing to follow him even to their own doom, it is worth recalling this three-week journey by the principal chief.
Accompanied by Cherokee leader George Lowrey and solid, strong Major Ridge, he saw his people at home—poor farmers and their families in modest cabins, living from harvest to harvest, the adults often illiterate, the children possibly learning to read in one language or the other. Ross paid attention to them. People remembered. Ross remembered too: he understood how devoted the people were to their homes, and knew that if he wanted their support, he must never forfeit their rights. He came to feel, as Jackson did, that the people spoke through him.

 • • • 

The months in which John Ross was urging his people to wait for deliverance were the same months in which Samuel Worcester was being urged to leave New Echota, then being arrested for the second time, and then scheduled for trial. If Worcester were convicted, his case might be the one that would propel the Cherokees back into the Supreme Court. Ross’s legal team knew this almost for a certainty, because they had been advised of it by Chief Justice Marshall, who now played a role in obtaining a second chance for the Cherokees’ cause.

Marshall was the man whom later generations would credit for establishing the court as a powerful branch of government. He did so in part simply because of his longevity. In his early twenties, during the Revolution, he had been a junior officer in George Washington’s army. In 1801, when Marshall was not quite forty-six, the defeated and departing President John Adams appointed him to the court; thirty years later Adams and nearly all the Revolutionary leaders were gone, but Marshall was where they had left him. The precedents he set—such as
Marbury v. Madison,
the 1803 case establishing the court’s authority to decide whether legislation was unconstitutional—would be maintained for decades by the very chief justice who set them. The Constitution did not explicitly grant or deny the court such power; most of its powers had been left to be determined by Congress. The very architecture of early Washington, DC, implied a court that was not quite the equal of the legislature or the executive; there was not a separate court building, leaving the justices for most of Marshall’s tenure tucked in their chamber on the ground floor of the Capitol, literally underneath the Senate. But by establishing his court as the arbiter of the meaning of the Constitution, Marshall sometimes pruned the other branches.

Shown in portraits with strong features and a confident expression, the silver-haired chief justice remained formidable deep into his seventies, a political as well as a judicial figure. During the summer of 1831
he exchanged letters with William Wirt, telling the Cherokees’ lawyer exactly what to do: identify an individual with proper standing whose rights were denied before a Georgia state court. The decision by the state court could be appealed to Marshall’s Supreme Court, which had the right to hear such appeals. This would create the basis for Marshall to draft a ruling that blocked Georgia from extending its laws over the Cherokees.

In many modern-day courtrooms it would be considered unusual, if not unethical, for a judge to give private strategic advice to a plaintiff with whom he sympathized. But concepts of ethics were different in 1831 (and even in later days, the Supreme Court would largely exempt itself from conflict-of-interest rules that applied to other courts). Marshall, part of Washington’s elite for as long as there had been a Washington, was comfortable showing his cards to another member of that elite in order to orchestrate the outcome he believed to be right. Wirt did not miss the significance of Marshall’s advice. He wrote to John Ross, advising his client to attempt the “
experiment” of Marshall’s strategy. Ross, though struggling to pay the legal team’s bills (he was sending money whenever it came in, as little as $100 at a time), authorized the effort. The “experiment” turned out to be Samuel Worcester.

On September 16, 1831, Worcester was one of eleven missionaries who appeared as required for their state trial in Lawrenceville, Georgia, on charges of living without a state permit on Indian lands—or “unsettled areas,” as the Georgians called them. All eleven were convicted. All received sentences of
four years “at hard labor” at the prison in the state capital. Governor Gilmer, apparently understanding the potential for disaster, persuaded nine of the eleven to accept clemency and leave the state. Two missionaries declined—a man named Elizur Butler, and Samuel Worcester. They were put to work
making cabinets at the state prison at Milledgeville. Worcester did not complain much about conditions, however, and even found time to obtain northern newspapers and read them. Once, he read a newspaper stating that the two missionaries
were being forced to assemble “lottery wheels,” the machines that Georgia was using for a lottery to parcel out Cherokee land to lucky white citizens. Worcester, with characteristic irony, wrote a letter to the editor to say it wasn’t true; the lottery wheels were being built at the prison, but the warden “
studiously avoided calling on us to assist in that work,” since it might offend their feelings.

John Ross knew he had a case, and wrote to his lawyer Wirt about it in early October. The records of the trial were already on their way to Wirt, Ross assured him. Ross worried only that the state of Georgia would find some way to make the case moot.

Should the legislature of Georgia repeal the law under which the missionaries have been committed and liberate them . . . what effect will it have upon these cases? Will the S Court proceed to decide upon the question of the Constitutionality of the Law of Georgia exercising jurisdiction or not? Please to inform me.

Georgia, it turned out, was not yet willing to go to the extreme of repealing its law.
William Wirt appealed to the high court in a case that came to be known as
Worcester v. Georgia,
and John Marshall with other justices heard the arguments on the Capitol’s ground floor on February 20, 1832.

There wasn’t much drama in the court; the defendant’s table was empty. Georgia again refused to send a representative. The drama came later, in Marshall’s written ruling. The chief justice posed as a reluctant participant, who had no choice but to address the case because it so clearly fell under his court’s jurisdiction. “
This duty, however unpleasant, cannot be avoided,” Marshall wrote, overlooking his own role in making certain that the duty came his way.

Marshall reviewed the entire history of relations between the Indians and the settlers who had come from Europe. He had lived through a substantial part of that history, and had given it much thought. He began with a reference to “the right of discovery,” the initial basis of
European claims in North America, essentially that colonial powers gained authority over land by exploring it.

America, separated from Europe by a wide ocean, was inhabited by a distinct People, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws. It is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer, rights in the country discovered, which annulled the pre-existing rights of its ancient possessors
.

Marshall did not believe that the Europeans could become the owners of land simply by sending “adventurers” to go “sailing along the coast, and occasionally landing on it.” Nor did he accept that “nature” granted the Europeans the right to take the land simply because they believed they had a more sophisticated economy or civilization. It was true that the settlers and their descendants had gained control of much of the land through “power, war, conquest,” and that the United States now possessed rights that were “conceded by the world.” But there was no evidence that the Cherokee Nation had surrendered its remaining rights to its remaining land. Congress had approved a series of treaties with Indians, dating back as far as 1778, which again and again affirmed Indian nations in the possession of their land—and from this point on, Marshall could almost have been reciting his history from memory, for he was old enough to recall it. Here and there, the Indian treaties contained ambiguous phrases that might be interpreted to mean that the United States now owned all the land, and that the Indians were only to be “allotted” some of it, but Marshall did not believe the Indian leaders of past generations “
who could not write, and most probably could not read,” would ever have understood such subtle interpretations, and could
hardly have been said to have agreed to them. Indian nations were “distinct, independent political communities, retaining their original natural rights, as the undisputed possessors of the soil, from time immemorial.” They still possessed rights, even if they had placed themselves under the protection of the United States. “Protection,” Marshall wrote acidly, “does not imply the destruction of the protected.” Georgia could not interfere in their affairs; Congress alone had, in the words of the Constitution, “the powers of war and peace; of making treaties, and of regulating commerce . . . with the Indian tribes.” The state law under which Samuel Worcester was imprisoned was “consequently void, and the judgment a nullity . . . repugnant to the constitution, laws, and treaties, of the United States.”

Marshall resolved the dissonance between the Indian map and the map of the United States. It is better said that he destroyed it. There really was no conflict. The states controlled those parts of the continent that had been gained through legitimate purchases, treaties, or war. Indian nations controlled the territories that remained. The federal government was supreme over both states and the Indian “domestic dependent nations,” which was exactly the role Marshall wanted for the federal government; he was an old Federalist, who believed in the value of a strong central authority. He was interpreting the law in a way that fit his own politics, but he was also relying on what the law, treaties, and facts demonstrated. Of all the era’s arguments over Indian removal, Marshall’s ruling was the clearest and best summary of what he called “
the actual state of things.” The pressures that Georgia, and by extension the president, brought to bear on the Cherokee Nation were simply fraudulent pretensions. Would “
these powerful considerations” produce the freedom of Samuel Worcester? Marshall answered simply: “We think they will.”

W
hen word of Marshall’s ruling reached the Cherokee Nation, people held feasts and dances. Elijah Hicks, a Cherokee politician, wrote that “
every Indian knows now that he stands upon a solid foundation,” although Cherokees also knew “that immediate relief does not follow as a consequence” of the court’s decision. John Ross allowed himself a moment of celebration, the first that had been warranted in years. “
Our adversaries are generally down in the mouth,” he wrote in a letter.

There are great rejoicings throughout the nation on the decision of the supreme court upon the Cherokee case. Traitors and internal enemies are seeking places where to hide their heads.

But there was also something discordant about the letter. Traitors? Internal enemies? Ross did not seem like a man triumphantly enjoying a feast.

The principal chief of the Cherokee Nation had reason to doubt that he could keep all of his people behind him. Some in the elite wondered how long they could continue on Ross’s course. Despite the ruling, Worcester was still hammering cabinets at the prison at Milledgeville. The Georgia Guard continued enforcing state laws in
the Cherokee Nation. Cherokee legislators were no longer meeting in New Echota, fearing arrest for defying
Georgia’s abolition of their government; they had to meet across the Tennessee line. “Georgia,” reported the
Cherokee Phoenix
, “has commenced her survey of the Cherokee country notwithstanding the decision of the supreme court. Our country is now overrun with surveyors, laying off the land into small sections of about two hundred acres. The gold region is to be laid off into lots of forty acres. . . . Five hundred and fifty men employed in surveying, marking trees, or otherwise.” The
Phoenix
cited a federal law forbidding surveys of Indian land, punishable by a $1,000 fine and a prison term of up to twelve months. Federal authorities did nothing to enforce it. The surveyed lots were to be apportioned among white citizens through a random drawing, using the “lottery wheels” being built at the Milledgeville prison.

And then word came from Washington that Justice Marshall’s ruling might not have been as conclusive as Marshall believed it should be.

At the time of the ruling, the annual Cherokee delegation was in Washington, and received an invitation to meet with Supreme Court justice John McLean. He was a member of the court majority that had just ruled in the Cherokees’ favor. He had even gone so far as to write an opinion concurring with Marshall’s ruling. The Cherokees may have thought that they would be greeting an ally. But McLean was a new justice on the Supreme Court, having recently been appointed by President Andrew Jackson, who could not have been pleased with his appointee’s action. Now it fell to Justice McLean to be the one to deliver a message from the administration.

The delegates reported back to Ross, who later summarized what he had learned: “
It was [McLean’s] firm belief that we are not to realize what we expected from the decision of the court. It was however the duty of the court to have done what they did, but the executive would not sustain them.” Jackson’s appointee to the court was saying that Jackson would refuse to enforce the law. McLean then moved to close off the Cherokees’ next avenue of hope: it was an election year, yet even if
Jackson were to lose his job it would make no difference. “Allowing there should be a change in the administration of the govt. he explained the impossibility of enforcing the decision unless Georgia voluntarily submitted.” Another avenue was closed: “Were the missionaries released, it would not amount to a withdrawal of the laws of the states from our Territory.” Finally, McLean offered some advice to the Cherokee Nation: “to unburden itself by a removal.”

The Supreme Court had moved elegantly but not ruthlessly. It could not operate with the speed of one of Andrew Jackson’s armies; nor could it, like Jackson, disregard the law when convenient, since its sole weapon was the law. Marshall had to follow legal procedure. The Judiciary Act called for the court to send the Georgians notice of their error and give the Georgia courts an opportunity to comply.
Only after the Georgia courts failed would Marshall be in a position to push for federal measures against them. It was considered inevitable that the Georgia courts would fail to comply, but the Supreme Court did not stand in readiness for this to happen, adjourning for the year on March 17. The court would not sit again until January 1833, so it would be many months before it could even attempt to add more pressure.

Henry Clay worried about where the country was heading. He wrote that if Georgia resisted the ruling, “
and the President refuses to enforce it, there is a virtual dissolution of the Union.” But President Jackson seemed unconcerned. He took no steps, formal or informal, to encourage Georgia’s compliance. Unlike with neighboring South Carolina—where during the same period he was using appeals, persuasion, threats, and finally legislation that allowed him to raise an army—Georgia’s judicial nullifiers had his support.

Many years later, a political enemy of Jackson’s claimed the president had said, “
Justice Marshall has made his decision; now let him enforce it.” Historians have questioned this statement, which did not appear in print until decades later, but similar statements were attributed to the president in real time. Two days after the ruling a New York newspaper reported Jackson’s saying that the Supreme Court had no
more right to order him around than he had the right to order the Supreme Court. The same day a Philadelphia newspaper said Jackson was telling people in private conversation that he
“would not aid in carrying that judgment into effect.” Yet another correspondent reported that Jackson “sportively said in private conversation” that if called upon to enforce the ruling “he will call on those who have brought about the decision to enforce it.” He wrote his friend John Coffee:

The decision of the Supreme Court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate.

The word “it” referred to the court’s decision; “they find that it cannot coerce Georgia . . .” The ruling, simply a piece of paper, was indeed ineffective if no one acted on it. Some of Jackson’s statements might be dismissed as angry bravado, except that he apparently made a similar statement directly to an influential Cherokee. Shortly after the ruling the president met with Major Ridge’s son John Ridge, and spoke so forcefully that Jackson himself believed he had
sent Ridge away in “despair.” Jackson had not misread the young Cherokee diplomat, whose loss of faith in the Cherokee cause would soon have fatal effects.

Some historians have offered a limited defense of President Jackson: he technically could not be said to have defied the court, since the moment had not yet arrived when it was imperative for him to act. But while awaiting those formalities, Jackson was negligent at best. He could have said, as later generations of political leaders would say of Supreme Court rulings, that he disagreed but would respect the decision. He could have signaled to the Georgians that they must obey federal law, just as South Carolina must. He could have openly recognized the implications of Justice Marshall’s ruling, which spread far beyond the imprisonment of Worcester and Butler. If the law used to imprison the missionaries was unconstitutional, then
all
Georgia laws relating to the Cherokees were unconstitutional. Jackson should have taken the cue that he must block the Georgians’ survey of Cherokee land, and
enforce existing federal law. He did nothing, and a justice close to Jackson informed the Cherokees that the very opposite of Jackson’s duty would be done.

The significance of Jackson’s course becomes clearer when compared with that of another chief executive in a comparable situation. In 1957, one of Jackson’s successors also faced pressure to enforce a controversial Supreme Court decision that involved the rights of a racial minority in a southern state. In this case the racial minority was African Americans. The court ruling, made three years earlier, was
Brown v. Board of Education,
which outlawed racial segregation
in public education. States with segregated schools were instructed to devise ways to comply. School authorities in Little Rock, Arkansas, made plans to allow nine black students into Little Rock Central High School in the fall of 1957, only to face the defiance of Arkansas governor Orval Faubus, who ordered the National Guard to block the integration. President Dwight D. Eisenhower viewed it as his duty to enforce the ruling, and he ordered the 101st Airborne Division of the U.S. Army to protect the nine black students. To avoid the possibility of combat between state and federal forces, Eisenhower also used his authority to federalize the Arkansas National Guard, taking it out of the governor’s hands. The school was desegregated, the Supreme Court vindicated, and despite intense debate the country at large sustained the president. Had Eisenhower done otherwise, catastrophe would have loomed.

Jackson did seem to understand, after his reelection was assured in 1832, that he was about to create a monster. The Georgia courts were not acting to free Worcester and Butler. In early 1833 Marshall would rule against Georgia again, and then Federal marshals or federal troops would be called upon to liberate the missionaries. If Jackson refused to enforce the ruling at that desperate moment, he would devastate the authority of the court as well as the authority of federal law. Worse, Jackson himself might look weak—backing down before the Georgians on an Indian question, just as John Quincy Adams had done before him. Yet if Jackson decided after all that he would enforce the law, he
risked a crisis with Georgia at the same time as the nullification crisis with South Carolina.

Jackson’s administration began working to make the problem go away. He had a new secretary of war by late 1832—Lewis Cass, the former Michigan governor who had so publicly made the case for Indian removal—and Cass appealed to Georgia to simply free the missionaries. “
Other important considerations,” meaning the confrontation with South Carolina, made this necessary, Cass said. His letters were addressed to Georgia’s new governor, Wilson Lumpkin, the same politician who as a member of Congress had led the fight for the Indian Removal Act. Lumpkin agreed with Cass’s appeal. In fact, he had already cleared the ground to resolve the issue. That fall in Milledgeville
the governor had dined with the wives of Worcester and Butler, assuring them he held no ill will toward their husbands. More dramatically, on December 22, he had signed a repeal of the law under which Worcester and Butler had been convicted. This would allow the missionaries to accept a pardon without, as the law had required, swearing an oath of allegiance to Georgia. The missionaries themselves had come to believe that “
considerations of a public nature” made it necessary that they stop pursuing their Supreme Court case.
Governor Lumpkin freed the missionaries on January 14, 1833, avoiding a final ruling by the Supreme Court.

The powerful dynamic of sectional politics was now beginning to work against the Indian cause. Previously, sectional politics had worked in their favor, drawing New England missionaries, northern women, congressmen, and others more easily to their side. Now the northerners were staring into the abyss. They began to see Indian removal as a conflict that could wreck national institutions, even leading to civil war. Theodore Frelinghuysen of New Jersey, who had spoken eloquently against the Indian Removal Act, advised the Cherokees that it was time to
negotiate a generous treaty with the United States and move west. One of the Cherokees’ own lawyers,
Elisha Chester, appeared in the
Cherokee Nation and infuriated John Ross by revealing that he had switched sides, becoming a government agent seeking a treaty of removal. The worst defection was that of the American Board of Commissioners for Foreign Missions. This group, more than any other, had helped the Cherokees make their case to the nation—sending them Samuel Worcester, obtaining a printing press, and of course providing the passionate support of Jeremiah Evarts. Evarts was dead now; his fragile constitution had finally failed him in 1831, at the age of fifty. Late in 1832 the board’s governing committee sadly sent advice to John Ross that it was in the “
best good” of the Cherokees to sign a removal treaty.

Americans were passing through a series of crises in these decades before the Civil War, and though none could foresee when the calamity would come, many saw the risk of it. (“
While the Union lasts,” Daniel Webster declared while debating a South Carolinian in the Senate in 1830, “we have high, exciting, gratifying prospects spread out before us and our children. Beyond that I seek not to penetrate the veil. God grant that in my day, at least, that curtain may not rise! God grant that on my vision never may be opened what lies behind.”) The fear of disunion was driving several decades’ worth of sectional compromises. In 1820, a dispute over slavery in western territories had been resolved with the Missouri Compromise. Later the Compromise of 1850 would put off the crisis again. In 1833 the sectional crisis focused not directly on slavery but on economic power, as the slave states of South Carolina and Georgia resisted anything they regarded as interference with their interests. It was widely understood what was at stake if Jackson failed to find a resolution, and even his opponents fell behind his leadership as the elements of his policy fell together. South Carolina was to be isolated and stared down—and also offered a compromise, in the form of revised tariffs crafted by none other than Henry Clay, now back in the Senate. Georgia must give in on the matter of the missionaries, but would suffer no harm to its long-term goal of removing the Indians. The Cherokees would be sacrificed for the larger interest of the nation.
“We consider ourselves as a part of the great family of the Republic of the U. States,” Ross had written back in 1816, “and we are ready at any time to sacrifice our lives, our property & every thing sacred to us, in its cause.” Ross probably had not anticipated the manner in which the great republic would take his offer.