Jacksonland: A Great American Land Grab (23 page)

There was also Thomas Jefferson’s alternative, his long-ago wish that Indians would “
incorporate with us as citizens of the United States.” We have seen that in the mid-1820s John Ross suggested that Cherokees someday might obtain “admission as [U.S.] citizens.” Some treaties actually did award citizenship to limited numbers of Cherokees, but this was not tried on a large scale. Nor would it have been easy to impose the more radical alternative that Ross also envisioned: that the Cherokee Nation could become “a Territorial or State government,” combining the Indian map with the U.S. map. There was precedent for creating new states out of older ones, as had happened with Kentucky, Mississippi, Alabama, and Tennessee. Had southern power brokers seen their interest a certain way, they might have approved this move, which would have confounded their northern critics by adding a slave state to the national political balance. But the move would have demanded a level of respect for Indians that simply did not exist, and it probably would have destroyed the Cherokees as an Indian nation. A new territory would certainly have to be open to white settlers, who would arrive in such numbers that they could win elections.

Finally, the Cherokee heartland in Georgia could have been incorporated into the state as one of its counties. Call it Cherokee County, with the county seat at New Echota, where the nation might for a time continue running its affairs. But the Cherokees could never have consented to such an arrangement unless the state provided Indians with equal protection under the law. Eventually, Georgia demonstrated the terms under which it was willing to create such a county, because the state actually did so. From 1829 onward the state asserted that the
borders of several counties had expanded to include Cherokee land, and in 1831 the state created a vast new entity that really was called Cherokee County. Cherokees were allowed no voice in governing the county, which eventually had no Cherokees in it.

 • • • 

Georgia’s Wilson Lumpkin already knew the course he wanted to follow, though he faced a host of critics in May 1830. He cast their vigor and energy as a sign of weakness. “We have been inundated with memorials, pamphlets, and speeches made at society and town meetings. But, sir, let it be remembered that weak minorities always made the most noise. Contented majorities, conscious of their strength, are never found praying for a redress of grievances.” It was that silent majority for whom Lumpkin said he spoke.

In the Senate, Jackson supporters demonstrated their strength. A handful of lawmakers took up the Indians’ cause (“
Georgia will yield,” said Theodore Frelinghuysen of New Jersey, so long as the federal government held firm, because the state would not want “the guilt” of bringing on “the horrors of civil war”), but they were easily outvoted. The South had half the seats in the Senate, and could count on the support of loyal Jackson men from the North. The calculus was different in the House, where seats were apportioned to each state according to population, and the North enjoyed greater strength. Those who spoke against the bill included Edward Everett of Massachusetts. In November 1863 Everett would be the featured speaker at the dedication of a cemetery at Gettysburg, the orator who delivered the long speech before Lincoln’s very short one; in 1830 Everett was a young congressman. He calculated that the Indian Removal Act was far more expensive than its sponsors claimed.
Moving tens of thousands of Indians would cost many times more than the half million dollars advertised.

A few southerners opposed the measure too. David Crockett, that rebellious veteran of Jackson’s army in the early phase of the Creek War, was now a Tennessee congressman. He was a Jackson-style politician, a
frontier leader who had risen from humble beginnings, and had been elected as a Jackson man in 1826. But Jackson had a complex relationship with many politicians of his home state, some of whom chafed under the force of his will. Crockett was persuaded that the Indian bill was a “wicked, unjust measure,” and opposed it even though party discipline demanded his support on a measure so closely associated with the president: “
Several of my colleagues got around me, and told me how well they loved me, and that I was ruining myself.” Crockett walked into the cavernous House chamber on May 19. “
I have been told I will be prostrated,” he declared, but he would “bear the consolation of conscience.” The bill was “oppression with a vengeance,” and Crockett said he must vote against the measure even if every other lawmaker from Tennessee chose to support it.

Jackson’s opponents had yet to form a coherent party, but the man who would be that party’s natural leader had just returned to the news. Indian removal brought back Henry Clay, out of office now but still closely watched by an attentive public. His friend Margaret Bayard Smith observed that Clay “
has an elasticity and buoyancy of spirit, that no pressure of external circumstances can confine or keep down.” Invited to give a speech to the Colonization Society of Kentucky about sending freed slaves to Africa, Clay inserted a passage about Indians: “
We are enjoined by every duty of religion, humanity and magnanimity to treat them with kindness and justice, and to recall them, if we can, from their savage to a better condition.” The speech was printed for wider distribution. Wilson Lumpkin of Georgia was still irked by it five months later when delivering his May 17 speech in the House chamber. He offered Clay a backhanded compliment. “
The distinguished orator of the West” had spoken of the Indians with “his usual zeal and ingenuity,” delivering an address so “pious” that Lumpkin might have mistaken Clay for a “preacher” had he not known Clay’s true “character.” Lumpkin complained that the opposition to Indian removal was purely partisan. “
Where do you find one solitary opponent of President Jackson
in favor of the measure on your table? I do not know one. Sir, I have tried to prevent party considerations from operating on this question; but our opponents are an organized band; they go in a solid column.”

Late in May it began to seem that the bill might not survive. The vote in the cavernous House chamber was sure to be extremely close. For Jackson the timing was bad. Congress had just passed a highway bill, a seemingly unrelated measure, but in Congress anything could be related. Jackson wanted to veto the highway measure, but many of his allies favored it. If he rejected the road bill, his friends might be so offended that they would turn against him on the uncomfortable vote he was demanding on the Indian bill. The situation called for a maneuver as ruthless as any Jackson had executed as a general. When it was all over, the writer for Niles’ Weekly Register looked back in amazement.

We . . . hope yet to have a full account of what happened in the three or four last days of the session.

Just as General Jackson had once seized land from his allies after the Battle of Horseshoe Bend, President Jackson conducted an operation on his allies in Congress.

The highway bill was known as the Maysville Road Bill, after the new federal highway it would finance beginning in Maysville, in Henry Clay’s Kentucky. Jackson didn’t favor it. He said it wasn’t an interstate road. It was to be built entirely within one state, which Jackson considered inappropriate for a federal project even though it was to be connected to a larger interstate road network over time. But the president did not veto the bill at first. He left it on his desk, waiting the full ten business days the Constitution allowed before acting. This gave House leaders time to push the Indian debate toward its close. On May 17, as Congressman Lumpkin of Georgia delivered his speech for removal, the ten-day clock was already running. The fight grew desperate as time began to expire; many members of Jackson’s new party were
wavering under pressure from constituents who protested removal. Party leaders made the vote an issue of loyalty, according to
Niles’ Weekly Register
:

Those who were friends of the administration were privately and publicly entreated to support the bill, and others were scolded; indeed Mr. Lewis, of Alabama, in our hearing, went so far as to proclaim in the house, with extraordinary heat, those of the party to be “traitors” who should not uphold this leading measure of the executive.

When the roll was called on May 26, David Crockett turned aside the appeal for loyalty as he said he would, and voted no. But just enough Jackson men stayed firm. The Indian Removal Act passed with
102 votes in favor and 97 against.

Only after the bill had safely cleared the House did President Jackson send a message that he had vetoed the Maysville Road Bill. It arrived on May 27, the last day he was permitted. He said an overactive federal government would undermine liberty and drive up taxes. But by setting back the popular roadbuilding program, he betrayed allies who had just loyally supported him.

After the passage of the Indian bill, and the reception of the president’s veto on the Maysville road bill, there was often much confusion in the house, with a general bitterness of expression, used by many of the members towards their fellows, that every reflecting man must regret.

The
Niles’ Weekly Register
writer was “entirely confident, that, had the veto appeared half an hour previous to the final vote on the Indian bill,
it would have been rejected by a much larger majority than that by which it was carried,
being only five votes.” Now it was too late. Some lawmakers grasped for ways to undo their own vote on the Indian bill,
asking if the text had been sent to the president. Maybe the clerks had not yet finished making the final copy of the legislation, a ritual known as enrolling it. There might be some way to prevent Jackson from receiving the bill, which could not become law without his signature. But Jackson had timed his strike well enough to make this desperate measure impossible. A messenger had already carried the Indian bill down Pennsylvania Avenue to the Executive Mansion. Jackson signed it.

A
short walk from the public square in New Echota, a path led across a stream and through the trees. At the end of the path was a clearing, and in the clearing stood a wood frame house with upper and lower porches overlooking the yard. Inside, a massive brick fireplace and oven dominated one of the rooms, a feature less in keeping with north Georgia’s temperate climate than with New England, from which the residents of the house had come. It was the home built by Ann Worcester and her husband, Samuel, who was a missionary to the Cherokee Nation.

Samuel Worcester was in his early thirties. Life among the Cherokees seemed to agree with him; even years later, when it was possible for him to pose for a photograph, he still had a youthful face, with full lips and earnest eyes and thick hair that, combed back from his forehead, looped forward again over his temples. He had been sent to this posting by the American Board of Commissioners for Foreign Missions, the same organization whose corresponding secretary, or communications director, was Jeremiah Evarts. It was Evarts who wrote John Ross back in 1825 to announce Worcester’s appointment, saying the missionary was “
laborious, highly intelligent, Judicious, sincerely devoted to the interests of your nation.” Samuel Worcester became the American Board’s man in New Echota. He was also one of the Cherokees’ links to
the white world, who upheld the promise that he would be devoted to their interests. He was the missionary who, through the American Board, helped obtain a press for the
Cherokee Phoenix
. He was also the one suspected by some whites of having too much influence over the newspaper, an accusation he denied. It was true that he worked with the editor, Elias Boudinot, but not on the newspaper; he employed Boudinot on the side, to translate religious texts into Cherokee. “We are now publishing a small Hymn Book, about 50 pages,” Boudinot reported in a letter in January 1829. “
It is the first Cherokee book ever published.” The Worcesters and Boudinots also saw each other socially, sometimes dining at each other’s homes. The two couples had much in common—their relative youth, their New England ties, and their vital roles in the daily life of a most unusual village.

Their lives began to change on March 13, 1831, when horsemen rode into New Echota and followed the path to the Worcester house. They were members of the Georgia Guard, charged with imposing state authority over Cherokee land. The guardsmen arrested Samuel Worcester. They said he was violating a Georgia law decreeing that no white person should live on Cherokee land without a permit from the state.

Brought before a state judge some miles away in Gwinnett County, Georgia, Worcester defended himself. He was conducting missionary work by permission of the federal government, which had sole authority over Indian affairs.
He was also a U.S. official, having served for years as the postmaster at New Echota. Perhaps in 1861 the Georgia authorities would be ready to imprison a federal official, but not in 1831. Worcester was released, and returned to his home and his family at the end of the path.

He was still there weeks later when the riders returned to his door. This time they were bearing a letter. George Gilmer, the governor of Georgia, had written Worcester and other missionaries to
accuse them of “criminal” conduct. Worcester’s defenses had been stripped away: President Jackson had fired him as postmaster and affirmed that the
missionaries were not acting as agents of the federal government. Gilmer warned one of Worcester’s fellow missionaries that they must leave soon or face the “
punishment which will certainly follow your further residence.”

The riders went back down the path and away, under orders to delay arresting Worcester until he had an opportunity to depart. He thought about it, and declined the opportunity.
His wife was ill, and could not easily move. He also believed in his work. He wrote the governor on June 10, saying, “
I cheerfully acknowledge” disagreeing with the president’s removal policy, but this brought him no “consciousness of guilt.” He was guilty only of “
that freedom in the expression of opinion, against which, under the Constitution of our Country, there is no law.” He added, “My own view of duty is that I ought to remain, and pursue my labors for the spiritual welfare of the Cherokee people, until I am forcibly removed.”
So the Georgia Guard rode down the path again and arrested him on July 15, 1831. Worcester and other missionaries were held for several days, then allowed to post bail and released until trial in September. His release offered Worcester another opportunity to slip away, avoiding a four-year prison sentence, but again he declined to leave. Instead he wrote an account of his arrest for the
Cherokee Phoenix
, including a backhanded compliment to his jail guards (“
only two or three individuals offered us any insult”), and prepared to face his trial.

It was gradually becoming apparent that the Georgians were on the verge of a strategic mistake. While Samuel Worcester was no longer a federal official, he was still a pastor, whose imprisonment would certainly cause an outcry. More to the point, he was a citizen of the United States, with a right to sue the Georgians in federal court if treated improperly.

Ever since the passage of the Indian Removal Act, John Ross had been trying to bring the defense of his nation’s rights before the federal courts. He was acting on the advice of supporters in Congress, New Jersey’s
Theodore Frelinghuysen and the great Massachusetts senator Daniel Webster among others. As opponents of Jackson, both senators
had a political motive to keep the Cherokee case going. But the lawmakers also had reason to believe that a court challenge would receive a sympathetic hearing. In May of 1830, Senator Frelinghuysen had received a letter:

Dear Sir

. . .
I received your speech on the removal of the Indians which I have read with equal interest and attention. The subject has always appeared to me to affect deeply the honor, the faith and the character of our country. The cause of these oppressed people has been most ably though unsuccessfully sustained . . .

J. Marshall.

John Marshall was the chief justice of the United States. He made it clear that he would listen if a proper case reached him.

 • • • 

Going to court would cost thousands of dollars, and before Worcester’s arrest President Jackson guaranteed that Ross would have trouble paying. It was in June 1830, soon after the passage of the Indian Removal Act, that Attorney General John Macpherson Berrien sent his letter urging the president to deny the Cherokees two great sources of strength, their printing press and their money. In a country that valued the freedom of the press it would take time to silence the
Phoenix
, but the Cherokees’ funding was easily cut off. The Cherokee government’s income derived principally from real estate. Past treaties ceding land to the federal government included an annuity to the Cherokee Nation: the United States was in effect making annual mortgage payments. Attorney General Berrien proposed that the United States should simply stop paying and defund the Cherokee resistance. Of course, default would be illegal, so the attorney general proposed a clever ruse, which Jackson accepted. Rather than outright refusing to pay the money, the
administration would instead “
insist upon its distribution among the Indians at large,”
spreading a few cents to each individual Cherokee so that the money conveyed no sustenance to their government. Cherokees adamantly refused to accept, and no payments were made for years. Ross would spend those years scrambling to pay lawyers, arranging loans from individual Cherokees, and raising money from sympathizers in northern cities. Sometimes when a bank draft arrived in the mail from New York or Boston,
Ross sent it directly to his underpaid defense team. He nevertheless did engage Georgia lawyers to represent the Cherokees in state courts, and went looking for lawyers of great repute to work at the national level.

There was a moment when Ross believed that Senator Daniel Webster would join the defense team—Godlike Daniel, as his admirers called him, a public speaker so brilliant that it was later said that he could win a court case against the devil—but Webster was a busy man, not known for serving low-paying clients. Instead the lead role went to William Wirt of Baltimore. Wirt may have been the best possible choice, and if his name echoed less through the ages than Webster’s, he was hardly less prominent at the time. He had served as attorney general under Presidents Monroe and Adams. He knew all the players in Washington. He was also a distinctive American character, author of a famous biography of the Revolutionary orator Patrick Henry, which Wirt apparently improved by inventing phrases that Henry never said, such as “
Give me liberty or give me death.” The book at least marked Wirt as a great wordsmith. Most important, Wirt had the stature and self-confidence to take the case even though he knew it would make an enemy of the president. Jackson wrote in the summer of 1830 that the lawyer’s course was “truly wicked” and would “lead to the distruction of the poor ignorant Indians.”

I have used all the persuasive means in my power; I have exonerated the national character from all imputation, and now leave the poor
deluded creeks & cherokees to their fate, and their annihilation, which their wicked advisers has induced.

It was a private letter, but Wirt and the Cherokees did not need to see it to know they were on their own.

The common way to reach the Supreme Court would be to contest a case before the Georgia judiciary, and then appeal an unfavorable result to the high court. But there was reason to think the Georgians would never allow a proper test case to be concluded. Wirt decided on a more direct route. The Constitution said the Supreme Court had original jurisdiction over cases involving foreign nations. Could the Cherokees qualify as a foreign nation? If they could, the court was the first and only place to hear their plea. Wirt wrote in the fall of 1830 that he “
personally had strong doubts” that this would work, but as with his writing of Patrick Henry he plunged ahead, compiling a list of complaints against Georgia. He said state authorities ordered Cherokees to stop prospecting at gold mines, and indicted the members of the Cherokee court. Federal troops who should have ordered the Georgians to desist instead advised John Ross in writing that they would assist in enforcing state law. A Cherokee known as George Tassel, accused of killing another Cherokee, was arrested and convicted under Georgia law, and when he appealed to the federal courts,
Georgia made the case moot by having Tassel hanged.

Wirt mailed a copy of his complaint to John Ross in New Echota, who decided he would personally serve the papers on the governor of Georgia. Ross found a companion for the journey, a white man named George Lavender, who ran a store for Major Ridge; possibly the company of a white man would make it easier for the Cherokee chief to be taken as white and left unmolested. It took nearly a week in early winter to reach the capital of Milledgeville, a town of a few thousand dominated by its state capitol building, with its churchlike windows and crenellated roofline. Ross and Lavender rode into town on the day after
Christmas and had the governor served with papers in the morning. If Governor Gilmer greeted Ross at all when the Cherokee delivered the papers, Ross did not record what was said. The Cherokee chief rode on with his companion to Augusta and served identical papers to the state attorney general, finishing the work in time to mail a report to William Wirt on New Year’s Day, 1831. “
Mr. Lavender and myself are threatened with the Penitentiary for what we had done,” Ross reported. “We have some strong friends here and I shall treat those threats with silent contempt.” Someone gave the Cherokee chief shelter along the way, maybe friends from his trading days, or friends of his Georgia lawyers, or maybe even one of the wealthy slave-owning families whom Jeremiah Evarts had cultivated for contributions.

In the end it was the Georgians who treated the Cherokee suit with “silent contempt,” refusing to accept the Supreme Court’s jurisdiction and refusing to send a lawyer to argue the case. So it was that Wirt’s side alone appeared before the Supreme Court in March 1831, in the case known as
Cherokee Nation v. Georgia
. Justice Marshall presided over the chamber, backlit by a window behind him that looked out over the Capitol grounds. Squinting, perhaps, to see more than the silhouettes of the justices in front of him, Wirt argued his case. In a brief filed in advance, he had said Georgia’s laws were “
repugnant to the constitution, laws, and treaties of the United States.” Wirt clearly felt the weight of the power arrayed against him. “If we could have perceived any other course of moral or professional conduct that remained for us . . . we should not have troubled your honours with this motion.” But Wirt knew he had to do his “duty” and “leave the issue to Providence.” He was in reality leaving the issue to Marshall, the man silhouetted at the window, who also had a duty to perform.

Marshall rejected the Cherokees’ lawsuit. He ruled against them even though he openly expressed sympathy for the Cherokee cause. He could not bring himself to accept the case that Wirt presented. Writing for the majority of the court, the chief justice refuted the idea that the Cherokees constituted a foreign nation. Their treaties with the United
States made them a “domestic dependent nation,” rather like a state government. In later years, scholars suggested that
Marshall felt that he could not push the issue too far; at the time of his ruling, hostile lawmakers in Congress were circulating ominous legislation that would take away some of the court’s authority. To avoid damage to his own institution, Marshall required a case so strong that his ruling would be indisputable. This case wasn’t it.

But if he disappointed the Cherokees, Marshall had not betrayed them. Examining Marshall’s ruling from his home in the Cherokee Nation, John Ross perceived what the chief justice did not say. He had never ruled against the substance of the Cherokees’ complaints, only against their legal standing. “
The denial of the injunction has no bearing whatever upon the true merits of our cause,” Ross insisted, and the ruling was “conclusively adverse to the pretended claims of the President.” To make certain his people did not lose faith, Ross spent three weeks in April and May riding back and forth across the Cherokee Nation, speaking with any voter who wanted to see him. The “
tattlers and intriguers” would claim there was “no hope left,” Ross told his people, but “you have . . . met oppression & injustice with fortitude & forbearance and I trust you will persevere in this prudent course; as it will not fail in due time to lead you to a safe deliverance.”