The Reign of Andrew Jackson: A Chronicle of the Frontier in Politics

by Frederic Austin Ogg

The problem of the Cherokees was more difficult. By a series of treaties beginning in 1785 the United States had recognized this people as a nation, capable of making peace and war, of owning the lands within its boundaries, and of governing and punishing its own citizens by its own laws. At the close of Jefferson’s second Administration the tribe seriously considered moving west of the Mississippi, and shortly after the War of 1812 most of the northern members resident in Tennessee took the long-deferred step. The refusal of the Georgia members to go with the Tenneseeans disappointed the land-hungry whites, and from that time the authorities of the State labored incessantly both to break down the notion that the Cherokees were a “nation” to be dealt with through diplomatic channels, and to extend over them, in effect, the full sovereignty of the State. In December, 1828, the Legislature took the bold step of enacting that all white persons in the Cherokee territory should be subject to the laws of Georgia; that after June 1, 1830, all Indians resident in this territory should be subject to such laws as might be prescribed for them by the State; and that after this date all laws made by the Cherokee Government should be null and void.

When Jackson became President he found on his desk a vigorous protest against this drastic piece of legislation. But appeal to him was useless. He was on record as believing, in common with most southwesterners, that Georgia had a rightful jurisdiction over her Indian lands; and his Secretary of War, Eaton, was instructed to say to the Cherokee representatives that their people would be expected either to yield to Georgia’s authority or to remove beyond the Mississippi. In his first annual message, on December 8, 1829, the President set forth the principles that guided him from first to last in dealing with the Indian problem. It would be greatly to the interest of the Indians themselves, he said, to remove to the ample lands that would be set apart for them permanently in the West, where each tribe could have its own home and its own government, subject to no control by the United States except for the maintenance of peace on the frontier and among the tribes. Forcible removal was not to be contemplated; that would be cruel and unjust. But every effort was to be made to bring about a voluntary migration. One thing was to be clearly understood: any tribe or group that chose to remain in Georgia must submit to the laws of the State and yield its claim to all land which had not been improved. The President was not indifferent to the well-being of the red men; but he refused to recognize the Cherokees as a “nation” having “rights” as against either Georgia or the United States. A few weeks after the message was received Congress passed a bill creating an Indian reservation beyond the Mississippi and appropriating five hundred thousand dollars to aid in the removal of such Indians as should choose to accept the offer of the Government.

The outlook for the Cherokees was now dark. Both the executive and legislative branches of the Federal Government were committed to a policy which offered only the alternatives of removal or subjection; and, thus encouraged, the Georgia Legislature voted to proceed with the extension of the full authority of the State over both the Cherokees and the Creeks after June 1, 1830. To make matters worse, the discovery of gold in the northeastern corner of the State in 1829 brought down upon the Cherokee lands a horde of scrambling, lawless fortune seekers, numbered already in 1830 by the thousand. None the less, the Cherokee opposition stiffened. The Indian legislative council voted that all who accepted lands beyond the Mississippi and settled on them should forfeit their tribal membership, that those who sold their individual property to emigrate should be flogged, and that those who voted to sell a part or all of the tribal possessions should be put to death.

One resource remained to be exhausted in defense of the Indian claims; this was the courts. But here again things went unfavorably. After many delays a test case, Cherokee Nation vs. State of Georgia, was placed upon the docket of the Supreme Court. The bill set forth the plaintiff to be “the Cherokee Nation of Indians, a foreign State, not owning allegiance to the United States, nor to any State of this union, nor to any prince, potentate, or State other than their own,” and it asked that the Court declare null the Georgia Acts of 1828 and 1829 and enjoin the Georgia officials from interfering with Cherokee lands, mines, and other property, or with the persons of Cherokees on account of anything done by them within the Cherokee territory. The Indians were represented before the Court by two attorneys, one of them being William Wirt; Georgia employed no counsel. The opinion of the Court as announced at the January term, 1831, by Chief Justice Marshall was that while the Cherokee nation was a State and had uniformly been dealt with as such by the Federal Government since 1789, it was not a “foreign State” within the meaning of the Constitution, and therefore was not entitled to sue in that character in the courts of the United States. “If it be true,” the decision concluded, “that wrongs have been inflicted and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future. The motion for an injunction is denied.”

The case was thus thrown out of court. Yet the Cherokees were recognized as a “domestic, dependent” nation, and there was nothing in the decision to indicate that the extension of the laws of Georgia over them was valid and constitutional. Indeed, in a second case that came up shortly, Worcester vs. State of Georgia, the Court strongly backed up the Indians’ contention. Worcester was a Presbyterian missionary who was imprisoned for violation of a Georgia statute forbidding white persons to reside in the Cherokee territory without a license. The case was appealed to the Supreme Court, and in the decision of March 10, 1832, Marshall affirmed the status of the Cherokees as a “nation” within whose territory “the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent of the Cherokees themselves or in conformity with treaties and with the acts of Congress.” The statute was accordingly declared to be unconstitutional and Worcester was ordered to be discharged.

This ought to have been enough to protect the Cherokees in their rights. But it was not, and for two reasons: the contempt of Georgia for the Court’s opinions, and the refusal of Jackson to restrain the State in its headstrong course. Already the state authorities had refused to take notice of a writ of error to the Supreme Court sued out in December, 1830, in behalf of a condemned Cherokee, Corn Tassel, and had permitted the execution of the unfortunate redskin. The state court now refused to issue a writ of habeas corpus in behalf of Worcester, and the prisoner was held—precisely as if the law under which he was convicted had been pronounced constitutional—until he was pardoned by the Governor a year later.

This action on the part of the State was, of course, nothing less than nullification. Yet Jackson did not lift a finger. “John Marshall has made his decision,” he is reported to have said; “now let him enforce it.” The South Carolinians were quick to seize upon the inconsistencies of the situation. Nullification in their State was apparently one thing; in Georgia, quite another. The very fact, however, that the Georgians had successfully defied the federal Supreme Court did much to encourage their neighbors in a course of similar boldness. Jackson’s leniency toward Georgia has never been wholly explained. He was undoubtedly influenced by his sympathy with the purpose of the State to establish its jurisdiction over all lands within its borders. Furthermore he cherished an antipathy for Marshall which even led him to refuse in 1835 to attend a memorial meeting in the great jurist’s honor. But these considerations do not wholly cover the case. All that the historian can say is that the President chose to take notice of the threats and acts of South Carolina and to ignore the threats and acts of Georgia, without ever being troubled by the inconsistency of his course. His political career affords many such illustrations of the arbitrary and even erratic character of his mind.

Meanwhile the great Indian migration was setting in. Emulating the example of Georgia, Alabama and Mississippi extended their laws over all of the Indian lands within their boundaries; and in all parts of the South the red folk—some of them joyously, but most of them sorrowfully—prepared to take up their long journey. In 1832 the Creeks yielded to the United States all of their remaining lands east of the Mississippi. By the spring of 1833 the Choctaws and Chickasaws had done the same thing and were on their way westward. Only the Cherokees remained, and in his message of December 3, 1833, Jackson reiterated his earlier arguments for their removal. Realizing that further resistance was useless, a portion of the tribe signified its readiness to go. The remainder, however, held out, and it was only at the close of 1835 that the long-desired treaty of cession could be secured. All Cherokee lands east of the Mississippi were now relinquished to the United States, which agreed to pay five million dollars for them, to provide an adequate home in the new Indian Territory created by Congress during the preceding year, and to bear all the costs of removing the tribe thither.

It was not alone the South, however, that witnessed widespread displacements of Indian populations in the Jacksonian period. How the Black Hawk War of 1832 grew out of, and in turn led to, removals in the remoter Northwest has been related in another volume in this series. ¹ And, in almost every western State, surviving Indian titles were rapidly extinguished. Between 1829 and 1837 ninety-four Indian treaties, most of them providing for transfers of territory, were concluded; and before Jackson went out of office he was able to report to Congress that, “with the exception of two small bands living in Ohio and Indiana, not exceeding fifteen hundred persons, and of the Cherokees, all of the tribes on the east side of the Mississippi, and extending from Lake Michigan to Florida, have entered into engagements which will lead to their transplantation.” With little delay the Cherokees, too, were added to this list, although a group of irreconcilables resisted until 1838, when they were forcibly ejected by a contingent of United States troops under General Winfield Scott.

¹ See The Old Northwest, by Frederic Austin Ogg (in The Chronicles of America).