In 1832, the United States Supreme Court ruled that the state of Georgia had no authority over the Cherokees living on territory held by the Cherokee Nation. In the case of Worcester v. Georgia, Chief Justice John Marshall wrote that despite the fact that the Cherokee lands lay within the geographical boundaries of Georgia, only the federal government possessed the jurisdictional authority to make treaties with a sovereign nation such as the Cherokee.
It was a huge victory for the Cherokees, the culmination of more than a decade of institutional and legal development. But by 1838, just six years later, the Cherokees had been removed from their lands and force-marched to Oklahoma along a path later remembered as the Trail of Tears. Despite their monumental legal triumph, the Cherokees suffered one of the greatest tragedies in Native American history.
What went wrong?
Many point the finger at President Andrew Jackson. After Marshall read the Court's ruling, Jackson is reputed to have said, "Marshall has made his decision, now let him enforce it."20 Some question the authenticity of the remark—but for many the comment seems consistent with Jackson's persona and his Indian policies. Throughout this legal battle, Jackson supported Georgia's attempts to assert state authority over the Cherokee people. And over the course of his presidency, Jackson's administration oversaw the removal of more than 45,000 Indians living in the southeastern United States. Apparently Jackson was no friend of the Indian; it is believable that he would dismiss Marshall's decision.
But pointing the finger at Jackson alone serves American storytellers in other ways. His alleged disregard for a court ruling provides us with a scapegoat for the failure of American justice. According to this version, the law did its part, as did the court system responsible for preserving its impartial defense and application. But an Indian-hating, law-disrespecting president did not; he thumbed his nose at the Supreme Court, and he showed contempt for the law. The law did not fail—more broadly, America did not fail—but instead the nation's high-minded principles were subverted by a tyrannical president.
Of course, the reality was more complex; history rarely follows the black and white plotlines of a simple story. The fact of the matter is that the president had a great deal of law on his side—more than could be overcome by one single court decision. And when the time came to take additional legal action, the Cherokees' supporters had other priorities. In many ways, Andrew Jackson was an enemy of the Cherokees, but in the final analysis, they were condemned to the Trail of Tears by their friends, not by their enemies.
The Cherokees' path to the Supreme Court really began in the early 1820s, when they begin to transform themselves from a group of semi-autonomous villages into a coherent nation. Led by the Métis—Cherokees of mixed Indian and white ancestry—the Cherokees formed a national congress, selected a national executive, and began to legislate a body of law. In 1827, the process culminated in the drafting of a constitution that embodied many of the legal and institutional developments of the previous years. With an eye toward gaining white American support for their efforts, the Cherokees ratified their new constitution on July Fourth.
During these same years, the Cherokees also built a more complex and productive economy. Again the Métis led these efforts. They acquired property, planted crops, learned trades, and entered into commercial agreements with their white neighbors. Political and economic developments came together in a series of laws passed by the Cherokee congress that regulated economic practices on their territory. Among the most important of these were laws regulating who could and could not engage in commerce on Cherokee land. By imposing a licensing system that favored Cherokee traders and businesses, the Cherokee congress hoped to engineer a dynamic and cohesive Cherokee economy.
By 1828, the Cherokees had made great progress in building a politically and economically coherent nation. To missionaries and other supporters, their efforts offered proof of Indians' possibilities for assimilation—and evidence of how an enlightened government policy might help other tribes along the path toward "civilization." But to expansionists anxious to acquire Cherokee land, especially after the discovery of gold on those lands in 1828, these developments were far from welcome. For Georgia state officials, sensitive to the territorial ambitions of the state's white citizens, these developments only threatened plans to relocate the Cherokees and open up their lands to white settlement. So in 1828, the state took action.
Georgia's first step was to pass a law asserting legal sovereignty over all residents within its geographical boundaries. Denying the legitimacy of the Cherokees' constitution and government, Georgia declared that all residents were subject to state law and all lands were subject to state regulation. The state followed these declarations by making preparations to survey and sell Cherokee lands.
To a large extent, Georgia was emboldened by the election of Andrew Jackson. All previous presidents, from George Washington through John Quincy Adams, had worked from the premise that the Indians were a sovereign people and therefore subject to federal authority—but not state authority—through the treaty powers delegated under the Constitution. But Jackson thought that this approach was philosophically and legally absurd. The Indians were defeated, subject peoples, he argued, not sovereign nations. The considerations extended to them by the United States were acts of generosity, and enjoyed as matters of privilege, not of right. The old treaty language that employed words like "nation" and "sovereign" were merely concessions to the "vanities" of a proud but defeated people—empty and non-binding rhetorical gestures that belied the fact that the Indians were the defeated recipients of whatever policies the United State chose to impose.
Jackson also disputed the philosophical basis upon which Indian territorial claims were based. He conceded that they may have been the "original occupants" of certain lands, but, he argued, they had lost all resulting claims to the soil when they chose to wage war against the United States. Moreover, he argued, their territorial claims based on "use" were ridiculous. These people, whom Jackson regarded as nomads and hunters, could not claim ownership to vast territories "merely because they had seen them from the mountain or passed them in the chase."21
In fairness to Jackson, we must acknowledge a certain complexity within his position. He himself adopted an Indian child and he encouraged intermarriage as a means of advancing assimilation. While he was clearly a racist by modern standards, so too was almost everyone else in the early nineteenth century. Jackson cannot be simply characterized as an Indian hater. But neither would it be accurate to say that he merely held a different view of the key legal questions. Perhaps the most generous assessment would be to say that he had a different understanding of America's obligations.
When Henry Knox, George Washington's Secretary of War and the architect of early American Indian policy, set the precedent of treating Indians as sovereign nations, he framed his decision within the language of America's republican obligations. To recklessly dispossess the Indians of their lands violated our responsibilities as a republican nation. For Knox, treating the Indians justly was an important test—an opportunity for the young United States to define itself. Jackson was certainly as patriotic as Knox, but he believed that the United States had different obligations. For starters, he believed that it was America's destiny to spread across the continent—and to allow what he saw as a "less civilized" people to stand in the way of that progress would be unjust. He also believed that all nations had a natural right to defend or preserve themselves, and this right of self-preservation included a right to expand in order to accommodate a nation's inevitable growth.
Georgians may or may not have appreciated the nuances in Jackson's position, but they recognized that they had a president more sympathetic to their ambitions than his predecessors had been. For years the federal government had operated as a check on Georgia's attempts to open up all its territories to white settlement. Now, with Jackson's election, they might finally be able to proceed. But this opportunity arose just as the Cherokees were developing the legal and political tools to challenge their efforts.
The Worcester case was actually the second attempt on the part of the Cherokee nation to use the courts to halt Georgia's expansionist schemes. In 1830, they took the state of Georgia to court in a case that challenged Georgia's jurisdictional claims directly. In Cherokee Nation v. Georgia, the Cherokees sought an injunction against Georgia's attempts to implement its act of 1828 asserting sovereignty over Cherokee lands. Arguing that only the federal government possessed legal authority over them, the Cherokees challenged the Georgia law and requested that the Supreme Court declare it unconstitutional.
But the Cherokees lost this case—or more precisely, the case never really made it to Court. Chief Justice John Marshall, writing for the Court, said that the Court did not possess the authority to hear the case. He reminded the Cherokees that the Court's original jurisdiction—its authority to hear a case for the first time—was very narrow. It could hear cases that involved ambassadors or public ministers, and cases in which a state was a party. The Court's original jurisdiction also extended to cases in which a foreign nation was a party. However, Marshall concluded, while the Cherokees did possess certain qualities of a nation, they were a "domestic dependent" nation, and not a foreign nation in the traditional sense of the concept. And therefore they could not bring a case before the Supreme Court for its first hearing.
It was a tough defeat for the Cherokees—but Chief Justice Marshall had also signaled his sympathy with their broader intentions. In rejecting their case, he reminded them that the Court's appellate jurisdiction was much wider—that it was far easier to get a case to the Supreme Court on appeal then it was for its first hearing. In other words, if the Cherokees found the right sort of case, the Court might well listen.
The Cherokees' opportunity came in 1831 when Georgia passed a law designed to weaken the influence of the Presbyterian missionaries living among the Indians. The new law stated that all white persons working among the Cherokees had to register with the state government and swear an oath of obedience to the state's laws. In other words, they could not enter Cherokee communities unless they accepted Georgia's sovereignty over these territories. When twelve missionaries refused to take the oath, they were arrested, convicted, and sentenced to four years' hard labor.
But this was a poor tactical move on the part of Georgia, for now the Cherokees had the case that they needed—a case that they could take to the Court on appeal. The twelve missionaries, led by Samuel Worcester, challenged their convictions by arguing that the Georgia law that convicted them was unconstitutional; as only the federal government had authority over Cherokee lands, Georgia could not impose these requirements. And the Supreme Court agreed to hear their case. The immediate issue was whether these missionaries had been unconstitutionally convicted. But the broader issue was whether states like Georgia had any jurisdictional authority over the Indians living on lands arranged by federal treaty—whether the Indians were sovereign nations subject only to federal regulation as arranged through treaties, or dependent tribes and therefore subject to the laws of the states as well as the federal government.
When the court ruled in favor in the missionaries, it was a huge victory for the Cherokees. Marshall, again writing for the Court, stated unequivocally that only the federal government had authority over the Indians. The Cherokees, he argued, were an independent political community. While they had surrendered sovereignty to the federal government via treaty, only the federal government possessed any jurisdictional authority over them and their lands. In short, the Cherokees had won; the law, as the Supreme Court saw it, was on their side.
But as Andrew Jackson looked over the ruling and debated how he should respond, he realized that portions of the law were on his side as well. For starters, despite the Court's verdict, he was under no immediate legal obligation to act. Even though as chief executive it was his job to "faithfully execute" the laws of the United States, he was not required to take any action unless Georgia refused in writing to abide by the verdict. Georgia also understood the legal technicalities involved, so its legislature simply adjourned rather than respond to the verdict in any fashion.
There was one way to force the Court's and the president's hand; the missionaries still sitting in jail could pursue a court order demanding that the Court's ruling be enforced. In other words, only the missionaries had the ability to complete the project begun by their suit. Only they could force a showdown between the federal government and the state of Georgia; only they could compel the federal government to honor its treaty obligations to the Indians by asserting its unilateral authority over Indian affairs.
But the missionaries did not pursue the court order; they accepted a pardon from the Georgia governor instead.
As the missionaries sat in their jail cells in the months following their court victory, they were visited by scores of visitors begging them not to proceed any further. One of them was the governor of Georgia, who offered them a full pardon if they did not pursue further legal action. Another was their own missionary board president, who urged them to accept the pardon and abandon the legal course they had initiated. And uniting all of these visitors were very real fears of the federal-state conflict that further legal action would force.
Lurking in the background of this legal battle was another one taking place at the same time between the federal government and the state of South Carolina. Upset with the tariff legislation passed by Congress in 1828, South Carolina was preaching the right to nullify, or cancel, any federal law believed outside the terms of the original constitutional compact. As their discontent with federal policy increased, South Carolinians also tossed around threats of secession. To many observers, this battle over Cherokee lands might force another southern state into the camp of the nullifiers and secessionists. If the federal government attempted to enforce the Worcester ruling, if it asserted the authority of the federal government against the wishes of the state of Georgia, Georgia might ally with South Carolina, creating a more severe national crisis.
The missionaries wrestled with the dilemma for several months, and then finally accepted the governor's pardon. The risks to the national union were too great, they explained. And probably most of the major players in the episode agreed. Of course, the Cherokees felt differently. In less than a year, their great legal victory had turned into a defeat—and just how costly a defeat they had suffered would soon become apparent.
For Andrew Jackson and other advocates of Indian removal, the Worcester case revealed that even the Cherokees' most ardent white defenders were ultimately a bit soft in their support. Jackson had learned a similar lesson during earlier debates over Indian removal. In 1830, his supporters in Congress had passed a plan for the purchase or exchange of all Indian lands east of the Mississippi River. Under its terms, the federal government could negotiate treaties with individual tribes for their lands—offering cash and/or new lands west of the Mississippi. The Indians did not have to negotiate; they could remain where they were. But the federal government would no longer recognize their territorial claims, and consequently the Indians would be subject to state law and vulnerable to state action.
This Indian Removal Act had plenty of critics. But when held up to the light, these defenders of the Indians also looked suspiciously soft in their support—more political than principled, more concerned with the details of removal than the fundamental question of justice. For example, Henry Clay opposed removal, but he was also planning a race against Jackson for the presidency and was looking for an issue to exploit. William Wirt also opposed removal—in fact, he served as a lawyer on the Cherokee cases heard by the Supreme Court. But he also nursed political ambitions and believed that a confrontation between Jackson and Chief Justice Marshall would hurt the president at the polls. Other critics were less transparently political in their opposition, but for the most part they quibbled only with the logistical details of the proposal—how the Indians would be moved, how carefully the western lands had been selected, how much all of this would cost.
On first glance Massachusetts Senator Edward Everett seems a more dedicated opponent to removal. He railed eloquently on the Senate floor against the removal bill: "The evil, Sir, is enormous; the inevitable suffering incalculable." And he begged his colleagues not to "stain the fair fame of the country."22 But the sincerity of these pleas grows suspect when they are placed alongside a lengthy defense of American expansion, written just five years earlier, in which he had concluded that Indian extinction was neither avoidable nor regrettable. After all, he argued, what was worth preserving? Certainly not their religions, their languages, or their ways of life. Nor should Americans really lament all this. "Had not the Europeans come, the Indians would have died in the course of nature as before. . . . The Europeans came; and—by causes as simple and natural as they are innocent—the barbarous population, as it has passed off, has been replaced by one much better, much happier."23
The only critics of removal in 1830 who seemed to have real backbone were the missionaries working among the Cherokees in Georgia. Speaking on the Cherokees' behalf, New Jersey Senator Theodore Frelinghuysen, a former president of America's largest missionary board, begged his congressional colleagues to identify "in what code of the law of nations, or by what process of abstract deduction, their rights have been extinguished? Where is the decree or ordinance that has stripped these early and first lords of the soil?" And when he did not receive a satisfactory reply he concluded that "where the Indian always has been, he enjoys an absolute right still to be, in the free exercise of his own modes of thought, government, and conduct."24
A keen political observer like Jackson certainly recognized the character of the opposition he faced during the removal debates of 1830. He was able to identify those whose motivations were merely political, and those, like Frelinghuysen, who posed a more principled and therefore serious threat to this policies. But in 1832, Jackson learned that even the missionaries that had presented such strong resistance in 1830 could be soft in their support for the Indians. Even a committed sympathizer like Samuel Worcester could be moved toward a more "realistic" position.
In fairness to these missionaries, many had concluded by 1832 that removal was the regrettable, but only, course left to the Indians. Like Jackson, they seemed to realize that the Indians' friends in Congress could not be counted on. With the passage of the Indian Removal Act—with the law now on the side of relocating the Indians to the other side of the Mississippi River—many decided that removing the tribes from the hostile reach of white expansion was the only way to protect them over the long term. But however their decision was rationalized, in the years following the Worcester case, former supporters permitted removal to proceed without effective opposition. As a result, in just a few years Jackson's administration negotiated more than seventy treaties, acquiring more than 100 million acres of Indian land east of the Mississippi River in exchange for $68 million in cash and 32 million acres of land far to the west.25
Most tribes accepted the fate that now seemed unavoidable—but some resisted. After the federal government negotiated a treaty with a faction of the Cherokees led by Major Ridge in 1835, the vast majority of the nation rejected the deal and refused to leave; only a few hundred Cherokees joined Ridge when he led a party west in 1836. The other 16,000 Cherokees remaining in the East dug in, citing a long list of treaties and their recent victory before the Supreme Court. But few of their former white supporters rallied to their cause. Therefore, in the spring of 1838, federal troops began to arrest the remaining Cherokees and to place them in stockades throughout the Southeast. Between April and December, they were organized into parties and force-marched toward present-day Oklahoma. Those departing in the fall were unable to reach their destination before winter took its deadly toll. Private contractors, awarded responsibility for transporting some of the parties, badly underestimated the amount of provisions needed to transport their human cargo safely. By the time they reached their new lands, almost 4000 Cherokees had died.
Many people contributed to the making of this "trail of tears." Jackson and his new approach to national Indian policy played a large part. So, too, did white expansionists and the southeastern state governments that supported them. But the Indians' friends also bore a portion of the blame. As the crisis unfolded, their support proved soft—ironically, just as the Cherokees acquired the economic and political coherence needed to defend their claims, their white supporters shrank from the fight that the Cherokees were finally able to wage.
All of this may clutter the traditional story, undercutting our interest in blaming this tragedy on an Indian-hating president and his contempt for the law. But the truth is more messy. The Cherokees were forced down the Trail of Tears by their friends as well as their enemies—and the law prevailed, even if justice did not.