Native Americans: 22 Books on History, Mythology, Culture & Linguistic Studies. James Mooney

A few individual reservations to be permitted east of the Mississippi, but only on condition that the reservees shall become citizens of the State in which they reside, and that all reservations between them and the United States, founded upon their previous circumstances as Indians, must cease.

Cherokees contemplate removal to Columbia River.—In the discussion of these propositions the fact was developed that a project had been canvassed, and had received much favorable consideration among the Cherokees themselves (in view of the difficulties and harassing circumstances surrounding their situation), to abandon their eastern home and to remove to the country adjacent to the mouth of the Columbia River, on the Pacific coast. This proposition having reached the ears of the Secretary of War, he made haste, in a letter to Mr. Chester,370 to discourage all idea of such a removal, predicated upon the theory that they would be surrounded by tribes of hostile savages, and would be too remote from the frontier and military posts of the United States to enable the latter to extend to them the arm of protection and support.

Nothing was accomplished by the negotiations of Mr. Chester, and in the autumn371 of the same year Governor Lumpkin, of Georgia, was requested to attend the Cherokee council in October and renew the proposition upon the same basis. A similar fate attended this attempt.

      Decision of Supreme Court in Worcester vs. Georgia

       Table of Contents

      Among other laws passed by the State of Georgia was one that went into effect on the 1st of February, 1831, which prohibited the Cherokees from holding councils, or assembling for any purpose; provided for a distribution of their lands among her citizens; required all whites residing in the Cherokee Nation within her chartered limits to take an oath of allegiance to the State, and made it an offense punishable by four years' imprisonment in the penitentiary to refuse to do so. Under this law two missionaries, Messrs. Worcester and Butler, were indicted in the superior court of Gwinnett County for residing without license in that part of the Cherokee country attached to Georgia by her laws and in violation of the act of her legislature approved December 22, 1830. In the trial of Mr. Worcester's case, which was subsequently made the test case in the Supreme Court of the United States, he pleaded that he was a citizen of Vermont and entered the Cherokee country as a missionary with the permission of the President of the United States and the approval of the Cherokee Nation; that Georgia ought not to maintain the prosecution inasmuch as several treaties had been entered into by the United States with the Cherokee Nation, by which the latter were acknowledged as a sovereign nation, and by which the territory occupied by them had been guaranteed to them by the United States. The superior court overruled this plea, and Mr. Worcester was tried, convicted, and sentenced to four years in the penitentiary.

      The case was carried up on a writ of error to the Supreme Court of the United States, and that court asserted its jurisdiction. In rendering its decision the court remarks that the principle that discovery of parts of the continent of America gave title to the government by whose subjects or by whose authority it was made against all other European governments, which title might be consummated by possession, was acknowledged by all Europeans because it was the interest of all to acknowledge it, and because it gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlements on it. It was an exclusive principle which shut out the right of competition among those who had agreed to it, but not one which could annul the rights of those who had not agreed to it. It regulated the rights of the discoverers among themselves, but could not affect the rights of those already in possession as aboriginal occupants. It gave the exclusive right of purchase, but did not found it on a denial of the right of the possessor to sell. The United States succeeded to all the claims of Great Britain, both territorial and political. Soon after Great Britain had determined on planting colonies in America the King granted sundry charters to his subjects. They purport generally to convey the soil from the Atlantic to the South Sea. The soil was occupied by numerous warlike nations, milling and able to defend their possessions. The absurd idea that feeble settlements made on the sea-coast acquired legitimate power to govern the people or occupy the lands from sea to sea did not then enter the mind of any man. These charters simply conferred the right of purchasing such lands as the natives were willing to sell. The acknowledgment of dependence made in the various Cherokee treaties with Great Britain and the United States merely bound them as a dependent ally claiming the protection of a powerful friend and neighbor and receiving the advantages of that protection, without involving a surrender of their national character. Neither the Government nor the Cherokees ever understood it otherwise. Protection did not imply the destruction of the protected.

Georgia herself had furnished conclusive evidence that her former opinions on the subject of the Indians concurred with those entertained by her sister States and by the Government of the United States. Various acts of her legislature had been cited in the argument of the case, including the contract of cession made in 1802, all tending to prove her acquiescence in the universal conviction that the Cherokee Nation possessed a full right to the lands they occupied, until that right should be extinguished by the United States with their consent; that their territory was separated from that of any State within whose chartered limits they might reside, by a boundary line established by treaties; that within their boundary they possessed rights with which no State could interfere, and that the whole power of regulating the intercourse with them was vested in the United States. The legislation of Georgia on this subject was therefore unconstitutional and void.372

      Georgia refuses to submit to the decision of the Supreme Court.—Georgia refused to submit to the decision and alleged that the court possessed no right to pronounce it, she being by the Constitution of the United States a sovereign and independent State, and no new State could be formed within her limits without her consent.

      President Jackson's dilemma.—The President was thus placed between two fires, Georgia demanding the force of his authority to protect her constitutional rights by refusing to enforce the decision of the court, and the Cherokees demanding the maintenance of their rights as guaranteed them under the treaty of 1791 and sustained by the decision of the Supreme Court.

It was manifest the request of both could not be complied with. If he assented to the desire of the Cherokees a civil war was likely to ensue with the State of Georgia. If he did not enforce the decision and protect the Cherokees, the faith of the nation would be violated.373 In this dilemma a treaty was looked upon as the only alternative, by which the Cherokees should relinquish to the United States all their interest in lands east of the Mississippi and remove to the west of that river, and more earnest, urgent, and persistent pressure than before was applied from this time forward to compel their acquiescence in such a scheme.

      Disputed Boundaries Between Cherokees and Creeks

       Table of Contents

Mention has already been made in discussing the terms of the treaty of September 22, 1816, of the complications arising out of the question of disputed boundaries between the Cherokees, Creeks, Choctaws, and Chickasaws. These disputes related chiefly to an adjustment of boundaries within the Territory of Alabama, rendered necessary for the definite ascertainment of the limits of the Creek cession of 1814. But as a result of the Cherokee cession of 1817 and the Creek cessions of 1818, 1821, 1826, and 1827, the true boundary between the territories of these two latter nations became not only a matter of dispute, but one that for years lent additional bitterness to the contest between the people of Georgia and the Indians, especially the Cherokees. Prior to the Revolution, the latter had claimed to own the territory within the limits of Georgia, as far south as the waters of Broad River, and extending from the headwaters of that river westward.