FROM THE TIME EUROPEAN settlers came to the Americas, there had been tension between them and the Native Americans who lived here, a tension that often exploded into violence and warfare. By the early nineteenth century the superior arms of the white settlers, as well as the diseases they carried for which the Indians had no immunity, had decimated the tribes on the East Coast of the United States. Many had been pushed west into lands supposedly protected by treaty with the federal government against further incursions by whites.
But the West to which the Indians in the Southeast had retreated was merely the western portion of the original southern colonies, such as Georgia, and as the states grew, white farmers and plantation owners cast covetous eyes on the rich land held by the Indians. The issue came to a head in the late 1820s and early 1830s, and led to the ejection of Indians from lands they had been promised would belong to them forever. The events of the 1820s set the stage for the Cherokee cases in the 1830s, and then the tragic Cherokee removal under President Martin Van Buren.
The early 1820s saw the Court’s first significant attempt to define the relationship between the United States and the native Indians in Johnson and Graham’s Lessee v. M’Intosh (1823), which provided the constitutional basis for taking all lands from the Indians. In 1775 the Piankeshaw Indians sold land in present-day Illinois to a group of speculators, including one Thomas Johnson. Prior to the adoption of the Articles of Confederation, Virginia claimed the land in this part of the Northwest Territory. In 1783, as part of the conditions set by smaller states for ratifying the Articles, Virginia ceded ownership to the national government. In 1818, William M’Intosh bought more than 11,000 acres of that land from the federal government. The same lands, however, were also claimed by Johnson’s heirs, Joshua Johnson and Thomas Graham, who lost their cases in the lower courts, and then appealed to the Supreme Court.
The Court heard the case in early 1823, and despite its record of supporting property rights, ruled against Johnson’s descendants, even though their claims predated those of M’Intosh by nearly fifty years. Chief Justice John Marshall rejected the idea that Indians could have any claims to land and therefore the right to sell land. He argued that when Europeans arrived in the New World they gained title to all lands they occupied through a right of “discovery.” This discovery gave the British and then the Americans “an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty as the circumstances of the people would allow them to exercise.” The British, therefore, had an “absolute title of the crown” in the lands, which then transferred to the newly independent United States.
The contemptuous attitude that many Americans had toward the Indians came through clearly in Marshall’s opinion, when he wrote that “the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest.” The Indians were to be protected if they lived peaceably on the land, but they were “incapable of transferring the absolute title to others.” The Piankeshaw Indians had held no property rights in the land they occupied, and therefore could not sell or otherwise transfer them. By this reasoning, no Native American could lay any claim to lands they occupied. The decision helped set the stage for the dispute among Georgia, the Cherokee, and the U.S. government in the 1830s.
The policy of removing Indians from their lands had begun with Thomas Jefferson and had been part of the administration of every president who preceded Andrew Jackson. During and immediately after the War of 1812, then-general Andrew Jackson secured treaties with most of the southeastern Indian tribes, in which they agreed to move to territory in present-day Oklahoma. Under these treaties the Creek, Choctaw, Chickasaw, and some members of the Seminole and Cherokee moved west, although not to Oklahoma at this time. Some of the Cherokee settled in the western part of what is now Georgia, while the remaining Seminole retreated into the interior of Florida, where they successfully resisted numerous military assaults on them.
In 1825 a federal Indian commissioner negotiated the fraudulent Treaty of Indian Springs, tricking the Creek chiefs into ceding 4.7 million acres in Georgia to the federal government. President John Quincy Adams signed the treaty, but upon learning of the deception, he withdrew it and secured the less stringent Treaty of Washington the following year. The Georgia legislature declared that Adams’s annulment of the earlier treaty was invalid, and characterized his action as a violation of states’ rights. In the 1783 agreement giving up claims to western lands beyond its current boundary to the national government, Georgia had been promised that the federal government would, as soon as possible, secure for the state all the Indian lands within its borders. The Cherokee and Creek tribes had resisted efforts to be moved, and Georgia used the false treaty as the lever to get Indian lands that white settlers had long coveted. Gov. George M. Troup threatened to call out the militia if Adams did anything to prevent enforcement of the Indian Springs Treaty. Adams caved in and left the Creek to their fate.
Andrew Jackson’s position on Indian affairs reflected the attitude of the West in general—Indians should get out of the white man’s way. In the earlier Creek and Seminole wars, he had shown both his valor as a fighter and his inclination to move the natives off their ancestral lands. Indeed, as a general he had negotiated scores of treaties with Indians leading to the successful and relatively peaceful movement of thousands of Indians to what later became Oklahoma. By 1828 Jackson had fully endorsed the notion that a “just, humane, liberal policy” required that Indians be moved west of the Mississippi. He believed that through this policy the Indians could live within their own culture, without worrying about white incursions on their land, while whites could have access to the rich farmlands of Georgia, Mississippi, Alabama, and Tennessee previously occupied by the Indians.
This policy had been crystallizing since Jefferson’s purchase of Louisiana in 1803, and had been fully articulated by Secretary of War John C. Calhoun as early as 1823. But as president, Jackson made it the official policy of the government, and in the Indian Removal Act of 1830, Congress appropriated a half-million dollars to facilitate massive tribal transfers. The administration negotiated over ninety treaties in the next few years, and in 1836 the president announced that all but a few tribes had accepted the program.
In all these negotiations, however, the national government had failed to bargain with the tribes in good faith and never carried out its obligations or fulfilled its promises to them. Furthermore, the federal government made little or no effort to control the states, whose citizens could not wait for the Indians to move before rushing in to grab their lands. In the North, weak tribes either gave way before the white settlers or were tricked or bribed by federal Indian commissioners to give up what little they had. The struggle they occasionally put up often ended in disaster, as in the Black Hawk War of 1832, with its gruesome massacre of Sauk and Fox women and children trying to flee across the Mississippi.
Stronger tribes in the southern states put up a stiffer resistance. The Florida Seminoles fought a guerrilla war in the Everglades swamps from 1835 to 1842, and were never actually defeated, although military engagements dissipated after American soldiers treacherously seized their chief, Osceola, under a flag of truce. The Cherokee, more than any other tribe, had adopted aspects of white culture. They had a written constitution; had divided tribal land into individually owned farms; and had even followed the southern practice of slaveholding, as had the other “civilized Tribes” of the old Southwest, the Creek, Choctaw, Chickasaw, and Seminole. They grew cotton and corn, and tried to blend into the South while occupying large tracts of land in northern Georgia and western North Carolina that had been guaranteed to them by a 1791 treaty. In 1827, when the Cherokee adopted a constitution, it was based on their treaty rights, which not only affirmed their claims to the land, but also insisted that, as an independent nation, they were not subject to the laws of any other state or nation. Georgia responded the following year with a statute declaring that after June 1, 1830, state law would extend over all the Cherokee living within the state’s borders. With the discovery of gold deposits in 1829, white settlers and prospectors began crowding into Indian country.
Georgia had forced John Quincy Adams to back down from his efforts to revise the Indian Springs Treaty, which had pushed the Cherokee into a narrow strip of land on the western and northern borders of the state. Georgia had no constitutional right either to claim jurisdiction over the Indians or to negotiate with them on land or other matters. Under the Articles of Confederation, the states had negotiated directly with Indian tribes, but the Constitution ended this, and Article I, Section 8, reserved the power to regulate trade with the Indian tribes to the Congress. Treaties negotiated by the United States took priority, under the supremacy clause, over state laws.
Since the time of the adoption of the Articles of Confederation, however, American governments had dealt with various tribes as autonomous nations, and even while trying to remove the Indians from the path of settlement, they had at least heeded these formalities. But the status of the tribes remained vague at best, and the manner in which the federal government tried to manage Indian policy depended on whether the vigor of a president in exercising federal prerogatives outweighed the determination of the states to gain control of tribal lands.
In President Jackson, the southern states recognized a man who sympathized with their desire to remove the Indians, and who, they correctly anticipated, would not oppose them if they did not directly challenge his authority. Jackson made no comment on the 1830 Georgia law claiming jurisdiction over lands ceded to the Cherokee under the Treaty of Hopewell (1785) and the Treaty of Holston (1791), nor did he oppose the state’s subsequent seizure of much of that land. The state found the Supreme Court somewhat less sympathetic, but it did not really matter; Georgia, in the end, successfully defied the judicial power of the United States, with the tacit support of Jackson.
The first case to test the Georgia law involved the state murder prosecution of a Cherokee named George Corn Tassels, under Georgia’s newly proclaimed authority over the Indians. Corn Tassels, in turn, argued that Georgia had no jurisdiction over him. The Supreme Court agreed to review the case, but Georgia refused to acknowledge the Court’s jurisdiction. Governor Troup, backed by the legislature, declared that he would fight off any attempt to interfere with the state’s court system. Corn Tassels, who may or may not have been guilty, was soon tried, found guilty, and executed.
Although Jackson refused to interfere, Georgia’s actions and the breach of treaty obligations led the Cherokee to seek an injunction to prevent the state from seizing Indian lands or enforcing its law over the tribes. An aging John Marshall tried once again to walk the political tightrope he had so successfully traversed for three decades. In Cherokee Nation v. Georgia (1831), the Court held on the one hand that the Indian tribes constituted neither a state of the Union nor a foreign nation, and they therefore could not pursue an action in the federal courts. On the other hand, the chief justice defined the Indians as “domestic dependent nations” under the jurisdiction of the United States, and were in fact “in a state of pupilage”—that is, still in need of supervision by the federal government. He found that the relation between the federal government and the tribes “resembles that of a ward to his guardian.” Although he conceded that the tribes could not be forced to give up their lands except through voluntary cession, “this is not the tribunal in which those rights are to be asserted.” Since Marshall essentially concluded that the Court had no jurisdiction to decide the issues, Georgia could easily ignore its implications. The Court’s decision helped seal the fate of the Cherokee, and abdicated any judicial responsibility for the enforcement of treaty rights or for the protection of Indian lands or peoples.
Justice Smith Thompson, joined by Joseph Story, dissented. He argued that the Court indeed had jurisdiction since the Georgia law overturned treaties made by the United States. Furthermore, as a suit between a foreign nation (the Cherokee nation) and a state, it was not barred by the Eleventh Amendment, which prohibited suits by citizens against a state in federal courts. Thompson offered a detailed and convincing analysis showing that in light of congressional actions, treaties, and common usage of language, the Indian tribes were “nations” within the meaning of Article III of the Constitution. This brought the case within the original jurisdiction of the Court. He then argued that on the merits of the case, the Cherokee were entitled to relief. This issue seemed obvious: under various treaties the tribe had claims to certain lands, and Georgia had violated these rights.
Thompson’s analysis was more logical and persuasive than that of the chief justice; it was also more reasonable and humane. However, because it backed Indian claims, it was politically unacceptable to a majority of Americans, to the land-hungry citizens of Georgia, and to President Jackson. Although Marshall may have been sympathetic to Thompson’s argument, the elderly jurist was not prepared, at least this time, to take on a political fight he had no hope of winning.
The issue of Indian sovereignty, however, came back to the Supreme Court just a year later in Worcester v. Georgia (1832), thanks to the efforts of a missionary named Samuel Austin Worcester.
Worcester was a New England Yankee who seemed destined to champion Cherokee rights as a matter of principle. Born in 1798 into a Vermont family that included a number of leading congregational ministers, he was educated by his father, the Rev. Leonard Worcester, then at the University of Vermont (of which his uncle was president), and then graduated in 1823 from the Andover Theological Seminary. A year later he married Ann Orr of New Hampshire. The couple learned missionary principles and methods at Boston’s American Board of Commissioners for Foreign Missions, an early Christian mission agency active both domestically and overseas. When Samuel was ordained in 1825, his father preached the sermon at the ceremony. The married couple then left to begin their ministry with the Cherokee in the South.
Worcester and his wife accepted several assumptions held by the American Board of Commissioners. First, the Cherokee should be educated, which of course meant European-American education. Second, newspapers, schoolbooks, and sermons should initially be in the native language of the tribes, with the Indians eventually learning to speak, read, and write in English. Third, Indian autonomy from hostile power—safety from domination—was the key to conversions, education, and development. Worcester’s uncle, Dr. Samuel Worcester, had argued for these principles since 1817.
These formal principles, however, covered up the fact that most missionaries imposed their own views and prejudices on their work. Leonard Worcester’s ordination sermon praised his son’s mission “to the heathen.” The American Board’s agenda for Native Americans assumed that they would change how they lived in ways the missionaries approved. The Worcesters had no qualms in accepting their charge from the board: “To make the whole tribe English in their language, civilized in their habits, and Christian in their religion.” Beyond that, however, missionaries faced the usual challenge of outsiders. How far would they go to help those different from themselves, and how far would their superiors or the Indians allow them to go? No matter how noble their intentions, the practicalities and especially the politics could be very dangerous.
The Worcesters first went to Brainerd, Tennessee, in 1825, and then to New Echota, Georgia, in 1827. By then missionaries from other denominations had established themselves in Cherokee country, and had already converted some of the Indians to Christianity. Worcester was soon accepted by the tribe as A-tse-nu-sti (“the messenger”), and he quickly developed education and conversion tools. He had learned woodworking and typesetting from his father, so he soon mastered Cherokee letters and printed the Cherokee Phoenix (1828–1834), to which he contributed articles and editorials in English. He started translating the Bible into Cherokee, and also worked on translating hymns and sermons. And, because education stood foremost in his priorities, he began to build schools.
Samuel Worcester’s duties as a minister seemed unlikely to lead him to be imprisoned or to take an appeal to the U.S. Supreme Court. There is no question that Worcester’s actions reflected his religious principles, but his beliefs about Indian sovereignty and independence differed significantly not only from white Georgians but also from most white Americans. The treaties the Cherokee relied upon led Andrew Jackson and the Georgia leaders to charge that the Indians wanted to erect a state within a state—an imperium in imperio. The Cherokee believed that they had prior domain over the land, and did not see themselves as trying to create a state within a state. But the arguments by Jackson and Georgia politicians, and their proposed remedy—Indian removal—were very popular with the general public, especially those who wanted to get their hands on the fertile lands held by the tribe.
This popular appeal is why Jackson’s opponents in the 1828 presidential campaign failed to hurt him by attacking his Indian policy. Jackson advocated Indian removal in his first annual message to Congress in December 1829, and in May 1830 Congress passed the U.S. Indian Removal Act. That fall the American Board of Commissioners for Foreign Missions issued resolutions opposing the removal, and Worcester not only drafted resolutions but spoke publicly against the Georgia policies.
The sequence of events that led Samuel Worcester to jail and to the high court began in late 1830, when he wrote a document signed by about a dozen Christian ministers protesting Georgia’s encroachments on Cherokee territory. All of the ministers detested President Jackson’s efforts to force Indian removal, and all were familiar with Georgia’s attempts to hasten it. Only one of them, however, Elizur Butler, joined Worcester in the penitentiary after Georgia incarcerated them because they deliberately remained with the Cherokee nation after the March 1, 1831, deadline for all white men to leave or secure a license and swear an oath to abide by Georgia law. Worcester intended to provoke a Supreme Court case and, by winning, ensure the Cherokees’ protection by federal law.
Worcester stood prepared for a moral and legal battle, but some of his earlier allies had begun to desert him. Three Georgia-based missionaries who had previously opposed removal decided against joining Worcester and Butler as their fight became more public. Worcester attacked Georgia governor George R. Gilmore when the latter accused the missionary of “opposition to the humane policy which the General Government has adopted for the civilization of the Indians” and criticized his “effort to prevent their submission to the laws of Georgia.” Worcester responded, declaring, “If I am correct in the apprehension that the state of Georgia has no rightful jurisdiction over the territory where I reside, then it follows that I am under no moral compunction to remove, in compliance with her enactments.”
For his failure to obey the law, Georgia authorities arrested Worcester, and after a jury found him guilty, he entered prison in September 1831, and stayed there for sixteen months. In prison he improved his woodworking and cabinetmaking skills, talents he would put to good use later on in the Oklahoma Indian Territory. He also appealed to the U.S. Supreme Court.
The Court accepted the case in early January 1832, and set February 20 as the first day of oral argument. William Wirt, John Sergeant, and Elisha W. Chester appeared that day, the first two representing the Cherokee and the latter on behalf of Samuel Worcester. Wirt was one of the best-known lawyers in the country, a veteran of many Supreme Court cases, and he had represented the Cherokee in the earlier case. But in 1824, as attorney general, he had issued an opinion denying the Cherokee government the power to impose a licensing tax on white traders doing business with the tribe. Wirt wrote that it was “fallacious” to view the Cherokee as having sovereignty equal to that of the United States. “By the treaties they have entered with us,” he declared, “they have placed themselves under the protection of the United States.” Now, of course, he would have to argue just the opposite.
Wirt had had a difficult time finding cocounsel, in part because many lawyers had no desire to represent Indians, and in part because loyal Democrats feared crossing Andrew Jackson. Finally, he secured the services of the wealthy Philadelphia lawyer and representative John Sergeant, an ardent anti-Jacksonian. Worcester hired Elisha W. Chester, a New England acquaintance who was practicing law in Georgia, but in general, Chester, who had little experience in appellate work, took his guidance from Wirt.
Georgia, as it had done the year before in Cherokee Nation v. Georgia, refused to send any representative, in effect declaring that it did not recognize the authority of federal courts in what it considered internal matters. Georgia was not alone at this time in challenging federal power on the basis of states’ rights, and its decision reflected a long-standing objection to the idea of federal judicial supremacy over the states. It had, in fact, been Georgia that first challenged the Supreme Court’s authority to hear a suit by a citizen against a state, in Chisholm v. Georgia (1793), a decision that led to the adoption of the Eleventh Amendment barring such suits. The failure to even attend the proceedings, however, boded ill for Worcester and the Cherokee, since even if they won in the high court, Georgia would undoubtedly ignore the decision.
Sergeant laid out the case for Worcester and for the Cherokee on February 20, and Wirt took over the next day, expanding on Sergeant’s outline, and finishing on February 23 (the Court adjourned on February 22 to attend a service in the Capitol in honor of the centennial of George Washington’s birth). Justice Joseph Story reported to his wife that “both of the speeches were very able, and Wirt’s, in particular, was uncommonly eloquent, forcible, and finished.”
Sergeant took a straightforward approach, without the rhetorical flourishes favored by Wirt, and set out a simple legal argument—the Court had the power to hear the case. That is, it had jurisdiction; the Eleventh Amendment did not bar appeals to the high court in which a federal question had been raised. He then turned to the merits of the case, which he asserted derived directly from treaties made with the Indian tribes and that had been ratified by Congress. While Congress could repeal laws it had passed, it could not unilaterally abrogate a treaty, and neither could any individual or state.
Sergeant described the rights of the Cherokee as having been violated, but he always spoke of tribal claims as secondary to the issue of federal authority. As for the Indians’ political status, he cautiously cited Chief Justice Marshall’s language in Cherokee Nation v. Georgia: “As to the Cherokees themselves, they are a State—a community. Within their territory, they possess the powers of self-government. . . . They are domestic, dependant nations.”
On March 3, 1832, the Court, as Wirt and Sergeant had expected, ruled against the state of Georgia. Writing for the Court, Chief Justice John Marshall first asserted the Court’s jurisdiction to hear the case. Worcester and other missionaries could, as citizens of the United States, properly challenge their convictions under earlier Court decisions affirming the high court’s national judicial power. “It is too clear for controversy,” he asserted, “that the act of Congress, by which this court is constituted, has given it the power and the duty of exercising jurisdiction in this case.” (While Marshall may have been reminding Congress that it had conferred upon the judiciary the authority for hearing such cases, and that the Court had not seized it, it did sound a false note, since just the previous year the Court had denied that it had any “duty” to hear the Cherokee Nation case.)
He then turned to the merits of the case, and declared that Georgia’s laws and actions were “repugnant to the constitution, laws, and treaties of the United States.” Worcester and Elizur Butler had been arrested and imprisoned under an unconstitutional law, and should therefore be freed immediately. The opinion, however, did not stop there, as it well might have, since the missionaries were contesting only their convictions and imprisonment. Marshall went on to declare all of Georgia’s harassing legislation unconstitutional, and he did so in sweeping terms. The state’s laws violated the authority of the United States and the rights of the Cherokee, who constituted a distinct political entity with full control over their territory, over which “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.”
As he had in so many controversial cases, Marshall deftly avoided a direct confrontation with either Georgia or the U.S. government. His opinion was clearly an affront to the state of Georgia—much the same way his opinion in Marbury had been an affront to Jefferson. Here he was implicitly ordering the state to release Worcester, but he could not have expected any cooperation from Georgia. Indeed, Marshall’s closest confidant on the Court, Justice Joseph Story, predicted that Georgia probably would “resist the execution” of the Court’s judgment. For Story, and perhaps Marshall, the symbolism of the opinion was enough. “Thanks be to God,” Story wrote to his wife, “the Court can wash their hands, clean of the iniquity of oppressing the Indians and disregarding their rights.” Story was proud that the “Court has done its duty.”
While his opinion required Georgia to set Worcester free, Marshall never issued a final order in the case directing the state to do so. Instead, the day after the decision, the Court adjourned. The opinion of the Court was sent to Georgia, to be implemented by that state’s government. If Georgia failed to act, which is what everyone assumed, then Worcester could return to the Court the following term, in January 1833, to ask for some process to secure his release. This left Worcester in the odd position of having won a favorable decision but without any specific order or writ that he could ask someone to serve on Georgia authorities. Marshall strongly implied in his opinion that the president had a duty to enforce federal law and treaty obligations, but he did not order Jackson, or anyone else, to do anything.
According to the journalist Horace Greeley at the time, Jackson declared that “John Marshall has made his decision, now let him enforce it,” but despite the constant repetition of this alleged response, there is no evidence that Jackson said anything of the sort. Marshall had issued no mandate requiring that the president or anyone else take any action. Jackson did, however, write to a longtime friend that “the decision of the supreme court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate.” Moreover, Jackson did not believe he could force Georgia to act, nor was there sufficient military or political power to “preserve [the Cherokee] from destruction,” if it came to that. Thus Jackson took no direction action in response to the decision, and as one historian has noted, “Jackson’s silence on the Court’s decision appears to have been astutely planned.”
In the months following the decision in Worcester, President Jackson was deeply immersed in three other issues:
1. The upcoming election of 1832, where he would run for reelection.
2. The developing conflict between the national government and South Carolina over tariffs, which would lead to the state’s effort to nullify a federal law later that year.
3. The debate over the recharter of the Bank of the United States, which would lead to Jackson’s famous Bank Veto in July (see Chapter 2 for more about the Bank).
Shortly after Jackson signed the compromise tariff bill in July 1832, Vice President John C. Calhoun resigned his office in July to publicly oppose Jackson’s policies and to advocate for the right of states to nullify federal laws. By the fall of 1832 all three issues complicated any resolution of the Cherokee case, while South Carolina’s movement toward nullification—with an ordinance passed on November 24, 1832—threatened the entire nation.
Under these circumstances, Jackson could hardly risk a confrontation with Georgia over the Cherokee. Rather, he needed the support of Georgia and the rest of the South in his emerging confrontation with South Carolina. At the same time, he could hardly chastise South Carolina for its nullification of a federal law while Georgia defied the U.S. Supreme Court’s assertion that Worcester’s imprisonment violated the U.S. Constitution and the federal treaties with the Cherokee.
In the late fall of 1832 a series of compromises emerged. Jackson and his new vice president, Martin Van Buren, worked with Gov. Wilson Lumpkin of Georgia to arrange to have the legislature repeal the statute under which Worcester had been convicted. The board of ministers that Worcester worked with agreed to end the litigation. Governor Wilson met with the wives of Reverend Worcester and his codefendant, Reverend Butler. Then, in response to petitions to release Worcester and Butler, Lumpkin was able to act in a “humanitarian” way to set the men free. By January 1833 Worcester and his colleague were out of jail. Lumpkin offered to pardon Worcester and Butler; they would not accept the pardon (since that would have implied that they had been in the wrong), but they did accept the humanitarian release and promised to leave the state, which they did. With this issue moving toward settlement in late 1832, Andrew Jackson was now free to turn his attention to crushing the nullification movement in South Carolina, with the full support of Georgia.
In these negotiations, Jackson promised Georgia that the federal government would finally remove the Cherokee. He thus pressured the tribe into signing a new treaty. In 1835 a group of Cherokee signed a treaty in which the tribe agreed to vacate the land they occupied in Georgia in exchange for land in a newly designated “Indian Territory” in present-day Oklahoma, along with $5 million and expenses for transportation. The negotiators who signed the treaty did not represent the majority of the Cherokee nation, and actually had no authority to act on behalf of the nation. The overwhelming majority of the Cherokee opposed the treaty, and many refused to comply with the requirements, even when faced with the overwhelming force of the U.S. Army. Thus most of the Cherokee made no preparation to leave until 1838, when the army forcibly moved most of the Georgia Cherokee west in what is known as the “Trail of Tears.” Nearly 4,000 Cherokee died in internment camps before they were relocated, along the way, or shortly after their arrival in the Indian Territory. Inadequate food and shelter, as well as the strenuous journey, caused most of these deaths. Only 17,000 Cherokee reached Oklahoma. On the trail, they were subjected to humiliating treatment by the soldiers supposedly guarding their way, to pilferage from civilian contractors on whom they relied for supplies, and to the open scorn of whites along the route. A few Cherokee, known as the eastern band, remained in Georgia, and eventually settled on a reservation in North Carolina.
The Cherokee removal illustrates how whites as individuals, and collectively through the federal and state governments, maltreated the Indians in the nineteenth century. It remains a blot on the national heritage. It also points up one of the gray areas of the Constitution, which at this time provided little protection for Indians or other minority groups. The inherent racism of whites toward Indians influenced policy and actions from the time of the early settlements until well into the twentieth century, despite the efforts of some whites (and, later on, activist Indians as well) to secure justice and fair treatment for the tribes. Most of the states supported Georgia’s flouting of the Supreme Court, as well as Jackson’s policy to force the tribes, against their will, to give up fertile lands that they had long inhabited and had been granted in treaties, to move to the barren reaches of the Great Plains. Just as ominously, Georgia’s assertion of state sovereignty against the federal judicial power anticipated a major constitutional crisis involving federal tariff policy.
Samuel Worcester moved to the Indian Territory in 1835, ahead of the Cherokee who came on the Trail of Tears. There he continued his work as a newspaper publisher, minister, and supporter of Indian education, and finished his translation of the Bible into Cherokee. His granddaughter, Alice M. Robertson, would be elected to Congress from Oklahoma in 1920.
In November 1992, Gov. Zell Miller of Georgia issued a full and unconditional pardon to Samuel Worcester and Elizur Butler, the two missionaries whom the state had imprisoned more than a century and a half before. He relied upon an earlier recommendation issued just two months earlier by the State Board of Pardons and Paroles, which read in part:
Today, the State Board of Pardons and Paroles acts to remove a stain on the history of criminal justice in Georgia. The U.S. Supreme Court did what it could 160 years ago to reverse the wrong committed against Reverend Worcester and Reverend Butler. Believing justice ought to be denied no longer, by this Order the State Board of Pardons and Paroles unconditionally and fully pardons Samuel Austin Worcester and Elizur Butler.
In a ceremony at the state capital, Governor Miller presented the posthumous pardons to state representative Bill Dover, chief executive officer of the Georgia Tribe of Eastern Cherokee, the descendants of that small remnant who had not traveled the Trail of Tears.
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831)
Chisholm v. Georgia, 2 U.S. (2 Dall.) 419 (1793)
Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821)
Johnson and Graham’s Lessee v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823)
Marbury v. Madison, 5 U.S. (1 Cr.) 137 (1803)
State v. George Tassels, 1 Dud. 229 (Georgia 1830)
Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832)
On the cases, see Jill Norgren, The Cherokee Cases: The Confrontation of Law and Politics (1995), and Theda Perdue, The Cherokee Removal: A Brief History with Documents (1995). Tim Alan Garrison, The Legal Ideology of Removal: The Southern Judiciary and the Sovereignty of Native American Nations (2002), offers an important study of the state litigation leading to the Cherokee cases, including Corn Tassels’ case. Ronald N. Satz, American Indian Policy in the Jacksonian Era (2002), provides detailed scholarship on the questions. Robert Remini, Andrew Jackson and His Indian War (2001), is a complex analysis of Jackson’s career in relation to Indians. Also useful, but controversial, is Michael P. Rogin, Fathers and Children: Andrew Jackson and the Subjugation of the American Indian (1975). On Worcester, see Althea Bass, Cherokee Messenger (1936), and William G. McLoughlin, Cherokees and Missionaries, 1789–1839 (1984).