In the 1830s, the Cherokee Indians of Georgia, Tennessee, and North Carolina became the focus of a national debate and the test case in a number of interrelated issues: Would the United States honor its Indian treaties—described in the Constitution as the supreme law of the land? Did Indians’ treaty rights trump state rights? What was the status of an Indian nation within state boundaries? Was there indeed a place for Indian people in American society? For many Americans, Native and white alike, these questions were vital to the future growth and moral character of the young nation. The Treaty of New Echota provided the answers. Four days after Christmas in 1835, in an action illegal under Cherokee law, twenty Cherokees signed away the tribal homeland in exchange for $5 million and lands in the West. Ratified by the Senate and signed by the president in clear defiance of the will of the majority of Cherokee people, the Treaty of New Echota raised a storm of protest among Americans as well as Cherokees but it gave the United States justification to relocate the Cherokees beyond the Mississippi. As many as four thousand Cherokees died on the resulting Trail of Tears. The key signers, as they knew they might, perished at the hands of fellow Cherokees. The Treaty of New Echota plunged the Cherokee Nation into enduring internal conflict and stands as an enduring indictment of a nation that broke treaties and trust to implement a policy of ethnic cleansing.
The Cherokees had had plenty of experience with treaties, both fair and fraudulent. From their first treaty with South Carolina in 1721 to the Treaty of New Echota in 1835, the eastern Cherokees negotiated thirty-eight treaties with Britain, colonial governments, states, and the United States and “refused almost yearly to negotiate other agreements.”1 By 1835 Cherokee territory was a fraction of what it had once been (see figure 4.1).
FIGURE 4.1 The Cherokee Homeland by 1835. (Adapted from James Mooney, Nineteenth Annual Report of the Bureau of American Ethnology, 1897–98 [Washington, D.C.: Government Printing Office, 1900], plate 2, and Francis Paul Prucha, Atlas of American Indian Affairs [Lincoln: University of Nebraska Press, 1990], map 23)
Despite escalating pressure on their lands, the Cherokees experienced a renaissance after the devastation of the American Revolution. They rebuilt their economy, remodeled their society, and sustained their national identity and sovereignty in a world increasingly dominated by Americans. Many Cherokee males made the transition from hunting to agriculture; some had prosperous farmsteads; some owned plantations and slaves.2 Many Cherokees displayed more of the attributes of supposedly “civilized” society than did the American frontiersmen who were so eager to occupy their lands. A census conducted in 1825 showed that Cherokees owned 33 gristmills, 13 sawmills, one powder mill, 69 blacksmith shops, two tanyards, 762 looms, 2,486 spinning wheels, 172 wagons, 2,923 plows, 7,683 horses, 22,531 cattle, 46,732 pigs, and 2,566 sheep. The Cherokees seemed to be doing everything the United States required of them to take their place in the new nation as a self-supporting republic of farmers.
In fact, Cherokee society was a mixture of change and tradition, and the new developments also created fracture lines—younger Cherokees generally favored more rapid acculturation than did the older generations; wealthy Cherokees participated in the market economy, spoke English, and “got ahead,” whereas the majority of Cherokees retained an economy based on subsistence, kinship, and communal sharing. As more southeastern Indians became slaveholders, many Cherokees adopted increasingly racial attitudes toward Africans that conflicted with traditional notions of kinship. James Vann, a Cherokee chief, established a plantation and a manor and by 1809 owned more than one hundred slaves, which not only made him probably the wealthiest man in the Cherokee Nation but also placed him among the elite of southern planters. Vann bought and sold slaves and by all accounts treated them as harshly as any white slaveowner. Following the black codes in most southern states, the Cherokee Council in the 1820s began to adopt a code of laws to regulate black slaves.3
Cherokees who adopted American ways did not necessarily abandon Cherokee ways and values. Born at Hiwassee in Tennessee in 1771, the chief known as The Ridge (an abbreviation of the translation of his Cherokee name Kahmungdaclageh, “the Man Who Walks on the Mountaintop or Ridge”) had fought against Americans as a teenager, but by the first decade of the nineteenth century he was taking up the life of a small southern planter (see figure 4.2). He also rose in influence as a member of the Cherokee National Council and took the lead in defending what remained of the Cherokee homeland. In August 1807, Ridge was one of three men appointed to carry out the execution of Doublehead, an overbearing chief who had grown rich selling Cherokee lands and accepting American bribes. He had received cash and lands from the Americans for his role in brokering two treaties in 1805. Ridge shot Doublehead through the jaw, and the assassins finished him off with knives and tomahawks.4 Soon after, Ridge was appointed to the Lighthorse Guard, two six-man companies charged with “riding the judicial circuit” to enforce the laws of the Cherokee nation as “the judges, jurors, and executioners of justice.”5 In the Creek War of 1813–14, Ridge fought alongside Andrew Jackson’s forces, as did fellow Cherokees John Ross and Stand Watie. At the Battle of Horseshoe Bend, Ridge and the Cherokees led the encircling movement that trapped the Creek warriors after Jackson’s forces had breached their defenses.6 Ridge kept his military rank of major after the war but Jackson paid no attention to former allies as he drove to acquire Indian land.
Some Cherokees had begun moving west voluntarily as early as the 1790s and the trickle continued. In face of growing pressures, however, Cherokees who remained in the East adopted a harder line on land sales. In 1809, the Cherokee National Council established a thirteen-member national committee to manage the Nation’s affairs; the next year the council declared that Cherokees who had emigrated to the West were guilty of treason and had forfeited their citizenship. In 1817 the Cherokees drew up “Articles of Government,” a written constitution providing for election and terms of membership for the national committee. Major Ridge joined sixty-six other chiefs in signing a remonstrance against the policy of Indian removals. Dealing with colonial males who expected to deal only with men and whose interests focused on war and trade had given Cherokee women a less direct voice in the Nation’s affairs than they had exercised in the early eighteenth century, but they, too, were adamant that there be no more land sales: “keep your hands off of paper talks,” they advised the National Council. Jackson managed to push through land cession treaties in 1817 and 1819, which provided for equivalent amounts of land for those Cherokees who had migrated to Arkansas, but there were no more land sales after that. By the 1820s, Ridge and the Cherokees were committed to selling “not one more foot of land.”7
FIGURE 4.2 Major Ridge. (From History of the Indian tribes of North America, with biographical sketches and anecdotes of the principal chiefs. Embellished with one hundred and twenty portraits, from the Indian Gallery in the Department of War, at Washington, by Thomas L. McKenney and James Hall, 3 vols. [Philadelphia: J. T. Bowen, 1848–50], Dartmouth College, Rauner Library)
Major Ridge served with Jackson again—in 1818 he led a company of seventy-two Cherokees in Jackson’s Seminole campaign, technically an invasion of Spanish Florida8—but he continued to resist the American assault on tribal lands. In 1823 John Ross exposed the venal Creek chief William McIntosh for offering the Cherokees bribes to sell their lands. Ridge, as speaker of the council, denounced his former comrade-in-arms and “cast him behind my back.” Two years later, when the Creek National Council condemned McIntosh to death for the Treaty of Indian Springs, Ridge approved of the execution.9
Indian agents Amos Kendall and Samuel C. Stambaugh, who knew Major Ridge and took his side in the conflicts that were to divide the Cherokee Nation, described him as “a man of great bravery, strong intellect, and, though uneducated, clearly comprehending the interests of his people, and zealously devoted to them.”10 Ridge knew that providing the next generation with the education he lacked would be the key to Cherokee survival. He and his wife, Sehoya, also called Susanna Wickett, had four children (another baby died). In 1810, Nancy, the eldest, and the second child, seven-year-old John, enrolled in the Moravian mission school at Springplace where John remained until he turned eleven. After a stint with a private tutor, in 1817 Ridge enrolled John and Nancy in the Brainerd mission of the Boston-based American Board of Commissioners for Foreign Missions (ABCFM). The Rev. Elias Cornelius selected John (figure 4.3) and his cousin Galagina or Buck Watie (figure 4.4) to attend the Foreign Mission School in Cornwall, Connecticut, a school established by the ABCFM to educate young men from indigenous cultures around the world so they could return them to their people as preachers, translators, teachers, and health workers. In the fall of 1818 the two young Cherokees set off for New England. Buck Watie adopted the name of Elias Boudinot, the president of the American Bible Society and former member of the Continental Congress, who sponsored him during his first year at the school.11 (Buck’s younger brother, on the other hand, dropped his Christian name, Isaac, in favor of his Cherokee name, Dagdoga, “He Stands,” and thereafter became known as Stand Watie.) Suffering from recurrent ill health because of a scrofulous hip, John was cared for in the home of the school steward and by the steward’s daughter, Sarah Bird Northrup. At one point, John’s health reached such a critical point that his father rode north to see him. “With his instinct for the proper impression, he hired for the last lap of his journey a coach-and-four, ‘the most splendid carriage … that ever entered the town’” and during his two-week stay he cut a striking figure in his white-topped boots and gold-braided military uniform.12
FIGURE 4.3 John Ridge. (From History of the Indian tribes of North America, with biographical sketches and anecdotes of the principal chiefs. Embellished with one hundred and twenty portraits, from the Indian Gallery in the Department of War, at Washington, by Thomas L. McKenney and James Hall, 3 vols. [Philadelphia: J. T. Bowen, 1848–50], Dartmouth College, Rauner Library)
Impressed as they were with the Cherokees, however, the citizens of Cornwall shared the prejudices of their time. Both Ridge and Boudinot fell in love with white girls. In January 1824 Ridge married Sarah Bird Northrup; two years later, Boudinot married Harriet Ruggles Gold. The racist outrage in the community was so extreme—a mob burned Boudinot and Harriet in effigy on the village green—that the ABCFM closed the school in 1826.13 Giving speeches in cities throughout the eastern United States to raise money for a printing press, Boudinot spread the word among church groups and other interested parties that the Cherokees were a “rapidly improving … industrious and intelligent people.” They had two choices: “they must either become civilized and happy, or sharing the fate of many kindred nations, become extinct.”14 But the events at Cornwall altered Boudinot’s thinking: the Cherokees must develop their own “civilized” institutions, but they would do so to preserve their Cherokee identity and strengthen the Cherokee Nation, no longer with the expectation that they would earn an equal place in American society.15
FIGURE 4.4 Buck Watie, a.k.a. Elias Boudinot. (Research Division of the Oklahoma Historical Society)
The Ridges, father and son, built themselves fine homes that reflected their growing prosperity and their position as members of the Cherokee elite. At Ridge’s Ferry on the Oostanaula River, in what is today Rome, Georgia, Major Ridge built a two-story “elegant painted mansion with porches on each side as the fashion of the country is.” The house had eight rooms, four brick fireplaces, two verandas, a balcony with a glass door opening on to it, and thirty glass windows with blinds and shutters. “The arched triple window at the turn of the staircase looked out on a line of poplars.” There were two log kitchens near the back door, stables, sheds, cribs, a smokehouse, and cabins for Ridge’s thirty slaves. At the height of his prosperity, Ridge’s estate contained 280 acres of fields, in which he grew corn, cotton, tobacco, wheat, oats, indigo, and potatoes. His orchards contained more than 1,100 peach trees, more than 400 apple trees, and various other fruit trees. There was a vineyard, a nursery, and a garden with ornamental shrubs. Livestock included cows and pigs. Contemporaries reckoned that “his farm was in a higher state of cultivation and his buildings better than those of any other person in that region, the whites not excepted.” In addition to the income from his ferry—estimated at $1,200 a year—Ridge was a silent partner in a nearby trading post.16 John Ridge became one of the first lawyers in the Cherokee Nation and also did well. His two-story house and plantation were not as large as his father’s but his estate was nonetheless that of a prosperous gentleman, with fields, orchards, stables, smokehouses, and slaves.17
In the 1820s the Cherokees acquired a written language, based on the syllabary developed over a dozen years by Sequoyah (a.k.a. George Gist, c. 1770–1843). In Sequoyah’s phonetic system each symbol represented a vowel or a consonant plus vowel, with the exception of a character representing /s/. It was easily learned and literacy in written Cherokee spread quickly. People began using the new writing for personal correspondence, record keeping and accounting, notebooks containing medicinal texts, and even translated parts of the Bible, and political leaders began to produce government documents in Cherokee.18
In 1827 the Cherokees drew up a written constitution and code of laws and restructured their tribal government into a constitutional republic modeled after that of the United States, with an independent judiciary, a supreme court, a principal chief, and a two-house legislature.19 They divided their country into eight electoral districts; elected a first and second principal chief every four years; and elected representatives to the legislature every two years. The elected council made laws, established a police force and treasury, and created a court system to adjudicate civil and criminal cases. The constitution declared the Cherokees’ sovereignty and their right to remain undisturbed in their homeland “solemnly guarantied and reserved forever to the Cherokee Nation by the Treaties concluded with the United States.” Those treaties and the laws of the United States made in pursuance of treaties guaranteed Cherokee rights and protected them against intruders. “Our only request is, that these treaties may be fulfilled, and these laws executed.” Elias Boudinot printed the constitution in the first issue of the Cherokee Phoenix, which rolled off the presses in February 1828.
The Phoenix, much of it published in both English and Cherokee, was the first Indian newspaper and a significant weapon in the Cherokees’ public relations campaign. As editor, Boudinot managed the business of the paper; wrote articles and a weekly editorial that he translated into Cherokee; printed laws and public documents of the Cherokee Nation; and selected, translated, and reprinted news items from other papers, along with “miscellaneous articles, calculated to promote Literature, Civilization, and Religion among the Cherokees.” At the same time, he worked with the missionary Samuel Worcester to produce a fifty-page hymnal, the first Cherokee book published, and to prepare a Cherokee edition of the gospel of St. Matthew.20 The Cherokees’ written language, printing press, and literacy (according to the Cherokee census of 1835, 18 percent of Cherokees could read English and 43 percent could read Cherokee) put them “at the center of a print culture debate over the legal status of Native nations residing in the United States.”21 As the threat of removal and assault on their sovereignty increased, the Cherokees kept up a lobbying campaign in Washington and in print, keeping in the public eye their achievements, rights, and sufferings at the hands of Georgia. They attributed their progress to their treaties with the United States and then held up those treaties as a test of national honor and morality.22
The Ridges, Boudinot, and John Ross were united in their opposition to the policy of Indian removal. In the tribal elections held in October of 1828, the Cherokees elected John Ross principal chief by an overwhelming majority; Major Ridge, as speaker of the council, was his main advisor. Ross (figure 4.5) was thirty-eight, the grandson of a Scots Loyalist, and seven-eighths Scottish in ancestry. That mattered little in matrilineal Cherokee society where his maternal line was Cherokee but it would provide fuel for enemies who tried to discredit his leadership during the furor over removal.23 Mindful of the role played by men like William McIntosh in selling tribal lands, in the autumn of 1829 the National Council reenacted an old law establishing the death penalty for anyone who sold Cherokee land without the council’s approval. According to some accounts, Major Ridge proposed the idea; the Ridges, Ross, and Boudinot all strongly supported the law.24
Unfortunately for the Cherokees, a month after Ross was elected principal chief Andrew Jackson was elected president of the United States, and Jackson was the most forceful advocate of Indian removal that had yet entered the White House. Thomas Jefferson, a student of the Enlightenment, had believed in the essential unity of the human race and regarded Indians as culturally inferior but capable of improvement. Jackson, and an increasing number of Americans in his day, believed in a hierarchy of races that left Indians permanently apart and inferior. Whatever they achieved, they were still Indians. Their cultural resilience and resistance proved they were incapable of changing with the times. The Cherokees and their supporters presented themselves as a modernizing Indian nation, with sovereign rights that the United States was bound to respect by the terms of its own treaties. Jackson and Lewis Cass, the governor of Michigan Territory who became Jackson’s secretary of war in 1830, presented the Cherokees as timeless savages, whose treaties did not have the same standing as treaties with other nations, and who must make way for civilized white people who would put their land to good use.25
FIGURE 4.5 John Ross. (From History of the Indian tribes of North America, with biographical sketches and anecdotes of the principal chiefs. Embellished with one hundred and twenty portraits, from the Indian Gallery in the Department of War, at Washington, by Thomas L. McKenney and James Hall, 3 vols. [Philadelphia: J. T. Bowen, 1848–50], Dartmouth College, Rauner Library)
Publication of the Cherokee Constitution, hailed in the North, spurred Georgia into action. Like other settler societies elsewhere in the world Georgia in the 1820s and 1830s sought to expand its sovereignty by subordinating the Native people within its territorial boundaries and asserting local control over the process of dispossessing them of their land. The Georgia Assembly adopted a resolution, which was to go into effect in June 1830, extending state jurisdiction over Cherokee country. The Cherokee Nation was divided into counties administered by local governments and presided over by state courts and “hundreds of Cherokee Indians found their way into Georgia’s courts.”26 Georgia demanded that the federal government carry out its obligations under the Compact of 1802 and begin negotiations to compel the Cherokees to cede those lands. “The lands in question belong to Georgia,” the Assembly declared. “She must and will have them.”27 Georgia carried out a systematic campaign of harassment and intimidation, culminating in an assault on Cherokee government. After gold was discovered in Cherokee country in 1829, several thousand prospectors flooded in to pan the streams. Elias Boudinot laid out the issue clearly in the pages of the Cherokee Phoenix in January 1829: “The State of Georgia has taken a strong stand against us, and the United States must either defend us in our rights, or leave us to our foe. In the former case, the General Government will redeem her pledge solemnly given in treaties. In the latter, she will violate her promise of protection, and we cannot, in future, depend consistently, upon any guarantee made by her to us, either here or beyond the Mississippi.”28 John Ross placed the matter before Congress (and “before the world”) as “a question of great magnitude”: could a state usurp “the most sacred rights and privileges of a weak, defenceless, and innocent nation of people, who are in perfect peace with the United States, and to whom the faith of the United States is solemnly pledged to protect and defend them against the encroachments of their citizens”?29 Boudinot, Ross, and Major Ridge were adamant that the Cherokees were opposed to removal and nothing could “induce them ever to enter into a treaty on the subject.”30 In January 1830 Major Ridge led a troop of the Light Horse, dressed and painted as if for war, in expelling squatters near the Georgia-Alabama border, an action that Georgia newspapers seized on for its propaganda value.31
Jeremiah Evarts, the secretary of the ABCFM, spent the last two years of his life (he died in May 1831) leading a moral crusade and orchestrating a petition campaign against removal. Writing under the name William Penn (the first governor of Pennsylvania was known for respecting Indian treaties), Evarts, in a series of widely circulated essays, reviewed the Cherokees’ sixteen treaties, “ratified with the same solemnity, as treaties between the United States and the powers of Europe,” to show they had been guaranteed title to the soil and sovereignty over their territory “till they voluntarily surrender their country; such an act on their part being the only way in which their title can be legitimately extinguished, so long as treaties are the supreme law of the land.” To implement removal would demonstrate to the world that “the great and boasting Republic of the United States of North America incurred the guilt of violating treaties.” Removal, said Evarts, was more than just a political question: “It relates to the great questions of the law of nations, and to fundamental principles of right and wrong. It implicates the reputation of our country throughout the civilized world; and will bear witness against the rulers and the people who sanction it, so long as the record of these transactions shall be preserved.” To implement removal would be a national calamity.32 Edward Everett, a representative from Massachusetts and later president of Harvard, agreed: apart from the injustice to countless Indians, removal was an assault on Indian treaties, on the treaty-making authority of Congress, and on the Constitution itself. It threatened the reputation of the nation in international affairs and threatened the union. It was, he said, “the greatest question that ever came before Congress, short of the question of peace and war.”33
Nevertheless, in May 1830, after extensive debate and a close vote in both houses, Congress passed the Indian Removal Act, authorizing the president to negotiate treaties of removal with all Indian tribes living east of the Mississippi. The Senate passed the bill by 28 votes to 19; the House of Representatives by 102 to 97. The voting involved political and moral issues and did not break down along pro- and anti-Indian lines so much as along regional and party lines. Some who voted against the bill did so out of opposition to Jackson rather than sympathy for the Indians; some who voted in favor of the bill did so in reluctant conviction that removal represented the Indians’ best, and perhaps only, chance of survival. Davy Crockett, the renowned Indian fighter from Tennessee, voted against the bill, arguing that it violated the treaty clause of the Constitution—a stand that cost him his seat in the House. Daniel Webster worked with Senator Henry Clay of Kentucky and other anti-Jacksonians against the bill, but he was more interested in impugning Jackson than in championing Indians. Like many politicians and businessmen who took up the Cherokee cause in the South, Webster profited by investing in lands obtained from Indians in the North. The act authorized the president to make removal treaties, but those treaties still had to be approved by a two-thirds majority in the Senate, where Webster vigorously opposed their ratification.34 In Jackson’s view, negotiating treaties with the tribes was absurd now that the power lay so emphatically with the United States; Indians should be treated as subjects, not as sovereign nations.
The government and its Indian agents presented removal as the benign policy of a generous father. The Cherokees would be well advised to accept it but they could choose to stay where they were: “There will be employed no force any way, but the force of reason.” At the same time, Jackson was adamant that while the federal government would try to keep intruders out of Cherokee country, it would not and could not interfere with a state exercising its sovereignty and its laws over the Indians within is borders.35 As soon as the Indian Removal Act became law, surveyors and squatters entered Cherokee country and Georgia stepped up its campaign of harassment. Beginning June 1, Georgia extended its laws over Cherokee lands; nullified the Cherokees’ constitution, laws, and court system; and prohibited Cherokee assemblies, including meetings of the National Council. Cherokees were forbidden to speak out against removal, to testify in court, or even to dig for gold on their own land. As far as Georgia was concerned, the Cherokee Nation had ceased to exist. Georgia created a police force—-the Georgia Guard—to patrol Cherokee country and handed out Cherokee lands to Georgian citizens in a state lottery.36
The Cherokee delegation in Washington reminded the government of its past assurances. Thomas Jefferson had told them that “all our proceedings towards you shall be directed by justice and a sacred regard to our treaties” and that the United States would never wish to buy their land “except when you are perfectly willing to sell.” Even Andrew Jackson just the past spring had said “that he would protect them in their territorial possessions.”37 In a letter that later received wide circulation in Cherokee country, Henry Clay reaffirmed that, according to the principles that had governed US Indian policies:
the Cherokee Nation has the right to establish its own form of Government, and to alter and amend it from time to time, according to its own sense of its own wants; to live under its own laws; to be exempt from the operations of the laws of the U. States, or of any individual state; to claim the protection of the U. States, and quietly to possess and enjoy its lands subject to no other limitation than that, when sold, they can only be sold to the U. States.
Jackson, said Clay, had announced a policy hostile to these principles “and thereby encouraged Georgia to usurp powers of legislation over the Cherokee Nation which she does not of right possess.”38
John Ross hired former attorney general William Wirt and other lawyers to represent his people’s interests. Wirt filed a series of test cases. He first obtained a writ of error from Supreme Court Justice John Marshall to stay the execution of a Cherokee named George Corn Tassel. A Georgia court had sentenced Corn Tassel to death for killing another Indian, a crime the Cherokees and their supporters argued should fall under Indian jurisdiction because it occurred in Cherokee country. In a special session, the Georgia legislature voted to defy the writ, and Corn Tassel was hanged. “The conduct of the Georgia Legislature is indeed surprising,” wrote Elias Boudinot in a passage prophetic of future events; “they … authorize their governor to hoist the flag of rebellion against the United States! If such proceedings are sanctioned by the majority of the people of the U. States, the Union is but a tottering fabric which will soon fall and crumble into atoms.”39
Three days before Tassel’s execution Wirt filed suit against Georgia before the Supreme Court of the United States. The Cherokees were the first Indian nation to bring a case in the highest court. In Cherokee Nation v. Georgia, the Court found that it lacked original jurisdiction, but Chief Justice John Marshall tried to define the status of the Cherokees—and by extension all Indian tribes—within the United States. The Cherokees, he said, were “a domestic, dependent nation,” who had retained some aspects of their sovereignty through treaties. He likened the Indians’ relationship to the government to that between a ward and a guardian. However, without a strong show of federal power to enforce United States laws protecting tribal sovereignty, the Cherokees remained vulnerable to Georgia’s assaults.
The Cherokees succeeded in getting their case into the Supreme Court the next year via a United States citizen. In March 1831, the Georgia Guard arrested nine missionaries for preaching in Cherokee country without having taken an oath of obedience to the laws of Georgia. Seven of the missionaries took the oath or left the state, but two, Samuel Worcester and Elijah Butler, refused to do either and were sentenced to four years of hard labor. Worcester and Butler petitioned the Supreme Court, which accepted the case. As US citizens, there could be no question regarding their standing. As in Cherokee Nation, Georgia refused to appear. In March 1832, Chief Justice Marshall, seventy-five years old and in poor health, rendered the verdict in Worcester v. Georgia. In a 6–1 decision the court found Worcester’s arrest was illegal. Georgia had no authority to execute its laws within an Indian nation protected under the treaty clause of the United States Constitution:
The constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words “treaty” and “nation” are words of our own language, selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense.
The Cherokee Nation was “a distinct community, occupying its own territory … in which the law of Georgia can have no right to enter but with the assent of the Cherokees.” The Georgia law under which the missionaries were arrested was “void, as repugnant to the Constitution, treaties, and laws of the United States.”40 The Cherokee delegation in Washington and their supporters greeted the decision with jubilation.
Their elation was short-lived. It quickly became clear that Jackson was not going to enforce the decision. The case reaffirmed the supremacy of the federal government in dealing with Indians, which only redoubled Georgia’s efforts to drive the Cherokees into making a federal treaty. Now more than ever was the time to stick together, Ross said; a treaty with the United States could not take place “if our people continue to remain firm & to be united in the support of our common interests.”41 But divisions soon appeared. Ross and John Ridge returned to Washington to join the Cherokee delegation there. Ridge secured an audience at the White House and asked the president point-blank “whether the power of the United States would be exerted to execute the decision and put down the legislation of Georgia.” Jackson replied equally bluntly that it would not. He urged Ridge “to go home and advise his people that their only hope of relief was in abandoning their country and removing to the West.” The interview seems to have been a turning point for John Ridge. “From that moment,” wrote Indian agents Samuel Stambaugh and Amos Kendall, “he was convinced that the only alternative to save his people from moral and physical death was to make the best terms they could with the government, and remove out of the limits of the States.”42
Secretary of War Lewis Cass called the Cherokee delegation to his office and offered them a removal treaty. Meanwhile, the Cherokees’ white friends were giving the same advice. David Greene of the ABCFM, the Cherokees’ long-time allies and advocates, wrote John Ridge on May 3, 1832: “It makes me weep to think of it,” he said. “But if your friends in Congress think that all further effort in your behalf will be useless … then, for aught I can see, you must make the best terms you can, & go.”43 Twelve days later, the Cherokee delegation left for home.
In the fall of 1832, Georgia held another lottery to distribute Cherokee land among its citizens. Andrew Jackson’s victory over Henry Clay at the polls in November dashed any hopes that a change of administration might bring a change of policy.
Whether they bowed to the inevitable or saw an opportunity to advance themselves, the Ridges now took the position that the Cherokees’ best hope—indeed their only hope—was to try and negotiate terms for removal. Ridge finally entered the Presbyterian Church and accepted baptism in 1832.44 Elias Boudinot by this time also believed there was no alternative to removal. He explained his change of heart and his change of policy as patriotism: his intention was still the preservation of the Cherokee Nation but it was clear that if the people stayed where they were they would be destroyed. Better to give up the homeland than to see the people perish. So long as the people survived, the nation could survive, but now it could do so only in the West.45
A pro-removal group known as the Treaty Party began to coalesce around the Ridges and Boudinot. There was more to their action than a realization that the Cherokees had no choice. Cherokees who joined the Treaty Party tended to be better off economically than the majority of Cherokees but were not as well-to-do as the elite; those who took the lead, with the exception of Major and John Ridge, did not hold elective office, and a number had been defeated in their bids for tribal office. Invoking the rhetoric of Jacksonian Democrats, the historian Theda Perdue characterized the Treaty Party as members of “a rising middle class.” Like Jackson and his followers they were moving up but they wanted more and felt a privileged elite was holding them back. Not surprisingly, Jackson cultivated this group to divide the Cherokee Nation, undermine its elected leadership, and ignore the will of the Cherokee majority. For the Treaty Party the removal crisis was also an opportunity to usurp political authority and to secure concessions for themselves by taking the lead in negotiating a treaty with the United States. For John Ridge, the crisis demanded leadership by John Ridge, not John Ross.46
Ross and the majority remained firmly against removal. They did not subscribe to Boudinot’s vision of a civilized Cherokee Nation that could survive and even prosper separated from their homeland. The West was not a land of opportunity to Cherokees; moving west meant heading in the direction of death. Lines quickly hardened between former allies. In 1832 the Cherokee Council met at Red Clay, just over the Tennessee border, rather than at New Echota (Georgia law criminalized Cherokee meetings within the state’s borders). Ross tried unsuccessfully to prevent public discussion of the treaty Cass had offered. In view of the crisis, the council decided not to hold national elections and passed a resolution continuing the same chiefs and officeholders in their positions. John Ridge believed he was better qualified than Ross and believed Ross was behind the move. Stressing the need to present a united front, Ross also opposed printing anything in the Phoenix that diverged from the antiremoval stance. Boudinot resigned: “Were I to continue as Editor,” he informed Ross, “I should feel myself in a most peculiar and delicate position.”47 The council subsequently expelled the Ridges and other members who favored removal. Boudinot and the Ridges accused Ross of despotism but Ross can be seen as acting in accordance with traditional consensus politics, which required dissenters to withdraw and maintain their silence so that the community could present a united front.48
The Ridges and Boudinots saw themselves as patriots, giving up land so that the people might survive but “a man who will forsake his country … in time of adversity,” declared Ross in August 1833, “is no more than a traitor and should be viewed—and shunned as such.”49 That month General R. G. Dunlap of Tennessee who had, he said, “conversed freely” with both John Ridge and John Ross, wrote to Jackson, “I do sincerely believe that the ultimate views of both these men are the same in regard to the final destiny of their nation,” but each was “catching at everything to weaken the other, and gain or keep the ascendancy, for the furtherance of their ends.”50
Governor Wilson Lumpkin of Georgia, hardly a disinterested observer, weighed in on the side of Ridge. Convinced that removal was the only way to protect his state’s sovereign right to govern its own territory, Lumpkin dismissed the opponents of removal as “a few of the interested half-breeds” and self-serving white politicians, and he impugned Ross as a descendant of Scots Tories who had fought on the wrong side in the Revolution. Ross was well educated and gentlemanly in his manners but compared with John Ridge and Elias Boudinot, he was “a mere pygmy.” Ridge, said Lumpkin, was “one of nature’s great men, who looks beyond the present moment and seeks the good of his people with an eye to their posterity … and, therefore, hazards life and everything dear to him as a man, to effect a great public object of deep and lasting interest to his native race, the Cherokees.”51 Ross on the other hand governed the Cherokees “in the most absolute manner” and had deluded them into believing there was an alternative to removal. There was not. Georgia was determined to enforce its laws “throughout what is still called the Cherokee Country. If reason and considerations of interest should fail to sustain the execution of our laws, other and stronger measures must and will be resorted to,” Lumpkin warned. “It is extreme folly and wholly fallacious for the Cherokees to entertain the shadow of a hope that the Federal Government will ever attempt, in the slightest degree, to overturn the laws of Georgia in regard to the soil or population within the chartered limits of the State.”52
As Georgia intensified efforts to undermine the political and economic bases of Cherokee society, Ross and the Cherokee delegation found themselves competing with the Ridge faction for attention in Washington. Sitting in Brown’s Hotel, where many Indian delegations to the capital stayed in these years, Ross and his delegation wrote letters to President Jackson, reminding him of their political rights “which have been recognized and established by the laws and treaties of the United States.”53 In May 1834, fifty Cherokees from the Coosawatie district sent Lewis Cass a protest against the delegation of Major Ridge, Boudinot, Andrew Ross, and James Starr, denying that Ridge and Boudinot had any authority.54 In June, Ross’s brother Andrew agreed to a humiliating removal treaty in Washington, ceding all Cherokee land east of the Mississippi for an annuity of $25,000 for twenty-four years.55 John Ross responded by offering to sell most of the Cherokees’ Georgia land in return for a dozen years of federal protection while the Cherokees “amalgamated” into American society, with a view to becoming US citizens. Boudinot and the Ridges totally rejected Ross’s proposal, the Senate rejected Andrew Ross’s treaty as lacking official Cherokee sanction, and Secretary of War Lewis Cass rejected anything “short of an entire removal.”56 At a council held at Red Clay in August 1834, Cherokee Tom Foreman denounced Major Ridge and charges were brought against the Ridges and David Vann. John Ridge stood up to defend his father’s conduct but there were murmurs of “Let’s kill them.”57 At the annual council in October, Ross and the others who controlled the proceedings declined to prosecute the impeachment charge against the Ridges and Vann but neither would they withdraw it. The Ridges and Vann rode off before the council adjourned, and they convened their own council at Running Water near Boudinot’s home at the end of November.58
There were two Cherokee delegations in Washington but the Ridge delegation had the inside track with the administration. Ross and his fellow delegates wrote Cass an impassioned letter in the middle of January 1835: “The property, the peace, and the existence of the Cherokee people, are in jeopardy,” they said, “and nothing but the timely interposition of the General Government can save them.” They asked that the president extend his “protecting arm … to arrest this unconstitutional and fatal course of Georgia.” They sent similar appeals to Congress and the president. They were asking the fox to guard the henhouse: Georgians were not about to be stopped and Jackson had no intention of trying to stop them.59 Perhaps in desperation by this point, Ross made Cass another offer—to sell the eastern Cherokees’ lands for $20 million, hoping to move his people to Texas and buy and build a new homeland in territory claimed by Mexico.60 But the government knew it could get a better deal. The Ridge delegation in January 1835 submitted a memorial to Congress from those Cherokees who were willing to migrate. Indian nations could not survive east of the Mississippi, they said, because the United States “has refused to fulfill its faith pledged to us in the treaties.” The Cherokees were at a crisis in their history and faced the choice between remaining “in a state of vassalage to the States” and migrating to the West. Although many within the Treaty Party had already “amalgamated,” they now apparently found the prospect of “amalgamation with our oppressors,” as suggested by Ross, “too horrid for a serious contemplation.” The only way to preserve the nation and its sovereignty was to transplant it.61 The Ridge delegates were under no illusions but they were ready and willing to negotiate a removal treaty.
Jackson appointed John F. Schermerhorn to make the treaty. An evangelical minister in the Dutch Reformed Church from New York, Schermerhorn had traveled among the western Indians as a missionary and was convinced that removing Indians beyond the Mississippi and away from whites was a “benevolent enterprise,” essential to their survival and their “moral and religious improvement.”62 He corresponded with Jackson and Cass, conveying his views on Indian removal and informing them of his availability for the new position of Indian commissioner in the West. With the ABCFM and many other church groups opposed to removal, Jackson was eager to enlist clergymen on his side and appointed Schermerhorn as commissioner in October 1832. Schermerhorn left Schenectady, New York, with his wife and eight children and headed for Fort Gibson on the Arkansas River, in what is now Oklahoma.63 He quickly built a track record negotiating removal treaties. He negotiated treaties with the Senecas and Shawnees of Lewistown in Ohio in December 1832, with the western Cherokees and Creeks at Fort Gibson in February 1833, with the Seminoles in March, and with the Quapaws in May.64 In June he urged Potawatomis in Indiana to move west; in August he joined the treaty commissioners negotiating a removal treaty with the Seneca in upstate New York. Called away to assist at the Treaty of Chicago with the Potawatomis in September, he sent a talk to the Six Nations council at Onondaga, portraying himself as a friend to the Iroquois and urging them to remove.65
Schermerhorn arrived in Chicago to find that George Porter, the governor of Michigan Territory and superintendent of Indian affairs, and the other treaty commissioners had made little headway in getting the Indians to give up their lands west of Lake Michigan and agree to removal. The Potawatomis had been bombarded with treaties in recent years and “had utterly refused for several days to sell any of their lands.” The day after he arrived, by his own account, Schermerhorn held a private interview with two of the principal chiefs conducting negotiations: Sauganash, better known as Billy Caldwell, was the son of an Irish officer and a Potawatomi woman; Chechebinquey, also called Alexander Robinson, was son of a Scottish trader and an Ottawa woman. Both chiefs frequently mediated and interpreted at treaty councils. Schermerhorn met with them during an adjournment of several days in the negotiations. The journal of the treaty proceedings does not record what transpired at the meeting, but by the time the journal picked up again the commissioners had the treaty ready for the Potawatomis to sign. Caldwell and Robinson each received $10,000, although Governor Porter denied it was a bribe. The treaty stipulated “four hundred dollars a year to be paid to Billy Caldwell, and three hundred dollars a year, to be paid to Alexander Robinson, for life, in addition to the annuities already granted to them.” Charges of bribery and fraud held up the treaty’s ratification, and before the Senate finally gave its approval it reduced the amounts paid to Caldwell and Robinson, which were “so large as to induce a well-founded presumption that they have, by some means, acquired an influence over the Indians which they have been disposed to use to an unreasonable extent for their individual benefit.”66
Having taken care of the Potawatomi resistance, Schermerhorn departed to do the same with the Miamis in October. But he met his match in the person of the old Miami head chief Jean-Baptiste Richardville, a successful merchant, consummate politician, and savvy negotiator. Schermerhorn was authorized to offer the Miamis up to 50 cents an acre; Richardville scoffed at the offer and the treaty failed. “It was a public treaty,” Schermerhorn explained significantly, “and not a private negotiation as I recommended.” (The next year Richardville offered to sell some Miami land for $5 per acre and he subsequently accepted removal treaties.)67 As commissioner in the West, Schermerhorn in 1834 dealt with resettling the Shawnees and Senecas of Lewiston and with claims stemming from a treaty with the western Cherokees in 1828. As he urged eastern Cherokees to relocate with promises of peace and prosperity he was well aware that western Cherokees felt aggrieved to be inundated by emigrants who had not shared the hardships they had suffered when they had moved west.68
Such was the man and such were the methods Andrew Jackson called upon to secure a removal treaty with the Cherokees. Cherokees nicknamed Schermerhorn the Devil’s Horn. In February 1835 Cass instructed Schermerhorn to meet with the Ridge delegation and draw up a preliminary treaty, which the delegates would sign and then take home for ratification by the Cherokees. Schermerhorn and Ridge reached a tentative agreement and in March they wrote a secret treaty that offered the Cherokees $5 million “for the cession of their entire claims east of the Mississippi river.” Jackson issued a proclamation to the Cherokees admonishing them to think of their future and their children; their condition was deteriorating rapidly, things were only going to get worse, and they must delude themselves no longer. If only they had listened to Jackson years ago, they could now be enjoying peace and prosperity in the West.69
John Ridge left Washington in March, telling Cass that the Cherokees who had once been unanimously opposed to a treaty were now ready to accept it; only Ross and his followers stood in the way. “Sir,” he wrote, invoking his full-blood identity, “I am an Indian, and understand the character of my countrymen. The common Indians are not to blame, and have only been misled by the avaricious half-breeds of the Ross party.”70 Ridge, who had called Andrew Jackson a chicken snake in 1832, had apparently had a significant change of heart: he named his new son Andrew Jackson Ridge.71 Federal emigration agent Benjamin Franklin Currey believed that Ross exercised “a secret & powerful influence over the destinies of his people” and warned the chief that the president would hold him and his council responsible if anything happened to the members of the treaty party.72 There was little protection for Ross. He returned to his home at Coosa to find it occupied by people who had “won it” in the lottery. He resettled his family across the Tennessee border at Red Clay.73
Schermerhorn followed Ridge back home and, together with Currey, they began selling the treaty to the Cherokees. In the words of the author, poet, and playwright John Howard Payne (best known for writing the song “Home Sweet Home”), “The President sends a Treaty with a letter to explain it. He then sends Mr. Schermerhorn to re-explain the explained Treaty. The end of it is, the Treaty is so much explained that it is explained away.” Payne arrived in Cherokee country later in the year and the National Council invited him to write a history of the Cherokees in the hope it would help educate the public about the Cherokee cause. Payne and Schermerhorn had attended the same school. (Schermerhorn was an upperclassman when Payne entered Union College in Schenectady; Schermerhorn graduated; Payne dropped out after two or three years when his father went bankrupt, and began an acting career.) But they were diametrically opposed on the Cherokee issue.74
In July Schermerhorn and Currey called a meeting of Cherokees at Running Water. Ross and his supporters at first urged people to stay away but then attended, along with some four thousand Cherokees. Schermerhorn mounted a platform and “began his speech of three hours and twenty minutes, counted anxiously by the watch,” noted Payne. Once the Cherokees removed to Indian Territory, said Schermerhorn, they could look forward “to the day when your several tribes of Indians shall there be organized into a territorial government, with the rights and privileges of American citizens; and that the time will yet come, when an Indian State will be added to our Federal Union: and which, though the last, will be the brightest star and fairest stripe upon the banner of our nation, and fill up the measure of our country’s glory.” But they should make no mistake and, he had told this to Ross, this was their last and only hope: “if you reject these propositions for a treaty, and come to no final agreement with the commissioners now appointed to treat with you, [the president] will enter into no further negotiation with you, during his administration.” If they rejected “the very liberal and generous offers” now being made they risked losing the sympathies of even their friends. There was no use trying to delay things any longer; time was running out: “You cannot mistake the policy of Georgia. She is determined to get rid of her Indian population, and she will soon legislate you out of the country, by granting your possessions to her own citizens, who claim the fee of your lands. And then where will you go?” Payne’s account of the council phrased the offer more bluntly than Schermerhorn’s report did: “‘Take this money,’ said the Reverend Commissioner, ‘for if you do not, the bordering States will forthwith turn the screw upon you tighter & tighter, till you are ground to powder.’” Agent Return J. Meigs, who attended the meeting, said the Cherokees listened with attention and interest as Schermerhorn explained the terms of the treaty and the Rev. Jesse Bushyhead faithfully interpreted them. Schermerhorn entreated Ross and Ridge to settle their differences and head a joint committee representing the Cherokees in the treaty discussions.75 But Schermerhorn told the commissioner of Indian affairs that he would have to deal with one or the other party. “I wish to see neither Ross nor Ridge injured,” he explained, “but if a treaty can be carried only by putting down one and exalting the other, I should not long hesitate to make my election.”76
In August 1835, fearing Ross would use the printing press of the Cherokee Phoenix to publish antiremoval propaganda, Stand Watie secured the assistance of the Georgia Guard in confiscating it and restoring it to the Ridge-Watie-Boudinot faction.77 Governor Lumpkin considered it “a perfect farce” for the government “to pretend any longer to consider or treat these unfortunate remnants of a once mighty race as independent nations of people, capable of entering into treaty stipulations as such.” During his administration, the Cherokee part of Georgia had been transformed from a howling wilderness into a cultivated country settled by thousands of civilized people. “Having effected all this without a treaty, why should Georgia, upon selfish considerations, care about a treaty?” As far as Georgia was concerned, he declared, “I feel entirely indifferent whether the Cherokees ever enter into a treaty or not. I no longer look to the Federal Government, or its agents, to relieve Georgia from her Cherokee perplexity.” However, since a treaty was on the table, every effort should be made to overcome the opposition of the Ross faction and induce the Cherokees to take it. “Starvation and destruction await them if they wait much longer in their present abodes.”78
John Ridge and Schermerhorn presented their treaty to the Cherokee Council at Red Clay in October. John Ross led the opposition. Cherokees were outraged, John Ridge’s life was threatened, and opposition was so overwhelming that he and Boudinot joined the majority in voting against it. But Schermerhorn refused Ross’s requests to return with him to Washington and told the elected chief of the Cherokees that he would not be received there. He circulated a printed notice, which Boudinot translated into Cherokee, urging the Cherokees to think it over and meet again at New Echota in December for further discussion. The notice also contained a warning that all who failed to show up would be considered to “give their assent and sanction to whatever is done at the council.”79
Benjamin Currey warned of “the evil consequences likely to attend the departure of a delegation from the Eastern Cherokees for Washington at this juncture in time.” In November the Georgia Guard crossed the border into Tennessee, arrested Payne and Ross, and confiscated Payne’s papers. Payne and Ross were held for two weeks at the old Moravian mission at Springplace. Payne was accused of being an abolitionist and a French spy, and Ross of impeding the census that was being carried out in Cherokee country, but no official charges were brought. Immediately after his release, Ross hurried to Washington. Payne returned to New York but continued to work for the antiremoval cause, assisting the Ross delegation in Washington and helping to write petitions.80
In his annual report, in November 1835, Commissioner of Indian Affairs Elbert Herring stated there had been no letup in efforts to induce the Cherokees to move west of the Mississippi “in conformity with the policy adopted by the Government in favor of the Indians.” He attributed “the disinclination of a large portion of the nation to emigrate, and avail themselves of the obvious benefit in the contemplated change” to “bad advisement, and the intolerant control of chiefs adverse to the measure.”81 Major Ridge, Elias Boudinot, and other members of the Treaty Party wrote to Andrew Jackson on December 1 “to express our entire confidence in your full determination to secure justice to the poor Indians.”82 In the absence of the principal chief and the majority opposition, and while a Cherokee delegation authorized to negotiate a treaty was away in Washington, Schermerhorn went ahead and made his treaty with the members of the minority Treaty Party.
The treaty council convened as scheduled on December 21. Most Cherokees saw no need to attend. Many lived in Tennessee and did not face the immediate threat confronting their relatives in Georgia. Others had already voiced their rejection of the treaty at Red Clay. A long preamble to the treaty justified dealing with only part of the tribe: the Cherokees had been given notice that the meeting was to be held at New Echota and that those who did not attend would be assumed to give their approval. Only eighty-six Cherokee men turned up at New Echota, together with several hundred women and children; Schermerhorn characterized them as “the most intelligent and best informed among them.”83 Women, who had participated in eighteenth-century treaties and remonstrated against earlier removal efforts, took no part in the treaty proceedings here.84 According to one Ross supporter, Schermerhorn addressed the Cherokees “in his usual style, only a little more so.” The treaty makers met in the council house but Currey’s reading of the proposed treaty was interrupted when the roof caught fire. “Whether this fearful blaze was emblematical of the indignation of Heaven at the unlawful proceedings within, or of the fiery trial of our people, the Lord only knows,” wrote one witness.85
Major Ridge addressed the assembled Cherokees as a Cherokee patriot and reluctant advocate of removal. The Cherokee title to the land was far older and derived from a far higher authority than what the Georgians claimed.
Yet they are strong and we are weak. We are few, they are many. We cannot remain here in safety and comfort … an unbending, iron necessity tells us we must leave them. I would willingly die to preserve them, but any forcible effort to keep them will cost us our lands, our lives, and the lives of our children. There is but one path of safety, one road to future existence as a Nation. That path is open before you. Make a treaty of cession. Give up these lands and go over beyond the Great Father of Waters.
Boudinot reiterated the necessity of the treaty, even though he knew that by signing it “I take my life in my hand.”86
The Cherokees appointed a twenty-man committee, headed by Major Ridge and Boudinot, and including John Gunter, Andrew Ross, and Archilla Smith, to negotiate with Schermerhorn and consider the terms of the treaty.87 The final treaty contains a lengthy self-serving prelude justifying the treaty and the actions of the signers: the Cherokees are not being driven out by violence and injustice, they are moving west to reunite their nation and secure a permanent homeland. Instead of collaborators in a treaty depriving their people of their homeland, the Treaty Party presented themselves as the responsible government; they, not the obstinate and short-sighted Ross, were the ones willing to make the hard choices that had to be made if the people were to survive.88
The treaty contained twenty articles. Basically, the Cherokees ceded ten million acres of land in the East for $5 million in cash plus money for investment; in other words just over 50 cents an acre. In return, they received lands in the West and assurances that at “no future time without their consent” would those lands “be included within the territorial limits or jurisdiction of any state or Territory.” Cherokees agreed to keep peace and not wage war against their neighbors and the United States promised to prevent trespass onto Cherokee land. In addition, the Cherokees were entitled to send a delegate to the House of Representatives “whenever Congress shall make provision for the same.” (The treaty contained a provision for reservation lands for those Cherokees who wanted to stay in the East, but Jackson objected, insisting “that the whole Cherokee people should remove together and establish themselves in the country provided for them west of the Mississippi river.” So, supplementary articles, agreed to by Ridge and other signers of the original treaty on March 1, 1836, declared this provision null and void and authorized an extra $600,000 in payment for the Cherokees’ lands.)89
Reverend James Trott, a Methodist missionary, called the treaty the “Christmas trick at New Echota.”90 However, as the Cherokee scholar Daniel Heath Justice acknowledges (somewhat reluctantly, having himself always been “a Ross man”), the treaty is not just a manifestation of American deceit and Treaty Party betrayal; it is “a much more complicated document of resistance, particularly in its concerns about the People’s ultimate survival.” The Treaty Party used the document to assert their own legitimacy as leaders of the Cherokee Nation and also to include provisions for rebuilding the nation in the West, by outlining the Cherokees’ new territories, asserting their rights of self-determination, making provision for a possible diplomatic delegate to the House of Representatives, and securing schools, teachers, farmers, and mechanics, and funds to educate and support orphan children. Schermerhorn and co-commissioner Governor William Carroll were only concerned with getting a removal treaty, but the Cherokee signers were concerned with the independence and future survival of the Cherokee Nation, albeit with themselves at the head.91
On December 29 those present voted on the treaty: seventy-nine approved, seven opposed. The members of the negotiating committee signed the treaty. Major Ridge’s name appears first. In their report and regulations of Indian treaty making submitted to the Senate in 1829, Lewis Cass and William Clark had noted that “he who signs first, incurs a heavy responsibility; and it requires no ordinary degree of resolution in the man, who thus, in the presence of his countrymen, leads the way in sanctioning a measure which many may regret after the presents are expended and the excitement of the moment has subsided.”92 Never did that responsibility weigh more heavily than on Major Ridge. As the seventy-year-old chief made his mark on the treaty, he was reputed to have said, “I have signed my death warrant.”93 For years to come, many Cherokees called it “Ridge’s Treaty.”94 The illegal council adjourned on December 30 “after distributing among the Cherokees a blanket each, which had been brought to the council ground for the accommodation of the Cherokee people at that inclement season.”95
Elated, Schermerhorn scribbled a quick letter to Cass the same day: “The meeting was large and respectable, and everything conducted in that open and fair manner, that there will be no difficulty in its ratification,” he said. “Ross, after this treaty, is prostrate. The power of the nation is taken from him, as well as the money, and the treaty will give general satisfaction.”96
The Ridge party gave their approval to sending the treaty to the Senate. John Ridge and Stand Watie (figure 4.6), who were in Washington when the treaty was made, added their support, impugning at the same time the “constituted authority” of the Cherokee Nation as “a few men, at the head of whom is John Ross, who is nearly a white man in color and feelings.”97
Despite the Ridges’ insistence that they acted only for the good of the Cherokee people and to preserve the Cherokee Nation, the National Council at Red Clay declared the treaty null and void, denouncing it as “a fraud upon the Government of the United States, and an act of oppression on the Cherokee people.”98 Stunned to hear that a treaty had been made while they were away in Washington, John Ross and his delegation bombarded the president, the secretary of war, Congress, influential individuals, and the public at large with protests and appeals for justice. Ross could not believe that the United States government would countenance “the Christmas trick” if it knew the truth. The Cherokees had been faithful allies of the United States and had made advances in agriculture, education, literacy, government, and all civilized pursuits; what wrong had they committed to merit such treatment? “Before the civilized world, and in the presence of Almighty God,” they declared, “the instrument entered into at New Echota, purporting to be a treaty, is deceptive to the world, and a fraud upon the Cherokee people.” If the Cherokees had ceased to exist by state legislation as a nation or tribe, then the president and senate could not make a treaty with them; if they had not, then no treaty could be made for them without their consent and against their will. If treaties were to be made and enforced “wanting the assent of one of the pretended parties, what security would there be for any nation or tribe to retain confidence in the United States?” In the case of the New Echota treaty, the assent of the Cherokee Nation had been “expressly denied.” A handful of chiefs, “seduced and prompted by officers of the United States Government,” had assumed powers that had not been conferred by the people and had negotiated a treaty “over the heads and remonstrances of the nation. Is there to be found in the annals of history, a parallel case to this?”99
FIGURE 4.6 Stand Watie. (Western History Collections, University of Oklahoma Libraries, Phillips 1459)
Assistant Principal Chief George Lowery secured more than fourteen thousand signatures to a petition against the treaty.100 Schermerhorn and the Treaty Party dismissed Ross Party protests as the efforts of a self-serving minority and contended that the numbers on the petitions were inflated and that there were irregularities in the way the signatures were obtained.101 Citizens from towns throughout the northern states sent petitions and protests to Congress, and even Congress had misgivings—the debates over the treaty lasted almost two months. In the House, John Quincy Adams called it “an eternal disgrace upon the country.”102 Adams had his own anti-Jackson axe to grind, of course, but it was a view widely shared. Missionary Rev. Cephas Washburn believed “a tremendous responsibility rests upon our government for that transaction. By that treaty, a foul stain is fixed upon our national escutcheon, which is now indelible. No subsequent act can wash it away. It will not be washed away in all time, nor all eternity.”103 Missionary Daniel Butrick, formerly a close friend of John and Major Ridge, now denounced the action of the treaty signers as “not only a political crime but a Christian sin.”104
Petitions were not likely to carry much weight with a government that had deliberately chosen to deal with the Treaty Party rather than the legitimate Cherokee leadership. When the treaty finally reached the Senate, the vote on ratification did not divide along the same sectional lines as had the debates and was as much to do with the expansion of the Cotton Kingdom and slavery as about the rights of the Cherokees. On May 23, 1836, the Senate approved the treaty by just one vote more than the two-thirds majority required for ratification. Senator Hart Benton of Missouri said that the votes of the free state senators secured for the South a treaty that would convert “Indian soil to slave soil.”105 Jackson proclaimed the treaty the same day. The clock on Cherokee removal was ticking. They had two years in which to be gone.
The emigration agent, Benjamin Currey, did not live to see the Cherokees emigrate; he died in December 1836 “after a serious and painful illness of several weeks.”106 Stand Watie and Elias Boudinot lost their wives in the same year. In April, while Watie was in Washington, his wife Betsey died in childbirth (the child died, too).107 Harriet Gold Boudinot died in August. Within the year, Elias Boudinot married Delight Sargent, a missionary. She accompanied him and his six children when they migrated west.108
The Treaty Party leaders claimed that most Cherokees received the treaty with relief and gratitude, even, said Boudinot, “with cheerfulness.” Major and John Ridge told the president: “We have been hailed by the poor Cherokees as their deliverers from Ross’s domination. So far all is well.” But all was not well: the Cherokees were being fleeced and abused by the Georgians, and the Ridges implored Jackson to send regular troops “to protect our people as they depart for the West.”109
By supporting Georgia in its unlawful actions against the Cherokees and demanding removal the government disregarded promises it had made in every treaty with the Cherokees since 1785.110 But it was determined to carry out this one to the letter. On the president’s instructions, Brigadier General John Wool, commander of the army in Cherokee country, issued a proclamation at Red Clay in September 1836, announcing that no alteration would be made in the treaty “and that the same, in all its terms and conditions, will be faithfully and fully executed.” Another proclamation from General Nathaniel Smith, who replaced Currey as superintendent of Cherokee removal, issued in late December 1837 and published in the Athens Courier warned the Cherokees that they now had only five months left. It was time to stop listening to Ross and fooling themselves. “The treaty will be executed, without change or alteration, and another day beyond the time named, cannot or will not be allowed you.” The president had refused any further discussion or correspondence with Ross in regard to the treaty and further delay risked bringing “evils” and “horrors” on the Cherokees and their families. It was time for the Cherokees to get moving or suffer the consequences.111
In 1836 Jackson called Wilson Lumpkin out of retirement to serve with Tennessee governor William Carroll as commissioner for settling all Cherokee claims under the terms of the treaty. By his own estimation Lumpkin “had contributed more than any one man in bringing this Treaty into existence.” He thought it “exceedingly liberal and advantageous in all its provisions to the Cherokee people,” and the sooner it was implemented the better. The fact that most Cherokees opposed it caused him little concern: “In truth, nineteen-twentieths of the Cherokees are too ignorant and depraved to entitle their opinions to any weight or consideration whatever.” He made it clear to the Cherokees that he was there to execute the treaty, not negotiate a new one, and he urged a strong military presence to eliminate any possibility of trouble. “The intelligent and wealthy” Cherokees were busy settling their affairs, “getting all the money they can under the treaty, and looking exclusively to their own interest, with the most perfect indifference to the interests of the great body of their people.” For eighteen months, Lumpkin tried to push ahead with adjudicating thousands of claims arising from the treaty.112
After he resigned to take up his seat in the US Senate “much fraud and corruption found their way” into the commissioner’s office. For twelve years, first in the House of Representatives, then as governor, then as commissioner, and finally as senator, Lumpkin made it his policy “never to cease my efforts while an Indian remained in Georgia” and he continued to push for speedy implementation of removal on the floor of the Senate. As far as Lumpkin was concerned, Indian treaties were a farce and should be abandoned, leaving the federal and state governments to legislate directly for Indians “in the same manner that we legislate for minors and orphans, and other persons who are incompetent to take charge of their own rights.”113
Meanwhile John Ross worked tirelessly to have the treaty abrogated or amended, denouncing it as an illegal act carried out by greedy and self-interested traitors. Lumpkin considered Ross “the master spirit of opposition,” a “wary politician” who committed no overt act but whose presence and influence stiffened resistance to removal among the mass of Cherokees. Colonel William Lindsay of the Second Artillery, the commanding officer in the western district of Cherokee country, saw things rather differently. Lindsay told Secretary of War Joel Poinsett that the vast majority of Cherokees would be willing to consider a fair treaty but would never move under the fraudulent one made at New Echota except under force. Many vowed to die rather than leave. Lindsay did not hold Ross responsible for the resistance; Ross was “the slave, rather than the leader of his nation,” and his real position was “mysterious.” Whereas Lumpkin warned that Ross’s ambition risked destroying the Cherokees, Lindsay thought Ross “a man of enlarged mind and consummate judgement” who fully understood the consequences of war with the United States and stood in the way of bloodshed, a difficult task given “the exasperated state of party feeling prevailing through the Cherokee nation.”114
The Treaty Party maintained that they had achieved the best deal possible under the circumstances. Unable to claim legitimate leadership on traditional grounds of consensus or mandate of the community, Ridge and Boudinot instead took the position that an intelligent leadership had a moral responsibility to act for the good of the ignorant and misinformed majority. In a “Reply to Ross,” which was published with accompanying documents in 1837 and became public record as a Senate document, Boudinot accused Ross of intransigence, misleading the people, and prolonging their suffering. “If one hundred persons are ignorant of their true situation, and are so completely blinded as not to see the destruction that awaits them,” wrote Boudinot, “we can see strong reasons to justify the action of a minority of fifty persons—to do what the majority would do if they understood their condition—to save a nation from political thralldom and moral degradation.” Exile was far better than submitting to the laws of the states “and thus becoming witnesses of the ruin and degradation of the Cherokee people.” In another country and under different circumstances, there was a chance for the Cherokee Nation to survive and rebuild.115
Ross and the Cherokee delegation continued to look for justice in Washington. How would “the faithful historian” view the government’s sorry record in this affair? they asked Congress. “In the name of the whole Cherokee people we protest this unhallowed and unauthorized and unacknowledged compact. We deny its binding force. We recognize none of its stipulations.” They presented the new president, Martin Van Buren, with an account of the fraudulent treaty and implored him to investigate. “Our fate is in your hands—may the God of truth tear away every disguise and concealment from our case—may the God of justice guide your determination and the God of mercy stay the hand of our brother uplifted for our destruction.”116 In February 1838, 15,665 Cherokee people signed another petition protesting the treaty and begging relief from “the appalling circumstances in which we are placed by the operation of that perfidious compact.” In April Ross and the delegation submitted it to Congress. The Cherokees’ last hope against the coming storm lay in appealing to the justice of the US government: “Will you sustain the hopes we have rested on the public faith, the honor, the justice, of your mighty empire? We commit our cause to your favor and protection. And your memorialists, as in duty bound, will ever pray.”117 They reached in vain for the conscience of America.
As the deadline for removal approached, many officers and officials in Cherokee country feared bloodshed and saw Ross as the best person to prevent it. The removal commissioner Nathaniel Smith, who had known Ross for twenty-seven years, echoed Colonel Lindsay’s appraisal that he was “an honest man and a slave to his people.” Georgia governor George Gilmer hoped that once Ross and the Cherokee delegation lost all hope of delaying the treaty and returned home, they might be induced to help convince the Cherokees that their interest and safety required moving West and would “undertake to effect their voluntary removal in their own way.”118
About nine hundred Cherokees had migrated west in the spring of 1834. Measles and cholera killed eighty-one people before they reached Arkansas. The members of the Treaty Party began their migration early in 1837. A group of about 600 went first; Major Ridge, Stand Watie, and 466 people departed in early March, and another 365 set out in October. The third detachment suffered from bad weather and sickness, and fifteen people, mostly children, died en route.119 Pointing to the emigration of the first six hundred, Lumpkin invoked the efficacy of the same divide-and-conquer tactics that had secured the treaty. “This policy of making prudent advances to the wealthy and intelligent has gone far to remove all opposition to the treaty among the most influential class,” he wrote to the commissioner of Indian affairs. “The great body of the intelligent, who have been numbered with the opponents of the treaty have become recipients under the treaty, and consequently their tone and temper in relation to that instrument have been wholly changed.”120 Major Ridge rebuilt his home and estate on Honey Creek in the northeastern part of the new Cherokee lands, near the border of Arkansas and Missouri and near where the relocated Senecas lived. He and John formed a partnership in late 1837 and opened a large general store. There would be plenty of displaced Cherokees to supply once the exodus from the East got under way.121
Back in Georgia, the deadline for voluntary removal expired in May 1838. On May 10 General Winfield Scott issued an address to the Cherokee people, informing then that time was just about up and that he had been sent “with a powerful army” to compel their removal in accordance with the treaty. He and his soldiers intended “to execute our painful duty in mercy.” As federal troops began rounding up the Cherokees and placing them in stockades ready for relocation, Scott sent Secretary of War Poinsett encouraging reports of progress. Things were moving ahead with little interference from whites “and with all practicable kindness & mercy on the part of the troops.” In Scott’s mind, removal was inevitable, the Treaty of New Echota simply its instrument: “The decree of Fate,” he wrote, “more than the paper called a Treaty, requires that it should be completed without delay.”122
Huddled in internment camps, the Cherokees would succumb to removal but they would not accept the Treaty of New Echota. Scott reported that many of them “obstinately refused to receive clothing & blankets, both of which were much needed—fearing to do anything which might be construed into an acknowledgment of the treaty.”123 In late July, the Cherokee National Committee and Council met at Aquohee Camp in eastern Tennessee and passed a series of resolutions necessitated by the fact that “the whole population of the Cherokee Nation have been captured by order of the President of the United States, in order to [effect] their transportation from the land of their fathers to the west of the river Mississippi, in execution of the alleged stipulations of an instrument purporting to be a treaty made at New Echota in 1835 but against the validity of which the Cherokees have earnestly protested.” They authorized Ross and other leaders to work with General Scott and direct “the whole business of the emigration of our people”; they reasserted their rights of sovereignty and self-government as recognized in their treaties with the United States, and they denounced the Treaty of New Echota and called on the United States to renegotiate it in good faith with the proper representatives of the Cherokee people. They were being removed by fraud and force but they were emigrating “in their national capacity” and had not given up their claims to their homeland, their institutions, or their pre-Echota treaty rights. Ross assumed the role of Superintendent of Removal and Subsistence. Scott was happy to work with the Cherokee leadership—despite his upbeat reports, like many other US officers and officials he regarded Ross’s assistance as important to stave off bloodshed.124
Opposition from Ross was not the only thing holding up removal; there were problems with the logistics and planning. The panic of 1837 had hamstrung the efforts of commissioners to settle claims, and periodic wavering on the part of the Van Buren administration perpetuated hopes that the deadline might be extended.125 Removal under the terms of the treaty involved more than simply herding people west. Article 8 stipulated that once the Cherokees reached their new homes the United States would support them with rations for one year or $33.33 each “if they prefer it.”126 The challenges of dealing with Cherokee claims, assessing the value of improvements, and trying to ascertain how many Cherokees preferred cash rather than subsistence caused headaches for the officials responsible for implementing removal under the terms of a treaty noted, according to Hon. Joseph L. Williams, for its ambiguity, verbiage, and complexity. “If Mr. Schermerhorn deliberately designed and contrived its precise structure, to involve difficulty and defy construction,” he wrote the secretary of war, “then is his ingenuity most complete and incontestable; but, if perspicuity was honestly his aim, then his folly and stupidity deserve to be patented.”127
John Ross managed to get Congress to increase the total allowed for removal to $6,647,067. Ross and his removal committee organized the people into thirteen detachments of about one thousand each and recorded every financial transaction associated with the process. The funds for removal had been estimated at $30 per person. The actual costs for those who had already migrated came closer to $60 each. Delayed by drought, fleeced by traders and turnpike keepers, and traveling through snow, the emigrants in Ross’s parties ran up expenses that exceeded $100 per person. The expenses exhausted the funds set aside for removal and cut into the funds provided for per capita distribution to the tune of about $500,000, approximately 10 percent of the total amount awarded by the treaty. Controversy over these costs raged for years: Ross campaigned to get more money from the government to help meet the costs; his opponents accused him of lining his own pockets.128
Ross had led his people in prayer as they began their march west. The hardships of the early migrants paled in comparison with the horrors and death toll experienced by those who underwent forced removal. John G. Burnett, a private in the Second Tennessee Volunteers, recalled that “men working in the fields were arrested and driven to the stockades. Women were dragged from their homes by soldiers whose language they could not understand. Children were separated from their parents and driven into the stockades.” He saw Cherokees driven at bayonet point and loaded into wagons “like cattle or sheep.” He watched them struggle through rain and snow and along “a trail of death,” saw twenty-two die in one night of pneumonia, and was on guard duty the night that Quatie, John Ross’s wife of twenty-five years, died. More than half a century later, he was still haunted by the memory of “six-hundred and forty-five wagons lumbering over the frozen ground with their Cargo of suffering humanity” and “the four-thousand silent graves that mark the trail.” In Burnett’s view, it was a national act of murder. “At this time,” he wrote in 1890, “we are too near the removal of the Cherokees for our young people to fully understand the enormity of the crime that was committed against a helpless race, truth is the facts are being concealed from the young people of today. School children of today do not know that we are living on lands that were taken from a helpless race at the bayonet point to satisfy the white man’s greed for gold.” He expected future generations to condemn the act.129
John Ridge, however, blamed Ross for much of the suffering: “If Ross had told them the truth in time,” they would have had chance to sell off “their furniture, their horses, their cattle, hogs, and sheep, and their growing corn.”130 Elijah Butler, the missionary who had gone to jail with Samuel Worcester, disagreed and charged “all the suffering and all the difficulties of the Cherokee people … to the accounts of Messrs. Ridge and Boudinot.”131
According to War Department statistics, 1838 was the high-water year for removal of eastern Indians to the west of the Mississippi: of the 73,860 people relocated in the eight years after the Indian Removal Act, 25,139 went in 1838.132 While Cherokees made their way along the Trail of Tears as a result of his work at New Echota, John Schermerhorn was busy closer to home in New York, negotiating another fraudulent removal treaty, this one at Buffalo Creek with the Senecas, although the government withdrew his commission before the treaty was completed in 1838. He also orchestrated the removal of Brothertown and Stockbridge Indians. Originally from New England, these Indians had built new Christian communities in Oneida country after the Revolution, only to be removed first to Indiana and then to Wisconsin. Schermerhorn tried to bully them into yet another removal to Kansas. As he had shown at New Echota, the Indians’ Christianity, “civilization,” and record of friendship with the United States counted for nothing: he saw all Indians as a race who could not live side by side with whites and who stood in the way of American progress.133 In his time as Indian commissioner, Schermerhorn participated in negotiations with twenty different tribes. In 1841 the Dutch Reformed Church appointed him missionary to establish a new congregation in Indiana. He died in 1851 at the age of sixty-five.134
Things did not improve for the Cherokees after they arrived in Indian Territory. Under the Treaty of New Echota the US government was to provide rations for a year, but widespread fraud among officials and contractors resulted in insufficient rations of poor quality reaching the Cherokees.135 The treaty also stipulated that, after the costs of removal had been deducted from the $5 million owed the Cherokees for the sale of their eastern homeland, the remaining amount was to be divided on a per capita basis. Did that mean all the Cherokees, or only those who were forced west against their will, as John Ross argued? The chief of the western Cherokees, John Brown, and assistant chiefs John Rodgers and John Looney argued that their people were entitled to a share of the money because they were being asked to share their lands with the roughly fourteen thousand Cherokees who survived the Trail of Tears. In one of its last acts before removal, the Cherokee National Council had passed a resolution declaring that the government and constitution of the Cherokee Nation would be transferred intact to the West. The Old Settlers, as the three thousand or so western Cherokees were known, had their own government and had no intention of letting it become submerged in the newly imported government of the Cherokee majority. The two thousand Cherokees associated with the Treaty Party were also understandably nervous about a government dominated by Ross and the National Party. The several groups met at Takatoka in June 1839 to discuss how to rebuild the Cherokee government but at the end of the council some 100 to 150 National Party members met secretly and drew up a list of men they believed should suffer the death penalty for signing the Treaty of New Echota in violation of the Cherokee law that Major Ridge had supported and John Ridge had put into writing ten years before. Both Ridges, Elias Boudinot, Stand Watie, and others were named. Three men from the clan of each of the accused were asked to sit in judgment and, in each case, they condemned the accused to die. Numbered slips of paper were drawn from a hat; those who drew a paper marked with an X were designated the executioners.136
Early on the morning of June 22, 1839, two dozen men surrounded the home of John Ridge. Three of them entered the house, dragged Ridge from his bed and into the yard where they stabbed him twenty-three times, and then beat him to death in front of his screaming wife and children. Ridge’s twelve-year-old son, John Rollin, said later that the killing “darkened my mind with an eternal shadow”; he carried the image, and the desire for revenge, the rest of his life. Another group went to Elias Boudinot’s house and requested medicine from the nearby mission of Samuel Worcester. As Boudinot led them to the mission they stabbed him in the back with their bowie knives and split his skull with repeated tomahawk blows. Major Ridge was shot from his horse on his way “to visit a sick negro belonging to his family.” Someone—Samuel Worcester, or a Choctaw riding Worcester’s horse, or a carpenter sent by Delight Boudinot—got warning to Stand Watie, who fled to safety. Watie, who now became the recognized leader of the Treaty Party, blamed Ross and swore to avenge the killings. Ross’s son, Allen, claimed his father knew nothing about the killings. Delight Boudinot sent warning to Ross that Watie was after his life; Cherokees from the National Party mounted an armed guard around the chief’s house, and Ross asked Brigadier General Matthew Arbuckle, the US military commander of the area stationed at Fort Gibson, to intervene and prevent the spilling of innocent blood.137
Men who had worked with the victims to dispossess the Cherokees were outraged at the murders. John Schermerhorn wrote a public tribute to John Ridge, defending his conduct in making the Treaty of New Echota. Ridge, Boudinot, and their friends “knew they were running a dreadful risk” in signing the treaty in defiance of a law Ridge himself had drawn up, but they “had counted the cost and deliberately made up their minds, if need be, to offer up their lives as a sacrifice … to save their country from a war of extermination and ruin.” Unlike Ross, said Schermerhorn, Ridge and his friends acted from pure and patriotic motives. At their last meeting, in New York the previous April, Ridge had told Schermerhorn: “I may yet some day die by the hand of some poor infatuated Indian, deluded by the counsels of Ross and his minions, but we have this to console us, we shall have suffered and died in a good cause.” In the hands of the architect of the Treaty of New Echota, Ridge and his associates became martyrs, not traitors, elevating Schermerhorn’s treaty from a sordid land grab to a noble cause.138 Governor Lumpkin likewise extolled the members of the Treaty Party as men of vision who had led their people to happiness and prosperity in the West, only to fall victim to “that most horrid, appalling, deepest of all mid-night crimes” (although the murders were carried out in daylight). “The best half of the intelligence, virtue and patriotism of the Cherokee people has been basely murdered, to gratify the revenge and ambition of John Ross,” he wrote. Suddenly concerned about the nation’s honor, Lumpkin thought it “a crying sin against the United States” that the murderers had not been punished “as justice and law demanded.”139
News of the murders produced predictions of “fatal consequences” and civil war within the Cherokee Nation.140 General Arbuckle compiled a list of those believed responsible for the killings and asked Ross to hand them over. He also advocated military intervention to settle the difficulties.141 Ross and his chiefs denied responsibility for the assassinations and asked why the Cherokees were being singled out for attention, when the law of retaliation still functioned in many tribes. Ross, who had requested that Arbuckle intervene with federal troops when his life was in danger, now protested against Arbuckle’s interference in Cherokee affairs and asked what right the United States had to deprive the Cherokee Nation of its sovereign right to exercise its legitimate authority over acts committed by one Cherokee against another. If it was true that Ridge and Boudinot “were killed by the orders of the constituted authorities of the nation, their lives were forfeited under an existing law of the nation,” a law Ridge himself had voted. The Ross party cited the terms of the Treaty of New Echota, the treaty they rejected, as evidence of their right to self-government and the United States’ obligation to keep peace with all the Cherokees, not just the minority.142
In 1839, various branches of the Cherokee Nation reassembled in Indian Territory. Several hundred Cherokees had settled in eastern Texas in the winter of 1819–20, welcomed by the Mexican government as a buffer against expanding American settlement. Their position became tenuous after Texas won its independence in 1836, and it grew increasingly perilous under Governor Mirabeau Lamar’s policies of ethnic cleansing. In July 1839 the Republic of Texas drove out the Cherokees; their chief Duwali or Bowles was killed at the Battle of Neches River, and the survivors fled to Indian Territory where they rejoined their relatives.143
That same month, nearly two thousand Cherokees—Old Settlers, eastern Cherokees, and Texas Cherokees—gathered in a meeting at the Illinois Camp Ground at Tahlequah. Declaring themselves a general convention of the Cherokee Nation, they drafted documents for a new government. The National Party adopted a resolution pardoning those who had carried out the executions and outlawing anyone who advocated vengeance on the executioners. Some Old Settlers signed an act of union with the National Party and the Tahlequah council ratified a new Constitution of the United Cherokee Nation and elected Ross principal chief. But most Old Settlers joined the Treaty Party in its opposition to Ross.144
At the same time as the Cherokees and other emigrant tribes wrestled with their internal schisms, they had to deal with the Indian peoples of the southern plains and prairies who regarded them as intruders. Tahlequah became the scene of multinational Indian councils where the Cherokees and their neighbors attempted to establish peaceful relations and bring peace and order to Indian Territory by the practiced methods of Indian diplomacy and alliance building. Four thousand Indians from twenty-two nations attended the grand council at Tahlequah in June 1843. Cherokee, Creek, Delaware, Shawnee, Wyandot delegates reaching out to Osages, Iowas, Pawnees, and other western tribes employed the diplomatic traditions they had brought with them from the East, relying on “wampum, kinship, ritual, and council fires to help organize life in their new environment.” But the intertribal and intratribal divisions stemming from removal proved insurmountable.145
After the deaths of the primary signatories of the Treaty of New Echota, the story of that treaty revolves around the man who most steadfastly resisted it. Year after year John Ross wrote page after page—to the secretary of war, Congress, successive presidents, and various individuals—on Cherokee rights, Cherokee history, Cherokee treaties, and Cherokee political status. He pushed the government to honor or even improve the terms of the treaty at the same time as he continued to deny the validity of the treaty. Sometimes he was in Washington six months a year. At first the government refused to recognize him, and continued to deal with Treaty Party delegates. In April 1840, General Arbuckle informed a delegation of Old Settler and Emigrant Cherokees at Fort Gibson that, despairing of the Cherokees being able to settle their differences themselves, the United States insisted that the Old Settlers hold one-third of the offices in the new Cherokee government, and Secretary of War Poinsett ordered that John Ross and William Coodey be removed from office. The Cherokee Council immediately denounced such measures as an assault on the Cherokee Nation’s rights of elective government and “destructive to the principles of a republican Government.”146
But the 1840 elections brought a Whig administration to power, and President Harrison (soon replaced by John Tyler) and the new secretary of war, John Bell, gave Ross a much warmer reception. Again invoking the written assurances that Jefferson had given the Cherokees forty years before, Ross reminded Bell that the Cherokee Nation sought “nothing more than the performance of such promises as this parchment embodies, and as have been so often reiterated, not only before, but since; and in the solemn form of treaties.”147 For a while Ross was hopeful that his efforts to renegotiate the New Echota treaty might bear fruit, but by the time he wrote his annual message to the Cherokee Nation in November 1842 it was clear that no renegotiation was likely.148
Meanwhile the violence emanating from the treaty continued and escalated. In 1840 Archilla Smith, who had signed the treaty, stabbed John McIntosh to death in an argument. He was arrested and put on trial in Cherokee court in Tahlequah. Stand Watie defended him but Smith was found guilty. Watie drew up a petition for pardon, Ross denied it, and Smith was hanged.149 In May 1842, according to the Treaty Party, an armed group “set out upon the unhallowed purpose of murdering the aged widow of fallen Major Ridge.”150 That same month Stand Watie encountered James Foreman, one of the men accused of assassinating the treaty signers, in a grocery store. There was an altercation, and Watie threw his drink into Foreman’s face. As Foreman reached to pick up a board, Watie stabbed him with his bowie knife and then fired his pistol at him but missed. Foreman died shortly afterward. Watie stood trial in the state of Arkansas the next year but was acquitted on grounds of self-defense.151 Meanwhile, Watie gained a wife and lost his father: in September 1842, he married Sarah Caroline Bell (they had three sons: Saladin Ridge, Comiskey, and Solon Watica, and two daughters, Ninnie Josephine and Charlotte Jacqueline); his father died later that year.152
In 1843, Isaac Bushyhead was murdered and David Vann seriously wounded, by George and Jacob West and others. Elijah Hicks was also attacked. The sons of James Starr, who had been condemned to death with Boudinot and the Ridges, murdered a Cherokee family and burned their home.153 John Rollin Ridge, away at school in Great Barrington, Massachusetts, wrote his uncle, Stand Watie, telling him he would always be pleased to hear of the deaths of those who had murdered his relatives.154 Eighteen forty-five brought another round of killings. On November 2, a party of pro-removal Cherokees including Thomas, Ellis, and Washington Star, Ellis Rider, and Ellis West, murdered two Cherokees “and mangled their bodies in the most horrible manner.” Someone burned the home of Ross’s daughter, Jane, and attempted to kill her husband, Return J. Meigs (a grandson of the Indian agent of the same name). A week later, a mob killed James Starr and Ellis Starr; five days after that Stand Watie’s brother Thomas was tomahawked, shot, and stabbed to death.155 Watie gathered guns and men and vowed to avenge his brother. Robberies, murders, and revenge killings spread fear through Cherokee country, and alarmed whites in Arkansas urged the government to take action.
The civil war in Cherokee country was accompanied by a war of words in delegations by all three parties to Washington and memorials to Congress, and fees to Washington lawyers, all of which fueled “the flame of discord in the Cherokee nation.”156 The Old Settler party complained to Congress that the Treaty of New Echota ignored the prior treaty rights of the western Cherokees, sending the eastern Cherokees to live on their lands without asking their consent or paying compensation. Whereas the Treaty Party had moved west and settled under laws of the existing Cherokee community in Arkansas, Ross and his followers thought of themselves “not as ordinary emigrants, but as a nation moving, carrying with them sovereignty, a constitution, laws, usages, and all the officers of an organized community…. They determined, by bloodshed and revolution, at once to overthrow the established government, and take all power over our territory and our people into their own hands.” The relationship of the three Cherokee parties to the Treaty of New Echota presented “a spectacle”: “The treaty party, who were recognized east as competent to cede away a territory and extinguish a nation, are not considered west worthy to be protected when living, or avenged when dead.” Ross and his chiefs, “who were not recognized east as clothed with authority to prevent the execution of the treaty,” were now recognized as the Cherokee Nation and received all its benefits, even though they rejected the treaty. And the western Cherokees, who were not party to the treaty, were left to “protest against its assumptions and its consequences.”157
Indian agents Stambaugh and Kendall were outraged at the turn of events in the ten years since New Echota. “Look now at the condition of those whom the United States had encouraged to make a treaty with them, and had a hundred times promised to protect,” they wrote the secretary of war. “Their first men were murdered, and all the rest of them outlawed, for no other offence than signing that treaty!” Not one of the assassins had been brought to justice. The government had abandoned the Treaty Party “to the tender mercies of John Ross” who, “with scarcely enough Cherokee blood in his veins to mark him as of Indian descent,” had deluded the majority of the Cherokees into thinking “that he is true to the aboriginal race, while his full-blooded rivals are traitors to their country and their kindred.” Ross was truly “an extraordinary man.” He had resisted removal to the last, causing untold suffering, and then had gotten himself put in charge of the removal arrangements. “Thus strengthened for mischief, upon his arrival on the Arkansas, he destroyed his rivals, overturned the existing government, established his power through blood and usurpation; and in all this he has been tolerated by the United States.” Ruled by avarice, they contended, Ross “comes to Washington every year, spending in luxury and pleasure the funds of the nation, under pretence of settling their difficulties; but never makes a proposition which tends to their settlement.”158 Ross meanwhile, in the summer of 1844 courted, largely by correspondence, and married a new wife, a Quaker named Mary Stapler.159
A change of administration changed the situation in Washington again. The new government was not likely to renegotiate the Treaty of New Echota. Ross and Watie were both in Washington in the spring of 1846, Ross still pushing for a new treaty, but in Cherokee country the violence continued. A letter to Watie from John Rollin Ridge, then studying law in Fayetteville, Arkansas, contained a telling line: “No very important transactions have happened since your departure, except the killing of five or six Indians of the Ross party.” A few days later, he wrote again, asking his uncle to get him a bowie knife.160 Ross portrayed Watie and his “lawless band of armed men” as a threat to the Cherokee government and the safety of Cherokee people and asked President James Polk to order them dispersed.161 Doubting that the different Cherokee parties could ever again live together in peace, Polk in April 1846 proposed dividing the Cherokee Nation among the various factions.162 The House Committee on Indian Affairs supported the president’s recommendation and a bill was introduced seeking legislation to divide the Cherokee Nation. The bill did not pass but it pressured the groups to make peace. Ross read the president’s message “with equal grief and astonishment.”163 He had fought for years against the Treaty of New Echota and for the sovereignty and unity of the Cherokee Nation; now he had no choice but to compromise or see the nation permanently divided. By the terms of a treaty, signed on August 6, 1846, Ross agreed to accept and work with the Treaty of New Echota. He also agreed to include the Old Settlers and members of the Treaty Party in the per capita distribution of the land sale. In return the Old Settlers relinquished their claim to be sole owners of the new homeland and in effect yielded government of the nation to the National Party. The treaty stipulated that there should be a general amnesty for all crimes committed by the rival groups during the previous seven years. Ross and Stand Watie shook hands when they signed the treaty. The Senate ratified it the next day.164
The feuds and vendettas subsided and the Cherokees directed their energies to rebuilding their nation. As principal chief, Ross worked assiduously “to squeeze every possible cent” owed to the Cherokees by the Treaty of New Echota. After 1846, the nation’s annual operating expenses were met essentially from the income of a trust fund of $500,800 established under the treaty. The $35,000 to $45,000 the fund generated each year was insufficient to pay for government buildings, salaries, police, courts, delegations to Washington, the tribal newspaper, and the nation’s schools. Ross argued that the government had no right to deduct the costs of removal from the $5 million it paid for the Cherokee homeland; that Cherokees who had resisted removal and the treaty of New Echota should be fully compensated for the losses they suffered; that the government still owed the nation some of the expenses incurred in carrying out removal, and that it should pay the Cherokees interest at 5 percent on all unpaid sums. For Ross, securing these additional monies was vital to rebuilding the Cherokee Nation. But the War Department resisted his demands and when the federal accounting office tallied up all the amounts subtracted for the costs of removal, compensation for spoliations, and remunerations for lost improvements, it determined that of the original $5 million only $627, 603.95 remained for per capita payments. Ross fought on, despite the fact that the government’s attention was focused on the War with Mexico, and lawyers’ bills further depleted the Cherokees’ finances. Finally, in 1852, the government agreed that removal costs should not be deducted from the $5 million paid for the Cherokees’ land, that almost $1 million was owed the Cherokees for removal expenses, and that 5 percent interest should be added to these sums when they were paid. When the per capita payments were finally made to the members of the Ross and Treaty parties, each Cherokee received $92.79. Years later, after Ross was dead, Congress reconsidered the issues he had raised and decided that the government owed the Cherokees an additional $961,368.165
Slowly, the Cherokee economy began to recover. Stand Watie developed a law practice and merchandise business. But the Treaty of 1846 did not heal the deep divisions between the Ross and Ridge parties.166 Some members of the Watie-Boudinot family went to California during the gold rush, including John Rollin Ridge. In 1849, in a dispute over a horse, John Rollin shot and killed a Ross sympathizer named David Knell. John Rollin’s mother and family wanted him to “leave the nation forever, and have nothing more to do with it.” He fled across the Missouri border and made his way to California the next year, leaving his wife and daughter to follow. From California, he wrote to Stand Watie: “There is a deep-seated principle of revenge in me which will never be satisfied until it reaches its object.” But he also wrote other things. He became a journalist, poet, and author. (His fictionalized story, The Life and Adventures of Joaquin Murieta, The Celebrated California Bandit [1854] was the first novel by a Native American, the first written in California, and the basis of later Zorro stories.) He never returned to Cherokee country.167
The old removal-era divisions flared again with the outbreak of the Civil War.168 The Confederacy sent General Albert Pike, its commissioner of Indian affairs, to negotiate treaties of alliance with the tribes in Indian Territory. Ross favored neutrality. The month after Confederate guns fired on Fort Sumter, he issued a proclamation to the Cherokee people “reminding them of the obligations arising under their Treaties with the United States and urging them to the faithful observance of said Treaties, by the maintenance of Peace and friendship towards the People of all the States.” He then wrote to Albert Pike respectfully declining the invitation to enter into a treaty with the Confederate States of America.169 Stand Watie, on the other hand, raised a regiment for the Confederacy. His second son, fifteen-year-old Saladin, joined the Confederate army to serve alongside him.
Ross and the Cherokee Nation soon changed their tune. So long as there was hope that the differences could be resolved, he explained, neutrality was the proper course for the Cherokee people. But the withdrawal of federal troops from frontier posts and early Confederate victories indicated that the Union would not survive, leaving the Cherokees with no choice: “Our Geographical position and domestic institutions [i.e., slavery] allied us to the South.” In October, the Cherokee Nation made a treaty with Pike. The Confederacy assumed all the treaty obligations due the Cherokees from the United States and the Cherokee changed their political relations “from the United to the Confederate States.”170 The Cherokees raised a second mounted regiment, commanded by John Drew.
But the Union forces returned in 1862. Watie remained steadfast in his allegiance to the Confederacy but Drew’s regiment defected to the Union side after the North’s victory at the three-day battle of Pea Ridge in March. “Now the Cherokee schism was wider,” notes the historian Laurence Hauptman in his study of Native Americans in the Civil War, “between blue and gray as well as Indian and Indian.” In the summer, Union forces marched on Tahlequah and captured Ross. He was paroled after making a proclamation of loyalty to the United States, and he spent the rest of the war in Washington and Philadelphia trying to mend fences with the United States. In his absence the Cherokee National Council elected Watie principal chief of the Cherokee Nation (South). Watie’s forces not only conducted hit-and-run raids against Union troops and supply lines but also raided within the Cherokee Nation, plundering and sometimes killing Ross followers.171 In 1863 the Ross party abrogated the alliance with the Confederacy, declared their allegiance to the United States, and abolished slavery. Ross cited the Treaty of New Echota to justify the brief Confederate alliance. By the sixth article the United States had agreed to “protect the Cherokee Nation from domestic strife and foreign enemies.” Ross had resisted earlier intrusions on the basis of this provision as an infringement on Cherokee sovereignty; now he cited the United States’ failure to provide the promised protection in 1861 as leaving the Cherokees “utterly powerless” in the face of the rebel invasion and with no choice but to make a Confederate treaty.172
In effect there were now two Cherokee nations: the Northern Cherokees led by Ross and the Southern Cherokees led by Watie. Watie burned John Ross’s home at Park Hill during the war. Three of Ross’s sons served in the war, and James died in a prison camp in 1864. Ross’s wife, Mary, died of lung congestion in Philadelphia in July 1865.173 Watie’s nephew Elias Cornelius Boudinot was sent as a delegate to the Confederate Congress, in accordance with the Cherokee-Confederate treaty. The war years took a toll on Watie’s family. Watie’s wife, Sarah, took refuge in Texas. Their third son, Comiskey, died in the spring of 1863. Two months later, Sarah heard that Saladin had killed a prisoner. She wrote Watie that she found herself “almost dead sometimes thinking about it. I am afraid that Saladin will never value human life as he ought.” Sarah suffered from poor health and depression. She had lived with the internal Cherokee conflicts so long that she said she would like to live “a short time in peace just to see how it would be.” Watie was appointed commander of the Confederate Indian Cavalry Brigade in 1864; in June 1865, he was the last Confederate general to surrender.174
The Civil War in Cherokee country, and the resurgent civil war within the Cherokee Nation, was disastrous. Population fell from twenty-one thousand to fifteen thousand; thousands of Cherokees were refugees; one-third of married women were widows and one-quarter of Cherokee children were orphans; and Cherokees lost three hundred thousand head of cattle in raids by Union and Confederate forces.175 Then, at the Treaty of Fort Smith in September 1865, the United States imposed terms on the Cherokees. The Cherokee delegation to the multitribal council was made up of two factions: one representing Ross’s Northern group, the other Watie’s Southern followers. The five US commissioners (who included the Seneca General Ely S. Parker, who served as General Grant’s military secretary during the war, and Major General W. S. Harney, who would figure prominently in negotiations at Medicine Lodge two years later) treated the Cherokee delegations as one. Cherokees had supported the Confederacy; consequently, the Cherokee Nation had forfeited all treaty rights with the United States. In the summer of 1866, the Northern and Southern Cherokees each sent a delegation to Washington to negotiate a final peace treaty, each hoping to be recognized as the legitimate Cherokee nation. John Rollin Ridge traveled to Washington to join Stand and Saladin Watie and Elias C. Boudinot as a member of a Southern Cherokee delegation. Finding that the United States recognized Ross and the Northern Cherokees, Watie and the Southern Cherokees sought to have Cherokee country divided into two nations but lost their bid. A new treaty was drawn up between the Cherokees and the United States, declaring null and void the Cherokee treaty with the Confederacy, prohibiting slavery, and establishing railroad rights of way through Cherokee country. In addition, the United States asserted the right to settle other Indians in the Cherokee Nation and took possession of Cherokee lands in Kansas and the Cherokee Strip. The Senate ratified the treaty on August 11, 1866.
John Ross died in Washington ten days before the treaty was ratified. John Rollin Ridge returned to California where he died in September 1867. Saladin died in February 1868 at age twenty-one; Watica died of pneumonia while away at school in April 1869.176 Stand Watie, a delegate at the Okmulgee council in 1870, died at Honey Creek, in September 9, 1871.177 Both his daughters died, unmarried, in 1875. Sarah Watie lived another eight years. A widow who had buried all five of her children, she never got the chance “to see how it would be” to live in peace.
Because the emigrant tribes who allied with the Confederacy forfeited all their treaty rights with the United States, the government was free to disregard removal-era guarantees that the Indians would enjoy undisturbed possession of their new lands. In the next couple of years, some tribes would be required to give up substantial lands in the western part of Indian Territory—to provide reservations for the Southern Arapahos, Southern Cheyennes, Kiowas, Comanches, and Plains Apaches established under the terms of the Treaty of Medicine Lodge.
