Society for Historians of the Early American Republic
The Exercise of Sovereignty in Cherokee Georgia
Author(s): Mary Young
Source: Journal of the Early Republic, Vol. 10, No. 1 (Spring, 1990), pp. 43-63
Published by: University of Pennsylvania Press on behalf of the Society for Historians of the Early
American Republic
Stable URL: http://www.jstor.org/stable/3123278 .
Accessed: 07/03/2014 12:27
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at .
http://www.jstor.org/page/info/about/policies/terms.jsp
.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of
content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms
of scholarship. For more information about JSTOR, please contact [email protected].
.
University of Pennsylvania Press and Society for Historians of the Early American Republic are collaborating
with JSTOR to digitize, preserve and extend access to Journal of the Early Republic.
http://www.jstor.org
This content downloaded from 192.153.34.30 on Fri, 7 Mar 2014 12:27:51 PM
All use subject to JSTOR Terms and Conditions
THE
EXERCISE
OF
IN
SOVEREIGNTY
CHEROKEE GEORGIA
Mary Young
The removal of the Cherokees from Georgia has had a long and
deservedly successful run as a morality play in which the good guys
lose. Despite their success in learning the lessons of civilization and
the substantial assistance they received from missionary allies and
opposition politicians, despite winning one of the most important
decisions the Supreme Court ever made and establishing that their
residence in Georgia as a self-governing nation was beyond dispute
legal, the Cherokees were forced to submit to Georgia laws, to abide
by a treaty that no officer of their nation ever signed, and under that
treaty to depart on their Trail of Tears. Pressure from the state of
Georgia constituted an important element in their defeat, and
Georgia won uncontested control of what had been the Georgia
section of the Cherokee nation.
After 150 years, I think it is time for a close look at the winners.
Ulrich B. Phillips, whose doctoral dissertation on Georgiaand State
Rightswas published by the American Historical Association early in
this century, examined Georgia's case from the point of view of
political theory and frontier politics. Others have written of the role
of Indian removal issues in state politics, but no one has examined
closely the assumptions that conditioned Georgia's approach to the
Cherokees, the legislative strategies by which the state hoped to
achieve hegemony over Cherokee territory, and the internal
conflicts over ideology and strategy the conflict engendered.1
Mary Young is a member of the Department of History at the University of
Rochester, Rochester, New York. Widely recognized for her work on Indian affairs
in the nineteenth century, she is the author of Redskins, Ruffleshirts, and Rednecks:
Indian Land Allotments in Alabama and Mississippi, 1830-1860 (1961) and Friends of the
Indian (1980).
1 Ulrich Bonnell
Phillips, Georgia and State Rights (Washington, D.C. 1902). An
excellent analysis of interrelations between Creek and Georgia politics in the 1820s is
JOURNAL OF THE EARLY REPUBLIC, 10 (Spring 1990). @ 1990 Society for Historians of the Early American Republic.
This content downloaded from 192.153.34.30 on Fri, 7 Mar 2014 12:27:51 PM
All use subject to JSTOR Terms and Conditions
44
JOURNAL
OF THE EARLY REPUBLIC
The Georgians' desire to acquire Cherokee lands and expel the
Cherokee people was not simply the product of an omnivorous land
of internal
of the state's
program
Completion
hunger.
between
critical
connection
the
establishing
improvements,
was
Tennessee
Atlantic
and
the
River,
impossible
ports
Georgia's
without a route passing through Cherokee Georgia. Though the
Cherokee elite were themselves slaveholders, the Indians were free
people of color and, as such, unacceptable neighbors to race-proud
Georgians. If the national government could intervene to protect the
rights of the Indian minority to land, it could equally well intervene
to protect the personal liberty of Georgia's substantial and growing
slave population. All politically active Georgians favored Indian
removal.
Yet not all Georgians agreed as to the tactics appropriate to
achieve that desirable object. Georgians had little respect for people
of color but considerable respect for people of property. At their
most circumscribed, the Cherokees owned seven million acres inside
Georgia's chartered limits. They and their slaves had brought many
hundreds of farms and plantations in that territory into a high state
Michael D. Green, The Politics of Indian Removal: Creek Governmentand Society in Crisis
(Lincoln, Neb. 1982). See also Carl J. Vipperman, "The 'Particular Mission' of
Wilson Lumpkin," Georgia Historical Quarterly, 66 (Fall 1982), 295-316; and Paul
Murray, The Whig Party in Georgia, 1825-1852 (Chapel Hill, N.C. 1948), esp. 16-20,
27-29. The best study of the relevant legislation is Carl Jackson Vipperman, "Wilson
Lumpkin and Cherokee Removal" (M. A. thesis, Univ. of Georgia 1961).
Occasionally Vipperman's characterization of the laws is erroneous. It is not, of
course, my intention to dismiss the point of view of the losers. Two particularly fine
examples of the genre are Marion L. Starkey, The CherokeeNation (New York 1946);
and Thurman Wilkins, CherokeeTragedy. The Ridge Family and the Decimation of a People
(2nd ed., Norman, Okla. 1986). Other contributions to that point of view include
Mary Young, "Indian Removal and the Attack on Tribal Autonomy: The Cherokee
Case," in John K. Mahon, ed., Indians of the Lower South: Past and Present(Gainesville,
Fla. 1975), 125-142; and Mary Young, Friends of the Indian (Staunton, Va. 1980).
Since the removal experience was central to Cherokee history, three fine recent social
histories of the Cherokee offer important insights: Theda Perdue, Slavery and the
Tenn. 1979); William G.
Evolution of Cherokee Society, 1540-1866 (Knoxville,
1789-1839
and
Cherokees
Haven, Conn. 1984); and
Missionaries,
(New
McLoughlin,
McLoughlin, CherokeeRenascencein the New Republic (Princeton, N.J. 1986). See also
Mary Young, "The Cherokee Nation: Mirror of the Republic," American Quarterly,
33 (Winter 1981), 502-524. Francis Paul Prucha, AmericanIndian Policy in the Formative
Years: The Indian Tradeand IntercourseActs, 1790-1834 (Cambridge, Mass. 1962), offers
an excellent scholarly reconstruction of the Jackson administration's point of view on
removal. For further insight into the politics of removal, see Ronald N. Satz,
AmericanIndian Policy in theJacksonian Era (Lincoln, Neb. 1975).
This content downloaded from 192.153.34.30 on Fri, 7 Mar 2014 12:27:51 PM
All use subject to JSTOR Terms and Conditions
SOVEREIGNTY
IN CHEROKEE GEORGIA
45
of cultivation. Could Georgians get away with violating federal
treaties guaranteeing the Cherokees' right over this property? Even
if they could get away with it, should a humane, paternal, and
Christian people choose to try? Lawyers and judges especially,
inside and outside of the state legislature, often felt impelled to
balance the property rights of the Cherokees against the competing
rights of the state. As legislators moved to dispossess the Indians,
some of their most effective opponents and severest critics were not
the canting fanatics of northern philanthropy, whose machinations
red-blooded Georgians regularly decried. Rather, they were other
Georgians.
For all Georgians, the trouble began with the Compact of 1802,
wherein Georgia ceded to the federal government the rich domain
that produced Alabama and Mississippi. In return, the nation
promised to pay off a pack of speculating companies to whom a
corrupt, aristocratic legislature had awarded the very domain they
now transferred to the United States. The federal government also
promised to purchase the Indian title within the chartered limits of
Georgia as soon as it could on reasonable and peaceable terms.2
The nation speedily acquired the small cessions from the Creeks
specified in the compact. But when General Jackson overwhelmingly
defeated the Creeks at Horseshoe Bend in 1814, and might have
dictated any terms he chose, the Tennessean focused on acquiring
rich Alabama lands, whose sale would pay for his campaigns, and
infertile wire-grass land in south Georgia, whose acquisition would
put distance between the Creeks in Georgia and Alabama and their
still hostile "Seminole" cousins in Spanish Florida.3
A postwar treaty with the Cherokee, exchanging eastern for
western lands, led both Jackson and the Georgians to anticipate the
"entire removal" of that tribe. The Cherokee spirit of emigration
proved tepid, and a final settlement in 1819 gave Georgia less than a
2
For the text of the compact, see "Articles of Agreement . . . April 24, 1802,"
in Clarence E. Carter and John Porter Bloom, eds., Territorial Papers of the United
States (28 vols., Washington, D.C. 1934-1975), V, 142-146. Jane Elsmere, "The
Notorious Yazoo Land Fraud Case," GeorgiaHistorical Quarterly,51 (Dec. 1967), 425442, is a good brief account.
Characteristics of the various regions of Georgia are described in James C.
3
Bonner, A History of GeorgiaAgriculture, 1732-1860 (Athens 1964). As early as August
24, 1814, the GeorgiaJournal (Milledgeville) cited the Compact of 1802, complained of
the recent cession, and suggested that Georgia's senators try to prevent ratification of
the treaty. The legislature agreed.
This content downloaded from 192.153.34.30 on Fri, 7 Mar 2014 12:27:51 PM
All use subject to JSTOR Terms and Conditions
46
JOURNAL
OF THE EARLY REPUBLIC
million acres.4 Later, Georgians negotiating for the secretary of war
in 1825 extracted a treaty from the Creeks for a similar exchange,
an interfering
national
but the Creek majority persuaded
of
to
void
the
on
account
fraud.
Only by
treaty
government
surveying the Indian Springs cession as though no such interference
had occurred, and inviting Georgians to "stand to their arms" in
defense of their various rights, did the first popularly elected
governor of the state manage to persuade both the Creeks and the
Adams administration to renegotiate the tribe out of Georgia.5 The
Cherokees, stubbornly, remained at home.
It was thirty-six long years after 1802 before the last tribal
Indian left Georgia. Perhaps only those who can remember Adolph
Hitler's hysterical invocation of Germany's "fourteen long years"
under the Versailles
Treaty can appreciate the Georgians'
over
waiting more than twice that long for a vindication
indignation
of their rights under the Compact of 1802.
Had soil alone been at issue, the Georgians might have proved
more patient. The Creeks ceded the best cotton lands in the state in
1826 and 1827. Cherokee Appalachia contained fertile river valleys
well developed by Cherokee planters who moved grain and hogs
along their rivers and turnpikes to domestic markets. But most
Cherokees were self-sufficient
hillbilly farmers, and so, for
The Cherokee territory
successors.
generations, were their white
afforded a fine resort for several thousand yeomen, but it was not
plantation country.6 Still, to connect the Tennessee River system
with the Georgia coast, you had to go through Cherokee. When
Wilson Lumpkin accompanied the state's engineer on a survey to
Cherokee authorities
determine the route of that connection,
interrupted the survey and turned a deaf ear to Lumpkin's lectures
on the virtues of canals. Lumpkin himself shortly decided that a
railroad would do better, but he also decided to devote a substantial
this treaty, a correspondent of the Journal commented that the tract
4 On
acquired was neither "extensive" nor "valuable" but rather consisted of "vast
mountains and poor barren hills." GeorgiaJournal, Apr. 27, 1819.
Politics of Indian Removal, offers the best account of this crisis. In the
5 Green,
GeorgiaJournal (a Troup party paper) the Creek crisis preempted more news space
than any other set of events for more than a year.
6
See Bonner, Georgia Agriculture, 39-46, 65-66; Douglas Charles Wilms,
"Cherokee Land Use in Georgia, 1800-1838," (Ph.D. diss., University of Georgia
1974); and Steven Hahn, The Roots of Southern Populism: Yeoman Farmers and the
Transformationof the Georgia Upcountry,1850-1890 (New York 1983).
This content downloaded from 192.153.34.30 on Fri, 7 Mar 2014 12:27:51 PM
All use subject to JSTOR Terms and Conditions
SOVEREIGNTY IN CHEROKEE GEORGIA
47
part of his political career to removing the Cherokees from the path
of his progressive state's internal improvements. Between 1831 and
1835, Wilson Lumpkin was governor of Georgia.7
As Georgians saw it, the program of civilizing the Cherokees,
pursued jointly ever since the compact by agents of enlightened
gentlemen in Washington and missionaries from Adams country,
had placed nearly insuperable obstacles in the way of Cherokee
removal. A near-white aristocracy of slaveholding mixed bloods had
so improved their plantations, stores, ferries, and turnpikes that
each year the cost of buying them out got more prohibitive. These
avaricious hypocrites controlled the tribal government, fattening
their egos and their pocketbooks with offices financed by federal
annuities. Generous payments for former cessions bankrolled their
oft-repeated determination that those former cessions would prove
to be their last.8
The best the Adams administration could do for Georgia was to
make a treaty in 1828 with the chiefs of a few thousand migrants
who, with federal encouragement, had earlier founded the Cherokee
Nation West. The treaty moved them from the neighborhood of
Arkansas squatters farther west into territory under exclusively
national jurisdiction. It also provided that the national government
would buy out the improvements of the Eastern Cherokees who
wanted to move, and subsidize their passage to less contested
ground where the independent nation to which they aspired might
flourish. The half-million dollars appropriated for land exchange by
the Removal Act of 1830 was intended in part for just such projects.
As Andrew Jackson and the Georgians saw it, the trick was to buy
out the avaricious and leave the "real" Indian, the wild but deluded
own account, The Removal of the CherokeeIndians from Georgia, 18277 Lumpkin's
1841 (2 vols., New York 1907) is full and fascinating. Vipperman, "Particular
Mission," interprets Lumpkin's sudden addiction to Indian removal to his flagging
political career. For an account of Georgia's commitment to internal improvements
see Milton Sydney Heath, ConstructiveLiberalism: The Role of the State in Economic
Developmentin Georgiato 1860 (Cambridge, Mass. 1954).
elaborates this point of view in his Removal of the Cherokee.For other
8 Lumpkin
politicians, see George Troup to John C. Calhoun, Feb. 25, 1824, Governor's
Letterbook (Georgia Department of Archives and History, Atlanta); and George
Gilmer to the Legislature, Dec. 11, 1829, in GeorgiaJournal, Dec. 10, 1829. See also
George Rockingham Gilmer, Sketchesof Some of the First Settlersof Upper Georgia, of the
Cherokees,and of the Author (New York 1855).
This content downloaded from 192.153.34.30 on Fri, 7 Mar 2014 12:27:51 PM
All use subject to JSTOR Terms and Conditions
48
JOURNAL OF THE EARLY REPUBLIC
REPUBLICAN TICKET.
NO RRSERZvS
OF GOLD MINIsI
NO INDIAN
TEST-ONR•TTr
ME
AGAlST11 WrI'R
WILSON
LUYIUMPKIN,
JAIES
FOR GOVERNOR.
C. WATSON, for Senate.
WILJIAMXi W. CARNE8,1
EZEEKIEL E. PARK,rnt
.MJIVY VOTER&
An advertisement for successful candidate William Lumpkin in the Federal Union
(Milledgeville), September 29, 1831. Courtesyof the author.
full-blood, free at last to follow his inclinations to their game-rich,
hassle-free preserve in the West.9
Just one obstacle remained: the obduracy of the Cherokees'
official aristocracy. By legislation hampering the free transfer of
emigrant improvements, by covert intimidation, and by offering
delusive hopes of preserving the Cherokees' independent nation in
the East, these pseudo-Indian aristocrats continued to frustrate
removal. Beginning in 1827, the state devoted a decade to
frustrating that aristocracy. After Jackson's election, they enjoyed
the skilled and enthusiastic collaboration of the president and his
energetic minions in the field.'1
the strategy of the 1828 treaty, see Thomas L. McKenney to Peter B.
9 For
Porter, July 9, 1828, Letters Sent by the Office of Indian Affairs, Bureau of Indian
Affairs, RG 75 (National Archives and Records Service, Washington, D.C.). For the
Jackson-Georgia strategy in general, see Mary Elizabeth Young, Redskins, Ruffleshirts,
and Rednecks: Indian Allotments in Alabama and Mississippi, 1830-1860 (Norman, Okla.
1961).
10 The relevant Cherokee laws are in Cherokee Nation, Laws of the Cherokee
Nation: Adoptedby the Council at VariousPeriods (Tahlequah, Okla. 1852), Nov. 8, 1828,
Nov. 17, 1828, and Oct. 31, 1829. The first enables a person with a claim against
another person about to "abscond" to secure an attachment on enough property to
satisfy the debt by making an oath to a judge of the district court of the Nation. The
This content downloaded from 192.153.34.30 on Fri, 7 Mar 2014 12:27:51 PM
All use subject to JSTOR Terms and Conditions
SOVEREIGNTY
IN CHEROKEE GEORGIA
49
Official Georgia policy reflected a partially valid perception of
the Cherokee leadership as a bourgeois planter aristocracy, much
like the Georgians'. The legislature aimed to take the profit out of
resistance, and they succeeded. They calculated wrongly both in
supposing that Cherokee statesmen's
pride would prove less
obdurate than their own, and in supposing that the "real" fullblood Cherokees clung to their lands only because native aristocrats
intimidated them. Even Georgia aristocrats and their trespassing
fellows managed, in the end, to intimidate the native Cherokees out
of Georgia only with an overwhelming army in the field enforcing
the federal mandate the Georgians had so long awaited.
The state began its legislative war in 1827, by extending the
jurisdiction of courts in counties adjacent to Cherokee Georgia over
crimes by or against citizens of the state within the Cherokee
Nation. Should there be no removal treaty by the next legislative
session, they promised to take possession of and extend the state's
laws and authority over the whole territory in controversy. Georgia
had the right, the legislators averred, to "cause obedience to [her
laws] from all descriptions of people, be they white, red, or black,
who may reside within her limits." She "would not attempt to
improve her rights by violence until all other means of redress
fail."''
In the wake of Jackson's election, the legislature added the
Cherokee territory to neighboring counties, made all whites in those
counties immediately subject to her laws, and provided Indians with
the promise of similar subjection on June 1, 1830. The state
declared the laws, customs, and usages of the Cherokees null and
second provides that anyone who enrolls for emigration forfeits title to improvements
he enjoys as a Cherokee citizen, and gives the preference right to the next occupant
regardless of any sale the emigrant might make; the third provides that anyone
selling improvements to an enrollee will be viewed as a person selling to a U.S.
citizen, will be ineligible for office, pay a fine of $1,000 to $2,000, and receive 100
lashes. Enrollees were to remove within 15 days or be viewed as intruders. The
emigration records in the National Archives make clear that the last provision was
not enforced. In my view, the purpose of the Cherokee laws was not to prevent
voluntary emigration, but to prevent speculation in emigrant improvements and
their sale to whites whom they (and the federal intercourse laws) defined as
trespassers.
" Georgia Acts, Dec. 26, 1827. (The Georgia legislature, which met yearly in
November and December, annually published the laws of each session in a separate
volume.)
This content downloaded from 192.153.34.30 on Fri, 7 Mar 2014 12:27:51 PM
All use subject to JSTOR Terms and Conditions
50
JOURNAL
OF THE EARLY REPUBLIC
void. No Indian or descendant of an Indian could be a competent
witness or party to a suit in which a white was a party. Legislation
in 1826 had already debarred non-English-speaking Indians from
testifying on any subject.12
To make their challenge to Cherokee jurisdiction more effective,
the legislators in the following year mandated that after June 1,
of the
orders and regulations"
1830, "All laws, ordinances,
Cherokee Council should be null, void, and not citable in court.
Attempts to prevent Cherokee residents of Georgia from enrolling
for emigration by law or by molestation or by punishment, or
deterring a chief or headman by the same means from ceding
a four-year
term in the penitentiary.
merited
territory,
such
a
statesman-as
the
Creeks had done under color
Assassinating
death by
of law to William McIntosh of Indian Springs-merited
hanging. 13
In December
1830 Georgia took its first step toward
appropriating Cherokee land. By this time gold had been discovered
in northeast Georgia and thousands of Indians, white Georgians,
and citizens of "foreign" states like North Carolina and South
Carolina were taking minerals prospectively reserved by law to the
state. The Cherokee Light Horse, prior to the restraints promised
them in June, had burned improvements in the gold region that
intruders had taken over from Cherokee emigrants. To protect the
state's interests and emphasize her hegemony, the state provided for
counties to elect one hundred surveyors in February 1831, who
would initially divide Cherokee Georgia into four nine-mile-square
districts. Should the president make a treaty, the governor might
call on the surveyors to complete the subdivision of districts into
160-acre lots, to be distributed by lottery to thirteen categories of
Georgians eligible to participate.14
Georgia's land system was less inviting to the yeoman trespasser
than the national government's. It gave not even retrospective right
Ibid., Dec. 14, 1826; Dec. 12, 1828.
Ibid., Dec. 19, 1829. The Cherokee statute of October 26, 1829, made sale of
national land without permission of the national authorities a capital offense.
21, 1830; David C. Neal to Gilmer, Jan. 2, 1830, Indian Letters
14 Ibid., Dec.
(Georgia Department of Archives); Allen Fambrough to Gilmer, Feb. 21, 1830, ibid.;
Statesman and Patriot (Milledgeville), May 1, 1830, describes a pitched battle at the
mines between Georgians and Carolinians. Gilmer to John M. Berrien, May 6,
1830, Governor's Letterbook, estimates 6,000 to 10,000 gold diggers between the
Chestatee and the Etowah.
12
13
This content downloaded from 192.153.34.30 on Fri, 7 Mar 2014 12:27:51 PM
All use subject to JSTOR Terms and Conditions
SOVEREIGNTY IN CHEROKEE GEORGIA
51
of preemption to those who settled before sale. A thoroughly
unpopular section of the law even penalized trespassers by excluding
premature gold diggers from the lottery. It was more democratic, or
perhaps more paternal, in offering opportunities to obtain title in
the lottery not only to adult males but also to persons who were
deaf, dumb, and blind; widows; unmarried women over 18 whose
fathers were veterans; and families of orphans. Large orphan
families and widows of revolutionary veterans received extra draws.
The lottery law excluded Cherokees and other residents of the
region in question, but provided that the Indians would be protected
in the lots containing their improvements until they abandoned
them voluntarily or conveyed the right of occupancy to someone
other than Georgia or the United States. Since Cherokee planters
traded improvements and prized unimproved woodlots just as
Georgia planters did, this legislation initiated a long-drawn-out
process designed to cramp their style.15
The legislation also aimed to protect the interests of the state
and the fortunate drawers in the lottery against trespass, not only by
disqualifying gold diggers but also by providing that whites then
settled in Cherokee Georgia would have to return to their home
counties to qualify for a draw in the lottery. Whites remaining in
Cherokee would have to take an oath to support the state's laws, or
leave by March 31, 1831. The legislation authorized the governor to
employ a guard of sixty men to protect the mines and enforce the
laws. At the same time, the law authorized state agents to rent out
15
Georgia Acts, Dec. 21, 1830;"A GOLD DIGGER"
to editor, Federal Union
(Milledgeville), Jan. 15, 1831; "GOVERNOR GILMER AND THE GOLD
DIGGERS," ibid., Sept. 8, 1831. For Georgia land policy in general, see Heath,
Constructive
Liberalism.George M. Waters, an English-educated planter of Cherokee
descent, had both a plantation in Bryan County, near Savannah, and a plantation in
the Cherokee Nation with a resident overseer. He complained both of intrusions and
of the ban on holding unimproved land. Waters to Gilmer, Feb. 14, 1831, Cherokee
Letters (Georgia Department of Archives); Waters to Wilson Lumpkin, Mar. 2,
1831, ibid.; and Waters to Lumpkin, Jan. 11, 1833, Indian Letters. For commercial
agriculture among the Cherokee, see Wilms, Land Use. A statistical analysis of the
1835 census, taken after a number of planters had left the region, is William G.
McLoughlin and Walter H. Conser, Jr., "The Cherokees in Transition: A Statistical
Analysis of the Federal Cherokee Census of 1835," Journal of AmericanHistory, 64
(Dec. 1977), 678-703. Because of the selective character of the migration between
1828 and 1835, analysis of the 1835 census probably underestimates both the
prevalence of planters and the extent of slavery in Cherokee Georgia in the late 1820s
and early 1830s. A fine qualitative history of the Cherokee planter class is Henry
Thompson Malone, Cherokeesof the Old South: A People in Transition (Athens 1956).
This content downloaded from 192.153.34.30 on Fri, 7 Mar 2014 12:27:51 PM
All use subject to JSTOR Terms and Conditions
JOURNAL OF THE EARLY REPUBLIC
52
the United States purchased from emigrating
improvements
Indians. Renters who displaced Cherokee emigrants were patriots,
not trespassers.
The law circumscribed Cherokee options, but it also protected
them. No Cherokee was to be bound by a contract entered into with
a white, or be subject to suit under such a contract. Suits could
retard emigrants. Cherokees tempted to inhibit emigration were
discouraged by the penalty of four years in the penitentiary for
anyone who called a council under Indian authority, held a court,
gave a judgment, issued or executed a process of such a court, or
confiscated the property of an emigrant.16
The legislature also offered a four-year penitentiary term to
whites residing in the Nation after March 31, 1831, without taking
the required oath. This draconian penalty was designed less for runwhom
of-the-mill trespassers than for the white missionaries
legislators saw as iminences grises behind the refractory Cherokee
government and putative authors both of their constitution and of
the nasty articles about Georgia disseminated in their newspapers."
In September 1831 the Superior Court of Gwinnett County
sentenced eleven violators, mostly Methodist and American Board
to four years'
missionaries,
(Presbyterian-Congregationalist)
confinement in Milledgeville. Nine took pardons and two, Samuel
Worcester and Elizur Butler, took their case to the United States
Supreme Court. John Marshall's court in March 1832 upheld their
contention that Georgia's laws conflicted with federal treaties and
were null and void. The legislature denied the pretension of a
foreign court to interfere with the state's right to enforce its laws
over its domestic population, and directed the governor and officers
of the state courts to ignore the writ of error the Supreme Court had
handed down."8 In December 1832, in the wake of South Carolina's
GeorgiaActs, Dec. 11, 1830.
see
Ibid. On the missionaries'
experience under Georgia jurisdiction,
and
Friends
the
and
Cherokees
Indian;
Missionaries;
of
Young,
especially McLoughlin,
Starkey, CherokeeNation. Very useful for the political background of missionary
involvement is the introduction by Francis Paul Prucha to his edition of Jeremiah
Evarts, CherokeeRemoval. The "William Penn" Essays and Other Writings (Knoxville
1981), 3-40.
18 The GeorgiaJournal, Nov. 28, 1831, records the governor's submission of a
citation from the court to the legislature and his statement of his intention to
disregard it. Niles' WeeklyRegister, Dec. 31, 1831, 335-336, reports that the legislature
resolved that all officials should disregard any process or decree that might impede
16
'7
This content downloaded from 192.153.34.30 on Fri, 7 Mar 2014 12:27:51 PM
All use subject to JSTOR Terms and Conditions
SOVEREIGNTY
IN CHEROKEE GEORGIA
53
nullification of the tariff, the missionaries withdrew their motion to
have a federal district attorney and marshals liberate them. Civil
war in Georgia would not help the Cherokees. Worcester and Butler
appealed to the governor, and Lumpkin graciously pardoned
them.19
By January 1833, keeping missionaries out of Cherokee Georgia
no longer figured on the list of the state's priorities. Although still
treatyless, Georgians had taken possession of Cherokee territory and
were governing it through the usual panoply of justices of the peace,
sheriffs, and judges of inferior and superior courts. Lottery winners,
or more often purchasers under them, held every lot of land not
immediately occupied by a Cherokee farm or residence, and some
that were so occupied. Georgia was in charge.
In December 1831, after yet another year without a treaty, the
legislature had required the governor to order out the district
surveyors by April. They enabled sensible Cherokees who took off
for the West to rent their improvements (for which the United States
had paid) to Georgians who wanted to occupy them. The state did
not charge these persons rent, and presumably left them to make
their own arrangements with whoever might draw the land under
farms in the lottery.
In the gold region, surveyors divided designated sections into
forty-acre lots for which only white men over 18, widows, families of
orphans, and heads of families might draw. The legislature gave the
Cherokee region its own county, Cherokee, and suggested that both
the electors of county officers and the superior court meet at the
home of Ambrose Harnage, a white man whose mercantile business
with the Cherokee had extended to purchasing their improvements
on behalf of the United States. In 1831, the legislature left it to the
governor to decide when to put the lottery into operation. Worcester
v. Georgiawas still pending.20
the state's sentence in criminal cases. The superior court judge to whom the writ was
delivered did not record it, and did not write down his decision not to record it.
GeorgiaJournal, Apr. 1, 1832.
19 See McLoughlin, Cherokeesand Missionaries, 239-344, for a discussion of the
case in the context of general missionary efforts to defeat Georgia's aims. An
excellent discussion of the national political background of the handling of the
missionary case may be found in Richard E. Ellis, The Union at Risk: Jacksonian
Democracy, State's Rights, and the Nullification Crisis (New York 1987), 102-122. The
Federal Union, Jan. 17, 1833, observed that the pardon vindicated "The chevalric,
lenient, and lofty spirit of [Georgia's] people."
20
GeorgiaActs, Dec. 22, 26, 28, 1831.
This content downloaded from 192.153.34.30 on Fri, 7 Mar 2014 12:27:51 PM
All use subject to JSTOR Terms and Conditions
54
JOURNAL
OF THE EARLY REPUBLIC
In the fall of 1832, the surveyors had completed their returns,
the Cherokees had failed to make a treaty, Georgia had successfully
ignored the Worcesterdecision, Andrew Jackson achieved reelection,
and the governor put the lottery into operation. Immediately
the fortunate drawers and their successors took
thereafter,
possession.21
In December, with the Georgians in possession, the legislature
created ten new counties for Cherokee Georgia and admonished
justices of the inferior courts in each county to choose an agent to
protect such rights as remained to the Cherokees, and to reinstate
Cherokee owners in case of trespass. These officers also had the
responsibility of prosecuting illegal gold diggers. Their efforts, the
legislature pointed out, were important to the "humane and just
character of the state and the citizens thereof." Heavy fines faced
the delinquent trespassers and, in these trespass cases, courts were
to accept Indian testimony. Since some of the most spectacular
trespassers in Cherokee Georgia were justices of the inferior courts,
a record replete with complaints of violated rights gives only one
indication that these county agents-where
they were appointed at
white
all-disturbed the designs of any
Georgians.22
Despite the destruction of their government in Georgia, the
circumscription of their possessions and rights of trade, and the
licentiousness of their new neighbors, most Georgia Cherokees
declined either to make a treaty or to sell their individual
improvements and migrate. Notable among the holdouts were
nearly all of the theoretically liberated full bloods in the state,
21 Governor
Lumpkin had directed that each surveyor take a gun in good order
and plenty of ammunition. Lumpkin to John Coffee, Mar. 27, 1831, Governor's
Letterbook. He also authorized his chief surveyor to call out the militia to help him,
if necessary, without further application to the governor. Lumpkin to Coffee, Apr. 5,
1831, ibid. The drawings began October 22, 1832. Niles' Weekly Register, Nov. 24,
1832, 206.
22
GeorgiaActs, Dec. 2, 24, 1832. As early as May 1832, Secretary of War Lewis
Cass indicated to a member of the Georgia delegation that, should current
negotiations not produce a treaty, the president would authorize Lumpkin to "take
such measures as he may think expedient, to bring this matter to a successful issue."
Cass to Daniel Newnan, May 21, 1832, Letters Sent, RG 75. In Murray County, a
State Rights party local government elected in the spring of 1833 appointed an agent
thought to be a friend of Cherokee Joseph Vann, a resident of that county. This
occasioned alarm, and the agent actually expelled a few whites from "Indian lots."
In subsequent elections, Unionist land speculators and members of the Georgia
Guard made certain of their control of local offices. W.N. Bishop to William
Williamson, Apr. 11, 24, 1834, Indian Letters.
This content downloaded from 192.153.34.30 on Fri, 7 Mar 2014 12:27:51 PM
All use subject to JSTOR Terms and Conditions
SOVEREIGNTY
IN CHEROKEE GEORGIA
55
though some did seek refuge in Cherokee Tennessee or Cherokee
North Carolina.23 Other notable persisters included Principal Chief
John Ross and the majority of the officers of the Nation. Obviously,
these recalcitrant aristocrats needed another turn of the screw.
For years, federal emigration superintendent Benjamin Franklin
Currey, former postmaster of McMinnville, Tennessee, a small,
youthful, but aggressive enthusiast for Jacksonian and Georgian
policy, had been coaching the governors of Georgia in a variety of
tactics.24 He had discovered a special area of vulnerability in the
aristocracy's position. Under the failed treaty of 1817 and its
successor treaty of 1819, many of these Cherokee leaders, or their
parents, had taken individual reservations of land, allegedly
signifying their intent to become citizens of the United States. The
states in which they took these reserves had wanted the Cherokees
neither as owners nor as citizens, and most of the reservees had sold
their land either to private purchasers or to the United States,
on behalf of the complaining
states. They had
purchasing
reestablished
themselves within the diminished limits of the
Cherokee Nation.25 To Currey, and to Georgia, though not to the
Cherokees, these men had denationalized themselves and no longer
qualified for office or land within the Nation. Since the Cherokees
had moved what was left of their government to Tennessee,
Georgians could not further interfere in their pretensions to office,
but they could do something about their property. While they hoped
John Ross's government might make a treaty, and while no other
Cherokees of consequence would sell the Nation, Georgians were
23 For the complexion
of the enrolled Cherokee, see Letters Received, Muster
Roll, 1831-1833, Commissary General of Subsistence, RG 75; Benjamin F. Currey
to Elbert Herring, ibid., Oct. 31, 1831, describes the persons Currey has enrolled as
"principally of the most intelligent not connected with the Cherokee Government."
activities as emigration agent, without reference to his special
24 For Currey's
Georgia connections, see Kenneth Penn Davis, "Chaos in the Indian Country: The
Cherokee Nation, 1828-35," in Duane H. King, ed., The CherokeeNation: A Troubled
History (Knoxville 1979), 129-147. The Georgia State Archives contains a special file
of letters from Currey. See also Ayrequi, affidavit, Apr. 3, 1834, John Ross Papers
(Thomas Gilcrease Institute of American History and Art, Tulsa, Okla.); Hugh
Montgomery to Herring, Feb. 24, 1835, Letters Received by the Office of Indian
Affairs, RG 75; Currey to William B. Lewis, Jan. 6, 1829, Andrew Jackson Papers
(Library of Congress, Washington, D.C.).
25 William G.
McLoughlin, "Experiment in Cherokee Citizenship, 1817-1829,"
in McLoughlin, Walter H. Conser, Jr., and Virginia Duffy McLoughlin, eds., The
CherokeeGhost Dance: Essays on the SoutheasternIndians (Macon, Ga. 1984), 153-192.
This content downloaded from 192.153.34.30 on Fri, 7 Mar 2014 12:27:51 PM
All use subject to JSTOR Terms and Conditions
56
JOURNAL
OF THE EARLY REPUBLIC
restrained. But by December 1833, a promising faction led by
full bloods John Ridge, his father the Major, and his cousin and
sometime editor of the CherokeePhoenix, Elias Boudinot, had become
converted to the Georgians' belief that the "near-white" aristocrats
were ruining the nation by their intransigence and their failure to
look steadily on Georgia's racism and see it whole.26
Consequently, in December 1833, the legislature prescribed that
grants of land occupied by reservees or their descendants be issued
to white lottery winners. John Ross lost his plantation and ferry
under this law. Because he violated a provision prohibiting
Cherokee planters from hiring overseers, Rich Joe Vann's elegant
house of entertainment became a tavern hosted by the brother of a
colonel of the Georgia Guard.27
For fifteen years prior to the December laws, enterprising
Cherokees had made a business of buying their neighbors'
improvements, hiring whites to make further improvements for
them, selling their property to the United States, enrolling for
emigration, and emigrating as far as the most appealing available
farmsite in the Eastern Cherokee Nation. Changing one's mind
about where to live was no crime until the Georgians made it so.
The law of December 20, 1833, proposed to issue grants for the
26 McLoughlin
indicates that when the reserves were taken, some Cherokee
regarded reservees as denationalized. Their experience was such in Alabama, North
Carolina, Tennessee, and Georgia that most returned to the nation. The fact that the
Cherokee elected so many reservees, including John Ross, to high office indicates
that their status as citizens was not in question when they returned. McLoughlin,
"Experiment," 154-159. Actually, John Ross's "declaration" of intention to take a
reserve, in Herring to Currey, Mar. 17, 1832, Letters Sent, RG 75, makes no
mention of citizenship. A list of persons in office in the Cherokee Nation who took
reservations under the treaties of 1817-1819, dated Nov. 22, 1830, Cherokee Letters,
indicated that the Georgians had their eyes on them for some time. The Jackson
administration initially discouraged Currey's enthusiasm for expelling reservees
because it might hamper treaty negotiations with them. Currey to Herring, Nov. 20,
1831, Letters Received, RG 75; and Herring to Currey, Mar. 19, 1832, Letters
Sent, RG 75. On the Ridge faction, and from its point of view, the best monograph
is Wilkins, CherokeeTragedy. Theda Perdue, ed., CherokeeEditor: The Writings of Elias
Boudinot (Knoxville 1983), is an excellent collection of documents illustrating the
Treaty party point of view, with a well-balanced and very useful introduction.
and his dispossession,
27 GeorgiaActs, Dec. 20, 1833. On John Ross's citizenship
see Gary E. Moulton, John Ross: CherokeeChief (Athens 1978), 62, 78-79. George
Magruder Battey, A History of Rome and Floyd County, State of Georgia, United States of
America, Including Numerous Incidents of More Than Local Interest, 1540-1922 (1922; rep.
Atlanta 1969), 36-38, 85-88; Charles H. Shriner, History of Murray County (Dalton,
Ga. 1911), 11-61.
This content downloaded from 192.153.34.30 on Fri, 7 Mar 2014 12:27:51 PM
All use subject to JSTOR Terms and Conditions
SOVEREIGNTY IN CHEROKEE GEORGIA
57
property of any Cherokee who had "defrauded" the government by
enrolling, receiving compensation, and failing to emigrate. Finally,
no Indian could enjoy more than a 160-acre homestead on which his
dwelling lay and three additional lots containing his improvements.
The law also provided forfeiture of "Indian" property rights by
anyone who employed a white, a slave, or a person of color not
descended from an Indian as a tenant, cropper, or laborer. This
legislative fiat wiped out the institutional basis for a planter class
among the Georgia Cherokee.28
By this time, the Cherokee Nation had employed a whole army
of attorneys to defend their rights in court, mainly with a view
toward appeals to the Supreme Court-perhaps
with hardier
than
Worcester
and
Butler
had
turned
out
to be. No
plaintiffs
would
a
the
to
state's
Georgia judge
recognize
challenge
right of
but
some
like
some
were
jurisdiction,
finicky
judges,
legislators,
about property rights. Judge Augustin S. Clayton of the Cherokee
circuit, a learned jurist, had even freed an Indian gold digger on the
grounds that the legislature could not have intended to prevent a
man from working on his own property. He sent his opinion for an
approving reply to Chancellor Kent. Kent opined that if the
legislature had not intended to protect such rights it certainly should
have, and that a judge should construe their intentions generously.
The people of Georgia promoted Clayton to Congress, where his
opinions on property rights could do no harm, and his well-known
fidelity to the rights of the state in both Indian removal and tariff
questions might do some good.29
28 To
discourage emigration, and particularly to discourage speculation in
emigrant improvements, the Cherokee Laws of 1828 and 1829 did indicate that
enrollees were not to be considered citizens of the Nation, and provided that they
must leave it within 15 days, and established heavy penalties for persons who sold
improvements to them. After 1830, none of these laws could affect Cherokee
Georgia. See note 10, above.
Olin Eidson, "Editorial,"
29 John
Georgia Review, 9 (Fall 1955) 247-249,
attributes to Clayton the books supposedly written by Davy Crockett. A Virginian by
birth (1783), Clayton graduated with the first class at the University of Georgia in
1804. For his opinion in the case of Canatoo, and its impact, see Federal Union, Sept.
8, 1831; J. W. A. Sanford to Gilmer, Sept. 16, 1831, J. W. A. Sanford Letterbook
(Georgia Department of Archives); and Gilmer to Sanford, Sept. 19, 1831,
Governor's Letterbook. For Kent's opinion see Kent to Clayton, Oct. 13, 1831, in
CherokeePhoenix and Indians' Advocate (New Echota, Ga.), Dec. 10, 1831. The Journal
endorsed Clayton for Congress on November 24, 1831, and on November 28 quoted
the New York Observer's statement that the decision "established for the Judge, a
This content downloaded from 192.153.34.30 on Fri, 7 Mar 2014 12:27:51 PM
All use subject to JSTOR Terms and Conditions
58
JOURNAL
OF THE EARLY REPUBLIC
When challengers of the 1833 statute brought writs of injunction
to prevent lottery winners from taking over reservees' plantations,
they readily found a judge of the Cherokee Circuit who would
sustain them. Judge John H. Hooper held that the county agent
charged with putting the whites into possession could not do so until
his order underwent scrutiny by a superior court whose business was
to try, by jury, cases involving titles to land. A majority of a
convention of superior court judges, sitting in Milledgeville,
sustained him.30
The legislature investigated charges that Judge Hooper had
leagued himself with a set of nullifiers from the opposition State
Rights party to overrule the laws of the state. In truth, attorneys for
the Cherokees in Georgia were of that party, as were the tribe's
champions in the legislature. All were concerned to protect the
rights of the Cherokees and the reputation of the state, and none
was reluctant to embarrass Governor Wilson Lumpkin and his
Union party.31 Leaguing with white husbands of Cherokee women
and some other near-enough white Cherokee planters, the State
Righters had carried the earliest elections in Cherokee country.
Between the electioneering efforts of the Georgia Guard and the
grateful sentiments of yeoman settlers, the Cherokee counties
quickly converted to Unionism and Democracy and stayed that way
for generations.32
character for moral courage, worthy the best days of Roman virtue." During the
same fall, Clayton sentenced Worcester and Butler with an extremely unsympathetic
lecture. Niles' Weekly Register, Oct. 29, 1831, 174-176. On November 19, 1831, the
GeorgiaJournal reported Clayton turned out of office as judge. (Superior court judges
were elected by the legislature.) His successors did not sustain pleas to the Canatoo
decision. GeorgiaJournal, Oct. 3, 1832.
Feb. 12, 1834, Indian Letters; Hardin to
30 William G. Springer to Lumpkin,
House of
Mar. 13, 1834, ibid.; Georgia General Assembly,
Lumpkin,
Representatives, Documents Relative to the Judicial Administration of the Hon. John W.
Hooper (Milledgeville 1835), 7-38.
General Assembly, Documents, 3-6; Lumpkin to James M. Wayne,
31 Georgia
Feb. 1, 1834, Governor's Letters.
of Cassville, one of the
32 Hooper was a law partner of William H. Underwood
most active attorneys for the Cherokees. Samuel Rockwell, another prominent
counsel, was a member of the central committee of the State Rights party. Clayton
and Hooper were of that party. Georgia Journal, Jan. 1, 1834; Lucy Josephine
Cunyus, The History of Bartow County,formerly Cass (Cartersville, Ga. 1933), 111. For
election of State Rights partisans to county offices, see Bishop to Lumpkin, Apr. 2,
1833, Indian Letters; Hardin to Lumpkin, Apr. 2, 1833, ibid.; and Hardin to
Lumpkin, Apr. 7, 1833, ibid. For an entertaining account of the Unionist victory in
This content downloaded from 192.153.34.30 on Fri, 7 Mar 2014 12:27:51 PM
All use subject to JSTOR Terms and Conditions
SOVEREIGNTY
IN CHEROKEE GEORGIA
59
Meanwhile, Governor Lumpkin and his friends accused the
unfortunate Judge Hooper of every crime from nullification to
attending barbecues with Indians." The legislature did not choose
to impeach him for these crimes, but it did make certain that neither
he nor any other nit-picking judge in Georgia would repeat his
errors. They provided an appeal process for dispossessed Cherokees,
but the process had to acknowledge Georgia's right to pass the law
under which the Indian might recover. No lawyer for the Cherokees
would ever submit to such a process. The law also prohibited judges
from sustaining injunctions sued out by persons with occupant
rights, and forbade superior court judges to issue writs of injunction
that might obstruct state agents from their duties. The legislatures of
1834 and 1835 amended the constitution to permit the establishment
of a supreme court for the correction of errors like the ones Hooper
had made.34
On December 21, 1835, the legislature voted to issue grants to
all winners in the 1832 lottery, and to dispossess the Indian
occupants by November 11, 1836. Faced with the prospect of
imminent dispossession (aided, if necessary, by the Georgia Guard),
Ridge's small faction of Cherokees ceded their eastern lands within
less than two weeks after the passage of the law. Probably if they
had not promised to do so, the legislature would have expelled them
before they could put another crop into the soil of Georgia.35
The Senate ratified the Treaty of New Echota on May 23, 1836.
Realistic Cherokees and Georgians persuaded sensitive senators that
the alternative to a treaty that bore not one signature from an officer
of the Cherokee government
was the entire and immediate
of
the
dispossession
Georgia Cherokee.36
Lumpkin County, with a white voting population of 1800 in April 1833, see George
W. Paschal, Ninety-fourYears:AgnesPaschal(1871; rep. Spartanburg, S.C. 1978), 3845. Paschal married the daughter of Major Ridge. See also Murray, WhigParty,6163. Strictly speaking, opponents of Unionists sometimes still called themselves the
"Troup" party until the State Rights party organized formally in 1833. Unionists
tended to refer to them as "nullifiers."
3-4, 34, 111.
33 Georgia General Assembly, Documents,
Dec. 20, 1834.
34 GeorgiaActs,
35 Ibid., Dec. 21, 1835; Lumpkin to John Ridge, Sept. 17, 1835, Governor's
Letterbook; Ridge to Lumpkin [Oct. 1835], Indian Letters; Ridge to Lumpkin, Oct.
31, 1835, in FederalUnion,Nov. 20, 1835.
36 Lumpkin had printed and distributed to the senate, Elias Boudinot, Letters
and
Other Papers Relating to CherokeeAffairs: Being a Reply to Sundry Publications Authorized by
John Ross, 25th Cong., 2nd sess., Senate Document 121. It is conveniently available
with useful notes and introduction in Perdue, Cherokee
Editor,157-233.
This content downloaded from 192.153.34.30 on Fri, 7 Mar 2014 12:27:51 PM
All use subject to JSTOR Terms and Conditions
60
JOURNAL OF THE EARLY REPUBLIC
Just two years later, with John Ross still in Washington trying
to negotiate a "real" treaty, and most "real" Indians still on the
ground, two thousand volunteer militia from counties adjacent to
Cherokee Georgia, adopted into federal service together with their
commander, veteran Indian fighter Brigadier General Charles
Floyd, enforced the Treaty of New Echota's provision that the
Cherokee would emigrate within two years after the ratification of
the treaty. They rounded up the Cherokees, placed them in
stockades they had erected near every major Indian village, and
marched them from the depots to embarkation camps along the
Tennessee River. By mid-June, there was hardly a Cherokee left in
Georgia. After thirty-six long years, the compact had been
fulfilled.37
Georgia's comprehensive attack on the property rights and
economic opportunities of the Cherokee merchants and planters was
not sufficient to obtain a treaty or eject the tribe. Hundreds of such
gentlemen took their black and white and Indian families to
Arkansas during the years of Georgia's hegemony, but a critical
core moved no farther than Cherokee Tennessee.38 On its face,
Georgia law protected rather than obstructed the rights of Cherokee
yeomen. But selective enforcement of the law in the midst of a white
population who believed, with their leaders, that they had a right to
be there and the Cherokees did not, provided ample pressure.
There were white Georgians who befriended the Cherokees and
even county courts who punished an occasional unpopular horse
thief for stealing from them.39 But the magnitude of the claims for
Georgia Journal, Apr. 24, 1838; Forts Committee, Georgia
7 See editorial,
Department of Archives and History, "The Cherokee Removal Forts," Georgia
Magazine, 14 (June-July 1970), 28-29; Gilmer to Richard Butler, Mar. 10, 1838,
Governor's Letterbook; William E. Derrick to William Worth, May 28, 1838,
Special File, Cherokee Removal, Adjutant General's Office, RG 94; Winfield Scott
to Roger Jones, May 29, 1838, Letters Received, RG 75; Scott to Jones, May 30,
1838, 25th Cong., 2nd sess., House Document 453, 13-14.
and Moulton, John Ross, passim. Lumpkin told the senate
38 See note 23, above,
that nine tenths of the "wealthy" and "intelligent" Cherokee had received pay for
their improvements prior to removal. Ross's loyal followers refused such pay under
the "pretended treaty." GeorgiaJournal, Feb. 6, 1838.
History of Lumpkin Countyfor the First Hundred Years, 183239 Andrew W. Cain,
1932 (Atlanta 1932) 63-69; James Alfred Sartain, History of Walker County, Georgia
(Dalton 1932), 52-53, 214; Rev. Lloyd G. Marlin, The History of CherokeeCounty
(Atlanta 1932), 50. On the other hand, Marlin refers to a case in which two whites
were acquitted on a technicality for beating an Indian to death. CherokeeCounty, 4246.
This content downloaded from 192.153.34.30 on Fri, 7 Mar 2014 12:27:51 PM
All use subject to JSTOR Terms and Conditions
SOVEREIGNTY
IN CHEROKEE GEORGIA
61
stolen property they filed with the national government,
the
of
and
sheer
the
astonishment
of
U.S.
missionaries,
testimony
army
officers sent to enforce the treaty at what the Cherokees were willing
to put up with testifies to the range and intensity of the informal
pressures white Georgians imposed on red.40 Even these pressures
proved less effective with the "real" Indians than with an
aristocratic, partly missionary-educated faction of the tribe under
full-blood leadership, who could not bear the moral and physical
degradation imposed by thieves and whiskey sellers, and sold out
their country to preserve their people.41
Most Georgians who discussed the question publically believed
with John Ridge and Elias Boudinot that Indians and whites could
not live together with mutual profit. Indians were simply too
ignorant to live under civilized laws, too much inclined to imitate
and assimilate with vicious elements among the whites.42 Moreover,
Georgians believed that any reasonable white community would
jump at the chance to migrate on the generous financial terms
Andrew Jackson offered the Cherokees.43 Only if someone were
coercing them or deluding them would Indians resist those
blandishments.
Like Jackson,
believed
that the
Georgians
Cherokees would be far better off in the West. Most Georgians
believed that a contract is a contract, and that the United States had
no business making treaty guarantees to Indians adverse to the
rights of the state under the compact. Under the inherent sovereign
40 See Cherokee Claims, Records Relating to Indian Removal, RG 75; claims
in John Ross Papers (Tennessee State Library and Archives, Nashville); Perdue, ed.,
CherokeeEditor; McLoughlin,
Cherokeesand Missionaries; Starkey, CherokeeNation; John
Ridge and Major Ridge to Jackson, June 30, 1836, Letters Received, RG 75;
Dunlap to East Tennessee Volunteers, Sept. 14, 1836, 25th Cong., 2nd sess., Senate
Executive Document 120, 38-44; and John Wool to Joel Poinsett, Mar. 31, 1837,
Letters Received, Adjutant General's Office, RG 94. The Georgia
Journal, Dec. 18,
1835, asserted that of approximately 10,000 Cherokees not a third were still in
possession of their farms. Even Benjamin F. Currey, whom no one could accuse of
partisanship for the Cherokees, wrote the Commissary General for Subsistence that
of 500 white families in the Cherokee Nation in the fall of 1832, half might be honest
in dealing with whites; but all took advantage of Indians, who could not be a party to
lawsuits. Currey to Hook, Sept. 29, 1832, Commissary General of Subsistence,
Letters Received, RG 75.
See Purdue, ed., Cherokee Editor; Wilkins, Cherokee Tragedy; and Young,
41
"Cherokee Nation."
42 Statesman and Patriot, Nov. 8, 1828; Lumpkin to Williamson, Jan. 23, 1833,
Governor's Papers.
43 Lumpkin to Cass, Sept. 22, 1832, Letters Received, RG 75.
This content downloaded from 192.153.34.30 on Fri, 7 Mar 2014 12:27:51 PM
All use subject to JSTOR Terms and Conditions
62
JOURNAL
OF THE EARLY REPUBLIC
rights of the state, devolved from the British Crown, Georgians were
the proprietors of Georgia. Indians were, at best, tenants-at-will,
and at Georgia's will they must seek another landlord.44
Yet Georgia politics was no more monolithic than Cherokee
politics. Lawyers and judges, in particular, fought their colleagues
in legislative halls, in the courts, and in the columns of the
newspapers. Governor George Gilmer probably lost his bid for
reelection in 1831 because he publicly championed giving Indians
full rights to testify in court.45 The Troup and the State Rights
parties fought for political profit, to be sure, but the very fact that
they could make political capital out of the rights and wrongs of a
tiny racial minority, out of the egregious licentiousness and brutality
of the Georgia Guard and yeoman intruders, indicates that there
were limits to the oppression some Georgians could stomach, even
in a good cause.
As with their slaves? Paternalists cared for both, but Indians
enjoyed a far better bargaining position than either slaves or free
people of color. Unless they were very pale indeed, Indians could
not vote, hold office, serve on juries, enforce contracts, or testify in
court outside a narrow range of cases. But they owned property and
freely bought and sold personal property. They were not subject, in
law, to whipping as normal punishment for infractions. No one
could go to jail for teaching an Indian to read or pay a fine for
employing him as a printer. As Georgians in the 1830s increasingly
circumscribed the personal rights and freedoms of their black
population, they explicitly exempted American Indians from the
relevant restrictions.46
44 The editorials of February 23 and March 1, 1832, in the GeorgiaJournal are
eloquent examples of the argument that both white yeomen and Indians would profit
from removal. Every petition from the legislature to Congress rehearsed the compact
and the other legal claims of the state. See Phillips, Georgiaand State Rights, passim.
45 Federal Union, Sept. 8, 1831. GeorgiaJournal, Dec. 19, 1828, reprints a House
debate on the question of Indian testimony.
46 GeorgiaActs, Dec. 12, 1821; Dec. 12, 1827; Dec. 23, 1833; Dec. 26, 1835. See
also Ralph Betts Flanders, Plantation Slavery in Georgia (Chapel Hill, N.C. 1933). A
good analysis of "frontier," "southern," and "scientific" racism and its impact on
Indian policy is Reginald Horsman, Race and Manifest Destiny.: The Origins of American
Racial Anglo-Saxonism (Cambridge, Mass. 1981). For a detailed comparison of
attitudes and behavior toward Indians and free blacks, see Mary Young, "Racism in
Red and Black: Indians and Other Free People of Color in Georgia Law, Politics,
and Removal Policy," GeorgiaHistorical Quarterly,73 (Fall 1989), 492-518.
This content downloaded from 192.153.34.30 on Fri, 7 Mar 2014 12:27:51 PM
All use subject to JSTOR Terms and Conditions
SOVEREIGNTY
IN CHEROKEE GEORGIA
63
Georgians' coercion of the Indians was inhibited by their
concern for individual property rights, and by their dependence on a
national
administration
sensitive
to voters in New York,
and
who
Maryland
Pennsylvania,
responded to missionary concerns
and humanitarian appeals. Georgians attributed northern criticism,
and northern reluctance to fulfill the compact, to selfish sectional
politicians' determination to curb southern political influence. Yet,
however much they may have denounced the canting fanaticism of
Puritans whose own record with the Indians was far from spotless,
Where the
Georgians were sensitive about their reputations.
character and reputation of the state were concerned, governors and
legislators could not act precipitately. A majority, after thirty-three
long years, convinced themselves that even forcible dispossession of
the Cherokees would do everyone good and dishonor no one.
Nonetheless, when the legislature debated that dispossession, a vocal
minority, in terms reminiscent of the northern Christian statesmen
in the United States Senate, trembled at the judgment of a righteous
God and the opinion of a candid world.47 Georgia's frontier yeomen
and land speculators and their servants in Milledgeville never lacked
for critics close to home.
For the debate, see Federal Union, Dec. 11, 1835. See also the editorial in the
47
Georgia Journal, June 16, 1835, denouncing Lumpkin's policy as a violation of
"natural justice." In the midst of Gilmer's 1831 campaign for reelection, when he
was denounced weekly in the opposition press for his proposal to accept Indian
testimony and his exclusion of gold diggers from the proposed lottery, a dinner for
two hundred was held in Lafayette Hall, where John MacPherson Berrien, a
first attorney general, offered the following toast:
Georgian and Jackson's
she exhibit to her sisters in the Confederacy, an example of the
"Georgia-May
MODERATION
as well as of the firmness, with which a free people can assert their
rights and maintain them." GeorgiaJournal, Nov. 17, 1831. The dinner honored
Gilmer, and in the fall of 1831, the Indian issue was more salient in Georgia than the
tariff. See also the letter to PHOCIAN, in the Statesmanand Patriot, Feb. 6, 1830. For
the intertwining of the tariff and Indian issues in the State Rights party, see Phillips,
Georgia and State Rights, ch. 5; Murray, Whig Party in Georgia, 43-67; and Ellis, The
Union at Risk, 102-122. On the question of reputation, see Bertram Wyatt-Brown,
Southern Honor: Ethics and Behavior in the Old South (New York 1982); and WyattBrown, YankeeSaints and SouthernSinners (Baton Rouge 1985).
This content downloaded from 192.153.34.30 on Fri, 7 Mar 2014 12:27:51 PM
All use subject to JSTOR Terms and Conditions