Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
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1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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CHEROKEE CASE

I.209.1

CHEROKEE CASE (IN U. S. HISTORY). In 1783 the territory included in the present states of Mississippi and Alabama, and the western and northern parts of Georgia, had been from time immemorial in the possession of a number of powerful Indian tribes, the most important being the Cherokees, Creeks, Choctaws and Chicasaws. The Creeks, or Muscogees, were the fiercest and most savage, and their still more savage refugees or "wild men," were afterward better known as Seminoles. In 1802 the newly erected territory of Mississippi (which then included Alabama) was entirely owned by the Indians, excepting small strips of land about Natchez and on the Tombigbee. By cessions from the Choctaws, Nov. 16, 1805, from the Creeks, Aug. 9, 1814, (as the result of Jackson's victories over them), and from the Chicasaws, Sept. 20, 1816, a great part of Mississippi and Alabama was ceded to the United States; and in the end the Choctaws, by treaty of Sept 27, 1830, and the Creeks, by treaty of March 24, 1832, ceded all their lands east of the Mississippi in return for an equivalent area on the other side of that river.

I.209.2

—The boundaries of the Cherokee country had been first fixed by the Hopewell treaty of Nov. 28, 1785, and modified by the Holston treaty of July 2, 1791, and by other treaties until that of Feb. 27, 1819. By the Hopewell treaty, to which the others were supplementary, the United States recognized the Cherokees as a nation, capable of making peace and war, of owning the lands within its boundaries, and of governing and punishing its own citizens by its own laws. By these treaties, which were part of the "supreme law of the land," the United States "solemnly guaranteed" (Art. 7 of the Holston treaty) to the Cherokees the lands not ceded by them; and by act of congress of March 30, 1802, the president was authorized to employ military force for the removal of all trespassers, and particularly of surveyors.

I.209.3

—Thus given and guaranteed the right of self-government, the Cherokees had certainly made very considerable advances in civilization before the year 1824. They had formed a government closely modeled after that of the United States; had established churches, a school system, a judiciary system and national courts of law; had developed a written language and introduced printing; and were quite successful in working the gold mines in the northern part of their domain, which lay mainly within the present limits of Georgia.

I.209.4

—The cession of western lands by Georgia, April 24, 1802, was accompanied by a stipulation that the United States should extinguish for the use of Georgia the Creek and Cherokee title to lands within the state, "as soon as it could be done peaceably and on reasonable terms;" and the federal government fulfilled its agreement. In 1808 deputations from the upper and lower Cherokees visited Washington to state the wishes of the former, who were husbandmen, to retain their location, and of the latter, who were hunters, to remove beyond the Mississippi. Accordingly, by the treaty of July 8, 1817, a tract of land of equivalent size beyond the Mississippi was granted to the lower Cherokees in exchange for their lands in Georgia. By this treaty and eight other treaties concluded with the Cherokees, and by four treaties with the Creeks, all concluded between 1802 and 1819, the United States had acquired about 15,000,000 acres of Georgia, leaving about 5,000,000 acres in possession of the Cherokees and about 4,000,000 acres in possession of the Creeks.

I.209.5

—In 1819 the Georgia legislature, impatient of the probably permanent continuance of the upper Cherokees in the state, memorialized the president for the complete fulfillment of the agreement of 1802. But the remaining Cherokees, who were now homogeneous in their tastes and tribal character, utterly refused to consider the matter of further cessions, and declared their intention to remain where they now were; and the more savage Creeks, at the Tuckebachee council, May 25, 1824, after emphatically announcing their resolution not to sell one foot of their land in future, denounced the punishment of death by shooting or hanging against any chief who should disobey the national will. It was therefore impossible to obtain any further cessions of land by treaties with the Indians in their national capacity. It was equally impossible by the natural operations of bargain and sale of land to white immigrants; for, by Creek and Cherokee law, recognized by section 12 of the act of March 30, 1802, the land of the whole district was the property of the whole nation, and no individual held in severalty or had the power of alienation. By the presence within her borders of two exceptionally able and intelligent Indian nations, the state of Georgia was thus threatened with the permanent establishment of an imperium in imperio over which state laws did not operate, a district of refuge within which any criminal, if agreeable to the Indians, might set state officers and writs at defiance. In Alabama and Mississippi, which Georgia had ceded to the United States, the Indian title had been successfully extinguished, with the exception of that to the few remaining Creek lands in Alabama; only in Georgia itself did the federal government seem unable and unwilling to relieve the state from this excrescence upon its dominion. With this grievance as a vehicle, it was natural that the greed for the rich Creek and Cherokee lands should urge not only private speculators, but the state government also, to active efforts to oust the rightful owners, despite the supreme law of the land, and the solemn guarantee given by the United States.

I.209.6

—The first attempt was made upon the Creeks. Three Creek chiefs, M Intosh, Tustenugge and Hawkins, were induced to sign a treaty at Indian Springs, Feb. 12, 1825, conveying the Creek lands to the United States for the use of Georgia. The Creek nation repudiated the treaty, and executed the chiefs, but the president and senate of the United States, willing thus to settle a very troublesome question, ratified the treaty and accepted it as binding. Governor Troup, of Georgia, at once gave orders for a survey of the Creek country, regardless of article 8 of the treaty, which gave the Creeks undisturbed possession of the country until Sept. 1, 1826, and regardless of the prohibition of such surveys by the act of March. 30, 1802. President Adams, at first mildly, and finally emphatically, forbade the survey, which was abandoned after considerable opposition by the governor and legislature. Jan. 24, 1826, a new treaty was made with the Creeks at Washington city, by which they ceded, under defined boundaries, most of their lands, but not, as in the Indian Springs treaty, their "whole territory lying within the state of Georgia." In the meantime Troup, by a very small majority, had been re-elected governor, and, being thus supported by the people as well as by the legislature of his state, he renewed the order for the survey, basing his orders upon the Indian Springs treaty, and refusing to recognize its substitute as valid or binding. President Adams again forbade it, ordered the arrest of the state surveyors, and sent a detachment of federal troops to enforce his orders. In reply, governor Troup notified the federal government of his "defiance," and ordered out the sixth and seventh divisions of the Georgia militia to resist the forces of the United States. He further announced to the Georgia congressmen that in his action he should be governed by the principle (see STATE SOVEREIGNTY) that Georgia and the federal government were equally sovereign and independent powers, and that disputes between them could not be decided by the supreme court, but by negotiation, until some competent tribunal should be established for that purpose as a part of the constitution. Unwilling to press the matter to the arbitrament of arms, president Adams referred the question to congress for action. No action was taken, and the Creeks were left to their fate. As before stated, they were finally forced to leave their lands in 1832.

I.209.7

—The case of the Cherokees presented more obstacles to state action than that of the Creeks. They were fewer in number (about 10,000), perfectly united, and intelligent enough to be more than a match for Georgian diplomacy. Club-law was the only resort, and to this the state was encouraged by the vacillation and timidity of the federal authorities in the Creek case. Very little attempt was made by the state authorities to justify their action on legal and constitutional grounds. But the basis seems to have been that the state had a sovereign right to extend the operation of its laws over all its territory; that the federal government had no right, by treaty or otherwise, to erect another sovereignty within the state limits; and that, when the federal government assumed to do so, the state executive was bound to obey the laws of the state even to the extent of armed resistance to the national authority. To this the natural answer was that treaties were a part of the supreme law of the land, which the governor himself was sworn to execute; that by such a treaty the quiet possession of their lands was guaranteed to the Cherokees; and that Georgia, as one of the United States, was a party to that treaty, and was estopped to deny what she had thus solemnly admitted. Thus, even supposing Georgia still a sovereign state in all respects, she could have had no standing in a court of law or equity. Nevertheless the Georgia legislature took the initiative, expecting the governor to fulfill its laws, and careless of any interference by the federal authority. Indeed, as the result showed, the new federal executive was unexpectedly found determined to stand neutral.

I.209.8

—By act of Dec. 20, 1828, the legislature divided the Cherokee country into five parts, added them respectively to the counties of Carroll, De Kalb, Gwinnett, Hall and Habersham, and extended the laws of the state over them. By the same act all Cherokee laws, usages and customs were declared null and void, and provision was made that Cherokees should not be competent witnesses for or against a white citizen; but the laws of the state were as yet to affect only white men living in the Cherokee country. The act of Dec. 19, 1829, extended state laws over all persons, white or Indian, in the Cherokee country, provided for punishment of any Indian resisting state writs, and made executions, under the Indian law against the sale of lands by individuals, murder in the first degree. By the act of Dec. 21, 1830, the lands of the Cherokees were authorized to be surveyed and laid off into small tracts which were to be distributed by lottery or raffle among the people of Georgia. By act of Dec. 23, 1830, the Cherokees were declared incapable of making contracts with white citizens. By act of Dec. 22, 1830, the improvements of the Cherokee landholders were seized by the state, as were also their gold mines by the act of Dec. 2, 1830, and white persons were forbidden to enter the Cherokee country except on conditions. By act of Dec. 22, 1830, the Cherokees were forbidden, under heavy penalties, to hold legislative assemblies or courts, or to execute the writs issued by their national courts. By these successive acts the state, so far as its legislative authority availed, completely ousted the Cherokees from the country whose possession the United States had solemnly guaranteed. The only question was, whether the state executive would be hindered in carrying out the laws by the national executive or by the supreme court. From congress no impediment was expected, for congress had refused or neglected to interfere when President Adams had laid the Creek case before it.

I.209.9

—It must not be supposed that the Cherokees had remained passive or quiescent during these aggressive proceedings of the legislature. Their printing presses at New Echota, their capital, and elsewhere, were burdened with the printing of appeals to the justice of the people of the United States. Early in 1829 their "beloved men," or head chiefs, had appealed to President Adams for the protection which the act of March 30, 1802, authorized him to afford, but he felt compelled to leave the case to the incoming administration of Jackson. April 18, 1829, through the secretary of war, president Jackson, on substantially the grounds enumerated above as the only authorized defense of Georgia's action, refused to interfere, and emphatically advised the Cherokees either to submit to the laws of Georgia, or to remove beyond the Mississippi and rejoin the lower Cherokees. It is difficult to defend president Jackson's refusal to uphold the treaties made with the Cherokees, or to execute, as he was sworn to do, the law of March 30, 1802. His refusal was in flat opposition to the practice of every president from Washington to Adams. Jefferson, who always and firmly upheld the rights of the Indian tribes, in his instructions to general Knox, Aug. 10, 1791, had laid down the principle that "the Indians have a right to the occupation of their lands, independent of the states within whose chartered lines they happen to be; that until they cede them by treaty or some other transaction no act of a state can give a right to such lands; * * * * that the government is determined to exert all its energy for the patronage and protection of the rights of the Indians, * * * and will think itself bound, not only to declare to the Indians that such settlements are without the authority or protection of the United States. but to remove them also by the public force." On the contrary, Jackson's decision held the federal government bound to stand neutral unless it could persuade the state to listen to reason and cease to nullify the treaties made by the United States. When South Carolina followed Georgia's precedents, president Jackson preached a very different doctrine. (See NULLIFICATION.) In the Cherokee case his mind may have been biased by his long continued frontier warfare against the southern Indians.

I.209.10

—Having found the president deaf to their appeal, the Cherokees at once tried the supreme court. The time fixed for extending the laws of Georgia over the Cherokee country was June 1, 1830. George Tassels, a Cherokee, was found guilty of homicide in resisting the execution of a state writ, and was sentenced to be hanged. By writ of error from the supreme court, dated Dec. 12, 1830, the state was cited to appear in January following, and show cause why the judgment against Tassels should not be corrected. The legislature, to which notice of the writ had been sent by the governor, at once passed resolutions instructing the governor and other state officers to pay no attention to the writs of the supreme court in the case, except to resist their execution by force if necessary, and Tassels was executed.

I.209.11

—William Wirt, attorney general from 1817 to 1825, and John Sergeant, had been engaged as counsel for the Cherokees, and they caused notices to be served, Dec. 27, 1830, and Jan. 1, 1831, upon the governor and attorney general of Georgia that an application would be made to the supreme court for an injunction restraining the state of Georgia from executing her laws within the Cherokee country. The state refused to appear. The case turned upon the right of the Cherokees to sue Georgia under the constitutional provision that the national judicial power should extend to cases between a state "and foreign states, citizens or subjects." Wirt and Sergeant united in an extremely able argument going to show that the Cherokees were a sovereign and independent nation with all the national powers of making peace, war, and treaties, and of self-government; that in these respects they were more sovereign and independent than the state of Georgia; that their national sovereignty and independence had been recognized by the United States in a long series of treaties which it was the sworn duty of the court and the president to maintain and enforce; and that the word "foreign" in the constitution was a political, not a local or geographical, term, so that it was perfectly possible for a "foreign" nation to exist within the limits of the United States. Their argument was re-enforced by the opinion of chancellor Kent, of New York, but was rejected by the court, which held that, while the Cherokees were a state, they were not a foreign state, but a domestic, dependent nation in a state of pupilage, holding their soil only by occupancy, and bearing the relation to the United States of a ward to his guardian. The injunction was therefore refused, and the Cherokees were relegated to the mercy of the state of Georgia, since the president, their constitutional protector, refused to intervene in their behalf.

I.209.12

—Another opportunity soon offered for the adjudication of the state laws in the supreme court. By the state law of Dec. 22, 1830, white persons were forbidden to enter the limits of the Cherokee country without obtaining a license from the governor and without the taking of the oath of allegiance to the state of Georgia. For violating this act, ten persons, mostly Presbyterian and Methodist missionaries, were arrested, cruelly handled, indicted, and, in September, 1831, sentenced to four years' imprisonment. Eight of the number, having given assurance that they would conform to the state laws, were pardoned, but two, Dr. Butler and Rev. Mr. Worcester, refusing to submit, were imprisoned, and Worcester brought suit in the supreme court for relief. The decision of the court was given in March, 1832. It reviewed the entire proceedings of the state in the case of the Cherokees, declared them to be violations of the constitution, treaties and laws of the United States, and ordered Worcester to be discharged, since the act was void and the judgment a nullity. In contempt of the mandate of the supreme court the state court refused to grant a writ of habeas corpus, and Worcester and Butler continued to serve their term of imprisonment. There was no prospect of relief for them until January, 1833, at the next sitting of the supreme court, when it would have been competent for the court to enjoin the marshal of the district of Georgia to summon the posse comitatus, and the president to assist in enforcing the decree with the land and naval forces. The question of the national authority would then have been imperatively put at issue. Unfortunately the missionaries wearied of their experience as martyrs, and on their submission to the state authorities, were pardoned by the governor, Jan. 14, 1833. The state officials persisted successfully in executing the state laws, and they and the national administration at last succeeded in extorting from the Cherokees the treaty of Dec. 29, 1835, by which the United States paid $5,700,000 for the territory in dispute, and removed the Indians beyond the Mississippi. The political importance of the Cherokee case lay in the fact that its result was the first successful nullification, in its modern sense, of the laws of the United States. (See NULLIFICATION, STATE SOVEREIGNTY, SECESSION.)

I.209.13

—See 1 von Holst's United States, 433; 8, 10, 11, Benton's Debates of Congress; 3 Jefferson's Works (ed. 1829), 280; 2 Clay's Speeches, 249; 1 Greeley's American Conflict, 102. The Cherokee Case is in 5 Pet., 1, (9 Curtis, 178), and that of Worcester vs. Georgia in 6 Pet., 515, (10 Curtis, 214). The arguments of Wirt and Sergeant, together with the opinions of chancellor Kent, the treaties, and the acts of the Georgia legislature, are in Richard Peters' The Cherokee Nation vs. The State of Georgia. The treaties referred to are in 7 Stat. at Large, those of Hopewell and Holston at pp. 18, 39. The law of March 30, 1802, is in 2 Stat. at Large, 139.

ALEXANDER JOHNSTON.

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