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Published online by Cambridge University Press: 28 October 2011
When Europeans first arrived, the Native American societies of North America had a variety of systems of social control and conflict mediation. These indigenous peoples were not heir to the concept of equal protection of the law derived from the Magna Carta, nor to notions of individual rights defended in the English Bill of Rights (1689) and Western Enlightenment political thought. Theirs were systems of custom and commandment of their own need and development. Therefore, after the contact period, whenever conflict arose a central issue of cultural pluralism surfaced: whose resolution system would be used when mediation was necessary.
1. Quoted in Woodward, Grace Steele, The Cherokees (Norman: University of Oklahoma Press, 1963), 104.Google Scholar
2. Quoted in Tracy, E. C., Memoir of the Life of Jeremiah Evarts, Esq. (Boston: Crocker and Brewster, 1845), 344Google Scholar.
3. Quoted in MacDonald, J. Fred, Television and the Red Menace (New York: Praeger, 1985), 137.Google Scholar
4. Strickland, Rennard, Fire and the Spirits: Cherokee Law from Clan to Court (Norman: University of Oklahoma Press, 1975), 41Google Scholar. Chapter 3 provides a full discussion of these factors.
5. Ibid., 52.
6. Images of racial superiority figured frequently in judicial opinions of the early nineteenth century. A general discussion of the images produced and used by westerners in North America from the time of Columbus until the present is found in Berkhofer, Robert F. Jr, The White Man's Indian (New York: Random House, 1978)Google Scholar. For a full discussion situating 1830s U.S. Supreme Court opinions involving the Cherokee within the ideas and assumptions of republicanism versus imperialism, see Smith, Jane M., “Republicanism, Imperialism, and Sovereignty: A History of the Doctrine of Tribal Sovereignty,” Buffalo Law Review 37 (1988/1989: 527)Google Scholar. G. Edward White similarly discusses Cherokee Nation and Worcester v. Georgia with respect to republicanism, racism, and natural law in History of the Supreme Court of the United States: The Marshall Court and Cultural Change, 1815-1835 (New York: Macmillan, 1988).Google Scholar
7. McLoughlin, William G., Cherokees and Missionaries: 1789-1839 (New Haven: Yale University Press, 1984), 245–46Google Scholar; McLoughlin, William G., Cherokee Renascence in the New Republic (Princeton: Princeton University Press, 1986), 435Google Scholar.
8. Green, Michael D., The Politics of Indian Removal: Creek Government and Society in Crisis (Lincoln: University of Nebraska Press, 1982), 23.Google Scholar
9. Woodward, Cherokees, 27.
10. Ibid., 60.
11. Kappler, Charles J., Indian Affairs: Laws and Treaties, “Treaty of Hopewell, 1785” and “Treaty of Holston, 1791” (Washington, D. C.: Government Printing Office, 1904), 2:8–11, 29-33.Google Scholar
12. William McLoughlin argues that as Americans developed a true concept of “racism” in the third decade of the nineteenth century, Georgians, among others, began to classify Indians as “people of color” and to place them accordingly in a social and legal caste system. Cherokees and Missionaries, 245, 329. For a discussion of what the author describes as the destruction of a promising Cherokee experiment in multicultural nationalism, see Young, Mary, “Indian Removal and the Attack on Tribal Autonomy: The Cherokee Case,” in Indians of the Lower South, ed. Mahon, John K. (Pensacola: Proceedings of the Gulf Coast History and Humanities Conference, 1975)Google Scholar. On subsequent allotment and removal policy as these policies affected southeastern Indian nations, see Debo, Angie, And Still the Waters Run: The Betrayal of the Five Civilized Tribes (Norman: University of Oklahoma Press, 1984)Google Scholar; Foreman, Grant, Indian Removal: The Emigration of the Five Civilized Tribes of Indians (Norman: University of Oklahoma Press, 1972)Google Scholar; and Young, Mary E., Redskins, Ruffleshirts, and Rednecks: Indian Allotments in Alabama and Mississippi, 1830-1860 (Norman: University of Oklahoma Press, 1961)Google Scholar.
13. Phillips, Ulrich B., Georgia and State Rights (Yellow Springs, Ohio: Antioch Press, 1968), 34Google Scholar. Re-issue of 1902 edition. "Georgia Cession, April 26, 1802” in American State Papers: Public Lands (Washington, D.C.: 1832), 126Google Scholar.
14. Signed by the Creek leadership August 9, 1814. Kappler, Indian Affairs 2:107-10. The Cherokee, who had allied with the British, had lost considerable land in treaties signed after their defeat in the continuous warfare that occurred from 1776-94. McLoughlin, William G. with Conser, Walter H. Jr, and McLoughlin, Virginia Duffy, The Cherokee Ghost Dance: Essays on the Southeastern Indians 1789-1861 (Mercer. Mercer University Press, 1984), 115.Google Scholar
15. Moulton, Gary E., The Papers of Chief John Ross, 2 vols. (Norman: University of Oklahoma Press, 1985), 1:52–55Google Scholar; Moulton's two volumes provide convenient access to a wealth of material involving Ross. Moulton gives the source of each document, however, for those who wish to refer to the original. Green, Indian Removal, 76.
16. Green, Indian Removal, 73 ff.
17. The Creek continued to hold title to 192,000 acres in this area only because of a faulty map. McLoughlin, Cherokee Renascence, 373-74, 437. The United States ratified, but was later persuaded to void, the Treaty of Indian Springs (1825) signed by William McIntosh but no other member of the National Council. This was replaced with the Treaty of Washington by which the Creek won back their lands in presentday Alabama a year later at the cost of total cession of the other lands ceded in the Treaty of Indian Springs. The third agreement, the Treaty of Fort Mitchell (1827) involved the cession of a smaller parcel of Creek land and concluded Georgia Governor Troup's campaign to see the Creek off all lands claimed by his state. Kappler, Indian Affairs, “Treaty of Indian Springs, 1825,” 2:214-17; ibid., “Treaty of Washington, 1826,” 2:264-67; ibid., “Treaty of Fort Mitchell, 1827,” 2:284-85. See Green, Indian Removal, chapters 3-6.
18. William McLoughlin, among others, makes clear that a division existed among the Cherokee over the pace of acculturation. In particular, the centralization of political authority demanded by the Cherokee Constitution, as well as the balance between traditional religious values and Christianity, caused significant differences of opinion, primarily between full- and mixed-blood Cherokee. Cherokee Renascence, chaps. 18, 19. Ironically, even as missionaries and some national officials promised a fuller respect and stature for Native American communities that acculturated, the accomplishment of a market economy, republicanism, and conversion to Christianity proved enormously threatening to states like Georgia and, therefore, actually exacerbated hostility. They had “borrowed elements from the culture they fought in order to resist effectively,” but these gestures of peace and accommodation were heard as alarms of unwanted tribal stability and success.
19. Mary Young, “Attack on Tribal Autonomy,” 128-29; idem, “The Cherokee Nation: Mirror of the Republic,” American Quarterly, 33 (1981): 502-24. McLoughlin, Cherokee Renascence, 284-85. When the Cherokee drafted a constitution for its new republic in July of 1827, a furious Georgia Governor Troup sent a copy to President John Quincy Adams demanding its denunciation. Ibid., 401. The constitution was adopted at the October, 1827, meeting of the Cherokee Council, to go into effect in October of the following year. For a summary of the articles of the constitution, ibid., 397-401.
20. Strickland, Fire and the Spirits, 65-66.
21. The Cherokee sent the bilingual Boudinot to the northeastern United States, where there were sympathetic religious congregations, on a fundraising lecture tour in 1826. The lectures themselves had broad public-relations impact. Successful in wooing his audiences and raising the necessary money, the unique press, with English and Cherokee font, was ordered in Boston and sent to the new Cherokee Nation capital of New Echota. For the later history of Boudinot and the newspaper see Perdue, Theda, “Rising From the Ashes: The Cherokee Phoenix as an Ethnohistorical Source,” Ethnohistory 24 (1977): 207CrossRefGoogle Scholar and Perdue, Theda, ed., Cherokee Editor: The Writings of Elias Boudinot (Knoxville: University of Tennessee Press, 1983)Google Scholar.
22. Woodward, Cherokees, 144-45.
23. McLoughlin, Cherokees and Missionaries, 254-56 describes some of the early political articles found in the paper. In 1830, newly hired attorney William Wirt's legal opinions were published in the Phoenix. John Ross's biographer suggests that Stand Watie and the Georgia Guard seized the press in August, 1835, in part, to again use it to create a public forum. Moulton, Gary E., John Ross, Cherokee Chief (Athens: University of Gerogia Press, 1978), 65Google Scholar. Reading the paper gives an excellent sense of its content and purpose. Library of Congress, Microfilm Room.
24. Jackson had proved the most popular of the three presidential candidates in the 1824 election but had failed to win sufficient electoral college votes.
25. Tracy, Jeremiah Evans, 338.
26. See “An act to add the territory lying within the limits of this state and occupied by the Cherokee Indians, to the counties of Carroll, Dekalb, Gwinnett, Hall, and Habersham and to extend the laws of this state over the same and for other purposes, December 20, 1828.” Acts of the General Assembly of the State of Georgia, 1828, 88-89. In 1829 Alabama and Mississippi passed laws similar to that of Georgia. Tennessee followed in 1832. McLoughlin, Cherokees and Missionaries, 247. Georgia passed a second “Indian Code,” not unlike that of 1829, on December 19, 1829. Acts of the General Assembly of the State of Georgia, 1829, 98-101.
27. McLoughlin, Cherokee Renascence, 432-33.
28. A subsequent Georgia statute, dated December 19, 1829, underscores the state's commitment to a policy of removal. The new bill makes it unlawful for anyone to “prevent… any Indian… from enrolling as an emigrant, or removing…” and provides for jail sentences for offenders. Acts of the General Assembly of the State of Georgia (Annual Sess. Nov. and Dec.) (Milledgeville, 1829)Google Scholar.
The legal and political circumstances of Georgia's actions emerged, in part, from the existence of inexact and, therefore, muddled understandings concerning federal versus state powers as well as Indian land title. On the one hand, the United States government, established as the sole treaty-making party of the Republic, had signed documents approving the sovereign right of Indian nations, including the Cherokee, to exist and to make and to enforce their own laws. At the same time, however, officials in Georgia knew that many colonial governments had extended criminal jurisdiction over nearby Indians. More recently the state of New York had done so without interference from Washington despite the objection of the Seneca. When New York interposed its criminal law into Seneca affairs by indicting and trying a member of that tribe, Tommy Jemmy, for murder in 1822, the chief of the Seneca, Red Jacket, came to court to argue that the state had no jurisdiction under Seneca treaties with the United States. This particular case ended with state assertion of jurisdiction followed by a pardon. For reasons that we do not know, the Seneca did not appeal the question of jurisdiction to the federal courts. But see also Jackson v. Goodell 20 Johns. 693, 713-17 (N. Y. 1822). For excellent discussions of the jurisdiction question, see Clinton, Robert N., “Development of Criminal Jurisdiction Over Indian Lands: The Historical Perspective,” Arizona Law Review 17 (1975): 951Google Scholar and Hairing, Sidney L., “Corn Tassel: Nineteenth Century Conflict Between States and the Federal Government Over Criminal Jurisdiction Over Indian Tribes,” in Crow Dog's Case: American Indian Sovereignty, Tribal Law and American Law in the Nineteenth Century, chap. 2.Google Scholar [Manuscript in preparation] Earlier decisions of the Supreme Court touching upon the nature of Indian land title and sovereignty might also have been taken by Georgia to lend support to her position by describing the possibility of simultaneous Indian occupancy and state fee simple titles: Fletcher v. Peck 10 U.S. (6 Cranch) 87 (1810) at 142-43; Johnson v. M'Intosh 21 U.S. (8 Wheat.) 543 (1823) generally and at 574, 604-5. For a full discussion of the doctrines developed in these decisions, see Norgren, Jill, “Protection in What Rights They Have,” North Dakota Law Review 65 (1988): 73Google Scholar and Shattuck, Petra T. and Norgren, Jill, Partial Justice (Oxford: Berg Publishers, 1991)Google Scholar.
29. Moulton, Papers of Chief John Ross 1: 166.
31. Ibid., 164-65; Prucha, Frances Paul, ed., Cherokee Removal: The “William Penn” Essays and Other Writings (Knoxville: University of Tennessee Press, 1981), 4Google Scholar, in particular, footnote 3.
32. The dating of all the correspondence on the possibility of litigation is uncertain. A letter from missionary Samuel Worcester to D. Greene Nov. 25, 1829, indicates that the Cherokee delegation was considering which attorney to hire for a major test case by 1829. Houghton Library, Harvard University, American Board of Commissioners of Foreign Missions (ABCFM): 18.3.1, vol. 5.
33. Griffin, Clifford S., Their Brothers’ Keepers: Moral Stewardship in the United States, 1800-1865 (New Brunswick: Rutgers University Press, 1960), 5Google Scholar. See also Foster, Charles I., An Errand of Mercy: The Evangelical United Front, 1790-1837 (Chapel Hill: University of North Carolina Press, 1960)Google Scholar.
34. Shattuck and Norgren, Partial Justice, in particular, chapter 2: “Nineteenth-Century ‘Friends of the Indian’ and the Rule of Law: Limits on the Use of Raw Power.”
35. United States Indian Agents including Benjamin Hawkins and Return J. Meigs acquainted the Cherokee with the Anglo-American justice system. Agency records dating from the late eighteenth century indicate that local attorneys were hired to defend Cherokee accused of crimes against non-Indians. See, Pound, Merrit B., Benjamin Hawkins—Indian Agent (Athens: University of Georgia Press, 1951)Google Scholar. The Cherokee government hired an attorney at least as early as 1822-23. At that time, the Cherokee leadership sought a legal opinion from prominent Tennessee lawyer, Hugh L. White, on the legality of a Cherokee Nation licensing tax imposed on white traders. McLoughlin, Cherokee Renascence, 320, citing to White's letter of May 27, 1823 at the National Archives, Washington, D.C., M-234, reel 71, #0073.
36. Evarts to Rev. Dr. Worcester February 3 and 16 in Tracy, Jeremiah Evarts, 128-29.
37. Ibid., 129-30.
38. Andrew Jackson's election in 1828 also prompted greater activity on Evarts's part. For example, in February and March of 1829 Evarts traveled “principally for the purpose of exerting an influence in favor of the Indians.” Letter, David Greene to Rev. Wm. Potter, March 28, 1829. Houghton Library, ABCFM: 1.01, vol. 9, p. 234. The Cherokee leadership, including Ross, cultivated partisans like Evarts. Ross communicated with Evarts throughout 1829-30. In the winter of 1829, the two met in Washington, discussing and refining a Cherokee petition intended for the U.S. Congress. Tracy, Jeremiah Evarts, 327 and Moulton, Papers of Chief John Ross 1:164-65.
39. The essays are most easily read in Prucha, Cherokee Removal.
40. Ibid., 53.
41. Ibid., 52.
42. Tracy, Jeremiah Evarts, 339.
43. Ross to Evarts, April 6, 1830 in Moulton, Papers of Chief John Ross 1:187.
44. Lumpkin, Wilson, The Removal of the Cherokee Indians From Georgia (New York: Arno Press and The New York Times, 1969), 1:73.Google Scholar
45. Prucha, Cherokee Removal, 12; Evarts to Eleazar Lord, October 13, 1830 in Tracy, Jeremiah Evarts, 400-401. Evarts hoped that some of these opinions would be volunteered. Where a fee was required, he suggested that the fee be raised in the city where the opinion “is asked.”
46. David Greene, his colleague, suggests the desirability of Cherokee litigation before the United States Supreme Court “[I]f they do not succeed in Congress..,” as early as September 26, 1829. Greene to S. Worcester, Houghton Library, ABCFM: 1.01, vol. 9, p. 433. At one time, however, Evarts said that “in nine instances out of ten, the mischief of violated faith will be done before the decision of that Court can be had, and the evil is therefore remediless.” Tracy, Jeremiah Evarts, 368.
47. Evarts to Lord, December 31, 1829 in Tracy, Jeremiah Evarts, 353.
48. Burke, Joseph C., “The Cherokee Cases: A Study in Law, Politics, and Morality,” Stanford Law Review 21 (Feb. 1969): 506CrossRefGoogle Scholar.
49. Jackson v. Goodell, 20 Johns. 188, 189-94 (N.Y. Sup. Ct. 1822). Spenser's decision was overturned by James Kent in Jackson v. Goodell, 20 Johns. 693, 713-17 (N.Y. 1822).
50. U.S. Department of Justice, Official Opinions of the Attorneys Generals of the United States 1 Op. Atty. Gen. 645 (1824) (Washington, 1852)Google Scholar. Although some authors have suggested that the dicta of the Wirt opinion constituted a “signal tribute to the political rebirth of the Cherokee,” it is worth remembering that Judge Hugh L. White, a white Tennessee lawyer from whom the Cherokee leadership had sought legal advice in 1823, had written an opinion fully endorsing the Nation's right to impose the license tax. McLoughlin, Cherokee Ghost Dance, 206, 198-99.
Wirt had given thought earlier to questions of Native American status. He had become well known for ten essays first published in 1803 and later brought out as The Letters of a British Spy. These were prose sketches musing on the Old South's diminishing role in shaping the nation, and America's future. In these, like Jefferson, Wirt had shown a romantic sympathy for the Indians. Letter IV is entirely given over to a consideration of the plight of the Indian in North America. Wirt, William, The Letters of the British Spy (Chapel Hill: University of North Carolina, 1970)Google Scholar. Prior to the 1824 tax dicision, Wirt had issued other legal opinions on Native Americans. Ibid., 159-60. As attorney general, Wirt served in two administrations (Monroe and Adams), which had recommended removal of the Indians from southeastern North America.
51. Ibid., 645.
52. Ibid., 645-46.
53. Worcester to D. Greene, November 25, 1829. Houghton Library, ABCFM, 18.3.1, vol. 5.
54. 2 Op. Atty Gen. 110, 133 (1828).
55. Wirt writes of being in the employ of the Cherokee Nation by June 4, 1830. Moulton, Papers of Chief John Ross 1:189-90. Evarts's biographer reports meetings between the Cherokee delegation in Washington, Evarts, and Wirt May 27 and 29, 1830. Tracy, Jeremiah Evarts, 379 and 381. They spoke during final voting on the 1830 Removal Bill. Presumably Wirt was hired officially as soon as Jackson signed the legislation.
56. McCulloch v. Maryland, 4 Wheat. 316 (1819); Cohens v. Virginia, 6 Wheat. 264 (1821); Dartmouth College v. Woodward, 4 Wheat. 518 (1819); Gibbons v. Ogden, 9 Wheat. 1 (1824).
57. Kutler, Stanley, ed., John Marshall (Englewood Cliffs: Prentice-Hall, 1972), 91Google Scholar; Boles, John B., Guide to the Microfilm Edition of the William Wirt Papers (Baltimore: Maryland Historical Society, n.d.), 7Google Scholar.
58. Wirt to Carr, June 21, 1830, in Kennedy, John Pendleton, Memoirs of the Life of William Wirt (Philadelphia: Lea and Blanchard, 1849), 2:291–93Google Scholar. All subsequent quotes in this paragraph are from this letter. A November 19, 1830, letter from Wirt to his son-in-law, Judge Randall, also indicates family pressure against his employment by the Cherokee because he “ought not to oppose the settled policy and wishes of my own government.” Wirt responded with a virtual tirade about his right to defend the Cherokee. Maryland Historical Society, William Wirt Papers. On microfilm, Library of Congress, Reel 13.
59. Tracy, Jeremiah Evarts, 380-81.
60. Wirt to Ross, June 4, 1830. Moulton, Papers of Chief John Ross 1:189.
61. Ibid.: 190.
62. Ibid.: 189.
63. The first brief is available under its title (Baltimore, Md.: F. Lucas, Jr., 1830.) The later two appear together and were published by the Cherokee, under the titles given in the text (New Echota: Office of the Cherokee Phoenix and Indians’ Advocate, 1830).
64. Moulton, Papers of Chief John Ross 1:204. On October 30, 1830, Ross wrote Wirt that copies of “the three questions touching jurisdiction &c &c” had been sent to the governors of all the states and territories, Jackson and former presidents and “other distinguished personages.”
65. Kennedy, William Wirt, 297. Wirt had been appointed United States attorney general in 1817 by Monroe and had remained in that position for twelve years until Jackson forced him to resign in 1829.
66. Wirt, “Opinion on Right of the State of Georgia,” 3.
67. 21 U.S. (8 Wheat.) 543 (1823). The Marshall Court had earlier expressed its understanding of Indian title in Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810).
68. Wirt, “Opinion on the Right of the State of Georgia…” 14.
69. In the third of his opinions commissioned by the Cherokee, Wirt was faced with the implications of his acceptance of discovery doctrine. He had been asked by his client to tell them whether Georgia could rightfully claim title to a sixty-mile-wide swath of land ceded to the Cherokee in an agreement between themselves and the Creek but claimed by Georgia as the result of a treaty between the Creek and the United States. If tribal title was only one of occupancy under the law of discovery, then even tribes might well have been denied the right to cede land to one another. Wirt skirted this critical question, however, by asserting that the cession to the Cherokee had subsequently been accepted by the United States President, and by the Senate. Wirt, “Opinion on the Boundary Between…,” 4. See also, Shattuck and Norgren, “Original Principles of Federal Indian Law,” in Partial Justice, chap. 1.
70. Wirt, “Opinion on the Right of Georgia to Extend…” 28-29.
71. Wirt to Gov. George R. Gilmer, June 4, 1830. Georgia Department of Archives and History, Cherokee Indian Letters, Talks, and Treaties, WPA Project, AH-1252, Reel 1, p. 210; Moulton, Papers of Chief John Ross 1:190.
72. Wirt to Carr, June 4, 1830, Kennedy, William Wirt, 294. Wirt presumably thought Georgia would resist a Section 25 case by failing to create a record necessary for the writ of error because of the course of action pursued by Virginia in Martin v. Hunter's Lessee, 1 Wheat. 304 (1816).
73. Specifically, Wirt asks whether Marshall believes that courts of the nation are constitutionally bound by the declaration of the Executive Branch “that any people are or are not a sovereign state, so that the prior implications, by treaty, of their sovereignty, will be judicially considered as superceded by such presidential declarations.” Kennedy, William Win, 295-96.
74. Ibid., 296.
75. Wirt's cautiousness is very well expressed in a later letter to Judge Carr, September 29, 1830. Maryland Historical Society, William Wirt Papers, Reel 13.
76. Wirt to Ross, August 9, 1830. Moulton, Papers of Chief John Ross 1:196.
77. Ross to Evarts, July 24, 1830. Ibid.: 195-96.
78. Wirt to Ross, September 22,1830. Ibid.: 199. Playing along with Georgia, Jackson had argued that, with Georgia's new laws, there no longer was a Cherokee Nation, or treasury, to which to deliver the annuities. He intended, therefore, to distribute them on an individual basis to each Cherokee citizen. Jackson knew that this would deprive the Cherokee of revenues needed for political and legal expenses. To augment their legal defense fund, the Cherokee sent speakers to northeastern cities to raise funds. Most of the fees that were paid in 1830-32, however, came from money borrowed on the credit of the Cherokee Nation. See, for example, Ross to Wirt, January 1, 1831. Ibid.: 210.
79. Burke, “Cherokee Cases,” 512.
80. Wirt to Swain, October 4,1830, Maryland Historical Society, William Wirt Papers, reel 13. Wirt to James Madison, Oct. 5, 1830, ibid.
81. Underscoring in original. Wirt to Thomas Swain, October 4, 1830, ibid. Wirt wrote that Chief Ross had responded by writing that the Cherokee had explored the proposed western lands, found them unfit for agriculture and surrounded by savage tribes who would engage the Cherokee in warfare. Wirt to Madison, October 5, 1830, ibid. In the letter to Swain, Wirt also rejects charges of conflict of interest arising from his legal work in a Florida land case involving a Seminole grant of land to private individuals. He repeats this in a letter to his son-in-law, Judge Randall in Florida. Wirt to Randall, Oct. 7, 1830, ibid.
82. In a letter on October 30, 1830, Ross wrote Wirt that the Cherokee delegation in Washington would pay the fees promised Sergeant, Binney, Webster, and Kent. Moulton, Papers of Chief John Ross 1: 205. He does not mention an amount, but earlier Wirt had suggested $50 or $100 for the ad hoc opinions. Wirt to Ross, September 22, 1830. Ibid.: 200. According to a letter from Cherokee delegate W. S. Coodey to John Sergeant, Binney was paid $50 while Sergeant was sent his $200 retaining fee. Dec. 20, 1830. Sergeant Papers, Box 4, File 2.
83. Wirt to Ross, November 15, 1830, Moulton, Papers of Chief John Ross 1:205. Wirt reflected on his own doubts in a letter to his wife, February 10, 1831, Maryland Historical Society, William Wirt Papers. In this letter, he writes that Sergeant concurs with him that the Court has jurisdiction. Perhaps Sergeant had changed his mind after the Corn Tassel case failed.
86. Tassel is also called George Tassel, or George Corn Tassel. See State v. George Tassels, 1 Dud. 229 (1830) (Georgia). For an excellent discussion of the content and implications of the decision for nineteenth-century federalism, see Harring, Crow Dog's Case, 33-35.
87. Niles Daily Register, January 8, 1831, pp. 338-39. Section 25 of the Judiciary Act of 1789 permitted review of state court decisions by writ of error. States’ rights partisans in Congress moved unsuccessfully the following month for repeal of this national judicial power.
88. Wilkins, Thurman, Cherokee Tragedy: The Story of the Ridge Family and the Decimation of a People (London: Macmillan, 1970), 209Google Scholar.
89. Moulton, Papers of Chief John Ross 1:210.
90. Georgia Department of Archives and History, Cherokee Indian Letters…, February 1837. This sum is noted in a ledger submitted in a fee claims request by the firm under the terms of the Treaty of New Echota.
91. Sidney L. Harring points out that the Georgia appeals court decision was often cited by state courts during the mid-nineteenth century to uphold the proposition that states had sovereignty over tribes within their boundaries. Over one hundred years passed before Georgia abandoned the State v. Tassels doctrine. Harring, Crow Dog's Case, chap. 2.
92. 30 U.S. (5 Pet.) I (1831).
93. Wirt to his wife, February 10, 1831, Maryland Historical Society, William Wirt Papers, reel 13.
94. A description of Wirt in court is found in an undated clipping from the Sentinel contained in the William Wirt Papers, Maryland Historical Society, reel 24. Commentary on the state of his health at this time is found in a letter from Wirt to his family, March 12, 1831, and one from Catherine Wirt to her mother, March 14, 1831. Both are in the Maryland Historical Society, William Wirt Papers, reel 14.
95. For the readiest source outlining the argument, see Kurland, Philip B. and Casper, Gerhard, Landmark Briefs and Arguments of the Supreme Court of the United States: Constitutional Law (Frederick, Md.: University Publications of America, 1973), 2:71–104.Google Scholar Also, Peters, R., The Case of the Cherokee Nation Against the State of Georgia: Argued and Determined at the Supreme Court of the United States, January Term, 1831 (1831).Google Scholar In this volume, court reporter Richard Peters reprinted the attorneys’ argument, the several opinions of the justices, and Chancellor Kent's earlier opinion for the Cherokee, along with the relevant treaties and statutes.
96. Cherokee Nation, 30 U.S. (5 Pet.) at 19. For a detailed analysis of legal doctrine in the case, see Burke, “Cherokee Cases.” For a discussion of the contribution of this and the subsequent Worcester opinion to the development of early federal Indian law, see Norgren, “What Rights They Have.”
97. Cherokee Nation, 30 U.S. (5 Pet.) 16-18.
98. Ibid., 16.
99. Ibid., 17.
100. Ibid., 20.
101. Ibid., 47-50.
102. Ibid., 21-26.
103. Ibid., 30.
104. Ibid., 77-78. Although a majority of the Marshall Court regarded the Cherokee “as a distinct political society … capable of managing its own affairs and governing itself?’ the combined weight of the Marshall, Baldwin, and Johnson opinions—the only ones available at the end of the court's session—appeared to suggest a great victory for President Jackson and Georgia. Therefore, in an unusual move, after the court had risen, Marshall had urged Justices Thompson and Story to write a dissent that would balance the record. Thompson obliged with an opinion that drew heavily upon the arguments made by Wirt and Sergeant, which was subsequently published by the court reporter. Burke, “Cherokee Cases,” 516-18.
105. Ross to the Cherokees, April 14, 1831. Moulton, Papers of Chief John Ross 1:217. Letters solicited by the governor of Georgia from local whites describe Ross's tour and the reactions of Cherokee in different regions to the Supreme Court's decision. Letters to Governor Gilmer, National Archives, RG 75, M234, roll 74, frames 542-55. In frame 544, the author claims Ross is showing around a letter from John Marshall—"an evident forgery”—regretting the decision of the court in Cherokee Nation.
106. Ross to Harris, April 27, 1831. Ibid.: 219.
107. Ross to Harris, April 27, 1831. Ibid.: 219-20.
108. Ross to wirt, May 10, 1831. Ibid.: 220-21.
109. Wirt to Ross, July 18, 1831. Ibid.: 221-22.
110. Ibid.: 221.
111. Evarts to Worcester, February 1, 1831. Houghton Library, ABCFM, and Worcester to David Greene, March 14, 1831, ibid.
112. Missionary work received partial funding from the federal government. In addition, Worcester was postmaster at New Echota. The 1830 law specifically exempted federal agents.
113. Green to Wirt, July 12, 1831. Maryland Historical Society, William Wirt Papers, reel 14.
114. Wirt to Worcester, July 19,1831, cited in Miles, Edwin A., “After John Marshall's Decision: Worcester v. Gerogia and the Nullification Crisis,” Journal of Southern History 39 (Nov. 1973), 525.Google Scholar
115. Hubbard to Win, Sept. 24, 1831. Maryland Historical Society, William Wirt Papers, reel 14; Greene to Wirt, Sept. 24, 1831, ibid., reel 14. These letters also indicate close supervision of Wirt by the American Board, which had retained him with a hundred-dollar fee.
116. State v. Missionaries (Gwinnett County Superior Ct., September 15, 1831).
117. Worcester to David Greene, June 2, 1831, Houghton Library, ABCFM. Worcester's analysis of why several of the missionaries accepted a pardon is contained in a letter to Evarts, May 31, 1831, ibid. Worcester did not yet know that Evarts had died on May 10.
118. Ross to Wirt, Maryland Historical Society, William Wirt Papers, reel 14. For the next few months, the Cherokee Nation and the American Board both contributed to legal costs. Coody to Wirt, January 1, 1832, ibid., reel 14.
119. Coody to Wirt, January 1, 1832, ibid.
120. Burke, “Cherokee Cases,” 520-21; Wilkins, Cherokee Tragedy, 226-28.
121. Niles Weekly Register, December 24, 1831, p. 212, column 1.
122. 31 U.S. (6 Pet.) 515 (1832). Oral argument in Worcester proceeded on February 20, 21, and 23, 1832.
123. See untitled and undated manuscript at the Historical Society of Pennsylvania, Sergeant Papers, box 5: file 18. Records and Briefs of the U.S. Supreme Court (6 Peters) reports no written brief for Worcester v. Georgia, and there is no transcript of oral argument.
124. It has been suggested that Sergeant and Wirt rejected the narrowest grounds on which the case might have been argued, namely, that the 1830 law conflicted with the Federal Intercourse Act of 1802. Burke, “Cherokee Cases,” 521.
125. Untitled, undated Sergeant manuscript, Sergeant Papers, 21-22.
126. Ibid., 16, 19.
127. Worcester, 31 U.S. (6 Pet.) 562. Justice M'Lean entered a concurring opinion and Justice Baldwin dissented.
128. 21 U.S. (8 Wheat.) 543, 587-90 (1823).
129. Worcester, 31 U.S. (6 Pet.) 560.
130. Ibid. 551-56.
131. Ibid. 552.
132. Ibid. 562.
133. The extent to which judicial power was put on the line is reflected in the famous, perhaps apocryphal, comment by President Jackson following the reading of the Worcester opinion: “John Marshall had made his decision, now let him enforce it!” Charles Warren, The Supreme Court in United States History (1926), 754.
134. Chester sat with Wirt and Sergeant during Worcester but did not join in oral argument.
135. Coody to Wirt, March 28, 1832. Maryland Historical Society, William Wirt Papers, reel 15.
136. It has been suggested that Southerners were just beginning to link anti-removal and anti-slavery agitation as, to them, twin evils. McLoughlin, Cherokees and Missionaries, 264.
137. Greene to Sergeant, March 9, 1832. Historical Society of Pennsylvania, Sergeant Papers.
138. Wirt to Lewis, April 28,1832, pp. 10-11. The Papers of William Wirt, Collection of the Library of Congress, Manuscript Division, reel 4; Chester to Lumpkin, April 4, 1832, Georgia Department of Archives and History, Indians: Cherokees—File II, box 75.
139. Burke, “Cherokee Cases,” 525.
140. Regardless of these very real legal ambiguities, Jackson was pleased by the Court's inability to “coerce Georgia.” See Jackson to Brigadier-General John Coffee, April 7, 1832. Bassett, John Spencer, ed., Correspondence of Andrew Jackson (Washington, D.C.: Carnegie Institution of Washington, 1929): 4:430.Google Scholar Jackson further urged resistance of Governor Lumpkin in a June 22, 1832, letter “do no act which would give the Federal Court a legal jurisdiction over a case that might arise with the Cherokees. Ibid.:450-51.
141. To their surprise, Superior Court Judge Charles Dougherty did administer the necessary oath to Chester, William Underwood, and Ed Hardin so that they could swear an affidavit that Dougherty had denied their motion for the release of Worcester and Butler. Miles, “Nullification Crisis,” 528.
142. Wirt to Lewis, April 28, 1832. The Papers of William Wirt, Collection of the Library of Congress, Manuscript Division, reel 4.
143. Ibid.
144. Frelinghuysen to Greene, April 23, 1832. Quoted in Miles, “Nullification Crisis,” 530.
145. Ross to Wirt, June 8, 1832. Moulton, Papers of Chief John Ross 1:245.
146. Miles, “Nullification Crisis,” 531. John Ross called Chester's presence, given the lawyer's earlier employment by Cherokee allies, “rather uncouth.” Moulton, John Ross, 48.
147. Moulton, , John Ross, 531.Google Scholar
148. Ibid., 532.
149. All quotes in this paragraph are found in Ross's letter to Wirt, June 8, 1832. Moulton, Papers of Chief John Ross 1:245-46. Chester remained in Georgia in order to attend both the July and October meetings of the Cherokee Council. His presence abetted the arguments of the pro-treaty faction among the Cherokee, but these men were far outnumbered by those who continued with singular resolve to oppose removal and to believe that the United States was a nation of laws ready to observe its treaties and the decision of the Supreme Court.
150. Beveridge, Albert J., The Life of John Marshall (New York: Houghton Mifflin, 1916–1919), 4:552–75.Google Scholar
151. Miles, “Nullification Crisis,” 534.
152. Not more than a month into the nullification crisis, missionary William Potter wrote Wirt that the fiiends of the Cherokee he had consulted were divided in their view of the President's probable actions should the issue of the missionaries’ release be brought to him. Potter to Wirt, December 20, 1832. Maryland Historical Society, William Wirt Papers, reel 15. For a discussion of the intersecting politics of the Cherokee litigation, the United States nullification crisis, and, in particular, the role of vice president elect Martin Van Buren and his Albany Regency in pressing for a settlement of the missionaries’ case, see Miles, “Nullification Crisis,” 534-37.
153. Wirt to Randall, Maryland Historical Society, William Wirt Papers, reel 15.
154. Wirt to Sergeant, December 22, 1832, ibid., reel 23. In this letter Wirt asks if Sergeant is in agreement that, on the one hand, the authority of the Supreme Court is at stake but, on the other, as attorneys, they should obey the instructions of their clients.
155. Wirt to Potter, Dec. 26, 1832, ibid., reel 23.
156. B. B. Wisner to Wirt, December 28, 1832, ibid., reel 15.
157. Wirt to Sergeant, December 22, 1832, ibid.
158. The nature of the missionaries’ “cost-benefit” analysis with respect to the Cherokee is not yet sufficiently understood. Butler's understanding poses the more intriguing problem given his continued opposition to removal after his release. McLoughlin, Cherokees and Missionaries, 313-14.
159. Wisner to Wirt, December 28, 1832, William Wirt Papers, reel 15; Miles, “Nullification Crisis,” 539.
160. Miles, “Nullification Crisis,” 539, 543. In his letter to Wirt, American Board secretary Benjamin Wisner reports that the resolution was unanimous. Wisner to Wirt, December 28, 1832, William Wirt Papers, reel 15.
161. Kilpatrick, Jack F. and Kilpatrick, Anna G., New Echota Letters: Contributions of Samuel A. Worcester to the Cherokee Phoenix (Dallas: Southern Methodist University Press, 1968), 116–29.Google Scholar Also Worcester to Sergeant, Jan. 22, 1833, Sergeant Collection, box 4, file 8. Worcester also asked Sergeant to let the American Board know if he was owed further fees.
John Marshall's biographer suggests that the sacrifice of the Cherokee, however, did not save the political honor of the Union. Clay negotiated a compromise, the Tariff Bill of 1833, and Jackson signed it. “South Carolina was mollified. For the time the storm subsided; but the net result was that Nullification triumphed—a National law had been modified at the threat of a State which was preparing to back up that threat by force.” Beveridge, Life of John Marshall 4:574. At the same time, South Carolina criticized Georgia “for sneaking out of a fight” by agreeing to the pardons. Miles, “Nullification Crisis,” 541.
162. McLoughlin, Cherokees and Missionaries, 259.
163. Cherokee Phoenix, July 27 and August 3, 1833. Reprinted in Kilpatrick, New Echota Letters, 121-28. The text summary below draws upon this letter.
164. McLoughlin, , Cherokees and Missionaries, 313–324.Google Scholar
165. Wirt to William Drayton, January 15, 1833, Historical Society of Pennsylvania, Drayton Collection: Col. Wm. Drayton Papers.
166. Wirt to John Williams, February 26, 1833, Maryland Historical Society, William Wirt Papers.
167. Ross to the General Council, May 13, 1833. Moulton, Papers of Chief John Ross 1:267-68.
168. As late as 1834, however, the Senate did refuse to ratify fraudulent treaties with Indian nations. Conser, Walter H. Jr, “John Ross and the Cherokee Resistance Campaign, 1833–1838,” Journal of Southern History, 44 (May 1978): 211.Google Scholar
169. For an analysis of the Cherokee policy of non-violence, see Conser, “John Ross,” 210-12. Ross returned in April of 1833 from a political trip to Washington, D.C., to find his own house, farm, and property seized by one winner in the recent Georgia land lottery. Woodward, Cherokees, 176. For a history of Georgia's land policies and the construction of land lotteries, see Heath, Milton S., Constructive Liberalism: The Role of the State in Economic Development in Georgia to 1860 (Cambridge: Harvard University Press, 1954)CrossRefGoogle Scholar, in particular, chapter 4: “The Public Domain and Early Land Policy.”
170. Butler to David Greene, January 30, 1833, Houghton Library, ABCFM.
171. Annual Message, October 15, 1833, Moulton, Papers of Chief John Ross 1:271.
172. Clipping from Poulson's Paper, December 4, 1834. Sergeant Collection, box 4, file 12.
173. Act of November 29,1833, and December 20,1833, Acts ofthe General Assembly of the State of Georgia, 1833, at 126-27, 114-18. The legislature had authorized surveys of Cherokee land in December, 1831, but had not empowered Georgia citizens to take possession of surveyed lands. By 1834 Georgia law had authorized lotteries of Cherokee land not covered by provisions securing to Cherokee individuals their land with improvements. A December, 1834, law, however, amended the 1833 legislation in order to limit this individual Cherokee right of occupancy to the lot upon which he resided and his actual improvements adjoining. Act of December 20, 1834, ibid., 1834, at 152–56.
174. Ross to the General Council, October 30, 1834. Moulton, Papers of Chief John Ross 1:311.
175. Letter of John A. Cuthbert to Governor Lumpkin, April 8, 1834, Georgia Department of Archives and History, Cherokee Indian Letters…, reel 2, p. 477. Cuthbert was a lawyer who argued on behalf of Georgia in Judge Hooper's courtroom. The letter outlines some of the technical issues raised in the attempt to obtain an injunction.
176. The appeal court sustained the bills on narrow grounds but left open the political questions raised by Underwood. Letter of John A. Cuthbert to Governor Lumpkin, August 4, 1834, ibid., reel 2, p. 498.
177. Letter of William Hardin to Governor Lumpkin, March 3, 1834, ibid., reel 2, p. 439. This collection is rich in letters reflecting the genuine concern the injunction proceeding was causing Georgia officials in the spring and summer of 1834. While lawyers for the Cherokee did obtain injunctions from Georgia courts, attorney David Irwin described to Ross the considerable difficulties encountered from county clerks and sheriffs unwilling to serve the papers. Perdue, Theda, Slavery and the Evolution of Cherokee Society: 1540–1866 (Knoxville: University of Tennessee Press), 64–65.Google Scholar
178. Letter of Underwood to Sergeant, November 22, 1834. Sergeant Papers, box 4, file 12. Two justices of the Convention dissented and escaped this treatment.
179. Act of December 20, 1834, Acts of the General Assembly of the State of Georgia, 1834, 152-56.
180. For example, Ross to Sergeant, May 26, 1834. Sergeant Papers.
181. Ross to Sergeant, October 7, 1834. Ibid., box 4, file 11 (two letters bear this date and contain references to fees and hiring an associate).
182. Ibid., box 4, file 11.
183. Phillips, 84.
184. On November 8, Rockwell and Hansell, local counsel for the Cherokee, wrote Sergeant that only the use of federal troops available from the Cherokee Agency could prevent the execution. The lawyers apparently made no actual effort to enlist such troops. Sergeant Papers, box 4, file 12.
185. Act of December 20, 1834, Act of the General Assembly of the State of Georgia, 1834, 152-56; John Ross to Lewis Cass, January 14, 1835, Moulton, Papers of Chief John Ross 1:314-15. For a summary of the events and legislation as described by the leaders of the Cherokee Nation East, see “To the Senate and House of Representatives,” June 21, 1836, Moulton, Papers of Chief John Ross 1:427-44.
186. Woodward, Cherokees, 177. For discussions of the politics of the Treaty Party in this period, see Wilkins, Cherokee Tragedy, 254-78, and Woodward, Cherokees, 177-93.
187. Ross to Friedrich Ludwig von Roenne, March 5, 1835, and Ross to Joaquin Maria del Catillo y Lanzas, March 22, 1835. Moulton, Papers of Chief John Ross 1:330, 334-36.
188. Ross to Henry A. Wise, February 25, 1837, ibid.: 477.
189. The payment of fees from the treaty is discussed below. Grace Woodward argues that Underwood (and Judge Hooper) were bribed by Governor Lumpkin but does not give a source for the charge. Woodward, Cherokees, 184. A letter from William N. Bishop to the governor dated May 15, 1835, suggests a bribe without stating flatly that one has been given. Georgia Department of Archives and History, Cherokee Indian Letters…, reel 2.
190. In this case, Samuel Rockwell represented the Cherokee. Woodward, Cherokees,184; Z. B. Hargrove to Governor Lumpkin, April 22, 1835, Georgia Department of Archives and History, Cherokee Indian Letters, reel 2, p. 537. Ross's correspondence shows that at least two other lawyers, David Irwin and Thomas G. Barron, were available to the Cherokee in this last troubled period. Ross to Irwin and Barron, October 3, 1836. Moulton, Papers of Chief John Ross 1:463. Currently available records, however, do not permit evaluation of their service for the Nation.
191. Underwood to Jackson, May 25, 1835, in Bassett, Correspondence of Andrew Jackson 3:352; Hargrove to Lumpkin, May 15, 1835, Georgia Department of Archives and History, Cherokee Indian Letters…, reel 2, p. 547.
192. Colonel Bishop to Governor Lumpkin, August 19, 1835, Georgia Department of Archives and History, Cherokee Indian Letters…, reel 2, p. 597 and Curry to Underwood, August 27, 1835, ibid., p. 607.
193. Leaders of the Treaty Party publicly voted against the treaty knowing that they would face treason charges, and execution, if Cherokee Republic lands were signed away without the full consent of the nation. Treaty—or Removal—Party representatives maintained negotiations with Schermerhorn in secret. As a result Ross had no certain evidence of their actions until early 1836.
194. Kappler, Indian Affairs, “Treaty of New Echota, 1835,” 2:439-48; ibid., “Supplemental Treaty, 1836,” 2:448-49.
195. Schermerhorn to Commissioners Lumpkin and Carroll, July 11, 1836. National Archives, RG 75, M574, roll 18. Schermerhorn also argues that the lawyers’ claims should come out of the $300,000 in the treaty set aside for claims against the United States, not the $60,000 allowed for national debts of the Cherokee. This becomes an important issue as the lawyers’ inflated claims came to add up to more than $60,000. The inclusion of Rockwell's name may suggest that, without Ross's knowledge, he was close to those working for the treaty. Comments made to the governor in 1835 that Rockwell might be bribed suggest, however, that he had not yet been bought off.
196. Underwood petition, February 3, 1837, National Archives, RG 75, M574, roll 18. In the mid- to late 1820s, territorial governors received a yearly salary of $2,000. The annual salary of U.S. Indian agents in the early 1830s ranged from $1,200 to $1,800. Housing was provided. An agent's duties included negotiating treaties, filing claims, paying annuities, noting violations of statutes pertaining to Indian relations, accompanying tribal delegations to Washington, and following political and military events within the tribe. Viola, Herman J., Thomas L. McKenney: Architect of America's Early Indian Policy: 1816–1830 (Chicago: Sage Books, 1974), 99, 101–3.Google Scholar
197. Underwood ledger of cases for the Cherokee. Undated. Georgia Department of Archives and History, Cherokee Indian Letters…, reel 2, p. 292.
198. National Archives, RG 75, M574, roll 18.
199. Ibid.
200. Underwood, Hansell, and Rockwell to Commissioners Lumpkin and Kennedy, February 20, 1837, National Archives, RG 75, M574, roll 18. Quotes in the following two paragraphs are also from this letter.
201. For example, one report from the committee is submitted by James Starr, a Treaty Party member. It is noted: John Ridge (pro-removal party) accepting and ap-proving the report. RG 75, M574, roll 1: July 7,1837. The Ross faction and the removal faction differed in litigation strategy in the year or two before the Treaty of New Echota. The removal faction, less anxious to continue in the use of courts, may have brought a particularly critical eye to the review of the fee claims of the lawyers.
202. Report of the Indian Committee, July 7, 1837, National Archives, RG 75, M574, roll 1. This conclusion is accepted by the United States Commissioners. See Lumpkin, 165-66. Lumpkin's writings also make clear his contempt for the men he termed “feed” lawyers and “feed stipendiaries,” men who had worked against his Indian policies while Lumpkin was governor of Georgia. Ibid., 148, 159. His low regard may have worked against the lawyers’ cause. Underwood alludes to such “strong prejudices … against me” in his June 1, 1837, letter to commissioners Kennedy and Lumpkin. RG 75, M 574, roll 18.
203. Letter of Underwood to commissioners Kennedy and Lumpkin. RG 75, M574, roll 18.
204. Underwood, Hansell, and Rockwell to “Our friends and representatives,” Sept. 14, 1837, ibid. “In order the more clearly to manifest its want of justice to ourselves,” Underwood, Rockwell, Hansell, Barron, and Irwin also described separately to the U.S. commissioners a long list of what they argued were the fraudulent claims of Edward Harden, hoping, presumably, to reduce bis award and increase theirs. Lumpkin, 2:174-77.
205. Lewis Ross to John Ross, March 22, 1838, Moulton, Papers of Chief John Ross 1:615.
206. Underwood: $28,692; Rockwell, $22,920; Hansell, $24,588—each allotment minus any sum already paid. Document of December 10, 1838, National Archives, RG 75, M574, roll 1, frame 220.
207. War Department to Washington and Mason, Oct. 15, 1844, ibid., roll 1.
208. Ross to D. Russell, July 13, 1840, ibid., frames 469-73. By 1844, at least $10,000 total, and perhaps $15,000, had been paid to Wirt during his lifetime, or to his estate. See letter of agent, Amos Kendell, hired by Underwood and Hansell to press their claims on a contingency basis, October 14, 1844. Ibid.
209. Here I refer both to the fact that the annuities went to the national treasury rather than being distributed to individuals, and to the willingness of the Cherokee government to pay for any legal business that grew out of the assertion of criminal and civil jurisdiction by states of the United States over citizens of the Cherokee Nation.
