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100 PUBLIC INTEREST LAW JOURNAL [Vol. 15 2. Pressures on Cherokee Land In 1802, the United States and Georgia reached an agreement: Georgia would “cede its western land claims to the United States,” so long as the United States extinguished “Indian title to lands within the state.” 43 By its terms the compact required the U.S. to make its best efforts to get the Cherokees to leave Georgia. “Strictly speaking, treaties should have held greater legal weight than did the 1802 agreement with Georgia, yet by the late 1810s some involved in Indian affairs were dismissing adherence to the treaties as needless, even foolish.” 44 Though the Cherokees “held indisputable constitutional guarantees” against encroachment on Cherokee land, 45 the 1802 compact provided some authority on which those seeking removal could rely. Yet the 1802 compact did not justify forced removal. The Cherokee Phoenix suggested that to satisfy the compact, the U.S. government should pay off Georgia rather than try to purchase Cherokee land. 46 In 1824, President Monroe highlighted the limited obligation imposed by the compact: I have full confidence that my predecessors exerted their best endeavors to execute this compact (between the United States and the State of Georgia) in all its parts, of which, indeed, the sums paid, in fulfillment of its stipulations, are a full proof . . . I have no hesitation, however, to declare it as my opinion, that the Indian title was not effected in the slightest circumstance by the compact with Georgia, and there is no obligation on the United States to remove the Indians by force. 47 Ultimately, societal pressure for Cherokee land subsumed the legal issue of the power and role of the compact. The discovery of gold in July of 1829 on Cherokee lands in northeastern Georgia, when coupled with the already existing desire by whites for Cherokee farming and agricultural land, made removal much more urgent for both Georgia and the Jackson administration. 48 3. Cherokee Leadership Divides By 1834, Principal Chief John Ross, counter-intuitively, could have been both right and wrong when he wrote in a letter that “[t]he Cherokees, as a people are united.” 49 Though the people were behind him, the Cherokees were no longer 43 Strickland, supra note 19, at 96. 44 DENSON, supra note 8, at 21. 45 William MacDonald, Jacksonian Democracy 1829-1837, in 15 THE AMERICAN NATION: AHISTORY 170 (1906). 46 The Cherokee Phoenix, July 27, 1833, at 3 (“No purchase can be made of the Cherokees, it will be cheaper to the Government to award Georgia a sum.”). 47 John Ross, Annual Message (Oct. 10, 1832), in 1THE PAPERS OF CHIEF JOHN ROSS, supra note 14, at 252 (citing James Monroe, 1817-1833, in ACOMPILATION OF THE MESSAGES AND PAPERS OF THE PRESIDENTS, 1789-1902, at 234-37 (James D. Richardson, comp., 1905)). 48 MOULTON, supra note 23, at 40. 49 Letter from John Ross to William H. Underwood (Aug. 12, 1834), in 1THE PAPERS
2005] THE NATURE OF REPRESENTATION 101 united, for a select group of Cherokees had come to believe that Ross was leading the people astray. John Ross was aware of the division, and in his 1833 Annual Message to the Cherokees he urged adherence to majority rule. 50 However, the Treaty party would eventually cease following Ross’s call to respect “the duty of the minority to yield.” 51 Between 1830 and 1835, the leaders of the Cherokee minority that signed the Treaty of New Echota—the Treaty Party or the Ridge group—reversed their stance on removal and on Andrew Jackson. Two of the prominent treaty-signers, Elias Boudinot and Major Ridge, provide good examples of this reversal on an individual level. The first editor of the Cherokee Phoenix, Boudinot went from being the publisher of Ross’s perspective to accusing Ross of dragging “an ignorant train . . . to the last brink of destruction.” 52 Boudinot explained his position in a pamphlet responding to Ross’s writing: If one hundred persons are ignorant of their true situation, and are so completely blinded as not to see the destruction that awaits them, we can see strong reasons to justify the action of a minority of fifty persons—to do what the majority would do if they understood their condition—to save a nation from political thralldom and moral degradation. 53 Boudinot’s justification for the actions of the minority betrayed both his perception that his condition was above that of the majority and his idea that the majority required being saved. Boudinot’s biographer, Ralph Henry Gabriel, summarized, “[l]oyalty drove [Boudinot] to what his people called disloyalty.” 54 Major Ridge’s reversal was equally dramatic. He signed on with Ross in opposition to ceding even a square foot of land, and as late as 1832 referred to the President as “Chicken Snake General Jackson.” 55 Yet, Ridge later “came to regard the president as the staunchest friend the Cherokees had. Indeed, he named his new son Andrew Jackson Ridge.” 56 Major Ridge spoke at New Echota, giving perhaps the best argument of the Treaty party in favor of negotiated removal: [T]hey are strong and we are weak. We are few, they are many . . . an OF CHIEF JOHN ROSS, supra note 14, at 300. 50 John Ross, Annual Message (Oct. 15, 1833), in 1THE PAPERS OF CHIEF JOHN ROSS, supra note 14, at 271. 51 Id. 52 Elias Boudinot, Letters and Other Papers Relating to Cherokee Affairs: Being a Reply to Sundry Publications Authorized by John Ross in CHEROKEE EDITOR: THE WRITINGS OF ELIAS BOUDINOT 199 (ThedaPerdue ed., 1983). 53 Id. at 162. 54 GABRIEL, supra note 13, at 154. 55 Letter from John Ridge to Stand Watie (April 6, 1832), in EDWARD EVERETT DALE &GASTON LITTON, CHEROKEE CAVALIERS: FORTY YEARS OF CHEROKEE HISTORY AS TOLD IN THE CORRESPONDENCE OF THE RIDGE-WATIE-BOUDINOT FAMILY 8(Univ.ofOkla.Press 1995) (1939). 56 WILKINS, supra note 38, at 269 (emphasis added).
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