the nature of representation: the cherokee right ... - Boston University

104 PUBLIC INTEREST LAW JOURNAL [Vol. 15
Cherokees had advanced generally “two propositions—the one for a partial cession,
and to be secured in the residue, the other . . . to sell the whole country for a gross
sum of money.” 71
The first negotiation position that Ross took, other than a blanket denial of the
right of the U.S. to remove the Cherokees or calls for the U.S. to first live up to
prior treaties, was to float the idea of partial land concessions. Ross hoped that by
giving up “an extensive portion of their territory,” the U.S. government would
“guarantee the fee-simple right of the property in the soil to the Cherokees in the
lands thus reserved.” 72
In effect, Ross was proposing, under the force of necessity,
to give up additional land so that the U.S. government would live up to its
responsibility to safeguard Cherokee rights. 73 The possibility that the U.S. would
conclude a removal treaty with the Cherokee minority faction spurred Ross to
provide a concrete selling price for eastern Cherokee lands. Ross’s silence
regarding specific treaty provisions can be explained partially by the difficulty he
had “uncover[ing] details of the treaty being worked out between Jackson and the
dissidents.” 74 Though he did not know the details, he did know the minority
faction was negotiating with the U.S. government supposedly on behalf of all
Cherokees. Ross’s biographer, Gary Moulton, explained, “Because a rival
delegation led by John Ridge and Elias Boudinot was also present in Washington,
Ross and his colleagues were driven to desperation.” 75
In February 1835, Ross
offered complete “cession of [Cherokee] Territory [for] the gross sum of Twenty
Millions of Dollars.” 76 The same letter concerning the $20 million explained that
the offer was being made only out of duress and would not ordinarily be made:
We need not assure you, for the fact cannot be doubted—That, were the
protection of the [United States Government] fully extended to them . . . no
amount of money far above the sum proposed can be offered which could
induce the Cherokee people voluntarily ever to yield their assent to a cession
71
Memorial from the Cherokee Delegation Headed by John Ross to the U.S. Senate
(Mar. 8, 1836), in 1THE PAPERS OF CHIEF JOHN ROSS, supra note 14, at 397.
72
Letter from John Ross, Daniel McCoy, R. Taylor, Samuel Gunter, and William
Rogers to Lewis Cass (Feb. 14, 1835), in 1THE PAPERS OF CHIEF JOHN ROSS, supra note
14, at 322.
73
Prior to this letter, the SupremeCourtacknowledged U.S. responsibility to protect
Cherokee land rights against state encroachment. Worcesterv. Georgia, 31 U.S. (6 Pet.)
515 (1832).
74
NORGREN, supra note 40, at 134.
75
MOULTON, supra note 23, at 60.
76
Letter from John Ross, R. Taylor, Daniel McCoy, Samuel Gunter, and William
Rogers to Lewis Cass (Feb. 25, 1835), in 1THE PAPERS OF CHIEF JOHN ROSS, supra note
14, at 325. An interesting aside in the larger story of removalis the possibility, which
Ross explored briefly, of the Cherokees using the settlement money to establish a new
Cherokee “Colony” in Mexico. LetterfromJohnRoss to FriedrichLudwig Von Roenne
(Mar. 5, 1835), in 1THE PAPERS OF CHIEF JOHN ROSS, supra note 14, at 330.