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

106 PUBLIC INTEREST LAW JOURNAL [Vol. 15
reliance on Senate generosity might not have been a firm Cherokee obligation, for
as Roland Satz writes in American Indian Policy in the Jacksonian Era, “[w]hile
presidents were well aware that the Senate could reject treaties, they were not
always respectful of the fact that a chief might return with a treaty only to have his
council or people reject it.” 85 Nevertheless, it did set Ross up to the charge that he
was merely “pursuing stalling tactics,” and therefore was not a worthy negotiating
partner. 86 Additionally, it allowed the U.S. government to narrow the terms which
were negotiable and pretend removal was more or less settled, as Ross explained in
an October 1835 speech to the Cherokee General Council: “We are thus left
without any proposal from the United States Government to act upon, further than a
vague suggestion that we must treat upon the basis of the five millions.” 87
The undeveloped nature of the two Cherokee propositions should be understood
against the general opposition of the Cherokees to removal and their continual
efforts against it. Ross’s writing first referenced a right to a delegate to Congress in
1846, and then only as an aside. 88 As Ross’s October 1835 speech makes clear,
the Senate’s lack of generosity was coupled with a similar lack of proposals upon
which the Cherokees could act. The Cherokee government likewise made only two
true proposals—partial land cession or complete sale for $20 million—providing
few other propositions to the U.S. government that might be examined to find out
more about Cherokee intent. Ultimately, the Cherokees and Ross were motivated
to resist removal. For Ross, to participate more actively in the act of developing
propositions for a future treaty whose primary purpose was Cherokee removal,
regardless of the niceties of other clauses, arguably would be to betray the Cherokee
people.
the subjective costs) as might be awarded under eminent domain power “totaled
altogethermorethan $13,000,000,” for “the costs ofpublic lands, privateimprovements, removal and subsistence for one year in the West.” MOULTON, supra note 23, at 94.
85
RONALD N. SATZ,AMERICAN INDIAN POLICY IN THE JACKSONIAN ERA 106 (1975).
86
WILKINS, supra note 38, at 268.
87
Speech of John Ross to the General Council (Oct. 22, 1835), in 1THE PAPERS OF
CHIEF JOHN ROSS, supra note 14, at 361.
88
Memorial from John Ross, John Looney, David Vann, Stephen Foreman, C.V.
McNair, R. Taylor, T. Walker, Richard Fields, and John Thorn to the U.S. Senate and
House of Representatives (Apr. 30, 1846), in 2THE PAPERS OF CHIEF JOHN ROSS, 1840-
1866, supra note 14, at 295-296 (“The seventh article of the treaty of 1835 stipulates
that the Cherokees shall be entitled to a delegate in Congress! Can it be supposed that
it was the intention of a people aspiring to the dignity of being represented in Congress,
to have surrendered all the most essential elements of sovereignty, and to have
transferredto another power the right to dispose of their territorywithout their consent,
and to prescribe to them criminal and other laws? The articles of the treaty to which the
undersigned havereferred, are too explicitin their termsto admit ofany doubt.”).