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

110 PUBLIC INTEREST LAW JOURNAL [Vol. 15
consistently hold up to the Cherokee its liberality in regard to a new treaty, is
it not the incumbent and the paramount duty of the President, first to prove it
by carrying into effect & in good faith his 17 treaties with us? 103
Though framed from the perspective of a U.S. agent, Mason’s comments do
acknowledge the conflict between the Treaty’s liberality and Cherokee resistance to
the Treaty: “Notwithstanding the very liberal terms of this treaty, by which the
United States have made provision for the future quiet, comfort, and happiness of
their red brethren . . . a portion of their nation are dissatisfied with that compact,
andseektooverthrowit.” 104 The most active, vocal, and persistent member of that
dissatisfied portion was, of course, John Ross. In order to understand the history of
the New Echota Treaty and the delegate promise, the disputes between the U.S.
government and the Cherokees, as well as those amongst Cherokees, must be
understood.
3. Democratic Negotiations?
For the purposes of Treaty negotiations, the U.S. government officially
recognized neither a Cherokee government, nor Ross as Principal Chief of the
Cherokee Nation. The stated U.S. policy, bolstered by verbal attacks on Ross and
other leaders, supported democratic negotiations of the Treaty. While the ongoing
leadership struggle between the Ross and the Ridge parties aided U.S. policy, it
can probably be best characterized as one of political expediency. 105 By choosing
not to recognize John Ross as the Principal Chief, the U.S. commissioners were
able to ignore him for the purposes of Treaty negotiation and ratification (even
while acknowledging his position in letters to him), and obtain terms that he
would not have accepted.
The U.S. policy, as stated in a Presidential message to the Cherokees prior to
negotiations, was a democratic one and dealt with the internal power disputes of the
Cherokee nation:
It is expressly provided that it will not be binding upon them till a majority
has assented to its stipulations. . . . We have frequently, in our intercourse
with the Indians, treated with different portions of the same tribe as separate
communities. Nor is there any injustice in this, as long as they are separated
into divisions, without any very strong bond of union, and frequently with
different interests and views. By requiring the assent of a majority to any act
103
Editorial,THE CHEROKEE PHOENIX, Sept. 23, 1833, at 3.
104
J. Mason, Jr., Address to the Cherokee nation in generalcounsel assembled, supra
note 96, at 34.
105
According to then Georgia Governor Wilson Lumpkin, expedient as opposed to
just treaty negotiations were the standard practice rather than an exceptional one: “All
the treaties which have ever been made with Indians have, in reality, been consummated
by obtaining the influenceofa veryfew individuals, and thefew have been brought into
the views of the civilized government treating with them, in most cases, by bribery, fraud
and corruption.” 2 LUMPKIN, supra note 3, at 150.