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

112 PUBLIC INTEREST LAW JOURNAL [Vol. 15
have to be presented to the Cherokee people before a treaty could be agreed upon. 113
While Ross urged the Cherokees to democratically accept or reject the Senate’s
offer, the U.S. commissioners argued that democratic negotiations were the only
possible route to ensure meaningful treaty approval. 114
This democraticidea, however, does not correspond with the actual attendance at
the negotiations. Schermerhorn and Governor Carroll wrote to the “chiefs, head
men, and people of the Cherokee nation” that they “must not listen, or believe any
man that is sent to you to tell you not to come to the council at New Echota.” 115
Francis Paul Prucha highlights how the Treaty itself reveals the non-democratic
nature of the negotiations:
In an unusual preamble, the United States sought to justify its reliance on
only a portion of the tribe by reciting the history of negotiations with the
Cherokees and by noting the earlier warning that those who did not attend the
council would be considered to have given their assent to whatever might be
done at the council. On this shaky foundation the United States procured a
removal treaty with the Cherokees. 116
The number of Cherokees who actually came to New Echota in December was
only between 200 and 700, with Schermerhorn standing by the larger figures while
Ross and even members of the U.S. negotiating party cited estimates at the low
end of this range. 117 A dispute would later erupt between Schermerhorn and a lower
ranking U.S. agent who felt the Treaty was illegitimate because it failed even along
the democratic lines professed to govern the negotiations: “[T]hat paper, containing
the articles entered into at New Echota, in December last, called a treaty, is no
113
Memorial from the Cherokee Delegation headed by John Ross to the U.S. Senate
and House of Representatives (Jun. 21, 1836), in 1THE PAPERS OF CHIEF JOHN ROSS,
supra note 14, at 450.
114
Presidential Message on the Treaty with the Cherokee Indians, S. Exec. Doc. No.
7, 23rd Cong., 1st Sess., 1-2 at 2.
115
Notice from J.F. Schermerhorn and Gov. William Carroll, U.S. Commissioners, To
the Chiefs, Head Men, and People of the Cherokee Nation of Indians (Nov. 3, 1835), in
TREATY WITH THE CHEROKEE INDIANS, 24th Cong., 1st Sess., 19. Most Cherokees decided
not to go to New Echota: “Ross and his followers disregardedthis invitation [to the
New Echota negotiations] . . . . Schermerhorn’smeeting, they knew, was bound to be
another such fiasco as the one Ridge had called in the summer. Their departure at just
this juncture was none the less a crucial strategic error.” STARKEY, supra note 80, at
265.
116
PRUCHA, supra note 17, at 179.
117
Schermerhorn requested letters from different participants and observers at New
Echota in response to a report in the Athens Journal on the numbers of Cherokees in
attendance. These letters were collectively submitted to Congress alongside the Treaty
for ratification. Journal of the proceedings of the Council held at New Echota, Georgia,
Dec. 21-30, 1835, with the Cherokee people by John F. Schermerhorn, Commissioner on
the part of the United States to treat with the Cherokees east, in TREATY WITH THE
CHEROKEE INDIANS, 24th Cong., 1st Sess., 20-27.