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

94 PUBLIC INTEREST LAW JOURNAL [Vol. 15
American claims of being a moral society. Ralph Waldo Emerson wrote of
removal to then President Martin Van Buren:
Sir, does this government think that the people of the United States are
become savage and mad? From their minds are the sentiments of love and a
good nature wiped clean out? The soul of man, the justice, the mercy that is
that heart’s heart in all men, from Maine to Georgia, does abhor this
business. 4
As Daniel Webster stated in a speech from this period, there existed “a strong and
growing feeling in the country that great wrong has been done to the Cherokees.” 5
In 1830, an increasingly prosperous and assimilated Cherokee people were living
on land guaranteed for them by treaties with the U.S. government. 6 By 1840, the
U.S. military had forced Cherokees to relocate west of the Mississippi, a process in
which the Cherokees lost “at least 4,000 and perhaps as many as 8,000” of their
tribe in the infamous ‘Trail of Tears,’ as well as their political right to claim their
eastern lands. 7
The Cherokee nation, under Principal Chief John Ross, repeatedly highlighted
the inherent wrong in removal in order to convince both politicians and the
American public to not allow removal. Cherokee messages, to Congress, the
press, and influential Americans focused first on the illegality of removal in light of
the many treaties the Cherokees had signed with the U.S. government. 8
Furthermore, Cherokee leaders expanded their focus beyond the law: “The idea of
the Cherokee Nation as a test of American virtue clearly appealed to tribal leaders,
and they adopted this element of the reformers’ worldview. Cherokee writings
continually reminded non-Indians that God and the rest of the world were
watching....” 9 While Andrew Jackson agreed with the then Governor of
Georgia, Wilson Lumpkin, that a “savage race of heathens” had no rights to their
eastern lands, 10 “[t]ime and again Ross outfought and outmaneuvered the powerful
forces of the federal government with the weapons of law and public sentiment.” 11
For those seeking Cherokee removal, Ross seemed constantly to be on “an
Rubenstein & Robert M. Fogelson, Editorial Note, 1 WILSON LUMPKIN,THE REMOVAL OF
THE CHEROKEE INDIANS FROM GEORGIA (Arno Press, 1969) (1907).
4
JOHN EHLE,TRAIL OF TEARS:THE RISE AND FALL OF THE CHEROKEE NATION 303 (1988).
5
ROYCE, supra note 2, at 168.
6
Worcester v. Georgia, 31 U.S. 515 (6 Pet.), 556-561 (1832) (affirming the Cherokee
tribe’s right to its own territory).
7
JAMES WILSON,THE EARTH SHALL WEEP: AHISTORY OF NATIVE AMERICA 170 (2000);
see also, ROBERT J. CONLEY, THE CHEROKEE NATION: A HISTORY 157 (2005) (“four
thousand deaths is probably a reasonable figure”).
8
ANDREW DENSON, DEMANDING THE CHEROKEE NATION: INDIAN AUTONOMY AND
AMERICAN CULTURE 1830-1900, at 27-28 (2004).
9
Id. at 35.
10
2LUMPKIN, supra note 3, at 150.
11
STANLEY W. HOIG, THE CHEROKEES AND THEIR CHIEFS IN THE WAKE OF EMPIRE 145
(1998).