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

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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).
2005] THE NATURE OF REPRESENTATION 95 embassy of mischief,” 12 working incessantly to help create “[s]ympathy for the underdog.” 13 Responding to arguments that removal benefited Indians, Ross wrote, “it is with deep regret and great diffidence we are constrained to say that in this scheme of Indian removal we can see more of expediency and policy to get rid of them than to perpetuate their race upon any fundamental principle.” 14 Ross’s many communications to the U.S. government ultimately failed to prevent Cherokee removal, but his efforts can be credited in part with helping raise the awareness of the great wrong being done to the Cherokees through forced removal. In a telling critique of removal for the National Intelligencer, Jeremiah Evarts was arguably correct in asserting, “[h]istory furnishes no parallel case of palpable injustice and cruelty, committed, or allowed, by the mass of the inhabitants of a great country, after ample time for deliberation.” 15 A. Role of Treaty Negotiation in Removal The attention Cherokees brought to their plight encouraged the U.S. government to continue its practice of using treaties rather than force alone to facilitate Cherokee removal. “[T]he unwillingness of government officials to adhere to their own ethics and written laws” went only so far. 16 For while the Jackson administration felt comfortable not respecting the Cherokee’s existing treaty rights to the security of their land in Georgia and Tennessee, the government felt bound to at least secure removal through a formal treaty. Francis Paul Prucha, an Indian treaty expert, observes: Removal was accomplished, not by unrestrained executive action, but through the traditional forms of treaties, and those treaties preserved the ideas of Indian sovereignty and inviolable land titles, even while the Indians were being forced to abandon their homelands in the southern states and seek a new destiny west of the Mississippi. 17 Removal and the removal treaties are inseparable. Removal cannot be understood simply by looking at the final version of the treaties used to secure and legitimize removal and the same is true for the treaties themselves. Rather, “an investigation of the historical context for each treaty and an understanding of the culture and 12 Letter from Wilson Lumpkin to Governor of Georgia William Schley (Oct. 18, 1836), in 2LUMPKIN, supra note 3, at 54. 13 RALPH HENRY GABRIEL,ELIAS BOUDINOT CHEROKEE &HIS AMERICA 159 (1941). 14 Letter from John Ross, R. Taylor, John F. Baldridge, and Joseph Vann to Lewis Cass (Feb. 14, 1833), in 1THE PAPERS OF CHIEF JOHN ROSS, 1807-1839, at 261 (Gary E. Moulton ed., 1985). 15 Jeremiah Evarts, Communication: Present State of the Indian Question to the Editors of the National Intelligencer (Nov. 24, 1830), in CHEROKEE REMOVAL: THE “WILLIAM PENN” ESSAYS AND OTHER WRITINGS 281 (Francis Paul Prucha ed., 1981). 16 HOIG, supra note 11, at 3. 17 FRANCIS PAUL PRUCHA, AMERICAN INDIAN TREATIES: THE HISTORY OF A POLITICAL ANOMALY 167 (1994).
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