The Court and the Trail of Tears

RENNARD J. STRICKLAND and WILLIAM M. STRICKLAND

In 1829 when Andrew Jackson delivered his first message on the removal of eastern Indian tribes, the newly elected chief executive promised that "this emigration should be voluntary, for it would be as cruel as unjust to compel the aborigines to abandon the graves of their fathers and seek a home in a distant land."[1] Ten years later, when Jackson's Indian removal was finally implemented, fifteen thousand Cherokees were driven at gunpoint out of their ancestral homes in Georgia and Tennessee to a distant land west of the Mississippi known as the Indian Territory. Four thousand Cherokees, more than one in four, died as a result of the internment and forced march which they called "the journey where they cried" or "The Trail of Tears."[2]

The journey took more than six months lasting from October 1838 until March 1839 and the exiles died, tens and twenties, every day. The very old and the very young could not stand the hardships of the brutal winter and even the most able-bodied soon were weakened by relentless blizzards and driving snow. The story of the crossing of the frozen Mississippi was forever etched on the memories of those who suffered the trail.

Background on the Cherokee Cases

How could this have happened? How could four thousand Cherokees–one-fourth of a nation–perish when the President who proposed removal wanted voluntary emigration? When a million or more people had spoken out against Indian removal? When the United States Supreme Court upheld the legal rights of the tribe?

The Cherokee cases and their relation to the Indian Removal question is a topic which continues to interest historians. Aspects of forced migration have received significant attention almost since the time of the Louisiana Purchase when Thomas Jefferson had explored this as a possible way to deal with "the Indian question." Jacksonian politics and policy discussions are rife with such analysis but very little attention has been given to the Indian side of the controversy– the role played by Indian people in their effort to defeat removal.[3]

To understand the Cherokee cases, one must understand the Indian people who are the Cherokees.[4] In historic times the Cherokees were the largest Indian tribe on the Southern frontier of English America. Most of the Cherokee homes were situated along small streams in scattered villages throughout the Appalachian Mountains. Through a series of treaties and several bloody wars Cherokee land holdings were reduced until in the late 1820s the major body of the tribe was concentrated in Georgia and Tennessee.

The Cherokees were a settled people of Iroquoian language stock who, in the nineteenth century, adapted remarkably well to new circumstances, established a system of government patterned after the Anglo-American society, developed their own alphabet, and began to follow the so-called "civilized pursuits" of farming, stock-raising, weaving and spinning. Perhaps the best picture of this material progress of the Cherokees is shown in an address by the mixed-blood leader Elias Boudinot given in 1826. The property census for that year, according to Boudinot, showed "22,000 cattle; 7600 horses; 46,000 swine; 2,500 sheep; 2,488 spinning wheels; 172 wagons; 2,943 ploughs; 31 grist-mills; 62 blacksmith shops; and 18 schools and ferries." In 1827 the Cherokees had even adopted a written constitution patterned after the Constitution of the United States.[5]

Thus the Indians whom Jackson sought to remove by his proposed legislation of 1829 were neither "savage" nomadic wanderers nor naive political amateurs. Soon it became clear that they were not likely to capitulate and voluntarily emigrate as Jackson hoped. The tribe had made an historic compromise by which they sought to preserve their tribal identity, their political autonomy, and their sovereign status through adaption of Indian and white institutions. And they were prepared to use those institutions, including the United States courts, to remain in Georgia.

A number of events culminated in the Georgia-Cherokee crisis of 1829. Georgia would not tolerate the establishment, within her geographic boundaries, of a separate political unit such as the Cherokee Nation with a written constitution, a legislative body enacting laws, and a judicial system enforcing Cherokee tribal laws. In addition, gold was discovered in north Georgia on land which was legally the domain of the Cherokee Nation. Furthermore, the election of Andrew Jackson brought a westerner, an ally, to the White House. Therefore, in 1829, the people of Georgia demanded of President Jackson full implementation of the Georgia Compact of 1802, whereby the federal government agreed to extinguish Indian titles within the state boundaries. To assist in bringing pressures for removal the state of Georgia adopted a number of repressive acts depriving Indians of previously recognized rights including the opportunity to testify in court as well as legislation providing for a lottery for distribution to whites of Indian lands historically owned and presently occupied by the Cherokees. These were the measures of the state of Georgia which produced the cases of Cherokee Nation v. Georgia and Worcester v. Georgia.

The Indian Removal Policy proposed in Jackson's First Annual Message on December 8, 1829, had often been suggested. It offered for "consideration the propriety of setting apart an ample district west of the Mississippi, and without the limit of any State or Territory now formed, to be guaranteed to the Indian tribes as long as they shall occupy it." Another aspect of Jackson's plans would have allowed Indians to remain as private, individual citizens without any tribal or Indian rights subject to state law on an individually allotted piece of non-tribal land east of the Mississippi. Otherwise, all Indian land titles east of the Mississippi were to be extinguished, tribal government abolished, and the Indian tribes transported west. On May 28, 1830, after a bitter debate, an Indian Removal Act was passed which authorized the president to exchange lands in the west for those presently held by native tribes in states and territories in the east. Congress appropriated one-half million dollars for the purpose of negotiating treaties and effectuating the removal effort.[6]

The passage of a Jackson-sponsored removal act did not end the Indian debate but rather intensified the efforts of the Cherokees and their friends. The removal controversy became a major question in Jackson's reelection campaign of 1832 and the source of the famous conflict between President Jackson and Chief Justice John Marshall on the power of the courts.[7] Many Cherokees continued to hold to their hope even while soldiers drove them from their homes into the stockades and onto the Trail of Tears. Some refused to believe that the American people would allow this to happen. Until the very end, the Cherokees spoke out supporting their rights to resist removal and to continue to live in the ancestral homelands.

The Cherokee Cases Before the Supreme Court

The Cherokees after the legislative defeat turned to the Supreme Court for help. They were advised by Daniel Webster, Theodore Frelinghuysen, and Ambrose Spenser to hire eminent counsel; they suggested William Wirt. Wirt had been Attorney General when Jackson took office and was not asked to continue in that position, having run against "Old Hickory" in the 1832 campaign (see article, "The Many-Sided Attorney General," in YEARBOOK 1976).

In preparation for the case, Wirt had three important questions to answer: 1.) What were the Indians' legal rights? 2.) What type of case would get a hearing? 3.) What were the attitudes of the justices toward the Indian question?

To determine the legal rights of the Indians, Wirt carefully investigated the question. Wirt wrote to Judge Carr: "I took up the question of the right of Georgia to extend her laws over these people, read all the speeches in Congress pro and con, on the subject, the opinion of the President communicated to the Cherokees through the Secretary of War, in favour of the right of the State, and gave the whole case a thorough examination."[10] After this study, he prepared a lengthy opinion on the question. Wirt examined the Cherokee treaties, Indian court cases, the practice of European nations, United States Law, and the Constitution and came to the conclusion:

That, the law of Georgia which has been placed before me, is unconstitutional and vold. 1. Because it is repugnant to the treaties between the United States and the Cherokee nation. 2. Because it is repugnant to a law of the United States in 1802, entitled "an act to regulate trade and intercourse with the Indian tribes, and to preserve trade and intercourse with the Indian tribes, and to preserve peace on the frontiers.' 3. Because it is repugnant to the constitution, inasmuch as it impairs the obligation of all the contracts arising under the treaties with the Cherokees: and affects, moreover, to regulate intercourse with an Indian tribe, a power which belongs, exclusively to Congress.[11]

This extensive opinion was to form the basis for all future argumentation before the Supreme Court.

More by a process of elimination than anything else, Wirt would seek original jurisdiction for the Cherokees as a foreign state. However, he did have great doubts as to whether the Court would accept original jurisdiction.[12] He wanted and received legal opinions from a number of prominent lawyers, including Ambrose Spencer, Daniel Webster, Horace Binney, and James Kent, all agreeing that the Cherokees had a right to original jurisdiction. In preparation for the case, Wirt sought the answer to one more question: what were the attitudes of the justices toward the Indian question? He asked Judge Carr to find out Chief Justice Marshall's opinion. Wirt wrote Carr:

…tell him [Marshall] as I wish you to do, that there is no case yet depending, which involves a decision on them; but that, unless the opinions of the Supreme Court, as already pronounced, present it, there may be questions of a delicate and embarrassing nature to the Supreme Court, which may be prevented by a correct understanding of the full scope of the decisions heretofore pronounced. I would speak to him with the confidence of a friend, . . . and leave it to him to say, whether he would or would not be willing to come out with the expression of his opinion, so as to prevent embarrassment and mischeif. I cannot discover that there would be any impropriety either in his saying whether the principles I have mentioned are involved in the former decisions; or, what he may at present, think of these questions.[13]

Marshall did not give his legal opinion to Carr, but he did express his opinion on the question. Marshall wrote to Carr: "I have followed the debate in both houses of Congress with profound attention, and with deep interest, and have wished, most sincerely, that both the Executive and Legislative departments had thought differently on the subject. Humanity must bewail the course which is pursued, whatever may be the decision of policy."[14] This was encouragement to Wirt, for "he knew that the legal decisions of the Chief Justice usually followed his sympathies.[15]

The case of Cherokee National v. Georgia began on March 5, 1831 with the Cherokees' other lawyer, John Sergeant, asking for an injunction against the State of Georgia.

The injunction was ignored by Georgia.

The emotional nature of the subject was highlighted by the Cherokee delegation. They attended the trial looking "intelligent and respectable."[16] This deportment added weight to Wirt's argument that they were a foreign nation and not a band of savage Indians. The injustices against the Cherokees that Wirt talked about were made to seem true because of the crying of a member of the delegation, "he shed tears copiously during Mr. Wirt's address."[17] The Cherokee attended and cried at almost every important speech supporting their position; this show of tears was convenient, for it reinforced the plight of the Cherokees.

Wirt's argument discusses one important subject–the danger of non-enforcement of the Court's decision. Wirt wrote of this danger to his friend, Judge Carr: "With regard to the Supreme Court, the Attorney-General is reported to have said, that the State of Georgia would not respect their decision, if against them, but would go on to enforce their rights according to their own opinion of them; and after what has already passed, I should not be surprised if the President should co-operate with them and render the decision abortive, by forbidding the Marshal and people of the country from obeying it. On the other hand it is possible, (though not very probable,) that the President may bow to the decision of the Supreme Court, and cause it to be enforced; and that Georgia may sullenly acquiesce."[18] Wirt could have left this danger alone and waited to see if non-enforcement occurred, but he chose to attack it. He basically made three points, aimed at three different audiences.

1. To the Court he stated: "Shall we be asked (the question has been asked elsewhere) how this court will enforce its injunction, in case it shall be awarded? I answer, it will be time enough to meet that question when it shall arise. At present, the question is whether the court, by its constitution, possesses the jurisdiction to which we appeal. . . ."[19] This was a challenge for the Court to do their duty even if it meant a fight. By bringing this danger out in the open, he turns this disadvantage of a battle into the advantage of meeting a challenge to the integrity and power of the Court.

2. To the President he said: "If he refuses to perform his duty, the Constitution has provided a remedy."[20] Wirt, in effect threatened Jackson with impeachment if he refused to enforce the Court's decision. This declaration before the act would perhaps add weight to any impeachment movement, while making the President think twice before acting.

3. To the people he said: "I believe if the injunction shall be awarded, there is a moral force in the public sentiment of the American community which will, alone, sustain it and constrain obedience. At all events, let us do our duty, and the people of the United States will take care that others do theirs."[21] Wirt effectively sets forth what the people must do in case of nonenforcement–force the President.

Sergeant and Wirt in a balanced presentation clearly stated the Indians' case. Georgia in defense was equally clear. They did not appear. The choice not to speak spoke loudly; the Supreme Court had no jurisdiction over Georgia's internal affairs and Georgia was not bound by any decision. These views were expressed time and time again by her governors and legislature. If Georgia had appeared, it would have contradicted this position, while the failure to speak supported it. Georgia received another advantage by refusing to speak; the significance of the case was reduced. A one-sided debate is of less news value than a two-sided one. This was a continuation of the strategy, used in the congressional debates, to speak only when absolutely necessary. Georgia's aim was to reduce agitation, not to increase it. Georgia lost little by not appearing. The justices were bound to support their own interpretations of the constitution and they might vote in favor of Georgia even if she did not speak. Georgia used this speaking opportunity to a maximum by not speaking.

Of the seven judges who heard Cherokee Nation v. Georgia four rejected the Cherokees' arguments (John Marshall, William Johnson, John McLean, and Henry Baldwin), two upheld them (Smith Thompson and Joseph Story), and one was absent (Gabriel Duvall).

The case was decided on the issue Wirt and Sergeant feared most: did the Supreme Court have original jurisdiction? Wirt wrote to his wife shortly before the trial expressing his concern on this question: "I feel rather despondent about my poor Indians– not that I have the slightest doubt of the justice of these claims on the United States, but that I fear the Supreme Court may differ with me as to the extent of their jurisdiction over the subject. . . ."[22] Most of the argumentation of Wirt and four-fifths of Sergeant's was directed at this point. They had effectively analyzed the case, but there was one weakness in the syllogism which formed the basis for their reasoning. They viewed the Indians as either a state or a foreign nation.

John Marshall in his opinion presented another alternative with which they had not dealt. Marshall believed the Indians to be a "domestic dependent nation." Thus, the major premise of their syllogism was seen as false and the decision, against the Cherokees, was by a court divided four to two. The actual decision might better be described as two-two-two, with Marshall and McLean holding that the Indians did not have original jurisdiction but they were states with rights, Baldwin and Johnson deciding that the Cherokees were not a state and having few rights, and Story and Thompson concluding that the Cherokees had original jurisdiction as a foreign state and supporting their political rights.[23]

Three decisions were read in court on the day the decision was given. Marshall was first, supposedly speaking for the Court. His decision, while against the Indians, was far from discouraging. He spoke of the points won by Wirt and Sergeant: "[Their] argument as was intended to prove the character of the Cherokees as a state, as a distinct political society, separated from others, capable of managing its own affairs and governing itself, has, in the opinion of a majority of the judges, been completely successful."[24] Marshall even went as far as to encourage another case: "The mere question of right might perhaps be decided by this Court in a proper case with proper parties."[25] Marshall in this opinion gave the legal decision he felt compelled to give, but in his explanation he went far to give an opposite view. His opinion supported the Cherokees to such a degree that Justice Baldwin (who voted with the majority) called himself a dissenting judge.[26]

Baldwin's and Johnson's opinions were clear presentations of Georgia's claim to sovereignty over the Indian lands. They did not view the Indians as having any claim to the title of foreign nation. Their arguments were powerful, well supported legal opinions.

Thompson, however, wrote an opinion which was inserted into the proceedings as if it had been delivered. In addition, Thompson had the opportunity to examine the other decisions and then refute them. His opinion followed the exact organization of Sergeant's speech and included many of the same arguments used by Wirt and Sergeant. Richard Peters (court reporter) included this opinion in the official report of the Court. He also printed a separate volume on the case including the legal opinion of James Kent (pro-Cherokee), the treaties with the Cherokees, the Federal Intercourse Act of 1802, the Georgia Indian laws, and the opinions of the justices including Thompson's undelivered opinion.[27] Through these publications and the press, the northern public received a different view than they would have if they had been in court to hear the decisions.

The arrest and conviction of the Cherokee missionary, Samuel A. Worcester, gave Wirt and Sergeant the case in Worcester v. Georgia that they hoped would support the Indians' rights.[28] There no longer was a question of jurisdiction because Worcester was a citizen of the United States. The Supreme Court could rule on the merits of this case and not have to be concerned with jurisdiction.

The opening arguments in the case of Worcester v. Georgia were heard on February 20, 1832 with Wirt and Sergeant representing the Cherokees and no one representing Georgia. Sergeant and Wirt's main point was: "That the statute of Georgia under which the plaintiffs in error were indicted and convicted, was unconstitutional and void."[29] The Cherokee lawyers argued that the laws were unconstitutional because they violated the Constitution, laws, and treaties of the United States. Although only a summary of these speeches remains, the supporting arguments were probably about the same as in The Cherokee Nation v. Georgia. Wirt and Sergeant cited many of the court decisions, laws, treaties used in the first trial. That Sergeant presented a reasoned approach and Wirt a more emotional one can be seen from review of the case by the New York Daily Advertiser:

Sergeant's argument was equally creditable to the soundness of his head and the goodness of his heart. The belief was, when he had resumed his seat, that he had left little or no ground for Mr. Wirt to occupy. Were I to judge from Mr. Wirt's speech today, I should say that the subject is inexhaustible. He spoke until after three o'clock, and was obliged, from fatigue, to ask the Court to adjourn. So interesting was the subject, so ably did he present it to the Court, that in addition to the number of gentlemen and ladies, who attended from curiosity, so many of the members of the House reported to the Courtroom that an adjournment was moved. . . .[30]

Wirt's conclusion was so emotional that Chief Justice Marshall shed tears, something he had not done since the Dartmouth College case.[31]

The Court ruled in favor of the missionaries, thus upholding the rights of the Cherokees. Marshall spoke for the five-one majority in what was applauded as of the most brilliant and eloquent decisions ever rendered. Justice Black called it "one of Marshall's most courageous and eloquent opinions."[32] Albert J. Beveridge said it was one of the noblest Marshall ever wrote.[33] It deserves this praise because of the elaborate and extensive explanations and proofs in addition to its eloquent passages. Marshall drew heavily on Wirt's first written argument, the speeches of Wirt and Sergeant, and the opinion of Justice Thompson in the Cherokee case.

Marshall picked from these the best proofs and arguments and culled the rest. He gave a historical review of Indian-white relations from first discovery to the present, showing that: "The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of Congress. The whole intercourse between the United States and this nation, is, by our Constitution and laws, vested in the government of the United States."[34] Apparently Marshall was giving the decision he wished he could have delivered in the Cherokee case.

Justice McLean also delivered a decision supporting the missionaries. However, he felt the Indians' rights were temporary and thought the best policy might be one of removal. Justice Johnson was absent and would have, no doubt, dissented. Justice Baldwin did dissent, but on the technical grounds that "the record was not properly returned upon the writ of error. . . ."[35] He did not deliver an opinion because he did not want his opinion to "go to the public simultaneously with that of the Court. Lest it might be open to the imputations of having a tendency to impair the weight of the decision and mandate in Georgia."[36] Baldwin's decision not to speak was, in effect, support of the Court and the Indians.

The ultimate pragmatic victory in this case went to Georgia. The arguments which they supported by not speaking proved to be the strongest; they refused to support the decision to free the missionaries. The Macon Advertiser on March 13, 1832 fairly well sums up the battle: "They [the missionaries] have been placed where they deserved to be, in the State Prison, and not all the eloquence of a Wirt, or a Sergeant, nor the decision or power of the Supreme Court can take them from it unless the State chooses to give them up, which, at this time is very improbable."[37]

The effect of the failure to enforce the court decisions was disastrous. The missionaries, the most active and vocal group in support of the Cherokees, decided the cause was lost and so advised the Cherokees to remove. The desertion of the American Board of Foreign Mission is typical. "On Christmas Day of 1832," Starkey reports, "the American Board assembled in their rooms on Pemberton Square, Boston. They had a heavy decision to make. They read Worcester's letter [from a Georgian prison asking for advice on a pardon] and reviewed the whole history of the Cherokees versus the state of Georgia; then each gave his opinion. When these were tabulated they found that they were in agreement on two points: Worcester and Butler might now honorably seek pardon; the Cherokees must be advised that hope had ended; they must remove."[38]

Worcester and Butler had been informed that any time they would stop legal action against Georgia they would be released. After hearing of the Christmas Day decision of the American Board, they applied for pardon. They wrote Governor Lumpkin on January 8, 1833: "We have this day forwarded instructions to our counsel to forbear the intended motion, and to prosecute the case no farther."[39] On January 15, the prisoners headed home to their mission.

Individual desertions were also significant. Both Edward Everett and Senator Frelinghuysen who had spoken so eloquently in the defense came. to the conclusion that the Cherokees had to move on westward. Frelinghuysen wrote to a friend, "I think removal is best."[40] The power base of northern money and agitation had crumpled and the Cherokees learned at first-hand the perfidy of their liberal friends. Even the once unified Cherokee resistance to removal had ended by 1833 when such anti-removal leaders as Elias Boudinot, The Ridge, and John Ridge were openly advocating that after the President's failure to enforce the decision in Worcester v. Georgia the reality of national power politics had doomed the Cherokee resistance effort.

The tragedy of continued resistance and the prospect of a Trail of Tears was seen by the great Cherokee leader, The Ridge, whose prophecy was ignored. This internal spilt is not the result of disloyalty but traceable to the tragic realization that if the Supreme Court decision in Worcester v. Georgia was not to be upheld then there was no protection against the tyranny of the removal forces. Elias Boudinot expressed this attitude in the Cherokee Phoenix, July 3, 1830. "We are glad to find the determination of the Cherokees to bring their case before the Supreme Court meets with [approval]. We will merely say that if the highest judicial tribunal in the land will not sustain our rights and treaties we will give up and quite our murmurings." The impending crisis is forecast in another Boudinot Cherokee Phoenix editorial of March 5, 1831. "The Cherokees are for justice and they are trying to obtain it in a peaceable manner by a regular course of law. If the last and legitimate tribunal decides against them, as honest men they will submit and 'the agony will be over.' Will Georgia be as honest and submit to her own (U.S.) courts?"

To say the Cherokees cause was lost because of the desertions is to look to effect and not cause since the reasons for failure are the reasons for the desertions. Jackson's re-election was a major factor in creating the view of the removal fight as a lost cause. Many of the political friends of the Cherokees, seeing the Indian cause as one which did not have significant voter support, stopped their agitation. The re-election of Jackson was even a factor in the decision of missionaries Worcester and Butler to seek release. They wrote The Missionary Herald explaining why they accepted a pardon: "There was no longer any hope, by our perseverance, of securing the rights of the Cherokees, or preserving the faith of our country. The Supreme Court had given a decision in our favor, which recognized the rights of the Cherokees; but it still rested with the Executive Government, whether those rights should be protected, and it had become certain that the Executive would not protect them."[41]

Another reason for the lessened interest in the Cherokee cause was the rise of a more important and crucial sectional issue: nullification. In late 1832 the country's attention turned to the danger of disunion as a result of fighting over the tariff question. South Carolina claimed the right to nullify any Federal law with which they disagreed. While Georgia's actions were virtual nullification, the difference in the two cases was how Jackson treated them. Jackson supported Georgia and fought South Carolina. The immediate practical result for the Cherokees was that many of those who supported the Indians on removal abandoned them to join Jackson in his efforts to save the Union. One might clearly see that the Cherokee cause was finally lost when Jackson delivered a toast at a birthday dinner in honor of Thomas Jefferson. Jackson electrified the country when he expressed sentiments echoing the Northern line from many an anti-removal speech and sounding more like a speech of Daniel Webster's: "Our Federal Union–it must be preserved."[42]

On November 24, 1832, a convention in South Carolina passed the famous Nullification Ordinance. Jackson responded with his Nullification Proclamation expressing a strong nationalistic philosophy, supporting the right of Congress to establish protection, denying the constitution is a compact of sovereign states, and announcing that a state has no right to secede. Many of those most opposed to his Cherokee policy rallied to his support. Daniel Webster, who just a few months before had condemned the President for his support of Georgia, now spoke in favor of Jackson at a meeting in Faneuil Hall, a favorite meeting place for pro-Indian groups. Webster said: "I regard the issuing of this Proclamation by the President as a highly important occurrence. The general principles of the Proclamation are such as I entirely approve. I esteem them to be the true principles of the Constitution."[43] J. T. Austin, another political opponent of Jackson, declared at the same meeting: "laying aside all private feelings, we are ready, in this trial, to rally round the Chief Magistrate of the Union; with one heart and voice, we stand ready to support him, as the Israelite upheld the arm of Moses.[44]

Worcester's decision to seek a pardon was based partially on the danger to the Union from South Carolina. "[Worcester] had discovered that those who urged him to surrender were friends of the Union; nullifiers hoped he would persist, for the effect was to swing the state to the support of South Carolina."[45] Jackson even received the support of Supreme Court Justice Joseph Story. Story had been the strongest supporter of the Cherokees, holding for them even in The Cherokee Nation vs. Georgia. Story wrote Richard Peters: "The President's proclamation is excellent and contains the true principles of the Constitution."[46] Story also wrote home that he and Chief Justice Marshall "were to be counted among the president's warmest supporters."[47] He even recounted how, at a state dinner, "President Jackson specially invited me to drink a glass of wine with him. . . . Who would have dreamed of such an occurrence?"[48]

The Cherokees could not believe what was happening. In an editorial the Cherokee Phoenix asked: "What do the good people of the United States think of the distressed condition of the Cherokees? Is their attention so completely engrossed in their own private affairs that they cannot even find time to shed a tear at the recollection of such accumulated oppressions heaped upon their fellow creatures? Has the cause of the Indians have been swallowed up in other questions, such as the tariff. . . ."[49] What the Cherokees did not understand was that it was not that their friends did not care about the Indian. When Story, Marshall, and Webster, were presented with the clear choice of supporting Jackson and the Union or opposing Jackson and supporting the Indians, the choice was for the Union.

Endnotes

1. Andrew Jackson, First Annual Message to Congress, December 8, 1829, in Francis Paul Prucha (ed.), Documents of United States Indian Policy (Lincoln: University of Nebraska Press,, 1975), 47-48.
2. Grant Foreman, The Five Civilized Tribes (Norman: University of Oklahoma Press, 1934), 282. For an account of the general removal issuse from the viewpoint of a number of tribes see Gloria Jahoda, The Trail of Tears: The Story of the American Indian Removal, 1813-1855 (New York: Holt, Rinehart, and Winston, 1975).
3. Typical of these studies are the following: Annie Abel, "The History of Events Resulting in Indian Consolidation West of the Mississippi," Annual Report of the American Historical Association for the Year 1906 (1908), 233-450; Louis Filler and Allen Guttman (eds.), The Removal of the Cherokee Nation: Mainfest Destiny or National Dishonor? (Boston: D. C. Heath & Co., 1962); Grant Foreman, Indian Removal (Normal: University of Oklahoma Press, 1932); Ronald N. Satz, American Indian Policy in the Jackson Era (Lincoln: University of Nebraska Press, 1975); Dale Van Every, Disinherited: The Last Birthright of the American Indian (New York: William Morrow and Co., 1966); Thurman Wilkins, Cherokee Tragedy: The Story of the Ridge Family and the Decimation of a People (New York: The Macmillan Co., 1970). Special attention is called to the controversial revision in Francis Paul Prucha, "Andrew Jackson's Indiana Policy: A Reassessment," The Mississippi Valley Historical Review, 48 (March 1962), 635-55. The national perspective is the focus of an interesting dissertation Philip John McFarland, "The Removal of the Cherokee Indians From the State of Georgia, 1824-1835: An Analysis of Rhetorical Strategies," Ph.D. Dissertation, Stanford University, 1973.
4. A brief overview of tribal history is presented in Earl Boyd Pierce and Rennard Strickland, The Cherokee People (Phoenix: Indian Tribal Series, 1973). For a more detailed general history of the Cherokees the reader should consult the following: John Brown, Old Frontiers: The Story of the Cherokee Indians (Kingsport, Tenn.: Southern Publishers, 1938); Jack Gregory and Rennard Strickland (eds.), Starr's History of the Cherokees (Muskogee, Oklahoma: Indian Heritage Association, 1968); Henry Thompson Malone, Cherokees of the Old South: A People in Transition (Athens: University of Georgia Press, 1956); Charles C. Royce, The Cherokee Nation of Indians (Washington: Government Printing Office, 1887); Marion L. Starkey, The Cherokee Nation (New York: Alfred A. Knopf, 1946; Morris L. Wardell, A Political History of the Cherokee Nation (Norman: University of Oklahoma Press, 1963).
5. Elias Boudinot, An Address to the Whites Delivered in the First Presbyterian Church on the 26^th of May 1826 (Philadelphia: William F. Geddes, 1826) and Rennard Strickland, "From Clan to Court: Development of Cherokee Law," Tennessee Historical Quarterly, 31 (Winter 1972), 316-27.
6. Prucha, Documents, 47-48; Indian Removal Act, May 28, 1830, 4 United States Statutes-at-Large 411-412, cited in Prucha, Documents, 52-53. For a collection of speeches from the debates see Jeremia Evarts (ed.), Speeches on the Passage of the bill for the Removal of the Indians Delivered in Congress of the United States, April and May, 1830 (Boston: Perkins and Marvin, 1830) and generally Registry of Debates in Congress (Washington: Gales and Seaton, 1828-1832) passim.
7. See Anton-Hermann Chroust, "Did President Jackson Actually Threaten the Supreme Court with Nonenforcement of its Injunction Against the State of Georgia?" American Journal of Legal History 5 (January 1960), 76-78; Joseph C. Burke, "The Cherokee Cases: A Study in Law, Politics, and Morality." Stan. L. Rev, 21 (1969) 500-531: William F. Swindler, "Politics as Law: The Cherokee Cases," American Indian Law Review, III (1975), 7-20.

10. Burke, "Cherokee Cases," 508.
11. Letter from Wirt to Carr, in Kennedy, 255.
12. Burke, "Cherokee Cases," 511.
13. Kennedy, 258.
14. Burke, "Cherokee Cases," 510.
15. Joseph Charles Burke, "William Wirt: Attorney General and Constitutional Lawyer" (Ph.D. Dissertation, Indiana University, 1965), 148.
16. Boston Patriot (Boston, Mass.) March 23, 1831.
17. Ibid.
18. Kennedy, 255.
19. Richard Peters, ed., The Case of the Cherokee Nation Against the State of Georgia (Philadelphia: 1831), 153.
20. Ibid., 155.
21. Ibid.
22. Letter from Wirt to Mrs. Wirt, February 10, 1831, in Burke, "William Wirt," 251.
23. Burke, "Cherokee Cases," 517.
24. 5 Peters, 15.
25. Ibid., 19.
26. Ibid., 32 and 40.
27. Peters, Case of the Cherokee Nation, passim.
28. 6 Peters, 515. The case of Elizur Butler, another missionary, was also being heard at the same time.
29. 6 Peters, 534.
30. New York Daily Advertiser, February 27, 1832.
31. Burke, "William Wirt," 261.
32. Patricia Behlar, "The Constitutional Status of Indian Tribes: An Essay on the Doctrine of Tribal Sovereignty" (Master's Thesis, Louisiana State University, 1968), 33.
33. Albert J. Beveridge, The Life of John Marshall, IV, (Boston: Houghton Mifflin Company, 1919), 549.
34. 6 Peters, 560-61.
35. 6 Peters, 595.
36. The Georgia Messenger (Macon, Georgia) April 7, 1832.
37. Macon Advertiser (Macon, Georgia) March 13, 1832.
38. Starkey, Cherokee Nation, 205.
39. Jack Kilpatrick and Anna Gritts Kilpatrick (eds.), New Echota Letters (Dallas: Southern Methodist University Press, 1968), 117.
40. Cherokee Phoenix (New Echota), January 4, 1833.
41. Kilpatrick & Kilpatrick, New Echota Letters, 215.
42. A. S. Colyar, Life and Times of Andrew Jackson (Nashville: Marshall and Bruce Company, 1904), 710.
43. Boston Patriot, December 19, 1832.
44. Ibid.
45. Starkey, Cherokee Nation, 205.
46. Cited in John Dunne, "Joseph Story: The Age of Jackson," Missouri Law Review 34 (1969), 326.
47. Ibid.
48. Ibid.
49. Cherokee Phoenix (New Echota), July 7, 1832.