In 1832, the U.S. Supreme Court issued its final ruling in Worcester v. Georgia. This ruling, a legal victory for the Cherokee Nation, concluded that the state of Georgia could not extend its jurisdiction over Cherokee lands. On paper, at least, this ruling halted Georgia’s attempts to seize Cherokee territory. In reality, Georgia did not care about the Supreme Court ruling, and the federal government under Andrew Jackson did not enforce the Court’s decision. Instead the federal government pressured the Cherokee Nation to sign a treaty that would cede all of their lands and arrange for their removal west of the Mississippi River.
On December 29, 1835, nineteen Cherokee men signed the agreement that became known as the Treaty of New Echota. Under the terms of this treaty, the Cherokee Nation appeared to surrender to the demands of Georgia and the federal government. Yet the men who signed the treaty did not have the authority to do so, and the elected Cherokee government protested the terms of the accord. Despite these objections, the U.S. Senate ratified the Treaty of New Echota on May 23, 1836. Principal Chief John Ross and other members of the Cherokee Nation government sent the following message to Congress one month later.
To the honorable the Senate and House of Representatives of the United States of North America in Congress assembled:
The undersigned representatives of the Cherokee nation, east of the river Mississippi, impelled by duty, would respectfully submit for the consideration of your honorable body, the following statement of facts: It will be seen, from the numerous subsisting treaties between the Cherokee nation and the United States, that from the earliest existence of this Government, the United States, in Congress assembled, received the Cherokees and their nation into favor and protection; and that the chiefs and warriors, for themselves and all parts of the Cherokee nation, acknowledged themselves and the said Cherokee nation to be under the protection of the United States of America, and of no other sovereign whatsoever…. Little did they anticipate, that when taught to think and feel as the American citizen, and to have with him a common interest, they were to be despoiled by their guardian, to become strangers and wanderers in the land of their fathers, forced to return to the savage life, and to seek a new home in the wilds of the far west, and that without their consent. An instrument purporting to be a treaty with the Cherokee people, has recently been made public by the President of the United States, that will have such an operation, if carried into effect. This instrument, the delegation aver before the civilized world, and in the presence of Almighty God, is fraudulent, false upon its face, made by unauthorized individuals, without the sanction, and against the wishes, of the great body of the Cherokee people. Upwards of fifteen thousand of those people have protested against it, solemnly declaring they will never acquiesce….
If it be said that the Cherokees have lost their national character and political existence, as a nation or tribe, by State legislation, then the President and Senate can make no treaty with them; but if they have not, then no treaty can be made for them, binding, without and against their will. Such is the fact, in reference to the instrument entered into at New Echota, in December last. If treaties are to be thus made and enforced, deceptive to the Indians and to the world, purporting to be a contract, when, in truth, wanting the assent of one of the pretended parties, what security would there be for any nation or tribe to retain confidence in the United States? If interest or policy require that the Cherokees be removed, without their consent, from their lands, surely the President and Senate have no constitutional power to accomplish that object. They cannot do it under the power to make treaties, which are contracts, not rules prescribed by a superior, and therefore binding only by the assent of the parties. In the present instance, the assent of the Cherokee nation has not been given, but expressly denied. The President and Senate cannot do it under the power to regulate commerce with the Indian tribes, or intercourse with them, because that belongs to Congress, and so declared by the President, in his message to the Senate of February 22, 1831, relative to the execution of the act to regulate trade and intercourse with the Indian tribes, &c. passed 30th of March, 1802. They cannot do it under any subsisting treaty stipulation with the Cherokee nation. Nor does the peculiar situation of the Cherokees, in reference to the States, their necessities and distresses, confer any power upon the President and Senate to alienate their legal rights, or to prescribe the manner and time of their removal….
If the Cherokees have power to judge of their own interests, and to make treaties, which, it is presumed, will be denied by none, then to make a contract valid, the assent of a majority must be had, expressed by themselves or through their representatives, and the President and Senate have no power to say what their will shall be, for from the laws of nations we learn that “though a nation be obliged to promote, as far as lies in its power, the perfection of others, it is not entitled forcibly to obtrude these good offices on them.” Such an attempt would be to violate their natural liberty. Those ambitious Europeans who attacked the American nations, and subjected them to their insatiable avidity of dominion, in order, as they pretended, for civilizing them, and causing them to be instructed in the true religion, (as in the present instance to preserve the Cherokees as a distinct people,) these usurpers grounded themselves on a pretence equally unjust and ridiculous. It is the expressed wish of the Government of the United States to remove the Cherokees to a place west of the Mississippi. That wish is said to be founded in humanity to the Indians. To make their situation more comfortable, and to preserve them as a distinct people. Let facts show how this benevolent design has been prosecuted, and how faithful to the spirit and letter has the promise of the President of the United States to the Cherokees been fulfilled — that “those who remain may be assured of our patronage, our aid, and good neighborhood.” The delegation [of Cherokees] are not deceived by empty professions, and fear their race is to be destroyed by the mercenary policy of the present day, and their lands wrested from them by physical force; as proof, they will refer to the preamble of an act of the General Assembly of Georgia, in reference to the Cherokees, passed the 2d of December, 1835, where it is said, “from a knowledge of the Indians character, and from the present feelings of these Indians, it is confidently believed, that the right of occupancy of the lands in their possession should be withdrawn, that it would be a strong inducement to them to treat with the General Government, and consent to a removal to the west, and whereas, the present Legislature openly avow that their primary object in the measures intended to be pursued, are founded on real humanity to these Indians, and with a view, in a distant region, to perpetuate them with their old identity of character, under the paternal care of the Government of the United States; at the same time frankly disavowing any selfish or sinister motives towards them in their present legislation.” This is the profession. Let us turn to the practice of humanity, to the Cherokees, by the State of Georgia. In violation of the treaties between the United States and the Cherokee nation, that State passed a law requiring all white men, residing in that part of the Cherokee country, in her limits, to take an oath of allegiance to the State of Georgia. For a violation of this law, some of the ministers of Christ, missionaries among the Cherokees, were tried, convicted, and sentenced to hard labor in the penitentiary. Their case may be seen by reference to the records of the Supreme Court of the United States….
Source: “Memorial and Protest of the Cherokee Nation,” H.R. Doc. No. 286, 24th Cong., 1st Sess. (1836), 17–20.
Evaluating the Evidence