After the Trail of Tears

The Cherokees' Struggle for Sovereignty, 1839-1880

William G. McLoughlin

• Publisher: The University of North Carolina Press
• Year: 2014
• Print ISBN: 9780807844335, 9780807821114
• eBook ISBN: 9781469617343
• Topic: History
• Subtopic: North American History
• Index: History

This powerful narrative traces the social, cultural, and political history of the Cherokee Nation during the forty-year period after its members were forcibly removed from the southern Appalachians and resettled in what is now Oklahoma. In this master work, completed just before his death, William McLoughlin not only explains how the Cherokees rebuilt their lives and society, but also recounts their fight to govern themselves as a separate nation within the borders of the United States. Long regarded by whites as one of the 'civilized' tribes, the Cherokees had their own constitution (modeled after that of the United States), elected officials, and legal system. Once re-settled, they attempted to reestablish these institutions and continued their long struggle for self-government under their own laws — an idea that met with bitter opposition from frontier politicians, settlers, ranchers, and business leaders. After an extremely divisive fight within their own nation during the Civil War, Cherokees faced internal political conflicts as well as the destructive impact of an influx of new settlers and the expansion of the railroad. McLoughlin brings the story up to 1880, when the nation's fight for the right to govern itself ended in defeat at the hands of Congress.

1: Removal and the Politics of Reunion, 1838–1839

Resolved that… the inherent sovereignty of the Cherokee Nation… shall continue to be in perpetuity.
—Resolution adopted at Aquohee Camp Council, Tennessee, August 1, 1838

By 1838, when the Cherokees were about to be forcibly expelled from their homeland, they had acquired a strong sense of history. They made abundantly clear to the world their own perspective on this bleak moment in their experience. Ten years earlier they had begun their effort to oppose removal by asserting their right as a sovereign nation to adopt a constitution (based on that of the United States) and to govern their own land under their own laws and elected officials. At the same time, the sovereign state of Georgia had asserted its right to abolish the Cherokee Nation and incorporate its people under its laws. Andrew Jackson was elected in 1828 to resolve this dilemma. He sided with Georgia, supporting a state’s right to supersede treaty rights. The question came before the U.S. Supreme Court twice: in 1831 in Cherokee Nation v. Georgia, Chief Justice John Marshall described the Cherokees as “a domestic, dependent nation”; a year later, in Worcester v. Georgia, he asserted the unconstitutionality of Georgia’s laws, asserting the supremacy of federal authority over states’ rights with regard to Indian treaties. However, Andrew Jackson had already persuaded Congress to pass a law in 1830 that made it virtually impossible for any eastern tribe to escape ceding its land and moving to what was called “Indian Territory” west of the Mississippi River. When a small group of Cherokees, with no official standing in their nation, signed a treaty at New Echota in 1835 agreeing to sell their homeland and move west, Jackson’s party in the Senate ratified it, and he signed it.¹

Chief John Ross was thunderstruck by Jackson’s denial of Marshall’s decision and the treachery of the U.S. Senate. He urged his people to resist by every means short of violence Jackson’s efforts to carry out the terms of the fraudulent treaty. For a time public opinion in the United States, especially among churchgoers in the northeastern states, supported the Cherokees’ resistance. Ralph Waldo Emerson (among many others) protested to President Martin Van Buren in April 1838, declaring, “You, sir, will bring down that renowned chair in which you sit into infamy if your seal is set to this instrument of perfidy, and the name of this nation, hitherto the sweet omen of religion and liberty, will stink to the world.”²

Van Buren, like Jackson, paid no heed to these objections, and a month after Emerson’s plea, he ordered the U.S. Army into the Cherokee Nation to round up at bayonet point every Cherokee man, woman, and child. The army placed them in stockades guarded by soldiers until such time as plans were completed for sending them 800 miles to their new homeland in what is now northeastern Oklahoma. The Cherokees did not resist. Throughout the summer, as they languished in their hastily built relocation camps, they suffered hundreds of deaths from epidemics of dysentery, “bilious fever,” measles, and whooping cough. The only concession they won was the right to have their own leaders, not the army, conduct them over the “Trail of Tears” at the end of the summer.

On August 1, 1838, the eve of their departure, a great council of the people was held at Aquohee Camp in eastern Tennessee. Here they met to assert the injustice of their removal and their inalienable right to sovereignty and self-government under their treaties with the United States. Though only a handful of white soldiers and officials witnessed this historic event, it marked a critical point in the still unresolved history of Native American—white relations in the United States. The sick, bedraggled, and dispossessed Cherokees who, between 1794 and 1830 had undergone an astonishing transformation from hunters to farmers, from an illiterate to a literate people, asserted their determination to endure and to make no concessions to the false treaty that had cost them their ancient homeland. Andrew Jackson, and most white Americans, believed that the Indians were doomed to extinction because they were inherently incapable of competing with the Anglo-Saxon race. Jackson had explained his removal program as a benevolent effort to give the eastern Indians one last chance to assimilate and give up their Indian ways: “Surrounded by our settlements,” he had told Congress in December 1833, these Indians “have neither the intelligence, the industry, the moral habits nor the desire of improvement which are essential to any favorable change in their condition. Established in the midst of another and a superior race, and without appreciating the causes of their inferiority or seeking to control them, they must necessarily yield to the force of circumstance and ere long disappear.”³ Across the Mississippi, he said, they might yet survive for a while.

John Ross, their popularly elected chief, was only one-eighth Cherokee by ancestry, but ever since being chosen to membership in the National Council in 1817, he had dedicated himself to sustaining Cherokee sovereignty.⁴ A short, wiry man, called “Tsan Usdi” (Little John) and later “Cooweescoo-wee” by the traditionalists or “full-bloods” who were his chief supporters, Ross had learned much from his white father and grandfather (traders and businessmen married into the nation) about how to cope with white officials. In 1827 he had been elected principal chief, and for the next decade he led the Cherokees’ determined efforts to hold onto the land of their ancestors. At Aquohee Camp in August 1838, he stood before the assembled men, women, and children of the nation and asked them to reaffirm their belief that the Cherokee Nation was not dead and would never die. For the next forty years, even through the bitter divisions of the Civil War, Ross never wavered in this belief. He led the nation to a miraculous revitalization in their new homeland after the Trail of Tears and started them on a new revitalization in 1865.

The resolutions presented and approved at this meeting asserted four fundamental conceptions that the Cherokees held of their status: first, that they retained their sovereignty despite Georgia’s effort to denationalize them; second, that they retained the ownership of their homeland despite the false treaty ratified by the Senate; third, that this treaty had no validity and must eventually be repudiated by the United States and renegotiated in good faith with the official representatives of the Cherokee people; and fourth, that their duly elected leaders, as well as their constitution and written laws, remained in full effect and their duly elected officials continued to exercise their offices. In short, fraud and force might remove them to the West, but the rights, integrity, and institutions of the Cherokee Nation remained unchanged. For the conservative Cherokees, these resolutions also affirmed the continuity of the ancient traditions, customs, and values of their forefathers as well as those new laws adopted since their military defeat by the United States in 1794.

The first resolution at Aquohee began: “Whereas the title of the Cherokee people to their lands is the most ancient, pure and absolute known to man, its date is beyond the reach of human records, its validity confirmed and illustrated by possession and enjoyment antecedent to all pretense of claim by any other portion of the human race.” It went on to state that this title could not, by Cherokee law, be alienated by the act of an illegal treaty, hence “it follows that the original title and ownership of the said lands rest in the Cherokee Nation unimpaired and absolute.”⁵

The resolutions went on to hold the United States responsible for “all damages and losses, direct and indirect, resulting from the enforcement of the… pretended treaty of New Echota.” Under this treaty, the United States had agreed to pay for any “improvements” the Cherokees had made to the land— cultivated fields, farmhouses, barns, stables, corncribs, orchards, fences, ferries, gristmills, sawmills, blacksmith shops, inns, and taverns—but the “indirect” damages from illness, deaths, and the hardships of starting over again from scratch in a new land and climate were not considered. The government had agreed to pay for the costs of removal, but the estimates were never reconciled. Inadequate Cherokee removal payments were still being supplemented by Congress in the 1890s.⁶

The most controversial resolutions, and those that were to cause the Cherokees the most trouble in the next seven years of readjustment, arose out of the confusion created by an already existing Cherokee government in the West established by previous emigrants known as “western Cherokees.” Ever since 1794 small groups of Cherokees had moved across the Mississippi. At first they settled along the St. Francis, White, and Arkansas rivers in what is now Arkansas. Over 1,000 Cherokees moved to that area in 1810–11 and another 2,000 or more in 1819 as a result of encroaching whites and forced land cessions in the East. In 1828, the federal government made a treaty with these western Cherokees, and in 1832 it moved them to the northeastern corner of present-day Oklahoma with the hope that they could entice the whole tribe to join them. Over the years the western Cherokees had adopted their own chiefs and laws. After 1835, another 2,000 Cherokees of the Removal party had joined them. At the time of the Aquohee Camp Council, there were about 5,000 Cherokees in the West and 14,000 in the East. The Cherokees were thus divided into three factions by 1838: the western Cherokees (later called the Old Settlers), the Removal (or Treaty) party, and the Patriot (or Ross) party. In 1819, the eastern Cherokees had formally disowned as expatriates those Cherokees who moved west and refused to recognize them as a separate Cherokee Nation. Members of the Removal party, sometimes called the Ridge-Boudinot party (after the names of its leading figures, John Ridge, his father, Major Ridge, and his cousin, Elias Boudinot), were even more bitterly disowned as traitors by the Patriot party. In fact, under Cherokee law, those who willfully sold Cherokee land without obtaining the approval of the National Council were subject to execution for treason.

Those who wrote the false treaty in 1835 neglected to specify in any of its clauses just how these three factions were to unite and govern themselves in the West once they were all living within the same boundaries. Because the United States was willing to let the Cherokees choose their own leaders, make their own laws, create their own constitution, and manage their own affairs in their new homeland, it left the means of uniting these factions to the Cherokees themselves. Those in the West in 1838 constituted only one-third of the tribe; even assuming that the Removal party members were now allied with them, it would hardly do for their chiefs and laws and council to remain in power once the 14,000 emigrants from the ancient homeland arrived. Furthermore, the westerners had no constitution and had adopted very few written laws. Many of them had gone west specifically to avoid the kind of acculturation that took place in the East between 1794 and 1830. Consequently, to protect their own constitution, laws, and elected officials, the eastern Cherokees adopted the fourth resolution at Aquohee: “And whereas the natural, political and moral relations subsisting among the citizens of the Cherokee Nation toward each other and towards the body politic cannot, in reason and justice, be dissolved by the expulsion of the nation from its own territory… Resolved, therefore, that the inherent sovereignty of the Cherokee Nation [that is, the easterners], together with its constitution, laws and usages of the same are in full force and virtue and shall continue in perpetuity.” In short, the Patriot party asserted that the eastern Cherokees (constituting “the Cherokee Nation”) remained a coherent body politic and would continue to do so after they arrived in the West.⁷ How exactly the body politic of the western Cherokees and that of the eastern Cherokees were to coexist remained to be worked out once the emigration was completed. It proved to be such an intractable, tendentious process that it led to seven years of internal guerrilla war. In fact, the removal crisis so divided the Cherokees that they did not find real unity until after the Civil War, if then. Nonetheless, it is hard to imagine what other stand the eastern Cherokees could have taken. The Aquohee resolutions were overwhelmingly endorsed by those at the council.

While the extent of acculturation among the eastern Cherokees between 1800 and 1830 was remarkable, it would not be accurate to say that those in the West were traditionalists while those in the East were assimilated. Most western Cherokees were farmers even though the presence of deer and buffalo allowed those who wished to sustain a hunting economy of sorts. The 2,000 who went west between 1835 and 1838 and who willingly accepted the leadership of the westerners were as acculturated as those who fought removal to the bitter end—perhaps more so, for the traditionalists or full-bloods were among the most strenuously opposed to removal and they constituted over three-fourths of the Cherokees in 1830.⁸ The divisions that split the nation after 1832 were ideological and political, not the result of divisions between “civilized” and “traditional” or “Christian” and “pagan” Cherokees.

The term “nation” was first given to Indian peoples by the Europeans. Prior to the eighteenth century, the Cherokees, like most tribes, had a highly decentralized political system in which local or town chiefs and councils made most of the political decisions. For their own reasons, the Europeans tried to force the tribes into nationalist centralization under one chief (“king” or “emperor”), one council, one process of majority rule. While the Cherokees resisted this, they came to realize after 1794 the necessity of “speaking with one voice” in order to avoid the divide-and-conquer policies of the United States. The adoption of the Cherokee Constitution of 1827 represented recognition that centralization was as necessary in diplomacy as sovereignty was in self-government.

White frontier dwellers, who surrounded the Cherokees after 1794, displayed such animosity and prejudice toward Indians that the federal policy of assimilating them seemed impossible. Once detribalized, they would not be treated as equals by whites. The laws that Georgia passed after 1828 making Cherokees who lived in that state citizens against their will also denied them equal rights. Georgia’s laws placed Indians in the same political category as freed slaves—without the right to vote, to hold office, to serve in the militia, to attend white schools, or to testify against whites in the courts. (However, they could own property and engage in trade and business, they could be taught to read and write, and they could be tried in white courts and were subject to the same penalties as whites.) In short, once they lost their sovereignty, they were doomed to become second-class citizens—a caste of “colored” people. By 1828, the same racist theory that ruled out equality for Africans in the young republic was also applied to Indians. Hence nationalism among the Cherokees, as well as the demand for sovereignty (self-government under their own laws and chiefs and with communal ownership of land guaranteed by the federal government), was in part an effort to use the European concept of nationhood to defend their freedom and their land base.

The revitalization of the Cherokee people after their defeat in 1794 was one of the great success stories of Indian reformers in the years prior to removal. No other tribe had become so rapidly acculturated, “Christianized,” and “civilized.” Far from displaying the lack of intelligence, industry, moral discipline, and desire for improvement that Jackson considered innate in the “inferior” red race, the Cherokees, within a single generation, had created a social, economic, and political order so prosperous, stable, and progressive that it rivaled those of most of the frontier regions on their borders. They had given up a hunting economy for a farming economy. They had adopted written laws and a constitution. They had divided their country into eight electoral districts; every two years they elected representatives...

Table of contents

• Cover Page
• After the Trail of Tears
• Copyright Page
• Dedication
• Contents
• Maps
• Introduction
• Epigraph
• 1: Removal and the Politics of Reunion, 1838–1839
• 2: Stalemate and Terrorism, 1841–1846
• 3: Economics and Traditionalism, 1846–1855
• 4: Public Education and the Struggle for Independence, 1846–1860
• 5: Cherokee Slaveholding and Missionary Antislavery Efforts, 1846–1855
• 6: The Start of the Keetoowah Revolt, 1858–1861
• 7: The Cherokees Abandon Neutrality for Unity, 1861
• 8: The Civil War in the Cherokee Nation, 1862–1865
• 9: Reconstruction and National Revitalization, 1866–1870
• 10: Free Enterprise and “the Indian Question,” 1867–1872
• 11: The Loss of Social Coherence, 1872–1875
• 12: The Full-Blood Rebellion of 1875
• 13: The Twilight of Cherokee Sovereignty, 1875–1879
• Epilogue: The End of Sovereignty, 1880–1907
• Notes
• Index