[Note: In Part 1 of this post, we looked at the development of the political philosophy of “state rights” in Georgia. Originally a product of–what else?–the Yazoo Land Fraud, the concept of “state rights” subsequently was developed by Georgia Congressman–and, later, Governor–George M. Troup. Troup used “state rights” to justify opposition to the Yazoo Land Fraud, while he was a member of Congress in the 1790s. When he became Governor of Georgia in the 1820s, however, Troup stretched “state rights” to buttress the state’s long-running effort to oust the Creeks. But, of course, the Creeks were one of two Native American tribes with land claims in Georgia, the other being the Cherokees.
Moreover, according to John C. Calhoun of South Carolina, the idea of a “protective tariff” also violated “state rights,” which led him to concoct a more detailed approach to defending “southern rights” against an overreaching national government, Nullification. Relations between the states of Georgia and South Carolina and the government in Washington were about to get very “interesting,” especially once Calhoun became Vice-President under the newly-elected President–and ardent nationalist–Andrew Jackson.]
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When it became clear that Georgia had won the tussle over Creek lands by 1827, the editor of a Milledgeville newspaper crowed that the Cherokees’ turn had come. Although they had made several land cessions to the federal government since 1802, the Cherokees still retained about five million acres in 1819 and refused to cede additional territory. Georgia authorities called upon the federal government to remove the tribe by force, in accordance with the terms of the “Compact of 1802.” Georgia’s new governor, John Forsyth, even predicted to Democratic heavyweight Martin van Buren in February 1828 that “our State affairs with the General Government as far as it regards Indian lands will be arranged satisfactorily to us.”
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Meanwhile, the Cherokee Nation was becoming “civilized,” as the whites understood that term. The tribe abandoned hunting for farming; some began to produce crops for market, and the largest Cherokee planters even owned slaves. In the early 1820s, the Cherokees adopted an alphabet, laying the basis for a written language, written laws, and, in 1828, a tribal newspaper, the Cherokee Phoenix, edited by Elias Boudinot, a Cherokee.
Moreover, in 1827, the Cherokees also adopted a written republican constitution modeled on that of the United States. This outraged white Georgians, who charged that it was intended to create a state within a state, and, thus, was an unacceptable attack on Georgia’s sovereignty. Georgia continued to insist that the federal government must fulfill the Compact of 1802 by securing Cherokee lands, or the state would be forced to act unilaterally, as it had against the Creeks.
In 1828, the discovery of gold in the Cherokee Nation and the election to the presidency of Andrew Jackson, who supported Georgia’s Indian policy, brought the question of Cherokee removal into the open.
In 1829, the Cherokee National Council made any cessions of tribal land without Council permission a capital offense. In December, Georgia reasserted sovereignty over Cherokee territory, annexing and extending Georgia laws over it; prohibiting their Tribal Council from meeting in Georgia (except to cede lands); forbidding Indian mining of gold found on Cherokee lands; and requiring an oath of allegiance to Georgia from all whites living in the Cherokee Nation, to weaken the influence of Christian missionaries there. These provisions were to go into effect in June 1830.
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By mid-1829, thanks largely to news and editorials originally published in the Cherokee Phoenix, public opinion outside the South was harshly critical of Georgia’s heavy-handed Indian policy and of President Jackson’s support of it. Once Congress, at Jackson’s urging, passed the Indian Removal Act in May 1830, aligning the executive and legislative branches of the national government with Georgia and against the Cherokees, the tribe’s last chance lay with the federal judiciary.
In February 1830, a Georgia newspaper explicitly linked Indian removal to state rights in a long editorial. If the federal government decided that Georgia had no power over the Cherokees, the editor wrote, then the “rights and sovereignty of the States are destroyed, and the federal government becomes omnipotent by swallowing up all the powers which the States regained when they confederated [during the era of the American Revolution–through the Articles of Confederation, the nation’s ‘first constitution,’ which of course was eventually replaced by the more famous ‘Constitution of the United States,’ thanks to the Philadelphia Convention in the summer of 1787].”
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A few months later, when the Cherokees’ legal counsel asked Georgia Governor George Gilmer to support the tribe’s effort to have the Supreme Court determine their status under the Constitution, Gilmer was furious, thundering that for him to do so could only “be considered disrespectful to the Government of the State.”
When the Marshall court finally came down on the side of the Cherokees in the case of Worcester v. Georgia (1832), President Jackson refused to enforce its ruling. Georgia had a new governor by then, Wilson Lumpkin. Upon taking office in November 1831, Lumpkin had written Jackson, suggesting that the proper approach to the Cherokees “must partake largely of a military character, and consequently be more absolute and despotic than would be admissible, or necessary” in a more civilized area. (So much for the Cherokee effort to adopt white standards of “civilization” as their own!) The President responded to Lumpkin after the Worcester ruling, repeating what he’d already told members of the state’s congressional delegation: Georgia must do nothing to give the federal courts an opening to intervene on behalf of the Cherokees.
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At a time when South Carolina threatened to nullify the tariff on state rights grounds, and Georgia rejected the Supreme Court’s pro-Cherokee Worcester decision for the same reason, critics concluded that there really was no difference between the Palmetto State’s “Nullification” and Georgia’s “State Rights.” A writer in a pro-Jackson Milledgeville paper responded that Georgians could distinguish between “nullifying a general law of Congress [South Carolina] and declining obedience to an extra judicial act of the Supreme Court [Georgia].” (Perhaps, but could anyone outside of Georgia?)
Still, until Andrew Jackson met John C. Calhoun’s challenge, it was possible, at least in Georgia, simultaneously to oppose Nullification and defend State Rights.
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President Jackson adopted a “carrot and stick” approach to South Carolina’s actions. First, in December 1832, he issued the Proclamation to the People of South Carolina, declaring nullification unconstitutional and secession, its logical outcome, treason. Congress also passed a “Force Bill,” empowering the President to use the army and navy to collect the tariff if necessary. At the same time, President Jackson offered conciliation, asking Congress to reduce tariff rates further.
The South Carolina legislature charged Jackson with acting out of personal hostility towards the state (and their senior statesman Calhoun) and challenged him to use force to collect the tariff. The Palmetto State legislature also accused the President of inconsistency towards assertions of state rights: although rejecting Carolina’s Nullification of the tariff, the President condoned Georgia’s “state rights” defiance of the Supreme Court’s 1832 Worcester decision.
Senator Henry Clay of Kentucky reworked Jackson’s tariff bill into the Compromise Tariff of 1833, which was passed by Congress a few days before the introduction of the Force Bill. It would gradually lower tariff rates until, by 1842, the maximum levy would be 20%. These measures ended the crisis. South Carolina accepted the Compromise Tariff and rescinded its nullification ordinance.
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Jackson’s Proclamation to the People of South Carolina rang like a thunderclap across the South, and revolutionized state politics in Georgia. The Troup and Clark parties, each of which included some members attracted to Calhoun’s Nullification scheme and others opposed to it, dissolved; two new parties formed: the Union Party, pro-Jackson and anti-Nullification; and the State Rights Party, pro-Nullification and anti-Jackson.
A Milledgeville newspaper claimed that, once a copy of the President’s South Carolina proclamation arrived in Georgia, a state representative suggested that Union Party Governor Wilson Lumpkin should pardon Cherokee missionaries imprisoned for refusing to sign a loyalty oath to Georgia; otherwise, he argued, Old Hickory might regard their continued incarceration as “treason” and use the Force Act against the state. A few weeks later, Governor Lumpkin did pardon the missionaries, a decision his opponents attacked as “a most extraordinary act of Executive prerogative” that aided “those who have dug the grave of State Rights.”
Yet, when Governor Lumpkin, like his gubernatorial predecessors, John Forsyth and George Gilmer, refused to allow Georgia even to be represented by counsel before the Supreme Court in yet another case involving the Cherokees, his political opponents sneeringly accused him of “nullifying” the Worcester decision, while supporting President Jackson’s hard-line response to South Carolina’s effort to nullify the tariff.
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By that time also, John Ridge, a member of the Cherokee delegation lobbying in Washington, had heard from Cherokee supporters, and read in formerly pro-Cherokee newspapers, that the tribe had no hope of staving off emigration. President Jackson himself had told Ridge that, although the Cherokees could certainly try to remain in the East, the national government would do nothing to aid them.
As a result, John Ridge concluded that removal to the West was inevitable, and that the Cherokees must conclude a treaty on the best possible terms. He, his father Major Ridge, and his cousin, Cherokee Phoenix editor Elias Boudinot, soon organized the “Treaty Party,” to arrange that pact.
In December 1835, the Treaty Party signed the Treaty of New Echota, exchanging Cherokee lands in Georgia for territory west of the Mississippi. Although the Treaty Party represented only a minority of the Cherokees, both President Jackson and the state of Georgia, for what I trust are obvious reasons, accepted the agreement as legitimate.
The end of the Indian removal crisis came in the winter of 1838-1839, when most remaining eastern Cherokees moved across the Mississippi along the infamous “Trail of Tears,” during which an estimated 4000 to 5000 died, all, in a sense, victims of “state rights.” As a bloody epilogue to removal, in June 1839 several groups of Cherokees executed Major Ridge, John Ridge, and Elias Boudinot for their part in arranging the Treaty of New Echota.
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Assessing the role of “state rights” and “Nullification” in the removal of the Creeks and the Cherokees from Georgia is a complicated undertaking.
The story opened with the Yazoo land fraud in the mid-1790s and Congressman George Troup’s state rights-based response to it; considered Yazoo’s impact on Georgia’s relations with the Creeks in the 1820s, and how Governor George Troup revised his state rights theory to include Creek removal; shifted to the South’s concern over the protective tariff in the late 1820s and early 1830s, and, especially, South Carolinian John C. Calhoun’s elaborate theory of Nullification in answer to it; and, finally, looked at how the furor over Nullification affected Georgia’s political parties and the state’s relations with the Cherokees in the 1830s.
It is a sordid story, but one that lies at the root of the development of Georgia, the South, and the nation in the decades before the Civil War.
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For those interested in reading more of my reflections on history, here are links to my books on the subject: