To Raise Up an Interesting Commonwealth: Jackson's Reaction to Worcester and Nullification
by Jeff Mather - 11 August 2000

In 1832 political observers witnessed two very different reactions by Andrew Jackson to state rejection of federal authority. In one incident, the state of Georgia was allowed to ignore the United State's Supreme Court's decision in Worcester v. The State of Georgia, in which the Court ruled that Georgia could not extend its laws over the Cherokee nation. Although the case would stand as legal precedent, Georgia's refusal to follow the Court's decision emboldened states' rights advocates throughout the South. Encouraged as well by President Jackson's hands-off response to Georgia's assertion of states' rights, South Carolina attempted to nullify the federally enacted "tariff of abominations." However, unlike the tacit support Jackson gave Georgia in the Worcester case, he was openly and vehemently hostile to the South Carlina legislature's nullification of federal policy.

Some historians partial to Jackson have argued that there are real differences between Georgia's reaction to Worcester and the nullification crisis, and that Jackson was not merely acting capriciously by responding to the two problems in a seemingly contradictory way. In 1899 William G. Sumner argued in Jackson's favor:

The Georgia case involved only indirectly the authority and prestige of the federal government. The immediate parties in interest were the Indians. Nullification involved directly the power and prestige of the federal government, and he would certainly be a most exceptional person who, being President of the United States, would allow the government of which he was the head to be defied and insulted.(1)

This argument is flawed, however, because Sumner neglects the importance of the Supreme Court in the federal government; defiance of a ruling of the nation's highest federal court is an attack on the federal government's prestige. Instead of looking for a difference in quality between Worcester and nullification in order to explain the contradictions in Jackson's behavior, it is more instructive to look at the agenda he brought to his presidency: The nullification crisis contradicted the nationalist system Jackson was trying to create, while the removal of the Cherokee aided it.

The political will to remove Native Americans to west of the Mississippi existed since the Jefferson presidency. In 1802 Jefferson promised to extinguish tribal land titles within Georgia if the state would cede its western land claims to the federal government, which it did. In 1804 Congress extended the removal policy to the whole of the trans-Appalachian region, authorizing the President "to stipulate with any Indian tribes owning lands on the east side of the Mississippi . . . for an exchange of lands, the property of the United States, on the west side."(2) Exchange and removal were nominally voluntary, although many tribes moved only after the army failed to defend them rigorously against encroachment and harassment by white settlers. By 1828 while most tribes of the Old Northwest had removed westward, those living in Georgia and the Gulf states had not.

The Georgia legislature saw this disparity as a slight against it and resolved that "the policy which has been pursued by the United States toward the Cherokee Indians has not been in good faith toward Georgia."(3) President John Quincey Adams used federal troops to maintain what Georgia's Senator Wilson Lumpkin called "territorial embarrassments," and the state overwhelmingly supported Jackson in the presidential election of 1828.(4) Jackson promised to make Indian removal a national priority, and he did not disappoint.(5) In his first annual message to Congress, Jackson urged the removal of the remaining Native Americans on humanitarian grounds. Jackson claimed that when previous administrations simultaneously advocated land cessions and attempted to assimilate, or "civilize," the tribes, they created a dangerous contradiction that turned the Native Americans into a "wandering" people. The pressure to cede land usually forced them to move, while policies of assimilation tried to keep them static once they were relocated. Jackson professed concern that the tribes would be driven to extinction by the continual upheaval: "Humanity and national honor demand that every effort should be made to avert so great a calamity."(6)

However, in areas where the tribes had resisted ceding their lands and had successfully adopted white culture, the tribes thrived and were especially reluctant to leave. Jackson noted that the Cherokee, "having mingled much with the whites and made some progress in the arts of civilized life, have lately attempted to erect an independent government within the limits of Georgia and Alabama." Evidently the successes of assimilation policies toward the native people roused Jackson more than the failures did. Pretensions to Indian sovereignty would not be tolerated because they would eventually lead to the dissolution of the Union. According to Jackson, if tribal sovereignty were affirmed "it will follow that the objects of this Government are reversed, and that it has become a part of its duty to aid in destroying the States which it was established to protect." In a strong endorsement of states' rights, Jackson asserted "there is no constitutional, conventional, or legal provision which allows [Georgia and Alabama] less power over the Indians within their borders than is possessed by Maine or New York."(7) Jackson ignored the fact that tribes in Maine and New York had for various reasons already ceded their lands to their respective states, while the Cherokee had treaties in place with the United States that recognized the Cherokee's aboriginal title to the land and effectively gave the Cherokee Nation sovereign status.(8)

Despite these treaties, after Jackson's address Georgia wasted little time before extending the power of its laws over the Cherokee. In the state's opinion, state control of Cherokee lands was an absolute necessity even if the tribe remained because they intended to use their power to restrict the tribe to a smaller area; complete removal, however, was their ultimate aim. The white yeomanry needed a place into which they could expand because farmers had overworked the Georgia low-country and available land was scarce. Settlers would be able to obtain new land through Georgia's land lotteries at a ninety percent discount of federal prices, but as long as the land remained outside of state control it was exempt from apportionment. Additionally, gold recently had been discovered in the region. A popular song of the time expressed the prevailing political mood: "All I ask in this creation / Is a pretty little wife and a big plantation / Way up yonder in the Cherokee Nation."(9)

On December 19, 1829--only eleven days after Jackson's address--Georgia passed an act that proclaimed,

All laws, ordinances, orders, and regulations of any kind whatever, made, passed, or enacted by the Cherokee Indians, either in general council or in any other way whatever, or by any authority whatever of said tribe, be, and the same are hereby declared to be null and void and of no effect, as if the same had never existed.

The same law also made it illegal for the council and members of the tribe to interfere in the ceding of land to the state and provided that "no Indian . . . shall be deemed a competent witness in any court of this state to which a white person may be a party."(10) The tribe was stripped not only of its sovereign status but was also prevented from suing in state court to challenge the law and protect its land.

Three challenges to the law came before the U.S. Supreme Court in as many years. In December 1830, the Court ordered Georgia to appear before it to explain why the conviction of George Tassel by the Hall County Superior Court should stand. Tassel, a Cherokee, killed another Cherokee on tribal territory and was tried under Georgia law. According to treaties which were still in effect between the Cherokee and the federal government, Tassel was immune from state prosecution and should have been tried in federal court. Earlier in 1830, however, Georgia's Judge Clayton refused to allow grand juries to remove criminal cases to the federal courts, citing the 1829 extension of Georgia sovereignty over tribal lands. When the Supreme Court ordered Georgia to explain why the conviction should not be overturned, the Georgia legislature prevented Governor George R. Gilmer from appearing. On December 28, 1830, Tassel was hanged, rendering moot further action by the Court.(11) Though indecisive regarding conflicting Georgia and Cherokee sovereignty, this event foreshadowed a larger crisis between Georgia and the Supreme Court.

After ruling in Cherokee Nation v. The State of Georgia (1831) that it did not have original jurisdiction to hear a suit filed by an Indian nation, the Court finally decided to review Georgia's 1829 law in Worcester v. Georgia.(12) In 1832 Samuel A. Worcester, along with other missionaries sent by a Boston benevolent aid society, was sentenced to four years of hard labor for breaking a Georgia law that forbade whites from entering Cherokee territory without first proclaiming loyalty to the state. Worcester appealed for relief from the Supreme Court, which again issued a writ of error and summoned Georgia to appear as it had in the Tassel case. Although Georgia again refused to respond, the Court decided the case anyway. Writing for the majority, Chief Justice John Marshall affirmed that only the federal government had the power to make and enforce laws over Native American nations. The Georgia act was "void, as being repugnant to the constitution, treaties, and laws of the United States."(13) In response to the decision George M. Troup, a Georgia Senator, spoke for his constituents who "receive with indignant feelings, as they ought, the recent decision of the supreme court, so flagrantly violative of their sovereign rights."(14) Claims of states' rights fill the rhetoric of Georgia's supporters; Judge Clayton's remarks were typical of his fellow statesmen and echoed his concern about the contraction of state government: "I only require the aid of public opinion and the arm of the executive authority . . . and no court on earth besides our own shall ever be troubled with this question." Recently elected governor Lumpkin said Georgia was "sustaining the sovereignty of her state."(15) Furthermore, it is argued that Georgia was simply following the precedent started by Jackson when he was in the army; at that time

Jackson fully supported the extension of state authority. He and his fellow treaty commissioners had often threatened tribes with unilateral state or federal action if they refused to cede their lands. President Jackson told Congress, "Years since I stated to them my belief that if the states chose to extend their laws over them it would not be in the power of the federal government to prevent it."(16)

Georgia refused to release Worcester, and President Jackson--notably a career Indian fighter--refused to enforce the Court's decision, implicitly giving his support to state nullification of the federal decision.

Encouraged by these developments, South Carolina sought to reap the political benefits that Georgia had sown.(17) Ever since Congress passed a comprehensive tariff in 1828, a states' rights movement had been gaining strength in South Carolina where across-the-board duties angered advocates of free trade. South Carolinians were eager to believe Senator Troup's statement that Jackson would "defend the sovereignty of the states, as he would the sovereignty of the union."(18) Displeasure within the state continued to mount and eventually spilled forth onto the political landscape in 1830 when Vice President John C. Calhoun, a South Carolinian, stated, "May we always remember that [liberty] can only be preserved by distributing equally the benefits and the burdens of Union." Like Georgia, South Carolinians felt that they were unfairly singled out by federal policy, and their rhetoric throughout 1832 demonstrated that they were willing to apply the same states' rights arguments in their opposition to that policy. When a new tariff with lower rates was passed in July 1832, the Governor of South Carolina called a special session of the legislature, which voted in November to unilaterally nullify the law because it did not go far enough toward protecting South Carolina's interests.(19)

South Carolinians, who had expected the President to behave as he had with respect to Worcester, were stunned when Jackson denounced nullification as an attack on the union and prompted Congress to pass the Force Bill, which gave the President power to enforce the tariff using military force. Eventually the two sides avoided conflict when, in March 1833, South Carolina agreed to allow normal customs collections. The prospect of a new tariff with lower rates helped ease South Carolinians' chagrin, but they continued to maintained that nullification was within their rights.(20)

Jackson's strong response to nullification demonstrates that strengthening cohesion within the union was a primary component in his nationalist thinking. In this respect his action toward South Carolina is, in fact, consistent with his inaction in the Worcester case. Indian removal was critical to Jackson's vision of a democratic society because he viewed the presence of tribes as anti-national.(21) Consistent with the doctrine laid out in his first address to Congress, Jackson maintained that sovereign nations within the states were agents corrosive to national unity: "[Removal] puts an end to all possible danger of collision between the authorities of the General and State Governments on account of the Indians." Removal would allow tribes "to raise up an interesting commonwealth" free from white settlement, but more importantly removal allowed "the extinction of one generation to make room for another."(22) On the other hand, South Carolina's nullification of the tariff threatened the close integration of the states into a federal system that Jackson was advocating.

The federal system envisioned by Jackson was one in which the Executive branch appeared to have the preponderance of power. Although strict adherence to the duties of his office imposed by the constitutionally mandated separation of powers required him to enforce the Supreme Court's ruling, Jackson believed that the Constitution gave him implicit power to override decisions of the Court. His critics, of whom Virginia Senator John Tyler was just one, complained that "the Presidential power swallows up all power."(23) Instead of mobilizing the forces under his command to enforce the Worcester decision, Jackson apparently felt the decision was undeserving of his enforcement, so he willed it to be beyond his control: "The decision of the supreme court has fell still born. . . . The arm of the Government is not sufficiently strong to preserve [the Indians] from destruction."(24) This opinion was echoed by Georgia lawmakers who, Sumner notes, held that "all three departments of the federal government must concur in holding a State law to be unconstitutional in order to set it aside."(25) On the other hand, by opposing the tariff, South Carolina went the other way nullifying a federal legislative act and, more importantly, the Executive's will. Jackson, therefore, was willing to act to the full extent of his powers to enforce state compliance with a federal law.

Because Jackson was willing to sacrifice the Court's decision in Worcester to serve his nationalist policies, the Cherokee became subject to the whims of Georgia lawmakers who clambered louder than ever for the extinction of Cherokee title. At Georgia's request, Jackson removed all federal troops from the Cherokee territory, which came fully under the state's influence. When James Graves brought a mirror image of the Tassel case before the United States Supreme Court in 1834, Governor Lumpkin issued even stronger language than before: "Such attempts, if persevered in . . . will eventuate in the dismemberment and overthrow of our great confederacy. . . . I shall . . . to the utmost of my power, protect and defend the rights of the State." The Georgia legislature concurred, arguing that the "residuary mass of sovereignty which is inherent in each State" allowed it to disregard federal law.(26) The tribe held out as long as they could, but harassment by white squatters impelled a minority faction of the Nation to sign the Treaty of New Echota, ceding all of their land to the state in 1836. The forced removal of the Cherokee two years later by federal troops resulted in the devastating Trail of Tears and fulfilled Jackson's dream of providing the "arrangements for the physical comfort and moral improvement of the Indians."(27)




Notes

1. William Graham Sumner, Andrew Jackson, ed. John T. Morse, Jr., 32 vols., vol. 17, American Statesmen (Cambridge, MA: Houghton, Mifflin and Company, 1899) 260.

2. John M. Coward, The Newspaper Indian: Native American Identity in the Press (Urbana: University of Illinois Press, 1999) 66-7.

3. Ulrich Bonnell Phillips, "The Expulsion of the Cherokee," in The Removal of the Cherokee Nation: Manifest Destiny or National Dishonor?, ed. Louis Filler (Lexington, Mass.: D.C. Heath and Company, 1962), 5.

4. Wilson Lumpkin, "Message to Georgia Legislature," in Filler 81; and William Graham Sumner, Andrew Jackson 224.

5. Mary Hershberger, citing Vice President Martin Van Buren, argues that removal was the top priority of the first Jackson administration ("Mobilizing Women, Anticipating Abolition: The Struggle against Indian Removal in the 1830's," The Journal of American History 86, no. 1 (1999).)

6. Andrew Jackson, "Condition and Ulterior Destiny of the Indian Tribes (December 8, 1829)," in Filler 15,17.

7. Ibid., 16.

8. Phillips, "The Expulsion of the Cherokee,", 2-5.

9. Louis Filler and Allen Guttmann, eds., The Removal of the Cherokee Nation: Manifest Destiny or National Dishonor?, Problems in American Civilization (Lexington, Mass.: D.C. Heath and Company, 1962) 18.

10. "Land Policies and the Georgia Law of December 19, 1829," in Filler.

11. Sumner, Andrew Jackson 225-26.

12. John Marshall, "The Cherokee Nation v. The State of Georgia," in Filler. The case can be found in 30 US 1 (1831)

13. John Marshall, "Worcester v. The State of Georgia," in Filler. The case can be found in 31 US 515 (1832).

14. George M. Troup, "The Sovereignty of the States," in Filler.

15. Phillips, "The Expulsion of the Cherokee," 7,10.

16. Michael Paul Rogin, Fathers and Children: Andrew Jackson and the Subjugation of the American Indian (New York: Alfred A. Knopf, 1975) 213.

17. Sumner, Andrew Jackson 259.

18. Troup, "The Sovereignty of the States".

19. Robert A. Divine et al., America Past and Present, 5 ed., 2 vols., vol. 1 (New York: Longman, 1999) 300-01,04-6.

Sumner, Andrew Jackson 327.

20. Divine et al., America Past and Present 306.

21. Filler and Guttmann, eds., Removal of the Cherokee Nation 9.

22. Jackson, "Condition and Ulterior Destiny of the Indian Tribes (December 8, 1829)" 17; and Andrew Jackson, "Indian Removal and the General Good," in Filler 49.

23. Rogin, Fathers and Children 267.

24. Ibid., 218.

25. Sumner, Andrew Jackson 227.

26. Phillips, "The Expulsion of the Cherokee," 11.

27. Andrew Jackson, Seventh Annual Message to Congress [WWW] (1835 [cited 07/19/2000 2000]); available from http://www.pbs.org/weta/thewest/wpages/wpgs620/removal.htm.




Bibliography

Coward, John M. The Newspaper Indian: Native American Identity in the Press. Urbana: University of Illinois Press, 1999.

Divine, Robert A., T. H. Breen, George M. Fredrickson, and R. Hal Williams. America Past and Present. 5 ed. 2 vols. Vol. 1. New York: Longman, 1999.

Filler, Louis, and Allen Guttmann, eds. The Removal of the Cherokee Nation: Manifest Destiny or National Dishonor?, Problems in American Civilization. Lexington, Mass.: D.C. Heath and Company, 1962.

Hershberger, Mary. "Mobilizing Women, Anticipating Abolition: The Struggle against Indian Removal in the 1830's." The Journal of American History 86, no. 1 (1999): 15-40.

Jackson, Andrew. "Condition and Ulterior Destiny of the Indian Tribes (December 8, 1829)." In The Removal of the Cherokee Nation: Manifest Destiny or National Dishonor?, edited by Louis Filler, 14-17. Lexington, Mass.: D.C. Heath and Company, 1962.

------. "Indian Removal and the General Good." In The Removal of the Cherokee Nation: Manifest Destiny or National Dishonor?, edited by Louis Filler, 49-52. Lexington, Mass.: D.C. Heath and Company, 1962.

------. Seventh Annual Message to Congress [WWW]. 1835 [cited 07/19/2000 2000]. Available from http://www.pbs.org/weta/thewest/wpages/wpgs620/removal.htm.

"Land Policies and the Georgia Law of December 19, 1829." In The Removal of the Cherokee Nation: Manifest Destiny or National Dishonor?, edited by Louis Filler, 18-21. Lexington, Mass.: D.C. Heath and Company, 1962.

Lumpkin, Wilson. "Message to Georgia Legislature." In The Removal of the Cherokee Nation: Manifest Destiny or National Dishonor?, edited by Louis Filler, 80-82. Lexington, Mass.: D.C. Heath and Company, 1962.

Marshall, John. "The Cherokee Nation v. The State of Georgia." In The Removal of the Cherokee Nation: Manifest Destiny or National Dishonor?, edited by Louis Filler, 61-65. Lexington, Mass.: D.C. Heath and Company, 1962.

------. "Worcester vs. The State of Georgia." In The Removal of the Cherokee Nation: Manifest Destiny or National Dishonor?, edited by Louis Filler, 69-78. Lexington, Mass.: D.C. Heath and Company, 1962.

Phillips, Ulrich Bonnell. "The Expulsion of the Cherokee." In The Removal of the Cherokee Nation: Manifest Destiny or National Dishonor?, edited by Louis Filler, 1-13. Lexington, Mass.: D.C. Heath and Company, 1962.

Rogin, Michael Paul. Fathers and Children: Andrew Jackson and the Subjugation of the American Indian. New York: Alfred A. Knopf, 1975.

Sumner, William Graham. Andrew Jackson. Edited by John T. Morse, Jr. 32 vols. Vol. 17, American Statesmen. Cambridge, MA: Houghton, Mifflin and Company, 1899.

Troup, George M. "The Sovereignty of the States." In The Removal of the Cherokee Nation: Manifest Destiny or National Dishonor?, edited by Louis Filler, 79. Lexington, Mass.: D.C. Heath and Company, 1962.