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Conduct of Georgia.-Case of George Tassel.-Resolutions of State Legislature.-Survey of the Cherokee Territory.-Proceedings of State Legislature.-Co-operation of the Federal Government.-Occupation of the Cherokee Country.-Arrest of Missionaries.-Condemnation and Imprisonment of.-Process in Supreme Court of United States.-Judgment of Court.-Change in mode of paying Indian Annuities.-Treaty with the Cherokees.-Proceedings of Senate.-Motion in House on the Indian Relations. To reform mode of Distributing Annuities.
THE determination adopted by General Jackson, upon his accession to the Presidency, not to enforce the Indian intercourse act, whenever its provisions should bring the Government of the United States into collision with the State authorities, now began to produce the most unhappy consequences. Encouraged by the conviction, that they could proceed without molestation, the Government of Georgia commenced the execution of what it had only threatened, under the preceding administration. Its pretensions respecting the right of sovereignty and jurisdiction, having been sanctioned by the Federal Government, its course was thenceforth controlled only by its own ideas of propriety and expediency, and they were unfortunately too much perverted by passion and prejudice, to exert any efficient influence over the policy of the State. Shortly af
ter the period designated for the extension of the jurisdiction of the State, over the Cherokee territory, the writs of the State Courts were issued against residents in the Indian territory, and the Cherokees were tried before the State tribunals, without any regard being paid to their pleas to the jurisdiction of the Court before which they were summoned.
In the case of George Tassel, a Cherokee, charged with the murder of another Cherokee upon the Indian territory, an effort was made to procure the decision of the Supreme Court, upon the constitutionality of the State laws. After his trial and condemnation, by the Superior Court for Hall County, a writ of error was issued from the Supreme Court of the United States, and a citation was served upon Governor Gilmer, on the 22d of December, 1830, requiring the State of Georgia, to
appear before the Supreme Court, at Washington, on the second Monday of January, to shew cause why the judgment in that case should not be reversed. As the question in this cause was simply concerning the validity of the treaties between the United States and the Cherokee tribe, it was obviously within the jurisdiction of the Federal Judiciary, which by the 2d section of the third article of the Constitution, is declared to extend to all cases in law and equity, arising under this Constitution, the laws of the United States and treaties made or which shall be made under their authority.'
Governor Gilmer, however, regarding it as an usurpation of authority, immediately transmitted the citation to the legislature, with a message exhorting that body to take measures to resist any interference on the part of the Federal Judiciary, with the jurisdiction of the criminal Courts of the State.
Upon the reception of this message, the following resolutions were proposed by the committee to which the subject was referred, and were passed by the legislature.
After reciting the proceedings in the case, the report proceeded with the following preamble and resolutions:
Whereas, the right to punish crimes against the peace and good order of this State, in accordance with the existing laws, is an original and a necessary part of sovereignty, which the State of Georgia has never parted with:
Be it therefore resolved by the
Senate and House of Representatives, That they view with feelings of the greatest regret, the interference by the Chief Justice of the Supreme Court of the United States, in the administration of the criminal laws of this State, and that such an interference is a flagrant violation of her rights.
Resolved further, That his Excellency the Governor, be, and he and every other officer of this State, is hereby requested and enjoined, to disregard any and every mandate and process, that has been, or shall be, served upon him or them, purporting to proceed from the Chief Justice or any associate Justice, of the Supreme Court of the United States, for the purpose of arresting the execution of any of the criminal laws of this State.
And be it further resolved, That his Excellency, the Governor, be and he is hereby authorised and required, with all the force and means placed at his command, by the Constitution and laws of this State, to resist and repel any and every evasion from whatever quarter, upon the administration of the criminal laws of this State.
Resolved, That the State of Georgia, will never so far compromit her sovereignty as an independent State, as to become a party to the case sought to be made before the Supreme Court of the United States, by the writ in question.
Resolved, That his Excellency the Governor, be, and he is hereby authorised, to communicate to the Sheriff of Hall Coun
ty, by express, so much of the foregoing resolutions, and such orders as are necessary to ensure the full execution of the laws, in the case of George Tassel, convicted of murder in Hall county.' Orders were accordingly given to the Court and the Sheriff, to disregard any process from the United States Courts, and the execution of the unfortunate Indian, took place on the 28th of Lecember, pursuant to his sen
The death of George Tassel, the plaintiff in error, of course prevented any further proceedings upon the writ of error, and the punishment inflicted not being disproportioned to the offence, substantial justice was doubtless awarded by the State tribunals; still the unwillingness to submit the question of jurisdiction to the Supreme Court, the defiance of the authority of the Federal Judiciary, and the indecent haste with which the life of a human being was taken away, while his appeal was pending, all indicated the conscious weakness of the ground occupied by the State, augured unfavorably of its fidelity to the Union. The State Government did not, however, content itself with citing the Cherokees before the tribunals of Georgia, but also proceeded to authorise the survey and occupation of the Indian territory, with the view of distributing it by lot, among the citizens of Georgia.
A law was also passed, forbidding the holding of any legislative councils, or Judicial Courts among the Indians, and the exercise of any official authority on the part
of the native chieftains was prohibited, under the penalty of imprisonment; while with a marked inconsistency, the last section of that law authorised the chieftains to hold communication with the commissioners of the United States, in order to enable the Federal Government to go on and purchase the Indian territory by treaty.
Another law was enacted, declaring that no Cherokee should be bound by any contract, entered into with a white man, nor should he be liable to be sued on such contract.
A proclamation was also issued, prohibiting the digging of gold on the Indian lands, and the United States troops were, at first, ordered to co-operate in carrying into effect this law, by arresting the gold diggers and destroying their huts.
This movement on the part of the United States troops, was under the authority vested in the President, by the Indian intercourse act, of 1802; but this law also prohibited any encroachment on the Indian territory, and any further acquiescence in the validity of that law, would be inconsistent with the pretensions of Georgia. A communication, dated October 29, 1830, was accordingly addressed by the Governor to the President of the United States, requiring the withdrawal of the United States troops from the Indian territory, on the ground that the enforcement of the provisions of the law, under which they acted, was inconsistent with the rights of Georgia; that the legislature was then as
sembled for the purpose of extending the laws of the State over the Indian country; that the State Government was abundantly competent to preserve order within the Cherokee territory; and that as the object of ordering the troops there, was undoubtedly the preservation of the peace of the Union, and as in the execution of their duties they had punished in some instances, citizens of the State in violation of their rights, the Governor suggested that the most effectual mode of preventing any collision between the Federal and State Governments, was to remove the troops.
To this communication, the Secretary of War replied, November 10th, that the troops were ordered upon the approach of winter, to retire into winter quarters, because, as the Secretary added, it is expected that the emergency which induced the troops to enter the Indian country has ceased.' The troops were accordingly removed, and the Cherokees abandoned to the mercy of the State Government. Measures were at once adopted by the Governor, to enforce the pretensions of the State by a military force, which was sent to remove the gold diggers from the Cherokee country. A detachment of troops, or local standing army, raised by the State authorities, was accordingly despatched in the month of January, 1831, to drive off these persons, composed partly of Cherokees, and partly of white intruders upon their territory.
This object was accomplished without any serious opposition,
but the guard thought it necessary in the execution of their duty, to act as the police of the Indian country, and with their excited prejudices against the Cherokees, soon rendered their residence on their own territory inconvenient and even intolerable.
By the law, which authorised the appointment of a commissioner and guard, powers were given to them which enabled them to drive from the Cherokee tribe, all the white men to whom they had been in the habit of resorting, for advice and instruction.
This law required all white persons residing in the Cherokee country, to provide themselves with a permit from the Governor, and to take an oath of allegiance to the State, and declared all white persons residing there, without having complied with those requisites, to be punishable with imprisonment in the penitentiary for four years.
Under that law, Samuel Worcester, and five other white persons, who had long been residents in the Cherokee territory, were arrested by this guard in the month of March, and with a severity entirely uncalled for, were dragged before the Superior Court of Gwinnett county, for refusing to comply with this extraordinary law.
An objection was made to the Constitutionality of the law, but Judge Clayton, before whom they were arraigned, decided it to be in conformity with the Constitution, and ordered four of the defendants to be bound over to answer at the next term of the Court. Mr Worcester and John
Thompson, being missionaries, Much indignation was maniwere discharged, on the ground fested throughout the country at that they were exempted from this gross violation of personal the operation of the statute, as rights, superadded to a complete agents of the Federal Govern- disregard of the Federal compact ment, having been employed to and the faith of treaties. The disburse among the Cherokees, decision of the President, howthe portion of the appropriation ever, sustaining Georgia in the annually made to civilize the In- ground she had assumed, she dians, to which that tribe was en- proceeded to carry her policy of titled. expelling the Cherokees from their territory into effect, with as much deliberation, as if she had not been a party to the Federal Constitution, and as if they were a conquered enemy and not a faithful ally. The chieftains composing the legislative and executive council of the tribe, did not, however, shrink from the performance of the duties which belonged to their stations. Aware of the disparity of force, they carefully abstained from all violence, and appealed to the American tribunals, in defence of their rights.
This decision so far as it discharged the missionaries, gave great offence to the State authorities, and the Governor obtained from the General Government, a disavowal that the missionaries were its agents. Orders were also given to withdraw from Mr Worcester, his appointment as Postmaster, at New Echota.
These preliminary steps having been taken, the missionaries were warned by Governor Gilmer, to quit the nation, and within ten days afterwards Mr Worcester and Ezra Butler, were arrested and again arraigned before the Superior Court of Gwinnett county, and the facts being proved, they were sentenced to four years' confinement at hard labor, in the penitentiary of Georgia, for continuing to reside in the Cherokee country, where they had been invited to go by the policy of the Federal Government, and for having refused to take the oath of allegiance to the State of Georgia. Measures were taken to subject this unrighteous sentence to the revision of the Federal Courts; but in the meantime, the missionaries were compelled to undergo the punishment of felons, which was submitted to with constancy and patience.
A bill was filed in behalf of the nation, on the equity side of the Supreme Courts of the United States, and process was duly served on the Governor of the State of Georgia, with the view of testing the validity of her claims, and of procuring an injunction to restrain her from pursuing a course so inconsistent with the rights of the Cherokee tribe, as secured by treaty.
Of these proceedings no notice was taken by the State Government, except the adoption of a resolution to set at defiance the authority of the Court.
The Court, however, proceeded to hear the cause, and after a full argument in behalf of the Chero