A Very OK Podcast
Episode 31: “Two Worldviews in Conflict”
December 19, 2023
Episode Transcript
(upbeat music playing)
Trait Thompson: Hello, and welcome to A Very OK Podcast. My name is Trait Thompson. I’m the executive director of the Oklahoma Historical Society. And here with me, as always, is Dr. Bob Blackburn. Bob, how are you today?
Dr. Bob Blackburn: Great, Trait, especially this year when my OSU Aggies had at least one victory that I was very proud of. I won’t mention the game, but I’m doing very well this fall. But thank you.
Thompson: Well, and your OSU Aggies play my Texas A&M Aggies in the Alamo Bowl games. So it’ll be a standoff of unrealized aspirations.
Blackburn: Aggie Bowl, I love it.
Thompson: Yeah, absolutely. Well, Bob, I’ve had a good couple of weeks. I had the opportunity to go with my son. We went off on a father-son camping trip to the Guadalupe Mountains in far west Texas. And I don’t know if you’ve ever been out there, but it’s beautiful country out there. We had this great camping spot in the middle of nowhere, and we climbed to the very top of Texas, Guadalupe Peak, at a little over 8,700 feet, is the highest point in Texas, and we did that hike. It’s four miles up, 3,000 feet of elevation gain. And I have to tell you, I was sore for about three days after that.
Blackburn: Well, you know, having raised a son and now grandchildren, your son will remember that the rest of his life. That was one of those moments that’ll stick with him until he is an old man himself. So I’m really proud of you that you would take the time to do that with him.
Thompson: Well, I thank you for saying that. It was a great opportunity to get out and have some father-son time. He had to slow down for old dad because I was huffing and puffing my way up that trail, and he was usually about 40 yards ahead of me, just kind of like tapping his watch, waiting for dad to catch up. But it was a good time. He’s doing his learner’s permit right now, and so, he actually got to drive quite a bit on that trip, which was great. And then we went on and had a nice Thanksgiving. But, it’s great to be back in the studio today and to get to record another podcast with you.
Blackburn: Thank you.
Thompson: Well, we have some great guests, Bob. I’m really excited about the folks that we have with us today. Two of our board members for the Oklahoma Historical Society are joining us today. And I want to welcome Jack Baker. Jack is a graduate of Westville High School and Oklahoma State University. He’s a past president of the OHS Board of Directors. He has served on the board since 2002. He’s the national president of the Trail of Tears Association and has been for over 20 years. He served 21 years on the board of the Cherokee National Historical Society, and then he served for 40 years as the director or the president of the Goingsnake District Heritage Association. He was on the Cherokee Nation Tribal Council for quite a few years, and he was a member of the 1990 Cherokee Constitutional Convention. I have to tell you all out there, I’ve had an opportunity to be with Jack quite a few times. We’ve had a lot of times driving across the state to various events for the Oklahoma Historical Society Board of Directors. And any time you get to do that, it is an immersive lesson in Cherokee history. Bob, I don’t know if you’ve had the opportunity to do that as well. I’m sure you did.
Blackburn: Well, I have, and let me add in this introduction that Jack’s service to the Oklahoma Historical Society, I take very personal. Because I started, in fact, I wrote a statute in 1993 allowing the Historical Society to transfer land back to Indian nations for in-kind value. So it didn’t have to be cash. And of course, you’ve continued with that policy. Thank you. But when I was doing it, Jack was one of my mentors on how to deal in Indian country with respect and always paying attention to the law, of course. But Jack was a good mentor on how to do that. Lindsay would come on later, that you’ll introduce in a minute, was another one of those advisors, as I was working on ways to deal with tribal nations and return land to them that never should have been taken from them, in my opinion. But we were able to give back, oh, I would guess we’re up around 10 to 12 pieces of property that we’ve returned to Indian people, and Jack has been a big part of that process.
Thompson: Well, Jack, welcome in to the podcast. We’re glad to have you today.
Jack Baker: Thank you.
Thompson: Our other guest that is with us here in the studio is Lindsay Robertson. He is the Chickasaw Nation Endowed Chair in Native American Law Emeritus, and he’s a professor of law at the University of Oklahoma. He received his JD and PhD in history from the University of Virginia. He has a masters in Native American studies. He joined the OU law faculty in 1997. He’s an elected member of the American Law Institute and the American Bar Foundation and serves as a justice on the Supreme Court of the Cheyenne and Arapaho tribes. In addition to numerous articles and book chapters, he is the author of the award-winning Conquest by Law, the first comprehensive history of the US Supreme Court’s foundational Indian law decision, Johnson v. M’Intosh from 1823. He was a private sector advisor to the US Department of the, I’m sorry, let me say that again, the US Department of State delegations to the working groups on the UN Declarations of the Rights of Indigenous Peoples and the American Declaration of the Rights of Indigenous Peoples, and from 2010 to 2012 was a member of the US Department of State Advisory Committee on International Law. He is also a member of the OHS Board of Directors. And Lindsay, we are very excited to have you here with us today.
Lindsay Robertson: Thank you.
Thompson: Well, Bob, we have, we have an impressive guest list today, and people who are intensely knowledgeable in the history of Indian country and especially Jack with the Cherokee Nation. And today we really want to get into talking about the subject, is a subject that we deal with quite a lot at the Oklahoma Historical Society, and that’s Indian removal, and how we got to where we are, and what are the implications that we’re still dealing with today when it comes to the United States and its relationship with sovereign Indian tribes. And so, Jack, I thought we could just start with you and really talk about, you know, you are steeped in Cherokee history. You’ve done a lot of work in Cherokee history. And I thought we could just talk about going back to the early days of the Cherokees and their first interactions with the governments on the East Coast. Can you talk a little bit about what are those ancestral lands on the East Coast of the United States, and going all the way, maybe even back to the British? Like, what was their relationship like with the governments back in those times?
Baker: Okay. Well, the Cherokees lived in what is now parts of Alabama, Georgia, east Tennessee, the Carolinas, where their homelands were, but their hunting grounds actually extended much further up into Virginia and virtually all of Kentucky.
Thompson: And what would they consider, you know, what would they consider their hunting grounds just in terms of, were these sort of where they would go out from their settlements and hunt?
Baker: Yes. It was very frequently they would go for the entire winter. The men would go on hunting trips and would be gone all winter, and then bring back the hides for trading, because they started trading early on with the British, primarily. And so they got all the trade goods and they had tens of thousands of deer hides that they would ship out each year.
Thompson: So what was their relationship with the British like?
Baker: For the most part, for the British government, they got along fairly well. But the settlers were more the problem because they would encroach on their lands, particularly their homelands, where they were living or nearby,
Blackburn: And Jack, if you can expand on this a little bit. When I give speeches about Cherokee heritage and especially the influence of the Scots, there was a kind of a special relationship between the Scottish merchants, who were some of the most aggressive of all of them merchants who came to the New World. Of course, that was under the British flag, but still, they were proud Scotsmen. And some of the families that would become leaders in the tribes started with the Scottish traders who would intermarry and move among the tribes and be part of that. Can you mention just a couple of examples? I guess Ross would be the most significant, but there are others.
Baker: Yes. Ludovick Grant, who’s a Jacobite from Scotland. He was, well, I estimate probably a quarter of the Cherokee Nation are descended from him. He was an early trader that came in to live among the Cherokees around the 1720s. There was the McIntoshes. Of course, you mentioned Daniel Ross, who was the father of John Ross. And, Daniel Ross’s father-in-law, John McDonnell, was Scottish. And during the American Revolution, they continued their alliance with Great Britain. There were some of the Cherokees that were on the side of the American settlers. For the most part, they sided with Great Britain, and primarily because they had sent a delegation of three chiefs in 1762 to visit with King George III. So, in their meeting with him, then he promised to issue a proclamation, which he did in 1763, that the settlers were not to settle beyond the mountains.
Thompson: The Appalachian Mountains.
Baker: The Appalachian Mountains there, although they continued to do that. But since they had the agreement with him, then they thought, we have our agreement with the British, and it’s the American settlers that are intruding on our land. Then they continued with their connection to the British government during the Revolution.
Thompson: Yeah. And then we, you know, obviously, I think it’s not a big spoiler alert that the Americans won the American Revolution, and then we get into that era of the Articles of Confederation. And, Lindsay, I thought it would be great if you could talk a little bit about the relationship with the tribes in America during that particular timeframe.
Robertson: Well, this is, so the confederation government existed primarily during the war. It was a wartime government. The Articles themselves weren’t officially approved until the war was almost over. So for most of the confederation— Congress’s life—they didn’t really have any legal authority, but they had a war to run. And one big element of figuring out how to beat the British was how to relate with the tribes. You know, there was interest in having the tribes on the side of the Revolution and not fighting against the Revolutionary soldiers. There was uncertainty because this was formerly relatively independent and equal states attempting to come together and create a government that in some ways was superior to all of them, and we know how complicated that that relationship still is in the United States. This was a very early global experiment in federalism, and one of the key issues was who should be responsible for relations with the tribes? Should it be the confederation government, which was sort of trying to win the war? Or should it be the individual state governments, newly independent, we declare independence as a state, state governments? The states, obviously, many of them thought it should be us, especially those with Indian lands that they were interested in acquiring.
Thompson: Especially as we distrusted centralized power.
Robertson: Well, that was a big part of it. Although the state, for instance, if you didn’t have tribes in your borders anymore, you wanted the national government to take charge because then you’d have a role in those relations. If you were a state, like New York was the biggest culprit with lots of tribal lands that you wanted to get, then you didn’t want other states having any role in your relations. And so they ended up in Article IX of the articles, including a provision, that said, to paraphrase something like, the national government, the confederation government will have responsibility for tribal relations, comma, provided that the authority of states within their borders shall not be infringed. And collectively, James Madison would pronounce that formulation to be incomprehensible, and that was his word because it didn’t draw any meaningful lines. And when the federal Constitution was finally adopted in 1789, they cleaned that up. That was one of the key objectives of the Philadelphia Convention: to assign exclusive power over Indian affairs to the federal government and pull the states out of it, and they did that primarily through the Commerce Clause, the Indian Commerce Clause in Article I, Section 8.
Thompson: I found it interesting in doing some of my research around this and Bob, I’d love to hear your thoughts on this. But during this time around the Articles of Confederation time and as we’re moving on into the 1789 Constitution, the United States begins to adopt this idea of civilization of the Indian tribes, which, in other words, it’s, you know, we want the Indians to be around if they’re going to be become farmers, if they’re going to cease their nomadic ways, if they have to adopt white man’s clothing and, and convert to Christianity, and that became sort of the established principle of the of the United States government is we want to move toward this idea of, quote unquote, “civilization.”
Blackburn: Well, to me, that was a hypocritical position for them to take, because even, especially among the Cherokees, with some of the planters who had large plantations, African American slaves, a lot of property being used, who spoke English, who understood contracts in their lands for sale, confiscated by the state of Georgia. And we, and Jack can cite many of those cases where that land was confiscated. So, it’s kind of hypocritical to say that was the real outcome of that. It may have been an idealist who might have said that, that we wish in a perfect world, we could do that, but it really came down to taking the land away from tribes and tribal members and, and forcing them out, even if there had been some acculturation at the point.
Thompson: Yeah, we just couldn’t ever get used to the idea of communal land, could we, Jack?
Baker: No, we could not.
Thompson: We had to own the land. And so this idea that tribes would hold land in community and no one person would own it, and we all kind of shared it together, that seemed incompatible with the American, and even in a lot of ways, the British way of doing things.
Baker: But it worked quite well for the Cherokees, even up to the allotment. And when you bought allotment then, because to them that was the basis of the Cherokee government, that they owned all the land in common.
Blackburn: Trait, if I might add one little anecdote to illustrate that difference in worldviews between communally owned land, sharing resources, taking care of your neighbors, and especially Gilded Age America in the 1890s. One of the most active and outspoken so-called reformers at the time on Indian affairs was Senator Henry Dawes, and Henry Dawes had been a champion of tribal rights for quite a while. But at one point, speaking to the Mohawk Conference, he said, the Cherokees, I’ve been there. He says, they’re living in peace. They take care of each other. There’s no extreme poverty because if one family runs out of food before the end of the season, the others will share. He said, but they’re missing one key ingredient. And to Gilded Age America, very important, he said it was greed. He uses that word, greed. And so it’s a two different worldviews, not just in the 1890s, but this goes back to Colonial times and pre-Revolutionary times. Two worldviews that are in conflict. So it’s just not race. It’s not just the economy. It’s two different worldviews that are spiritual, that deal with the land, the deal with how do we treat our community, and those two worldviews were in conflict.
And it would remain confusing because there were all levels of differences, especially among the Cherokee and the Choctaw, and so you had cultural changes already happening in the 18th century. And so it was never like it was a unified voice, for one thing. And then in the Colonial side, never one unified voice. So people would express their opinions. And that’s part of the confusion of the time and the conflict.
Thompson: Lindsay, as I’m doing research to get ready for this podcast and looking at, you know, the Cherokee Nation and its relationship with the United States government. I see multiple treaties over the years, and it essentially, and in my way of looking at things, boils down to, okay, settlers were coming in, encroaching on and squatting on Indian Territory. And so the federal government would come in and say, okay, well, we’re going to buy that territory, and we’re going to make you a new promise now that, you know, okay, this is it. Here’s your lands. Here’s the new promise. And then squatters would come in, and white settlers would come in and shrink that territory even more, whether it be hunting lands that Jack talked about or whether it be the, you know, other lands that were associated with the tribe. And the United States would come in again and say, okay, here’s some more money, and we’re going to...and that kind of just kept on and on and on and on. And so at that, can you talk about how these treaty relationships and how this worked during this time frame?
Robertson: Sure. And what you, your characterization is on point, with the qualifier that often the US wouldn’t wait for squatters to show up before they’d enter into treaty relations and purchase more land from tribes. The relationship, it’s a treaty relationship in the same way that the US was contemporaneously engaged in treaty relationships with other countries in Latin America and in Europe. The same process was followed because they were dealing politically with foreign or quasi-foreign sovereigns. So the executive branch would negotiate, then the treaty would go to the Senate for ratification, just like a treaty with France would, and then the president would proclaim the treaty. And then if there were any sort of financial obligations that came out of the treaty, the House of Representatives, where all funding measures had to, and still have to, start under the Constitution, would find the money to pay for the land. I might mention that treaty-making stopped in 1871, in large part because the House got tired of paying for things that it had no role in and for deals that it had no role in shaping and insisted to the Senate that from now on, you know, we’ll do this. And they added a writer to that year’s Indian Appropriation Bill, saying, from now on you can keep negotiating, executive, and we’ll find money and effectively ratify. But we’re going to do it in the form of a statute, and so the same sort of foreign policy relations would continue. But since 1871, these have been statutes that laid out land purchases, as you’re talking about, etcetera.
To tie back to what you guys, what we were just talking about, the civilization project. Civilization, it’s sort of, there are two sides of it. One is that by legitimate, I guess, interest in applying 19th-century notions of the of early anthropologists in how civilizations progress, the different levels of civilization, hunter/gatherer to agriculturists to industry, and that sort of thing, with hunger for land acquisition. And it’s sort of rationalized, especially from the mid-19th century on, a federal policy of geographic assimilation, I guess you could say. And this played out especially in the Plains states. Once California was acquired by the US and gold was discovered, everybody in the east wanted to go west, and you could sail around the tip of South America or march over Nicaragua. Or you could just go straight across. And if you’re going straight across the US, you got a whole bunch of tribes in the way. And so what the government decided to do was to convince itself and attempt to convince the tribes that, especially the Plains tribes, you guys would be a lot better off if you didn’t have quite so much land. And the reason you need so much land now is that you hunt bison, and that’s hunter/gatherer stuff, and we want you to be farmers. So what we’re going to do is enter into treaties with you in which you cede most of your land to us, and we’ll fill it with folks to sort of set up coaling stations for the trains we want to build. That’s a lot of Oklahoma’s history to get people out to the West Coast and back. And we will provide you training in agriculture and that sort of thing. And your lands will be so confined that you won’t be able to hunt bison anymore because, you know, the odds that they’ll run across your fields are pretty slim. They’ll be out in our lands, our new federal lands, and that will help you.
The Indian wars of the 1870s are largely this— that tribes with smaller reservations, individuals would go out and insist on hunting bison, and the federal government would insist on forcing them back to the reservation. This is the origin of that unfortunate term ”off the reservation.” And if they couldn’t get back in time or didn’t get back in time, then the US Army would go in and deal with them. And so this is Custer and the Little Bighorn. It’s all an attempt to enforce this policy that ostensibly was to benefit the tribes by helping them march up the ladder of civilization.
Thompson: Jack, by the time Thomas Jefferson is president, this idea of Indian removal starts to take hold, and into the Monroe and the John Quincy Adams administrations, they didn’t embrace that as something that the United States government would say mandatorily, you have to remove. But they started saying, you know what? It might be best if you guys just decided to start moving West. It’s probably a good idea. There’s so many people coming in. You’re going to be able, if you go west of the Mississippi, nobody’s going to bother you. Can you talk a little bit about how this idea of removal starts gaining steam?
Baker: Yes. In the, particularly in the 18-teens, and when they were trying to negotiate the treaties of 1817 and 1819, then they were encouraging Cherokees to remove across the Mississippi to the West, and they also put in those treaties that they would give reservations to those who wanted to stay behind, and they could become US citizens. And their intent was that you would either take a reservation and stay, or you would move to the west, and they thought the entire Cherokee Nation would move west. But that did not happen. So then they continued to try to get the Cherokees to remove.
Thompson: There were a few tribesmen that, after the War of 1812, decided to move. But by and large, most of the eastern nation said hard pass on that.
Blackburn: One comment, though, Trait, on that is that when they said move west and no one will bother you, they didn’t ask the Osages about that, and the Osages had been dominant in Oklahoma since the 17-teens and ’20s. By oh, by 1720, they’ve pushed the Caddoan speaker south of the Red River into Texas, where Texans had to deal with them later, and then eventually some move back to Oklahoma.
But the Osages were fierce warriors who were getting guns from the French in St. Louis and New Orleans. And powerful warriors, cohesive, community structure, and they were a formidable opponents of the Cherokees, and that was not really resolved until what was it 1830, Jack? With the Claremore Mounds and the big battle between the Cherokees and at least Clermont’s band of the Osages, and pretty much the Cherokees then control it. But the Osages were formidable opponents for over two decades as the Cherokees tried to move west.
Baker: Because during that time, the Cherokees that did live in the west, that had removed because some of them actually moved in the 1790s.
Thompson: Oh, okay.
Baker: And they actually removed to get out of US territory because it was still Spanish territory the time. So they got permission from the Spanish government.
Blackburn: What a lot of people don’t understand too is that a lot of the Cherokees in Oklahoma now moved west into the White River region of Arkansas. So, for example, my stepfather for years, ”Bird Dog” Rogers, had his descent from those early Cherokees who moved into the White River area of Arkansas, and later in another one of the treaties you may talk about a minute, those Cherokees agreed to move farther west and gave up their lands there.
Baker: But while the Cherokees were fighting with the Osages, as you mentioned, Bob, they actually sent back to the east for many of the Cherokees to come and help them. And so many of the Cherokees in the east came to the aid of what later became known as the Old Settler Cherokees in Arkansas, and they also were at Claremore Mound and fought against Clermont.
Blackburn: And Cherokees have always looked for a good reason to fight, that warrior tradition.
(laughter) And you know, Cherokees have volunteered for service to the American nation, World War I and II, in greater numbers than any other group around the country. That warrior tradition was very strong at the time. To prove your manhood, you know, really make your status within the community, you needed to be a good warrior, whether it was moving to the west to fight the Osages or fighting the the Muscogee (Creeks) on your border, or the those crazy Americans.
Baker: Yes.
Robertson: To sort of tie different elements of US history together, as I mentioned a few minutes ago, the importance of the acquisition of California to the federal shift in policy of reducing land sizes, because now we need access, the US figured, to the West Coast. Removal becomes an idea, unsurprisingly, in the Jefferson administration, because of the acquisition of the Louisiana, or France’s claim to the Louisiana Territory. So now there’s a place to which tribes can be removed. There’s all that land out there that the US will purchase from resident tribes.
And another thing that people don’t think about unless you look at a map of the United States of the pre–Mexican War days, the lands out here in Oklahoma, to which the Five Southeastern Tribes removed, or were removed, was the Mexican border. It’s not the middle of the country as it feels now. It’s sort of, it’s a buffer region. And so, you can’t help but imagine that the government’s thinking, let’s just throw a bunch of tribes out there like Cherokees. And, you know, because these guys, they can form militaries, you know, functioning governments, and they can be sort of a barrier in case we ever have problems with Mexico, military problems with Mexico in the future.
Thompson: I’d love for you guys to weigh in on, you know, Georgia continues to cause, despite the US government’s policy toward the Cherokee Nation and other Indian nations, Georgia continues to be a big problem for the Cherokees and continues to press and press and press and saying they’re under our jurisdiction, and this is land that’s within Georgia. And in 1827, the Cherokee Nation decides to draft its own constitution, essentially coming on to the world stage and saying, hey, we’re an equal. You know, we’re a sovereign nation here. You have to deal with us as a sovereign nation. Can you talk about that significance? Lindsay, I think you raised your hand
Robertson: Well, yeah. So the 1820s, 18-tens were big time for Cherokee Nation. There’s the Constitution. There’s also the syllabary that Sequoyah crafts, which has political significance because the Cherokees become the most literate community on the planet with the adoption of the syllabary, and then at the end of that period, you’ll have the discovery of gold in Cherokee Nation. So they’re not going anywhere. Georgia’s issue was that in 1802, they had agreed to cede whatever English charter claims they had to what was then west Georgia, it’s now the states of Alabama and Mississippi, to the United States. And one of the conditions was that the US would send agents out to negotiate treaties with the tribes in what remained of Georgia to get them to leave. And this was an obligation that the US sort of half-heartedly attempted to carry out. They’d send people down to talk to the Muscogee Nation, for instance, which had lands in Georgia, Cherokee Nation. Both nations would say, nah, we don’t you know, we don’t really want to go anywhere. And the US would say, okay, and tell Georgia, well, they don’t really want to go anywhere. And so this went on for a long time, but the discovery of gold really set Georgia off.
The thing that really, I think, triggered this was a case you mentioned that I had written about, the case of Johnson v. M’Intosh in 1823. Johnson, I want to talk about in detail, but it was a land speculation, late Colonial-era land speculation, that the speculators could never get recognized by the English or by the US legislature. They thought, eventually, in the 1820s, let’s see if we get the Supreme Court to recognize our title to these lands, and they’re going to lose in the Supreme Court. And so that land claim disappears. But in its opinion in this case, the Supreme Court created, as a part of American law, something called the discovery doctrine. And what that said was that the legal consequence of European discovery of the New World was that the underlying title to all discovered lands instantly became the property of the discovering European sovereign. The Indigenous peoples who live there, the Native peoples retained an occupancy right, which is not really defined in the opinion, but includes at least a right to occupy, to continue to live there. And they could sell that if they wanted to, but only to the same discovering sovereign.
Now, in the case of the US, the US said we’re the successor in interest of Britain, and that’s the law today. But Georgia, this decision was issued in 1823, and sometime within the next couple of years, somebody in Georgia read it and said, wait a minute. So the US Supreme Court said that upon discovery, the underlying title to all discovered lands becomes the property of the discovering European sovereign. That would have been England for the Cherokees. The Creeks are gone by this time. We, Georgia, declared independence from England before the United States even existed. That means that we, Georgia, owned the title to the lands of the Cherokee Nation, and they have a right to occupy them. Now, that’s a familiar relationship to anybody living today, and the Georgians understood it the same way and use the same words. That means Georgia is the Cherokees’ landlord, and they are our tenant.
And based on that, Georgia said, well, how do you get rid of tenants you don’t like? Answer: you change the lease terms and make it so uncomfortable to live here that you’ll want to leave. So they passed a series of laws saying from this effective date, this is the end of the 1820s, they did this, by the way, after Jackson wins the White House. So they think they can get away with it. After a certain date, you guys, your government is abolished— Cherokee Nation—your laws are abolished. We’re going to divide your territory up among four Georgia counties, and you’re going to be subject to the laws of the State of Georgia, including a couple bonus laws that are criminal laws requiring you to, if you’re non-Native, have a license from the government of Georgia and swear an oath of allegiance to the government of Georgia. Cherokee Nation, understandably unhappy with this development, brings a lawsuit, Cherokee Nation v. Georgia in 1831. The Supreme Court won’t hear it because a majority are not convinced that they have jurisdiction to hear it. So they’ll kick it back, but with a line at the end of John Marshall’s opinion saying, you know, these issues are super important, and if you came back, and these are his words, where it’s “a proper case with proper parties,” we would be delighted to hear this case. And they will the following year, in 1832, in the case of Worcester v. Georgia.
Thompson: So Bob, by 1830, Indian Removal Act. President Jackson, it’s one of his first priorities that he sends to Congress. He is not in the same mindset that Monroe and Adams were in, that maybe we suggest that the nation start moving west. He said no, this needs to happen. And he kind of couches it in some very paternalistic language of saying that, you know, I’m trying to protect the tribes. I’m trying to help them out, and so let’s move them. But essentially, the Indian Removal Act says you move west, or you’re going to be completely subject to the laws of the states in which you live in, and essentially, your sovereignty will go away. Talk about the significance of that piece of legislation.
Blackburn: Well that’s a shift in American politics. You know, originally, of all the former presidents, most of Congress is controlled by the original 13 colonies, especially those along the coast where most of the money, most of the political influence was. Suddenly you have a frontiersman, an Indian fighter who had been out on the front lines fighting Indians, very much a frontiersman, with not as much of an intellectual grasp of the situation other than the reality of there’s the land, we want it. And if we won the war, this is ours. And that paternalism, you used a good word there, paternalism and hypocrisy to me go together.
And Lindsay, I don’t know about that case you’re talking about. I think that goes back to a papal bull, when the pope told the Spanish and the Portuguese, yeah, you all have discovered this land, but you can only take that one side of the line and Portuguese to the other. So I think that was part of that reasoning in that Supreme Court case. But that was a worldview that was there at the time. It’s very ethnocentric. We are the seat of civilization that started in Athens in the fifth century. And here we are, you know, civilizing the world. And to take that even further, that attitude that Jackson would have agreed with. Indian history should be in natural history museums, along with studying dinosaurs and geology and its natural history, it’s not part of our, of our European-style of history. And today it still rankles me when I go to a natural history museum to see exhibits on American Indians. That’s not the right place. Now they need to be in tribal museums.
But it’s part of that old worldview of paternalism and ethnocentric attitudes about we’re the superior race. We have that right of discovery. We have the right to tell these tribes what to do, and we’re going to make them good little Americans, or they’re going to die and perish.
Thompson: Jack, can you tell us, there’s a landmark Supreme Court case that we’re leading up to, Worcester v. Georgia in 1832, but there is a series of events that leads to this case. Can you give us the history of Samuel Worcester? He was a minister who was sent to join the Cherokee mission in New Echota— I hope I’m saying that correctly— Georgia, can you talk about the series of events that leads up to this court case?
Baker: As far as Samuel Worcester, of course, he was a missionary from Massachusetts, and he’d come into the Cherokee Nation, I believe, around 1819. So he had been there for many years and served at various American boards, the American Board of Commissioners for Foreign Missions established a series of missions in the Cherokee Nation, as well as other southeastern tribes. But he served at several of those mission sites. And then, as Lindsay had mentioned earlier, with the advent of Sequoyah syllabary, the Cherokee Nation started their own newspaper, and so he moved to New Echota to assist with the newspaper, and Elias Boudinot was the editor of the newspaper. And so they collaborated on translating the Bible and various books and documents into the Cherokee language, and used the syllabary to publish those.
Thompson: He was really a friend of the Cherokees. He was kind of helping advise them not only on translation, but also on, hey, you know, what are your political rights here?
Baker: Yes, and whenever Georgia passed the laws that Lindsay mentioned that no non-Cherokee could live in their Cherokee Nation without signing a pledge of allegiance to the state of Georgia, then many of the missionaries refused to do this, and they were arrested. And then later, there’s an agreement made that they could sign it or leave the Cherokee Nation, and the majority of them did. But two of the missionaries, Reverend Samuel Worcester and Dr. Elizur Butler, refused to sign it, and both of them were sent to prison.
Thompson: Four years' hard labor for refusing to leave the Cherokee Nation! That’s pretty hardcore.
Baker: Yes. So they’re the ones who filed the lawsuit against Georgia, and I would say Elizur Butler never gets his just due because it’s Worcester (et al) v. the state of Georgia. So no one ever mentions Elizur Butler, but he went through exactly the same thing.
Thompson: Well I’m glad you mentioned him here today, ao maybe we’ll start getting the word out.
Baker: Yeah.
Thompson: Lindsay, can you talk about this case a little bit?
Robertson: Yeah. Georgia refused to show up at the oral argument. Worcester effectively sought habeas corpus relief from the Supreme Court to get Georgia ordered to release him from a state prison. His argument was Georgia has no jurisdiction over things happening in the lands of the Cherokee Nation. They have no, as the Supreme Court said, “extraterritorial legislative power.” It’d be like Oklahoma passing laws that applied in the state of Kansas, was the argument, and the Supreme Court, the majority of the Supreme Court said Worcester and Butler are absolutely correct. There are really two parts of the opinion, one which I think is underappreciated. The part that most folks know about.
Thompson: And this was under the Marshall court.
Robertson: Yes. This is John Marshall, 1832. He’s still got a couple more years before he’ll pass away. But he, and he’s really the author of the problem, as he realized by creating this ruling in Johnson v. M’Intosh that gave Georgia a gimmick for claiming the power. Because we’re the landlord, we can legislate, in part in the part of the Worcester opinion that that most people who who know the case know, he says that while the US has treaties with the Cherokee Nation, and the fact that there are treaties recognizing them as a sovereign state is inconsistent with the law that Georgia passed, which presumes that they’re not and can be subject to state law, under what’s called the Supremacy Clause of the US Constitution. If there’s a conflict between a federal treaty and a state statute, the federal treaty wins. And so that’s enough to get rid of this.
But Marshall felt, I think, more deeply, that the problem that he’d created in this discovery doctrine formulation that he had inserted, I will say, frankly gratuitously, into the Johnson–M’Intosh opinion, that that could create bigger problems for, for instance, tribes with no treaties, etcetera, who might still be subject to states imposing their laws. So he rewrites the discovery doctrine in Worcester v. Georgia to now be a doctrine that provides that upon discovery, the discovering Europeans acquired an exclusive right to purchase. So if England’s there first, then France can’t purchase those lands. It’s England’s right to purchase, and it’s a limitation on themselves as he says, the European states, it doesn’t mean that the tribes are limited in their power to sell. It’s that the Europeans have limited themselves in their power to buy. So that’s two huge elements. One is that the tribes own their lands. We don’t. And there are no limitations in this doctrine on the power of tribes to be self-governing or to engage with countries around the world.
That portion gets, I think, is underappreciated, because that’s what infuriated the Jackson administration. When this case came out, and Jackson probably didn’t say, but probably did feel, the sentiment behind the quote that he’s attributed as having uttered, which is “John Marshall’s made his opinion, now let him enforce it,” which was a slam because the court has no enforcement power other than the willingness of people to follow along.
Thompson: Interesting. I just want to point this out, since you brought it up, that, you know, looking at doing some research, I found that they said his actual words to Brigadier General John Coffey were “the decision of the Supreme Court has fell stillborn. And they find it that it cannot coerce Georgia to yield to its mandate.” So, I don’t know how, you know, it appears that that has been condensed into “he’s made his decision. now let him go live with it.”
Robertson: Horace Greeley, the one-time presidential candidate, newspaper editor in New York, is the guy who put those words in Jackson’s mouth.
Thompson: That’s interesting.
Robertson: And they’re the ones that we sort of live with today.
Thompson: Well, Georgia essentially wins this case. Marshall writes that the Indian nations were distinct, independent political communities retaining their original natural rights. I mean, not Georgia. I’m sorry. The Cherokee Nation essentially wins this case. But as we’ve seen by the the remarks from President Andrew Jackson. So what, big deal, right?
Robertson: What happened after the Worcester v. Georgia case came down is Jackson was so committed to the tribes removing by this time that he sent his negotiating team out for the feds because we need treaties in which the tribes agree to exchange their lands in the east for lands out in what would become Oklahoma and tells his negotiating teams to tell the tribes to ignore the Supreme Court’s decision, that it’s bad law, and it’s not going to last. And three of the tribes will sign treaties. The Cherokees hold out, and the Seminoles hold out. The Seminoles will hold out and will fight a war. This is the series of Seminole Wars. And finally, a group of Seminoles will agree to move, and a faction of Cherokee citizens will eventually sign a removal treaty and remove out here, and that’s a different story that Jack could talk about.
But what happens to the law is that, remember, it’s two things, I’ll say. It’s this landlord-tenant business that’s justified Georgia, and Marshall will die. Justices will start to leave the court, and their seats will be filled by Jackson appointees. And by the first year, and one by Martin Van Buren, Jackson’s chosen successor. So within a very short amount of time, six years or so, well, by 1842, the Supreme Court will have issued half a dozen new opinions in which they reintroduce the Johnson– M’Intosh formulation of the discovery doctrine, and say, no, we did get the land, the states do have the land or the federal government, but the it’s discovering sovereign, and that’s the law today. So that erasure in Worcester has been partially completely forgotten. And we’ve exported the Johnson formula to Australia, New Zealand, Canada, and other places where that’s still the law.
Also, if you forgive me for saying one more thing having to do with land title, because again, of this landlord-tenant business, Jackson had Congress put into the Removal Act that if the tribes agreed to remove them, then the tribes that removed out here would own the title to their land. It wouldn’t be owned by the United States. And so in each of those removal treaties, that language appears that you guys will own the land, and that’s why the Five Tribes, who were the tribes that signed the removal treaties to come out here, are almost unique nationally in owning their land. Other tribes where the US owns the title to the land and the tribe owns an occupancy right, because the US is the trustee or guardian for the tribes. We call those trust lands. For the Five Tribes, we call them restricted fee lands because the tribe owns the fee, the underlying title. But they’re still restricted in who can purchase the land. The only other tribes that have the same situation is the Pueblos in New Mexico. Because under Spanish law, they own their own land and the Tuscaroras in New York.
Blackburn: Now, Lindsay, when I give speeches on this topic on tribal sovereignty in the 20th and 21st centuries, I try to explain it to my audience that doesn’t know a lot of history, that it’s like the fee title we have on our homes. We own the home on it. We own the surface of the land. We own the minerals. At least in Oklahoma, below it. That’s what the Cherokees got when they came west. I had fee title to it, as if it was, I guess it was filed with law, but it would have been fee title that they owned this land. It’s not federal land. And later on, of course, that became very complicated near the end with Congress saying, now we can do anything we want and those treaties don’t apply anymore. I think people need to start with that, that it was fee title and with current controversy, some of that comes into play even now.
Thompson: Jack, so after the Supreme Court decision, removal still happens. Can you talk us through what happens over the next few years?
Baker: Yes. As Lindsay said three of the tribes went ahead and signed removal treaties, and the Seminoles and the Cherokees held out. The Cherokees were negotiating during this time and removal, they eventually, I believe, would have signed a removal treaty on their own. But a handful of Cherokees signed a treaty, the Treaty of New Echota, in December of 1835.
Now they believe, well, they believed that was what was best for the Cherokee Nation. Now, I don’t normally question their motives in signing it, but I do question the fact that they went against Cherokee law and the Cherokee Constitution, and that’s what I find unforgivable about the treaty and what the majority of the Cherokee people did at the time.
Thompson: Can you tell us what was the agreement at the Treaty of New Echota?
Baker: Okay. The agreement was that they would cede all of the lands for $5 million in the west, for the, and remove, or excuse me, for the lands in the east and then remove to the west, and they would have two years from the ratification of the treaty to remove.
Thompson: And then in 1838, the federal government shows up and forcibly removes.
Baker: Yes, the fraudulent treaty, as most of the Cherokee Nation believed, was signed, like I said, in December. It was, passed by the Senate, by I believe only a single vote on May 18, 1836, and then Jackson signed it on May 23. So they had two years to remove from that date. And so several of the ones who had signed the treaty did remove during that time, or they got permission to remain until they settled up their affairs and would remove later.
Blackburn: Jack or Lindsay, was there a provision in that treaty with improvements on the land? So if you built the giant, you know, dogtrot house, was there something in that treaty on your right to hold that and to sell it?
Baker: You owned the improvements on the land. So under the treaty, you were to be paid for the improvements. And so the Cherokees then were able to file claims for their improvements.
Blackburn: From the federal government.
Baker: Well, it came out of the removal, out of the $5 million that was originally agreed to. So it came out of those funds, as well as the cost of removal came out of those funds.
Blackburn: I was in Georgia a few years ago at the Georgia Historical Society in Savannah, and they have one of the original books on those claims. I looked at it. It was like, you know, almost tears came to my eyes when I saw that. And I know there were several books with a claim, but a lot of those were never settled, and a lot of people just lost their lands. I’ve heard former Chief Bill John Baker talk about the house that his family lost in that and never compensated. So I think that was fairly common, was it not?
Baker: Yes. Now, a lot of those claims were paid, but not all of them by any means.
Thompson: Jack, I know you, you’re a celebrated historian, and you’ve done a ton of research on genealogy in the Cherokee Nation. To make it a little bit more personal, can you talk about how some of your own relatives were affected by this?
Baker: Yes. Well, one of my ancestors was Hair Conrad, was one of the leaders. His father was half German and half Cherokee. And he was assigned to lead one of the 12 detachments. Maybe I should back up to tell a little bit about the removal. In 1838, when the two years was up on May 23, then the soldiers came in to remove the Cherokees and literally forced them out of their homes. Even though forts had been built around the Cherokee Nation and even the Creek removal, which had happened a couple of years before, many of the Muscogee (Creeks) had moved into the Cherokee Nation to get away from removal. So the soldiers were sent in in the 1835, 1836, to round up those Creeks and actually built some removal forts at that time to remove them out of the Cherokee Nation. So we knew that the removal was to take place.
And Reverend Stephen Foreman, who was a half Cherokee and had been educated in some of the Mission schools and then at Princeton University and then went to work for the American Board at one of the mission sites, and he made a statement on May 31, which was eight days after the removal had started in Georgia, and he lived in East Tennessee. And I think, because, like I said, we knew that removal was happening. But I think he sums it up pretty well, and he states in a letter to the American Board secretary in Boston, he says, “my determination and the determination of a large majority of the Cherokees yet in the nation is never to recognize this fraudulent instrument as a treaty, nor remove under it until we were forced to do so at the point of the bayonet.” And that’s what happened. It was a matter of conscience that they did not recognize the treaty, and they did not freely give up their lands. So, but regardless, they were rounded up and placed in camps.
Three groups were sent west almost immediately in June of 1838, the ones that had been moved up from Georgia where the first, where the roundup started, and they removed two of them by water. And then one marched across northern Alabama to Waterloo, Alabama, which was on the Tennessee River where larger boats could come in, and so then they were sent west. And the first group arrived at Fort Coffee, which is just the side of Fort Smith on the Arkansas River. And so they arrived okay. The other two detachments ran aground because there was a severe drought and the water was so low they ran aground just east of Morrilton, Arkansas, and so they had to walk the rest of the way. And one of those, the latter detachment where there were approximately 600, over 600 people left, there were only 450. There were 150 some deaths on that one detachment. And so the Cherokees, who were still in the camps, asked permission to delay the roundup or to delay the removal until the fall, when the rains would start. Because everyone considered the summertime as a sickly season. They did not travel normally in the summertime. So, permission was granted by General Winfield Scott, who was in charge of the roundup, and then the Cherokees asked to be in charge of their own removal. So permission was granted for them to be in charge of their own removal. So then they formed into 13 detachments, and they selected the detachment leaders among their leaders.
Like I said, my ancestor, Hair Conrad, was one of the leaders of the detachments. But only a month or so later, he became too ill on the trip and had to relinquish that. But meanwhile, his former wife, Katie North, she was one of the first ones rounded up in Georgia, and so she was sent in one of the early detachments by water. And in February that year, her father, who was a white man, William North, had been described as upwards of a hundred years old. And then later, there was a statement by some of the people involved in removal in Chattanooga, and one of the men wrote that there was a white man named North that was married to a Cherokee, and he was blind, and he created such a fuss that the soldiers threw him in the river and drowned him.
Thompson: Whoa.
Baker: And so that was Katie North’s father and Hair Conrad’s former father-in-law. James Hair, my direct ancestor, his second wife, who he was married to at the time, his mother-in-law, according to family tradition, had just given birth and was having trouble and refused that she couldn’t go any further and could not cross the stream, and the soldiers stabbed her with a bayonet and killed her at the time. And then James Hair and his wife then took all her younger children and raised them. And Reverend Butrick, who is one of the American Board missionaries, in his journal, he describes, gives an account that’s identical, but doesn’t give any names, all of that.
Thompson: Wow.
Baker: So that’s some of what happened to my family.
Thompson: Well, it’s, we all know that was a harrowing time, and it’s something that we’re still reckoning with today. And I guess, Lindsay, when everybody got to Oklahoma or Indian Territory, we all lived happily ever after. Right?
Robertson: Well.
(laughs)
Thompson: I was kind of teasing Lindsay there. But I want to thank both of you for being a part of this conversation today. I have certainly learned a lot. And like I said, Jack, I always enjoy my time with you. Lindsay, now I want to spend more time with you so I can get the benefit of your knowledge as well. But thanks so much for making time to be with us today.
Blackburn: Well, and I think our listeners are going to understand more, and hopefully, I think out of this conversation, they will want to learn more, and they can look for the right books. They can make sure they’re not listening to just what’s on social media and spreading through, you know, gray areas of news reporting, and really look at the facts and understand the nuances. Law of the land, Lindsay. I’m so glad you really emphasize that because law of the land has to be respected, and it comes back to us, the people, to respect the laws. We just can’t say, no, we’re not going to agree with that election because we don’t like it. So we’re going to you know, storm the Capitol. We have to respect the law, even if we don’t agree with it. And the Supreme Court is the body that makes those final decisions on the law of the land. So thank you for providing some of those nuances I never understood. And, Jack, always your command of detail and getting at a personal level, which we all need to realize. These are just not groups of people. These are individuals. These are families, and being pushed around and told what to do, and a lot of injustice in all of these stories.
Thompson: All right. Thank you, guys.
Robertson: Thank you.
Baker: Thank you.
Thompson: Well, Bob, that was a fascinating conversation. And I, as always on these podcasts that we get to do, I know that you and I are the hosts, but I always end up learning, I think, more as a result of them than I knew coming in.
Blackburn: Well, same here. And it comes back to the fact that our republic, our democracy depends on people making the right decisions, electing the right people, and you cannot do that unless you understand our history. You cannot understand current Indian sovereignty or tribal sovereignty without understanding everything that happened before that. So I think today we heard a real good account of historical events and the impact on people’s lives that’s affecting our lives today in 21st-century Oklahoma.
Thompson: Well, I have to give a shout-out here to Aaron Byrd, who is our videographer here at the Oklahoma Historical Society, but he’s also our podcast engineer extraordinaire, and he’s been the magic behind this, editing all these podcasts together. And since this is our last podcast of the year 2023, I wanted to give Aaron a shout-out for all the great work that he’s doing to help us. I hear comments all the time about how people enjoy these podcasts, how much they’re learning with them, and so this is something that we want to continue to do here at the OHS. And so, Bob, I can’t wait to see what we get to talk about in 2024.
Blackburn: Same here. Looking forward to it, Trait. Thanks.
Thompson: All right. Thanks. All of you have a happy holidays and a great new year. We’ll see you in 2024. You’ve been listening to A Very OK Podcast, hosted by Trait Thompson and Dr. Bob Blackburn.
The podcast is produced by the Oklahoma Historical Society. Visit us at okhistory.org, and find us on social media by searching for @okhistory. I encourage you to purchase a membership to OHS to help us continue our mission to collect, preserve, and share Oklahoma’s unique and fascinating history.
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