A Despotically 'Benevolent' Policy: The Cherokee Indian Genocide.
Abstract
Marvin R. Whitaker, Jr.
University of Utah
The deportation and relocation of the Cherokee Indians from the southeastern United States
to Indian Territory in Oklahoma during the 1830s is examined as both cultural and physical
genocide. Research methods included historical analysis and a careful reading of the Indian
Removal Act of 1830, the statements of President Andrew Jackson and the implementation
of these acts under President Martin Van Buren. The article argues that a genocidal policy
against the Cherokee Indians was implemented by the United States during The Trail of
Tears period (1838-1839), in which a little over half of the Cherokee population was reduced
in number, through the means of concentration camps and a 1,200 mile death march. A new
perspective on what constitutes genocide is examined in the recommendation and provision
made by the United Nations Whitaker Report on Genocide (1985), a provision which
includes ‘advertent omission’ as an act of genocide. The article argues that the U.S.
government’s ‘advertent omission’ to preserve Cherokee lives during The Trail of Tears
period (1838-1839), can be considered an act of genocide.
A Despotically 'Benevolent' Policy: The Cherokee Indian Genocide.
“We doubt whether there is, upon the face of the globe, a more wretched race than
the Cherokees…[a] wandering horde of barbarians..”
---Lewis Cass, Secretary of War, under President Andrew Jackson (1831-1836) and central figure in formulating and
implementing the Indian removal policy of the Jackson administration.1
It is the stated purpose of this paper to answer the question: Did the Cherokee Indians
experience a genocide in the 1830s through the actions of the U.S. government, specifically
during The Trail of Tears period (1838-39)? I will present evidence showing that this is indeed
the case. First I will give the definition of the word ‘genocide,’ followed by a discussion of the
UN Whitaker Report of 1985 and it’s relation to the Cherokee Indian Genocide. I will follow
this by showing components of genocide in the case of the Cherokee Indians.
Third, I will discuss the causes of genocide, in relation to the Cherokees; giving
perspectives from the psychological, the sociological, and the political science fields. Fourth, I
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will discuss the processes of Cherokee genocide, under the British, but primarily, under the
United States Government. Fifth, I will discuss the principle of double effect and acts of
‘advertent omission’ as acts of genocide. Finally I will discuss the relationship of the Cherokee
genocide and the Jewish holocaust; this being the classic case of genocide.
Definition of ‘Genocide’:
I will use the definition of “genocide” given by the 1948 United Nations’ Convention on
the Prevention and Punishment of the Crime of Genocide, as stated in Article 2-3:
Article 2
In the present Convention, genocide means any of the following acts committed with intent to destroy, in whole
or in part, a national, ethnical, racial or religious group, as such:
•
•
•
•
•
(a) Killing members of the group;
(b) Causing serious bodily or mental harm to members of the group;
(c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction
in whole or in part;
(d) Imposing measures intended to prevent births within the group;
(e) Forcibly transferring children of the group to another group.
Article 3
•
•
•
•
•
•
The following acts shall be punishable:
(a) Genocide;
(b) Conspiracy to commit genocide;
(c) Direct and public incitement to commit genocide;
(d) Attempt to commit genocide;
(e) Complicity in genocide.2
Raphael Lemkin who coined the word ‘genocide’ and helped get the United Nations to
recognize genocide as a crime against humanity in international law, defined genocide as having
two phases, he says:
“Genocide has two phases: one, destruction of the national pattern of the oppressed group: the other, the
imposition of the national pattern of the oppressor. This imposition, in turn, may be made upon the
oppressed population which is allowed to remain, or upon the territory alone, after removal of the
population and the colonization of the area by the oppressor’s own nationals.”3 (My emphasis added).
This added insight into the definition of genocide is very important for the case of the
Cherokee genocide. That is to say that genocide involves an ‘oppressed population’ (i.e. the
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Cherokee) ‘after removal of the population and the colonization of the area by the oppressor’s
own nationals’ (i.e. the Indian Removal Act of 1830 and the dispossession of the entire Cherokee
Nation, as I will show, in the course of this paper). Understanding this part of the definition is
critical to understanding the basic premise of this paper: That the Cherokee Indians were the
victims of genocide.
In discussing the genocide of the Cherokee Indians it is extremely critical to realize the
limitations of the current UN definition of genocide and the critical need to expand and reform
the definition of genocide. I argue this not only on moral grounds, but also on practical political
grounds, (in terms of international law and prevention of the crime of genocide from taking
place in the future). The reformation I call for is only going back to the original intent of
Raphael Lemkin, and the recommendation that all the recommendations of the UN Whitaker
Report of 1985 be implemented. There continues to be opposition to Raphael Lemkin’s original
intent of what he considered to be genocide, McDonnell and Moses relate:
“It is a signal failure of genocide studies scholars in North America in particular, where the field has been
primarily based until recently, that they have neglected his manuscripts sitting on their doorstep, preferring
to regard themselves as fellow “pioneers of genocide studies,” although there is surely one pioneer, namely,
Raphael Lemkin. Rather than investigate what he actually meant by the term and its place in world history,
the field has rejected or misunderstood his complex definition and engaged instead in comparative study of
twentieth century mass killing and totalitarianism, all the while claiming Lemkin as a legitimating
authority… Contrary to the weight of this scholarship, what Lemkin’s manuscripts reveal is that early
modern and modern colonialism was central to his conception of genocide. Indeed, the very notion is
colonial in nature because it entails occupation and settlement.”4
If Lemkin’s definition of genocide as colonial has been studiously ignored by the literature, Australian,
German, and English scholars interested in imperial history have now begun to implement it in their
research on the destructive dimensions of colonialism. But Lemkin not only provided conceptual guidance
to later scholars; he wrote about these colonial cases himself. In “Part III: modern times” of a projected
global history of genocide from antiquity to the present, he wrote, inter alia, on the following cases: “16.
Genocide against the American Indians”; …Then, in a “Report on the preparation of a volume on
genocide,” dated March–May 1948, a less ambitious project comprising ten chapters, two of which covered
extra-European colonial cases:… “2. The Indians in Latin America” … “10. The Indians in North America
(in part).”4
We can see from the above that Raphael Lemkin considered what happened to the
Indians in North American to be genocide. Do we know what Raphael Lemkin thought of the
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Cherokee case in particular? Yes. We know from his unpublished papers that he considered
what happened to the Cherokee Indians to be genocide:
“Such severe cultural change [Lemkin writes] “becomes cultural genocide (and physical genocide)”…
Even when, however, Indian peoples were already “agriculturalized,” as with the five Southern tribes, [of
which the Cherokee tribe was one] there was “forcible removal to western territory under deplorable
conditions”, which was [Lemkin writes] both “cultural and physical genocide”: “There was here no
question of purchasing uncultivated land and of ‘civilizing’ the Indian. The only intent was the expulsion of
the Indian to make room for whites.” For Lemkin, it would appear from such references to North American
colonization, concentration camps and their constituent total dominion were a recurring feature of
historical genocide, including the history of Western colonialism.” Such Lemkin’s unpublished essays and
notes present harrowing reading. Such is particularly so in Lemkin’s evocation of the forced removal and
deportations of Indians, who always mourned the loss of their homelands. Lemkin refers, for example, to
the deportation of the Cherokee from Georgia…[as an example of genocide against the American
Indian].” (Bolded and Italic words added for my emphasis).5
Raphael Lemkin was never satisfied with the UN Convention on Genocide, in its final
definition of genocide; in addition the United States did not sign the Genocide Convention in his
life time. Samantha Power, relates,
“In late 1946 a weary Lemkin flew from Germany…his proposal was again rejected, here on the grounds
that he was “trying to push international law into a field where it did not belong.”…he had to return to the
United States immediately. First, on what he would later call “the blackest day” of his life, he heard the
pronouncement of the Nuremberg tribunal. Nineteen Nazi defendants were convicted of crimes against
peace, war crimes, and crimes against humanity. No mention was made of genocide…On August 28, 1959,
after a quarter-century battle to ban genocide; Lemkin collapsed and died of a heart attack in the public
relations office of Milton H. Blow…Lemkin had coined the word “genocide.” He had helped draft a treaty
designed to outlaw it. And he had seen the law rejected by the world’s most powerful nation. Seven
people attended Lemkin’s funeral.”6
The UN Whitaker Report (1985): Acts of ‘advertent omission’ are acts of genocide.
This recommendation of expanding and the reforming of the definition of the crime of
genocide has all ready been made by a recommendation of the UN Whitaker Report of 1985.
In fact UN Special Rapporteur Benjamin Whitaker of the United Kingdom “revised and
updated [the] report on the question of the prevention and punishment of the crime of
genocide" (46 pages) which was presented on July 2, 1985 to the UN Sub-Commission on
Prevention of Discrimination and Protection of Minorities.7 Whitaker's recommendations for the
establishment of a UN High Commissioner on Human Rights and an International Criminal
Court have been realized.7 In contrast, his recommendation for the establishment of an impartial
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international body concerned with preventing genocide (paragraph 85) has been ignored7 as well
as his recommendation for a category of genocide labeled under ‘acts of advertent omission' (UN
Whitaker Report, page 20, paragraph 40). The UN Human Rights system included multiple
treaty monitoring bodies for the prevention of torture and other violations, but still has no body
specifically responsible for the prevention of genocide.7
The UN Whitaker Report on Genocide, 1985, Part II, Section VI, paragraphs 39-418 is a
recommendation of moral and political significance towards not just the Cherokee Indian
genocide but others like unto it, it reads:
39. Evidence of this element of subjective intent is far harder to adduce than an objective test. Not all
genocidal regimes are likely to be as thoroughly documented as the Nazi one was. It is suggested that a
court should be able to infer necessary intent from sufficient evidence, and that in certain cases this would
include actions or omissions of such a degree of criminal negligence or recklessness that the defendant
must reasonably be assumed to have been aware of the consequences of is conduct. The plea of superior
orders is dealt with later infra, in paragraph 51 onwards.8 (My emphasis added).
40. The conduct listed in Articles II and III of the Convention as being punishable as genocide consists
elusively of the commission of certain actions. Similar results, to Article II (b) and (c) for example,
however may be achieved by conscious acts advertent omission. In certain cases, calculated neglect or
negligence may be sufficient to destroy a designated group wholly or partially through, for instance, famine
or disease.8 (My emphasis added).
41. The Special Rapporteur therefore proposes that there should be added at the end of Article II of the
convention words such as: "in any of the above conduct, a conscious act or acts of advertent omission may
be as culpable as an act of commission." Provision for revision of the Convention is set out in Article XVI
of the Convention.8 (My emphasis added).
If we consider the U.S. government’s ‘advertent omission’ to preserve Cherokee lives
along The Trail of Tears (1838-39) as an act of genocide, as the UN Whitaker Report on
Genocide, (1985) has recommended, there can be doubt that the Cherokee deportation would be
considered an act of genocide today.
Guenter Lewy, counter argues that the American Indians and the Cherokee American
Indians, in particular, did not experience genocide at all. He says:
True, the forced relocations of Indian tribes were often accompanied by great hardship and harsh treatment;
the removal of the Cherokee from their homelands to territories west of the Mississippi in 1838 took the
lives of thousands and has entered history as the Trail of Tears….True, too, some colonists later welcomed
the high mortality among Indians, seeing it as a sign of divine providence; that, however, does not alter the
basic fact that Europeans did not come to … in order to infect the natives with deadly diseases.9
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As for the larger society, even if some elements in the white population, mainly in the West, at times
advocated extermination, no official of the U.S. government ever seriously proposed it. Genocide was never
American policy, nor was it the result of policy.10 (My emphasis added).
The violent collision between whites and America's native population was probably unavoidable. Between
1600 and 1850, a dramatic surge in population led to massive waves of emigration from Europe, and many
of the millions who arrived in the New World gradually pushed westward into America's seemingly
unlimited space. No doubt, the 19th-century idea of America's "manifest destiny" was in part a
rationalization for acquisitiveness, but the resulting dispossession of the Indians was as unstoppable as
other great population movements of the past. The U.S. government could not have prevented the westward
movement even if it had wanted to.10 (My emphasis added).
In the end, the sad fate of America's Indians represents not a crime but a tragedy, involving an
irreconcilable collision of cultures and values. Despite the efforts of well-meaning people in
both camps, there existed no good solution to this clash. The Indians were not prepared to give
up the nomadic life of the hunter for the sedentary life of the farmer. The new Americans,
convinced of their cultural and racial superiority, were unwilling to grant the original inhabitants of the
continent the vast preserve of land required by the Indians' way of life. The consequence was a conflict in
which there were few heroes, but which was far from a simple tale of hapless victims and merciless
aggressors. To fling the charge of genocide at an entire society serves neither the interests of the Indians
nor those of history.10 (My emphasis added).
I will argue that there were cases where biological warfare were pre-planned against the
Cherokees, particularly in the case of the British in 1738. In addition I will argue along the lines
of the UN Whitaker Report, 1985: …"in any of the above conduct, a conscious act or acts of
advertent omission may be as culpable as an act of commission." (UN Whitaker Report on
Genocide, 1985, paragraph 41, page 20, my emphasis added). If this is to be argued than it is
clear that Guenter Lewy is wrong and we can consider the Cherokee Trail of Tears (1838-39) an
act of genocide against the Cherokee people today, inasmuch as the U.S. Army knew that by
forcing the Cherokees to march in the middle of winter without rest would cause massive loss of
life; it was in others words an act of ‘advertent omission,’ which can be considered an act of
genocide.
Components of Genocide:
The components of genocide include an agent or agents who commit the crime, the
victims of genocide, the strategy of the agents to commit genocide, and the intent of the agents
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who commit genocide. I have defined these components of genocide for the specific case of the
Cherokee genocide below:
1.
Agents: European colonists and the United States Government especially under the
administrations of Presidents Andrew Jackson (1829-1837) and Martin Van Buren (18371841).
2. Victims: Cherokee Indians.
3. Strategy: Biological warfare (under the British), deportation, rape, mass killings,
massacres, concentration camps, death marches, forced removal, etc., (under the United
States).
4. Intent: Intent started as a desire for land, wealth, and power; but became ‘an intent to
destroy’ Cherokee Nation, and to significantly reduce Cherokee race ‘in whole or in
part.’ If we consider the U.S. government’s ‘advertent omission’ to preserve Cherokee
lives along the Trail of Tears an act of genocide, as (Whitaker) has recommended, that
the United Nations include acts of ‘advertent omission’ in its list of acts of genocide,
there can be doubt that the Cherokee deportation would be conserved an act of genocide
today. (see: UN Whitaker Report on Genocide, 1985, paragraphs 40, page 20).11
Causes:
The causes of the Cherokee Indian genocide can be placed in three main perspective
categories, namely the psychological, the sociological, and the political science perspective. I
will first go over the psychological perspective, followed by the sociological perspective, and I
will end with the political science perspective.
Psychological perspective:
The psychological perspective of the genocide of the Cherokee Indians includes the
elements of white American greed over the Cherokee land, American colonists’ humiliation
under Great Britain, and fear of the Cherokee Indians, and extreme amounts of narcissism in the
Doctrine of Manifest Destiny. I will discuss these elements below.
Greed: The Cherokee at the time numbered 16,000 many of whom had become
educated, wealthy, and had converted to Christianity. Most had become farmers, some lawyers
and others doctors. In 1827 the Cherokee Nation had a written Constitution and with an
Executive Branch, a Judicial Branch, and a Supreme Court. In 1832 the U.S. Supreme Court
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recognized the Cherokee Nation as an independent sovereign nation and Cherokee land was
protected by Federal Treaties. They also had a printing press with their own newspaper and their
own written language. The Cherokee homes looked much like White American homes and gold
had recently been discovered on their land in Georgia.
All of these facts caused great jealousy and greed for the White Americans. For example
the Georgia Legislature stated in a resolution in December 1827: “The lands in question belong
to Georgia. She must and will have them.”12 The fact that the Cherokee were prospering and
civilizing caused them to be hated more than the other tribes, and White American greed of
Cherokee wealth and civilization created a desire to completely wipe out the Cherokee.
President Jackson ignoring the U.S. Supreme Court’s ruling on the Cherokee, stated in an
address to Congress in 1830 of the Indian Removal Act: “The…policy of the [U.S.] Government
[is] to steadily remove the Indians beyond the white settlements…and enable those States to
advance rapidly in population, wealth, and power...”13
Fear and Humiliation: Fear of the Cherokee Indians and Indians in general was stated
in one of the founding documents of the United States, helping to create the Other/Enemy
distinction, humiliation came from the fact of being subjected under the British Crown, and the
fear of the Indians as allies; as Thomas Jefferson wrote in the Declaration of Independence, July
4, 1776: “[King George] has excited domestic insurrections amongst us, and has endeavored to
bring on the inhabitants of our frontiers, the merciless Indian Savages whose known rule of
warfare, is an undistinguished destruction of all ages, sexes and conditions. …”14
Narcissism: The doctrine of Manifest Destiny, of which Francis Parkman, an American
historian, wrote about in his landmark book The Conspiracy of Pontiac, (1851) wrote that the
Indians were “destined to melt and vanish before the advancing waves of Anglo-American
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power, which now rolled westward unchecked and unopposed.”15 With the doctrine of Manifest
Destiny, American Imperialism, American Patriotism, and American Colonialism, made such
extreme narcissism possible to “melt and vanish” away the race of the Cherokee Indians and
Indians in general in North America.
Sociological perspective:
The sociological perspective brings into the forefront a primitive level of ‘scientific’
racism against the Cherokee. The white man’s level of modernity and scientific ‘advancement’
compared to the ‘red savages’ was a sociological tool that white Americans used as an argument
to implement their policies against the Cherokee Indians, these policies would threaten the very
existence of the Cherokee Nation.
Modernity: As I stated above ‘scientific’ racism played a critical role in painting the
Cherokee as an ‘inferior race’ of “savages” compared to the White Americans. Lewis Cass,
governor of Michigan Territory, wrote in favor of Cherokee removal: “We doubt whether there
is, upon the face of the globe, a more wretched race than the Cherokees, as well as the other
southern tribes, present…[a] wandering horde of barbarians…as their ignorance and the
superior intelligence of the whites may render…”(My emphasis added)16 Of the Indian Removal
Act (1830) President Andrew Jackson lying about the number of Indians living there, told
Congress: “It will place a dense and [white] civilized population in large tracts of country now
occupied by a few [Indian] savage hunters. (My emphasis added).17
Political Science perspective:
The political science perspective brings to the forefront the role that American
Nationalism and American nation-building played in the Cherokee Indian genocide. The desire
of President Jackson and other American Presidents in desiring a new [White] homogenous
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American Republic-Empire can be seen statements such as: George Washington ordered in 1783
that those [Indians] remaining within the areas of the initial thirteen states be 'hunted like beasts,'
and that a 'war of extermination be waged against those barring U.S. access to certain desired
areas.";18 President Thomas Jefferson stated in 1807, the U.S. should if any Indians resist
“pursue [the Indians] into extermination."18
"President Andrew Jackson on the Supreme Court decision ruling in favor of the
Cherokee Nation, said: ‘[Chief Justice] John Marshall has made his decision, now let him
enforce it!’19 After his Presidency was over President Jackson ‘was still recommending that
American troops specifically seek out and systematically kill all Indian women and children who
were hiding.’20 The degree of American desire to kill off the Indians was made by General
Philip Sheridan in 1869, who told Indian Comanche Chief Tosawi: “The only good Indians I
ever saw were dead.”21 This statement was made as the U.S. army continued its American wars
of Nationalism to conqueror all the Indian lands of North America. Through the killing off of
American Indians and forcing them West the United States built itself.
Historical background on the Cherokee Indians:
The Cherokee are North American Indian people of Iroquoian lineage who inhabited eastern
Tennessee and the western Carolinas. Formerly they had lived around the Great Lakes,
migrating to the south after their defeat by the Delaware and Iroquois. Their population in 1650
has been estimated at 22,550, spread over 40,000 square miles of the Appalachian Mountains.22
The Cherokee wars and treaties, a series of battles and agreements around the period of the U.S.
War of Independence, (1776) effectively reduced Cherokee power and landholdings in Georgia,
eastern Tennessee, and western North and South Carolina, freeing this territory for speculation
and settlement by the white man.23 The humiliated Indians could only win peace by surrendering
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vast tracts of territory in North and South Carolina at the Treaty of Dewitt’s Corner (May 20,
1777) and the Treaty of Long Island of Holston (July 20, 1777).23
After 1800 the Cherokee were remarkable for their assimilation of white culture. The
Cherokee formed a government modeled on that of the U.S. Under Chief Junaluska they aided
Andrew Jackson against the Creek Indians, particularly in the Battle of Horseshoe Bend.23 They
adopted white methods of farming, weaving, and home building.23 Perhaps most remarkable of
all was the development of a written Cherokee language, developed in 1821 by Sequoyah, a halfblooded Cherokee who had served with the U.S. Army in the Creek War.23 A written
constitution was adopted, and religious literature flourished, including translations from the
Christian scriptures.23 The first American Indian newspaper was a Cherokee newspaper, the
Cherokee Phoenix, which began publication in February 1828.23
However the Cherokee’s rapid acquisition of white culture did not protect them against the
land hunger of the settlers. When gold was discovered on the Cherokee land in Georgia, calls for
the removal of the Indians increased dramatically.23 In December 1835 the Treaty of New
Echota, signed illegally by only a small minority of the Cherokee, ceded to the U.S. all their land
east of the Mississippi River for $5,000,000, which was never paid.23 The overwhelming
majority of Cherokees repudiated the treaty and took their case to the Supreme Court of the
United States.23 The court rendered a decision favorable to the Indians, declaring that Georgia
had no jurisdiction over the Cherokees and no claim to their lands.23
Georgia officials ignored the court’s decision, and President Andrew Jackson refused to
enforce it.23 As a result, the Cherokees were evicted under the Indian Removal Act of 1830 by
7,000 troops commanded by General Winfield Scott.23 Some 15,000 Cherokees were first
gathered into concentration camps (where thousands of Cherokees were murdered because of the
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ill treatment) while their homes were plundered and burned by local residents.23 Then the
Indians were sent west in groups of about 1,000, most on foot.23
The eviction and forced march, which came to be known as the Trail of Tears, took place
during the fall and winter of 1838-39.23 Inadequate food supplies led to terrible suffering,
especially after frigid weather arrived.23 About 4,000 Cherokees died on the 116-day journey,
(to northeastern Oklahoma) because the escorting troops refused to slow down on their forced
death march so that the ill and exhausted could recover.23 A few hundred Cherokee escaped to
the mountains of Georgia, the United States Army would hunt these last remaining Cherokee
Indians down and exterminate them as they found them.23
Processes of Cherokee Genocide:
The processes and strategy of Cherokee genocide first under the British and followed by the
United States included: Biological warfare (under the British), deportation, rape, mass killings,
massacres, concentration camps, death marches, forced removal, etc., (under the United States).
First I will give some historical background on the Cherokee Indians. Secondly I will go over
the Cherokee contact with the British, followed by American contact in 1776, after this I will
discuss the policies of the United States, beginning with the Indian Removal Act of 1830 and
ending with ‘The Trail of Tears’ period (1838-39).
Cases of genocidal actions taken against the Cherokees:
Cherokee contact with the British: In 1738, a major disaster struck the Cherokee when
their towns were swept by an epidemic of smallpox, the Cherokee Chief Aganstat, accused the
British of deliberately planting smallpox germs in the trade goods, they had shipped to the
Cherokees.24 Hundreds of Cherokee people died as a result of this genocidal act by the British.24
12
American Invasion of Cherokee Nation, with intent to destroy entire Cherokee
population: In July of 1776 two hundred Georgians led by Colonel Samuel Jackson attacked
Cherokee towns in the North. Colonel Andrew Williamson led eleven hundred men attacking
the Cherokee Nation along with General Griffith Rutherford, who invaded with two thousand
men their express purpose: ‘was the complete destruction of the entire Cherokee Nation.’25
(Emphasis added). These American forces burned towns, destroyed crops and killed men,
women, and children indiscriminately. Evans says, “Prisoners who were not immediately
murdered were put on the slave block and sold like Blacks.”’25
Indian Removal Act (1830): The failure of the ‘complete destruction of the entire
Cherokee Nation’ by the Americans continued the U.S. Government’s “Indian Question.”
President Andrew Jackson presented his Final Solution for the Cherokee Indians (The Indian
Removal Act of 1830) which gave him license for a military genocide, forced marches, and
concentration camps for the Cherokee people. Under President Andrew Jackson this official
policy was voted on in Congress and passed to remove the Cherokee completely.26
On May 28, 1830, the first major legislative departure from the U.S. policy of respecting the
legal and political rights of the American Cherokee Indians began.27 The Indian Removal Act
(1830) authorized the president to grant Indian tribes unsettled western prairie land in exchange
for their desirable territories within state borders, (especially in the Southeast), from which the
tribes would be removed.27 Andrew Jackson (served as President of the United States from
1829-1837) and vigorously promoted this new Indian policy, which became incorporated in the
Indian Removal Act of 1830.27 Although the bill provided only for the negotiation with tribes
east of the Mississippi on the basis of payment for their lands, trouble arose when the United
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States resorted to force to gain the Indians’ compliance with its demand that they accept the land
exchange and move west.27
Upon the departure of Andrew Jackson from office in 1837, Martin Van Buren was elected
President of the United States. Under orders from President Van Buren the entire Cherokee
Nation was ordered to be ‘removed by force’ (this despite a U.S. Supreme Court ruling which
was in favor of the Cherokee Nation staying on their lands if they so desired).28 Many of these
Indians had homes, representative government, children in missionary schools, and trades other
than farming, when forced to leave their homes.28 Babies, old people, pregnant women, etc.,
were forced to march 1,500 miles, part of it in dead winter, without providing anything
resembling adequate food, shelter, or medical support. The Cherokees were not given time to get
the most basic items needed for survival from their well furnished homes. Thousands died in the
concentration camps before ever leaving:
“The Cherokee at the concentration camps found themselves imprisoned in a space two hundred by five
hundred feet, enclosed by sixteen foot high walls. Inside the walls there was no shelter and no privacy. They
slept on the bare ground. Evans says, “There were no provisions for sanitation and water supply was inadequate
and questionable…The summer heat made the camps unbearable and people began to die especially the very
old and the very young…many Cherokee women and children were repeatedly raped…”29
‘The Trail of Tears’ (1838-39): Thousands more died on the forced death march known as
‘The Trail of Tears’ (1838-39). A little over half of the entire Cherokee population was reduced
(8,000 dead).30 This was the result of official policy of the Indian Removal Act, and an act of
genocide, especially if we consider the U.S. government’s ‘advertent omission’ to preserve
Cherokee lives along The Trail of Tears and in the concentration camps as an act of genocide.
The Cherokees were treated horribly by the U.S. Government and the White Americans.
According to General Wool, speaking of the white man, they are “like vultures, [who] are
watching, ready to pounce upon their prey [the Cherokee Indians] and strip them of everything
they have or expect from the government of the United States. Yes, sir, nineteen-twentieths, if
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not ninety-nine out of every hundred will go penniless to the West.”31 The Cherokees had
acquired much wealth, education, and homes that the White Americans were envious over.
Cherokee Major John Ridge, speaking of the White man, and U.S. Government:
“…they have got our lands and now are preparing to fleece us of the money…we shall be compelled to leave
our country as beggars….white people are flogging the Cherokees with cowhides, hickories, and clubs. We are
not safe in our houses our people are assailed by day and night…This barbarous treatment is not confined to
men, but the women are stripped also and whipped without law or mercy.”31
American philosopher, Ralph Waldo Emerson, wrote a letter of protest to U.S. President
Martin Van Buren:
“Such a dereliction of all faith and virtue, such denial of justice, and such deafness to screams for mercy were
never heard of in times of peace and in the dealing of a nation with its own allies and wards, since the earth was
made. Sir, does this government that the people of the United States are become savage and mad? From their
mind are the sentiments of love and a good nature wiped clean out? The soul of man, the justice, the mercy that
is the heart’s heart in all men, from Maine to Georgia, does abhor this business.”31
Protests or not, May 23, 1838, marked the death of the sovereign Cherokee Nation, and the
start of a military genocide, on this day was the scheduled deadline for the Cherokee Indian
Removal. Private John G. Burnett's account of the Cherokee Indian Removal, 1838-39, during
the Trail of Tears, tells a compelling account of genocide committed by ‘advertent omission.’
Private Burnett was under command of U.S. Army Captain Abraham McClellan’s Company, 2nd
Regiment, 2nd Brigade, Mounted Infantry, during the Trail of Tears (1838-1839). His account is
riddled with acts of ‘advertent omission’ ‘criminal negligence’ and ‘recklessness’ of the US
Army. Private Burnett tells of this, in a letter to his grandchildren, in 1890:
One can never forget the sadness and solemnity of that morning. Chief John Ross led in prayer and when the
bugle sounded and the wagons started rolling many of the children rose to their feet and waved their little hands
good-by to their mountain homes, knowing they were leaving them forever. Many of these helpless people did
not have blankets and many of them had been driven from home barefooted….we encountered a terrific sleet
and snow storm with freezing temperatures and from that day until we reached the end of the fateful
journey….the sufferings of the Cherokees were awful. The trail of the exiles was a trail of death. They had to
sleep in the wagons and on the ground without fire. And I have known as many as twenty-two of them to die in
one night of pneumonia due to ill treatment, cold, and exposure…a brutal teamster by the name of Ben
McDonald, who was using his whip on an old feeble Cherokee to hasten him into the wagon. The sight of that
old and nearly blind creature quivering under the lashes of a bull whip was too much for me…32
Crimes were committed that were a disgrace to civilization. Men were shot in cold blood, lands were
confiscated. Homes were burned and the inhabitants driven out by the gold-hungry brigands. Chief John Ross
15
sent Junaluska [the Cherokee that had saved the life of President Andrew Jackson at the Battle of Horseshoe
Bend in 1814] as an envoy to plead with President Jackson for protection for his people, but Jackson’s manner
was cold and indifferent …He met Junaluska, heard his plea but curtly said, "Sir, your audience is ended." The
doom of the Cherokee was sealed. Washington, D.C., had decreed that they must be driven West and their lands
given to the white man… and wrote the blackest chapter on the pages of American history. Men working in the
fields were arrested and driven to the stockades. Women were dragged from their homes by soldiers….
Children were often separated from their parents and driven into the stockades with the sky for a blanket and the
earth for a pillow. And often the old and infirm were prodded with bayonets to hasten them to the stockades…A
little sad-faced child had died and was lying on a bear skin couch…All were arrested and driven out leaving the
child in the cabin…[one] mother gathered [her] children at her feet, with a baby strapped on her back and
leading a child with each hand started on her exile. But the task was too great for that frail mother. A stroke of
heart failure relieved her sufferings. She sunk and died with her baby on her back, and her other two children
clinging to her hands. 32
School children of today do not know that we are living on lands that were taken from a helpless race at the
bayonet point to satisfy the white man’s greed....Murder is murder whether committed by the villain skulking in
the dark or by uniformed men stepping to the strains of martial music. Murder is murder, and somebody must
answer. Somebody must explain the streams of blood that flowed in the Indian country in the summer of 1838.
Somebody must explain the 4000 silent graves that mark the trail of the Cherokees to their exile. I wish I could
forget it all, but the picture of 645 wagons lumbering over the frozen ground with their cargo of suffering
humanity still lingers in my memory. Let the historian of a future day tell the sad story with its sighs, its tears
and dying groans. Let the great Judge of all the earth weigh our actions and reward us according to our work. 32
The actions of the U.S. Army were ‘conscious acts [of] advertent omission…[which were]
calculated neglect [and] negligence’ and were ‘sufficient to destroy a designated group [the
Cherokees] wholly or partially...through, for instance, famine or disease’ in addition to murder.
As Special Rapporteur Benjamin Whitaker recommends:
It is suggested that a court should be able to infer necessary intent from sufficient evidence, and that in certain
cases this would include actions or omissions of such a degree of criminal negligence or recklessness that the
defendant must reasonably be assumed to have been aware of the consequences of is conduct… Similar results,
to Article II (b) and (c) for example, however may be achieved by conscious acts advertent omission. In certain
cases, calculated neglect or negligence may be sufficient to destroy a designated group wholly or partially. In
certain cases, calculated neglect or negligence may be sufficient to destroy a designated group wholly or
partially through, for instance, famine or disease… The Special Rapporteur therefore proposes that there should
be added at the end of Article II of the convention words such as: "in any of the above conduct, a conscious act
or acts of advertent omission may be as culpable as an act of commission." (see: UN Whitaker Report on
Genocide, 1985, paragraphs 39-41, page 20, my emphasis added).33
According to Chalk & Jonassohn:
Was the Cherokee Removal a genocide? Not under the [current] U.N. definition or our own because the
element of perpetrator intent is missing. But if we consider the U.S. government’s “advertent omission” to
preserve Cherokee lives along the Trail of Tears, and accept Whitaker’s recommendation that the United
Nations include acts of advertent omission in its list of acts of genocide, then an act like the Cherokee
deportation would almost certainly be considered an act of genocide today (Whitaker).34
16
It is clear that the United States Government is guilty of genocide through acts of ‘advertent
omission’ to preserve Cherokee lives both along the Trail of Tears and in the Cherokee Indian
Concentration Camps.
However even if we take a look at the current UN definition of genocide, we can see that it
fits the definition given in part (c) which reads: Deliberately inflicting on the group conditions of
life calculated to bring about its physical destruction in whole or in part. This was accomplished
in the concentration camps where the Cherokee Indians were forced to live and die in, in addition
to the 1,500 death march on The Trial of Tears (1838-39). In addition while the Cherokees were
in the concentration camps women and children were repeatedly raped by the U.S. soldiers,
which, certainly fits under the UN definition given in part (b) which reads: Causing serious
bodily or mental harm to members of the group.
We should also consider the fact that many Cherokee children were taken from their families
which fits the definition given under part (e) which reads: Forcibly transferring children of the
group to another group [is an act of genocide]. We should also consider that the U.S.
Government’s actions to destroy the Cherokee Nation and wipe them off the map which again
matches the UN preamble on Genocide, which reads: In the present Convention, genocide
means any of the following acts committed with intent to destroy, in whole or in part, a
national,…group. The Cherokee Nation can be considered ‘a national,…group.’ These facts
alone would make the Cherokee Trail of Tears period (1838-39) a genocide even in the most
strict definition of genocide, in the UN Genocide Convention.
Yet we should also consider the principle of double effect, which is that if you can
foresee the secondary consequences of what you do or intend to do and in foreseeing such
consequences you allow to happen the co-effects of the unintended effect you are still morally
17
responsible for those actions. Thus the principle of double effect, as applied to the Cherokee
Indian case would mean that the U.S. Government knew fully or at the very least could foresee
the secondary consequences of what would happen to the Cherokee Indians both in the
concentration camps and on the 1,500 mile death march, and because the U.S. Government
allowed to happen the co-effects of the unintended effect, they are still guilty of the crime of
genocide, either fully or through ‘advertent omission.’
Finally we should consider Cherokee genocide in the long term policies of the United States.
For example “scalp bounties” was official U.S. policy. Every U.S. state and territory had in
place at one time or another, an official policy whereby a bounty would be paid for proof of
death of an Indian ---any Indian---in the form of his or her scalp or, in some cases, their “bloody
red skin.’35 This is the origin of the term “redskin,”---it’s not about complexion.35 This is a
genocidal policy, and this policy was unequivocally official.35 The frontier began to be pushed
aggressively westward in the years that followed, upsetting the “guaranteed” titles of the displace
tribes and further reducing their relocated holdings.36
The Adolf Hitler connection:
Historians have widely known that Adolf Hitler modeled the Jewish holocaust
techniques, such as, concentration camps, deportation and ‘settler’ repopulation, off of American
Indian concentration camps and specifically the U.S. Indian Removal policy (1830), so says John
Toland, a leading biographer of Hitler:
"Hitler's concept of concentration camps as well as the practicality of genocide owed much, so he claimed,
to his studies of English and United States history. He admired the camps….for the Indians…; and often
praised to his inner circle the efficiency of America's extermination-by starvation and uneven combat-of the
red savages who could not be tamed by captivity."37
18
Adolf Hitler in his famous book Mein Kampf makes a comparison between Jews who
are like the American Indians and the pure White Americans who he compares to the Germanic
Aryan race:
“We ought to remember that during the first period of American colonization numerous Aryans [White
Americans] earned their daily livelihood as trappers and hunters, etc., frequently wandering about in large
groups with their women and children…The moment, however, that they grew more numerous and were
able to accumulate larger resources, they cleared the land and drove out the aborigines, (Hitler compares
the Indians to the Jews that need to be wiped out) at the same time establishing settlements which rapidly
increased all over the country.”38 (My emphasis added).
Conclusion:
In conclusion the United States is guilty of the crime of genocide specifically against the
Cherokee Indians during The Trail of Tears period (1838-39). The United States is guilty both in
terms of a more restricted reading of the UN Convention on Genocide and in the more liberal
reading under the UN Whitaker Report of 1985 to include acts of ‘advertent omission,’ as acts of
genocide.
As I have stated above when we consider the principle of double effect, which is that if
you can foresee the secondary consequences of what you do or intend to do and in foreseeing
such consequences you allow to happen the co-effects of the unintended effect you are still
morally responsible for those actions. Further as I have stated when we consider the 1985 UN
Whitaker Report’s recommendation to include acts of ‘advertent omission’ as acts of genocide,
we see a pattern of ‘advertent omissions’ consciously performed by the Administrations of
Presidents Andrew Jackson and Martin Van Buren against the Cherokee Indians.
The very fact that the U.S. Government and some scholars continue to deny any
“genocide” has taken place against the Cherokee Indians or the American Indians in general
leads credence to the fact that we are in the final stage of the Cherokee Indian Genocide: Denial.
According to Genocide Watch, denial is the eighth stage of genocide: [The perpetrators or their
19
sympathizers] deny that they committed any crimes, and often blame what happened on the
victims.39 This is particularly true when Guenter Lewy calls the Cherokee experience merely a
‘tragedy,’40 rather than the ‘crime’40 of ‘genocide’ for which it really was. Until we
acknowledge that the Cherokee Indians experienced a genocide, justice cannot fully be realized.
I would further recommend as the UN Whitaker Report recommends that ‘acts of
advertent omission’ be included as acts of genocide, if this is not added it leaves a legal loophole
for future genocidal governments to commit the crime of genocide. This is particularly true in
the case of the Cherokee genocide and how we view it, and cases like Darfur. Historical truth
ought to be much larger than narrow legalistic definitions of genocide; therefore a revision of the
UN Genocide Convention is urgently needed for the future welfare of humanity.
Notes and References
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
Theda Perdue, The Cherokee Removal: A Brief History with Documents. (Boston: Bredford Books of St.
Martin’s Press), 1995, p. 108, 110.
Adopted by Resolution 260 (III) A of the United Nations General Assembly on 9 December 1948.
Raphael Lemkin, Axis Rule in Occupied Europe, (Washington, DC: Carnegie Council, 1944), p. 79.
Michael A. McDonnell and A. Dirk Moses, “Raphael Lemkin as historian of genocide in the Americas.”
Journal of Genocide Research (2005), 7(4), December, p. 501.
John Docker, Paper for United States Holocaust Memorial Museum, Center for Advanced Holocaust
Studies, Washington DC, 26 February 2004. Retrieved June 30, 2008, from
http://www.ushmm.org/conscience/analysis/details/2004-02-26/docker.pdf
Samantha Power, “A Problem from Hell”: America and the Age of Genocide, (New York: Basic Books),
2002, p. 50.
United Nations Documents on Genocide Prevention, Retrieved June 30, 2008, from
http://www.preventgenocide.org/prevent/UNdocs/#whitaker
UN Whitaker Report on Genocide, 1985, paragraphs 39-41, page 20, Retrieved June 30, 2008, from
http://www.preventgenocide.org/prevent/UNdocs/whitaker/section6.htm
Genuter Lewy, “Were the American Indians the victims of genocide?” Commentary, (September 2004), p.
56-57.
Genuter Lewy, “Were the American Indians the victims of genocide?” Commentary, (September 2004), p.
62-63.
Frank Chalk and Kurt Jonassohn, The History and Sociology of Genocide: Analyses and Case Studies,
(New Haven: Yale University Press), 1990, p. 197.
William G. McLoughlin, Cherokee Renascence in the New Republic, (Princeton: Princeton University
Press), p. 411.
Our Documents A National Initiative on American History, Civics, and Service, Transcript of President
Andrew Jackson's Message to Congress 'On Indian Removal' (1830), Retrieved June 23, 2008, from
http://www.ourdocuments.gov/doc.php?doc=25&page=transcript
Thomas Jefferson, Declaration of Independence, July 4, 1776.
20
15. Francis Parkman, The Conspiracy of Pontiac, (New York: Literary Classics of the United States, Inc.)
1991, (1851), p. 347.
16. Theda Perdue, The Cherokee Removal: A Brief History with Documents. (Boston: Bredford Books of St.
Martin’s Press), 1995, p. 108-113.
17. Our Documents A National Initiative on American History, Civics, and Service, Transcript of President
Andrew Jackson's Message to Congress 'On Indian Removal' (1830), Retrieved June 23, 2008, from
http://www.ourdocuments.gov/doc.php?doc=25&page=transcript
18. Ward Churchill, Indians 'R' Us: Culture & Genocide. (Common Courage Press, Monroe, Maine), p. 312.
19. Horace Greeley, The American Conflict. O. D. Case & Co. (1865), p. 106.
20. Ward Churchill, Indians 'R' Us: Culture & Genocide. (Common Courage Press, Monroe, Maine), p. 313.
21. Dee Brown, Bury my heart at wounded knee: An Indian History of the American West. (Holt, Rinehart &
Winston) 1970, p. 170.
22. The New Encyclopedia Britannica, Cherokee. (Chicago: Encyclopedia Britannica, Inc.) 2002, Volume
13, Edition 15, p. 172.
23. The New Encyclopedia Britannica, Cherokee. (Chicago: Encyclopedia Britannica, Inc.) 2002, Volume 13,
Edition 15, p. 173.
24. Robert J. Conley, The Cherokee Nation: A History. (Albuquerque: University of New Mexico Press) 2005,
p. 39-40.
25. Robert J. Conley, The Cherokee Nation: A History. (Albuquerque: University of New Mexico Press) 2005,
p. 64.
26. Our Documents A National Initiative on American History, Civics, and Service, Transcript of President
Andrew Jackson's Message to Congress 'On Indian Removal' (1830), Retrieved June 23, 2008, from
http://www.ourdocuments.gov/doc.php?doc=25&page=transcript
27. Jill Norgren, The Cherokee Cases: Two Landmark Federal Decisions in the Fight for Sovereignty.
University of Oklahoma Press, 1996.
28. The New Encyclopedia Britannica, Indian Removal Act. (Chicago: Encyclopedia Britannica, Inc.) 2002,
Volume 29, Edition 15, p. 290.
29. Robert J. Conley, The Cherokee Nation: A History. (Albuquerque: University of New Mexico Press) 2005,
p. 153.
30. Russell Thornton, “Cherokee population losses during The Trail of Tears: A new perspective and a
estimate,” Ethnohistory 31(4):289-300 (1984).
31. Robert J. Conley, The Cherokee Nation: A History. (Albuquerque: University of New Mexico Press)
2005, p. 147-148.
32. Cherokee Nation Official Site, John Burnett's Story of the Trail of Tears Birthday Story of Private John G.
Burnett, Captain Abraham McClellan’s Company, 2nd Regiment, 2nd Brigade, Mounted Infantry,
Cherokee Indian Removal, 1838-39. Retrieved on July 7, 2008,
http://www.cherokee.org/Culture/CulInfo/TOT/128/Default.aspx
33. UN Whitaker Report on Genocide, 1985, paragraphs 39-41, page 20, Retrieved June 30, 2008, from
http://www.preventgenocide.org/prevent/UNdocs/whitaker/section6.htm
34. Frank Chalk & Kurt Jonassohn, The History and Sociology of Genocide: Analyses and Case Studies, (New
Haven: Yale University Press) 1990, p. 197.
35. Ward Churchill, “An American holocaust? The structure of denial.” Socialism and Democracy 17:1, 5859.
36. Ward Churchill, “An American holocaust? The structure of denial.” Socialism and Democracy 17:1, 2575.
37. John Toland, Adolf Hitler. (New York: Doubleday & Company, Inc.) 1976, p. 802.
38. Project Gutenberg of Australia, Mein Kampf, Adolf Hitler, Chapter XI, Race and People, Retrieved on June
18, 2008, http://gutenberg.net.au/ebooks02/0200601.txt
39. Genocide Watch, The 8 Stages of Genocide, Retrieved on July 10, 2008
www.genocidewatch.org/8stages.htm
40. Genuter Lewy, “Were the American Indians the victims of genocide?” Commentary, (September 2004), p.
62-63.
21
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