Provisions for Indian "removal"—the relocation of entire Native nations from areas about to be annexed by non-Indians—were first laid down in an 1817 treaty between the United States and the Cherokee Nation (7 Stat. 156). By 1830, the federal government had passed general removal legislation aimed at the Five Civilized Tribes (the Cherokees, Choctaws, Chickasaws, Creeks, and Seminoles) after they had adopted ways of life and political institutions resembling those of European-Americans. Many other Native American nations (such as the Osages and Poncas) also were removed to Indian Territory during the nineteenth century. By 1883, twenty-five Indian reservations occupied by a total of thirty-seven nations had been established in Indian Country.
The many trails of tears, mostly between the 1830s and 1860s, resulted in immense suffering among the estimated 50,000 to 100,000 Native people who were forced to move. Between one-third and one-fourth of those who were removed died either on the marches or shortly thereafter of exposure, disease, and starvation. Some Native nations, such as the Senecas, Seminoles, Navajos, and Poncas, resisted removal and won the right to remain (or return) home. Notable numbers of Native people, including many Cherokees, evaded removal, and they remain in their home territories to this day. Some, such as the Osages, found themselves forced to new lands that contained rich resources, such as oil.
Removals sometimes led to important legal conflicts that shaped U.S. law for centuries afterward. Such was the case with the Cherokees, on whose behalf Chief Justice John Marshall ruled in the early 1830s in Cherokee Nation v. Georgia and Worcester v. Georgia. The decision in the latter case did not keep President Andrew Jackson from illegally forcing the Cherokee from their lands, but it did define the relationship of Native Americans to the United States as one of "dependent domestic nations" that endures to this day. The removal of the Poncas led to the case of Standing Bear v. Crook (1879), which established Indians as human beings under U.S. law.
Mention "Andrew Jackson" to most Americans, and the phrase "Jacksonian Democracy" may spring to mind. To the descendents of Native Americans who survived the period, however, the first comparison may be to the Bataan Death March of World War II or to Joseph Stalin. There was very little that was democratic about Jackson's handling of relations with Native nations.
Andrew Jackson thought of Indian treaties as anachronisms. "An absurdity," he called them. "Not to be reconciled with the principles of our government" (Johansen, 2000, 88). As Jackson elaborated in a letter to President James Monroe (another advocate of Indian removal) in 1817, "The Indians are the subjects of the United States, inhabiting its territory and acknowledging its sovereignty. Then is it not absurd for the sovereign to negotiate by treaty with the subject? I have always thought, that Congress had as much right to regulate by acts of legislation, all Indian concerns as they had of territories, are citizens of the United States and entitled to all the rights thereof, the Indians are subjects and entitled to their protection and fostering care" (McNickle, 1949, 193).
Given the convoluted grammar, it is not easy to decipher what General Jackson is saying. Is he declaring the Indians to be citizens? Legally, that was not the case until a century later. Is he personally annulling the treaties, which had been signed by parties who regarded each other as diplomatic peers barely two generations earlier? Whatever the nature of his rhetoric, the ensuing decades made clear, especially for the Native peoples of the South, just what Jackson meant by "protection and fostering care."
The private rationale for removal was expressed by Henry Clay (like Jackson, a political product of the trans-Appalachian west). Clay's recitation, preserved in the Memoirs of John Quincy Adams, came at the end of a meeting of Adams' cabinet on December 22, 1825, during which the entire agenda was taken up by the conflict between the Creeks and Georgia. Clay was responding to a suggestion that the United States stop making treaties with the Indians and treat them as citizens. According to Adams, Clay said:
It is impossible to civilize Indians. . . . There never was a full-blooded Indian who took to civilization. It was not in their nature. He said they are destined to extinction and, although he would never use or countenance inhumanity towards them, he did not think them, as a race, worth preserving. He considered them as essentially inferior to the Anglo-Saxon race, which were now taking their place on this continent. They were not an improvable breed, and their disappearance from the human family will be no great harm to the world (Drinnon, 1990, 179–180).
Clay's point of view was popular among Anglo-Americans in need of a rationale for relieving Native Americans of their lands. The fact that the civilized tribes had become, in some respects, as Europeanized as the immigrants seemed not to matter. Removal was less an ideological statement than a convenient method to transfer land from one group of people to another. During the 1820s, before their forceful removal from their homelands, the Cherokees developed prosperous villages, a system of government modeled on that of the United States, a written language, and a newspaper. The Cherokees owned 22,000 cattle, 2,000 spinning wheels, 700 looms, thirty-one grist mills, ten saw mills, eight cotton gins, and 1,300 slaves.
Passage of the Removal Act of 1830 climaxed a years-long struggle. The Creeks, for example, had become concerned about non-Indian usurpation of their lands as early as 1818, when the Muscogee (Creek) nation passed a law against the sale of any Native American land without council approval, under penalty of death for the transgressing party. The edict was enforced. In 1825, federal treaty commissioners bribed William McIntosh, leader of the Creek Lower Towns, to sign a land cession agreement, the Treaty of Indian Springs, with a few of his close associates. The National Council declared McIntosh to be a traitor and, on May 1, 1825, sent a delegation to torch his house. When McIntosh appeared at the door of his burning home, his body was riddled with bullets.
Removals of specific Native nations usually were negotiated by treaties (frequently under duress), in which the nations surrendered what remained to them of their aboriginal homelands in exchange for lands west of the Mississippi River. Although some small bands (and a few members of larger nations) had been moving westward since the War of 1812, the Removal Act forced the wholesale removal of entire Native nations, notably the Five Civilized Tribes, in the various phases of the trails of tears.
As the federal government prepared to remove entire nations of Native people west of the Mississippi River, little thought was given to the fact that Indians, European-Americans, and Afro-Americans had been intermarrying among Native peoples for more than a century. Many of the families who were forced to abandon their homes were nearly as European-American, genetically, as their nonreservation neighbors. John Ross, for example, the Cherokee best-known as an opponent of removal, was only one-eighth Cherokee. He lived in a plantation house and owned slaves.
These complications meant little to President Jackson, who had earned his national reputation as a general in the U.S. Army, whose primary business was subjugating Indians. When he ran for president, Jackson sought frontier votes by favoring removal. Once in office, Jackson considered the Removal Act of 1830 to be the fulfillment of a campaign promise. Others felt less sanguine; even with extensive lobbying from the White House, the House of Representatives passed the Removal Act by only six votes (103 to 97). Representative William Ellsworth of Connecticut opposed Removal in a passionate speech delivered on the House floor, as he said, in part: "We must be just and faithful to our treaties. There is no occasion for collision. We shall not stand justified before the world in taking any step which shall lead to oppression. The eyes of the world, as well as of this nation, are upon us. I conjure this House not to stain the page of our history with national shame, cruelty, and perfidy" (Johansen, 1998, 275).
President Jackson's adamant support of Indian removal placed him on a direct constitutional collision course with Chief Justice John Marshall, who was evolving legal doctrines vis-à-vis Native American land rights on which he had been working before Jackson was elected. The Cherokee cases, which came before Marshall's U.S. Supreme Court between 1823 and 1832 would display, in broad and emphatic relief, how closely much of early nineteenth-century American life was connected to the land speculation machine that helped propel westward movement.
The removal of the "civilized tribes" from their homelands is one of the most notable chapters in the history of American land relations. Jackson's repudiation of John Marshall's rulings, which supported the Cherokees' rights to their homelands, constituted contempt of the Supreme Court (an impeachable offense under the Constitution). The subject of impeachment was not seriously raised, however. During the incendiary years before the Civil War, the removals became intertwined with the issue of state's rights vis-à-vis the federal government. Had Jackson followed Justice Marshall's rulings, the Civil War might have started in the 1830s.
The assertion of states' rights vis-à-vis Native American territorial sovereignty (against the background of removal legislation) provided the legal grist for an 1832 Supreme Court decision written by Chief Justice Marshall that has defined the relationship between Native Americans' sovereignty and state's rights for more than a century and a half.
Marshall's opinions outlining Native Americans' status in the U.S. legal system occurred as he defined the Supreme Court's place in U.S. politics. When Marshall became chief justice in 1801, the Supreme Court was little more than a clause in the Constitution. For the next thirty-five years, Marshall played a major role in defining the Court as an institution. According to author Jean Edward Smith, if George Washington founded the United States, John Marshall legally defined it.
Chief Justice Marshall had long-run political differences with President Jackson, and he agonized over the conflicts between states' rights and Native sovereignty. In 1831, in Cherokee Nation v. Georgia, Marshall held that the Cherokees had no standing in court to appeal the state of Georgia's seizure of their lands. This situation troubled Marshall so deeply that he said at one point that he thought of resigning from the Supreme Court because of it. A year later, in Worcester v. Georgia, Marshall held unconstitutional the imprisonment by Georgia of a missionary (Samuel Worcester) who had worked with the Cherokees. The specific issue was the refusal of Worcester, while a resident on Cherokee land, to swear loyalty to the state of Georgia in conformance with a state law.
The case began when three white missionaries living on Cherokee territory refused to swear an oath of allegiance to the state of Georgia. They were arrested, chained to a wagon, and forced to walk more than twenty miles to jail. Two Methodist preachers who objected to the cruelty that accompanied the arrests were also chained and taken to jail. The three missionaries were tried, convicted, and sentenced to four years of hard labor at the Georgia state penitentiary. Two of them later swore allegiance and were released; one (Worcester) did not. When the case reached the Supreme Court (as Worcester v. Georgia), Justice Marshall wrote that Native nations had a degree of sovereignty that denied Georgia the right to compel an oath of loyalty.
Historians disagree over whether President Jackson actually said, "John Marshall has made his decision, now let him enforce it." Whether Jackson expressed himself in those words may be a moot point; his implementation of removal flew in the face of the law as interpreted by Marshall in Worcester v. Georgia. Marshall wrote that the Cherokees had "always been considered as distinct, independent political communities, retaining their original natural rights . . . and the settled doctrine of the law of nations, that a weaker power does not surrender its independence—its right to self-government—by associating with a stronger, and taking its protection. . . . The Cherokee nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees, or in conformity with treaties, and with the acts of Congress" (Worcester, 1975).
Marshall reasoned in Worcester v. Georgia that the Constitution, by declaring treaties to be the supreme law of the land, had adopted and sanctified previous treaties with the Indian nations. The words "treaty" and "nation" are "words of our own language," wrote Marshall, "selected in our diplomatic and legislative proceedings, by ourselves, having each a definite and well-understood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth; they are applied to all in the same sense" (Worcester, 1975). Marshall defined Indian nations neither as totally sovereign nor as colonies, but as "domestic dependent nations." The Congress, however, fearing that a confrontation over states' rights could provoke civil war, took no action against Jackson.
Although Ross continued to protest removal for several more years, the state of Georgia coerced Cherokees to sell lands for a fraction of their value. Marauding immigrants plundered Cherokee homes and possessions. They destroyed the Cherokee Phoenix's printing press because it had opposed removal. The U.S. Army forced Cherokee families into internment camps to prepare for the arduous trek westward. As a result of unhealthy and crowded conditions in these hastily constructed stockades, many Cherokees died even before their Trail of Tears began. While failing in his efforts to stop removal, Ross did manage to gain additional federal funds for his people.
After almost six years of delays, the Trail of Tears was initiated in 1838. Before they were exiled from their homelands by force of arms, the Cherokees released a "memorial" expressing their feelings:
The title of the Cherokee people to their lands is the most ancient, pure, and absolute known to man; its date is beyond the reach of human record; its validity confirmed by possession and enjoyment antecedent to all pretense of claim by any portion of the human race.
The free consent of the Cherokee people is indispensable to a valid transfer of the Cherokee title. The Cherokee people have neither by themselves nor their representatives given such consent. It follows that the original title and ownership of lands still rests with the Cherokee Nation, unimpaired and absolute. The Cherokee people have existed as a distinct national community for a period extending into antiquity beyond the dates and records and memory of man. These attributes have never been relinquished by the Cherokee people, and cannot be dissolved by the expulsion of the Nation from its territory by the power of the United States Government (O'Brien, 1989, 57).
In preparation for the Cherokees' removal, John Ross was evicted from his mansion to a dirt-floored cabin. When John Howard Payne, author of the song "Home Sweet Home," came to visit him at the cabin, just across the Georgia state line in Tennessee, the Georgia State Guard crossed the state line and kidnapped both men. Realizing that the federal government did not intend to protect the Cherokees, Ross and others reluctantly signed the Treaty of New Echota in 1835 and prepared, with heavy hearts, to leave their homes.
During 1838 and 1839, the U.S. Army removed the Cherokees by force, except for a few hundred who escaped to the mountains.
The Cherokees' phrase for their long, brutal march (nuna-daa-ut-sun'y, "trail where they cried") gave the march its enduring name. At least one-fourth of the Cherokees who were removed died along the way. Ross's wife Quatie was among the victims of this forced emigration. James Mooney described how the Cherokees were forced from their homes: "Squads of troops were sent to search out with rifle and bayonet every small cabin hidden away in the coves or by the sides of mountain streams. . . . Families at dinner were startled by the sudden gleam of bayonets in the doorway and rose up to be driven with blows and oaths along the trail that led to the stockade. Men were seized in their fields or going along the road, women were taken from their wheels, and children from their play" (Van Every, 1966, 242). A U.S. Army private who witnessed the Cherokee removal wrote: "I saw the helpless Cherokee arrested and dragged from their homes, and driven by bayonet into the stockades. And in the chill of a drizzling rain on an October morning I saw them loaded like cattle or sheep into wagons and started toward the west. . . . Chief Ross led in prayer, and when the bugle sounded and wagons started rolling many of the children . . . waved their little hands goodbye to their mountain homes" (Worcester, 1975, 67).
Despite the cruelty of the marches they were forced to undertake, and the death and disease that dogged their every step, the surviving members of the peoples who were removed to Indian Territory quickly set about rebuilding their communities. Much as they had in the Southeast, the Creeks, Cherokees, and others built prosperous farms and towns, passed laws, and set about organizing societies once again. Within three generations, however, the land that in the 1830s had been set aside as Indian Territory was being sought by non-Indians. At the turn of the century, as a rush for "black gold" (oil) inundated Oklahoma, the Allotment Act (1887) broke up the Native estate much as Georgia's state laws had done a little more than a half century earlier. There would be no Trail of Tears this time, however: There was no empty land left to occupy.
Bruce E. Johansen
Worcester v. Georgia, 31 U.S. (6 Pet.) 515(1832).; Cave, Alfred A. Winter, 2003. "Abuse of Power: Andrew Jackson and the Indian Removal Act of 1830." Historian 65: 1130–1153.; Drinnon, Richard. 1990. Facing West: Indian Hating and Empire Building. New York: Schoken Books.; Jahoda, Gloria. 1975. The Trail of Tears. New York: Holt, Rinehart, and Winston.; Johansen, Bruce E. 1998. The Encyclopedia of Native American Legal Tradition. Westport, CT: Greenwood Press.; Johansen, Bruce E. 2000. Shapers of the Great Debate on Native Americans: Land, Spirit, and Power. Westport, CT: Greenwood Press.; McNickle, D'Arcy. 1949. They Came Here First: The Epic of the American Indian. Philadelphia, PA: J. B. Lippincott Co.; O'Brien, Sharon. 1989. American Indian Tribal Governments. Norman: University of Oklahoma Press.; Satz, Ronald. 1973. American Indian Policy in the Jacksonian Era. Lincoln: University of Nebraska Press.; Van Every, Dale. 1966. Disinherited: The Lost Birthright of the American Indian. New York: William Morrow & Co.; Wallace, Anthony F. C. 1993. The Long, Bitter Trail: Andrew Jackson and the Indians. New York: Hill and Wang.; Worcester, Donald, ed. 1975. Forked Tongues and Broken Treaties. Caldwell, ID: Caxton.