Of first concern to Georgia was the land occupied by the Creek, for it contained excellent farmland. True to its word during the decade and a half after 1802, the United States negotiated treaties and agreements with the Creek in which they gave up more and more of their lands. Believing, however, that the government was not moving fast enough and displeased with its policy of voluntary removal, by the early 1820s, Georgia had become more strident in its demands and more devious in its tactics.
Georgia began an earnest campaign in the early 1820s to force the Creek out of the state. Beginning with the Treaty of Indian Springs (1821), the Georgians began divide-and-conquer tactics that were effective in generating Indian treaties in the removal period. The treaty was signed by William McIntosh, speaker for the Lower Creek, and other Lower Creek chiefs. They ceded the land between the Ocmulgee and Flint rivers to pay off the Creek's debts.
In response, the Creek council passed a law against the sale of Creek land, but it failed to stop McIntosh, who was set on enriching himself at the Creek's expense. His actions, however, led to his downfall. He held a high position in the tribe, representing it in the Cherokee councils. The Cherokees, in turn, sent Major Ridge to the Creek councils. At a Cherokee meeting with U.S. commissioners in 1823, McIntosh urged the Cherokee to cede their land and remove to the west and attempted to bribe John Ross to use his authority to get the Cherokee to agree. The Cherokee expelled McIntosh from their meeting and warned the Creek council about his machinations. In July, the Creek council adopted a resolution stating their refusal to cede any more land. The council's act should have been warning enough for McIntosh.
Nevertheless, in December of that year, U.S. commissioners met with the Creek to attempt to reach a removal agreement, relying on McIntosh to help them. The Americans argued that the Creek were foreigners who had migrated into the lands and that they had forfeited any right to the land by siding with Great Britain during the Revolutionary War. The Creek stood by the Treaty of New York (1790) and the Treaty of Fort Jackson (1814). The Americans then resorted to bribery, using McIntosh, who worked with the Creek in council and with the Americans behind the scene. Learning of his actions, the council removed him as speaker for the Lower Towns.
The Americans relied on McIntosh to deliver them a treaty. But McIntosh was afraid to push for a treaty as long as the negotiations took place in Alabama. If they were removed to Indian Springs in Georgia, he would sign, for he believed that the Georgians would protect him from retribution by the Nation. The Americans went back to Washington with word that a treaty could be made, ceding the Creek land in Georgia, if the government would move the proceedings. The Creek council put McIntosh on notice. Georgia governor George Troup, McIntosh's cousin, rabid in his intent to rid Georgia of Native Americans, had helped hatch the scheme and promised to protect McIntosh from the Creek law if he signed the treaty.
Negotiators met with McIntosh and other Creek chiefs and headmen at Indian Springs in February 1825, where a treaty was signed. Opothleyohola, speaker for the Upper Towns, spoke against the treaty and said that those who signed did not have the authority to speak for the whole Nation. Nevertheless, the treaty ceded all of the Creek's land in Georgia and much of the northern two-thirds of their Alabama lands. The Creek protested the treaty as invalid, and as Creek sentiment rose against McIntosh, Troup threatened to call out the militia and invade the Creek country in Alabama, if the Creek tried to harm McIntosh. The treaty was ratified in March 1825, and Secretary of War James Barbour carried out the treaty provisions immediately. Although the treaty gave the Creek until September 1 to remove from the limits of Georgia, Troup issued a proclamation announcing a survey of the ceded land in Georgia in preparation for a land lottery by which the state could distribute the land to its citizens.
In April, a group of Okfuskees executed McIntosh and some of his family and close friends, resulting in an "Indian scare." Troup mobilized the Georgia militia and threatened to invade the Creek to seek retribution. Barbour and President John Quincy Adams, knowing that Troup was a hothead, nevertheless ordered an investigation and sent the army under General Edmund P. Gaines to Georgia to protect Georgians from the Creek. The Georgia assembly ordered its own investigation, authorized the survey to begin, and placed Georgia laws over the Creek lands, attaching them to five adjoining counties.
General Gaines' actions angered Troup, whom the general came to despise. First, Gaines announced that the $400,000 promised for the land in the treaty would be distributed to all Creek in the ceded area, not just McIntosh's followers. Second, he stopped the McIntosh Creek from seeking revenge for the death of McIntosh. Third, Gaines developed a good rapport with the Alabama Creek, who promised to welcome the McIntosh Creek into their lands, causing some of the latter to denounce the treaty as fraudulent. President Adams ordered Troup not to send surveyors into the ceded land and gave Gaines authority to stop him if he tried.
Adams also directed Gaines to negotiate a new treaty, this time with the whole Nation, if he could not persuade the Creek to vacate the ceded lands in Georgia. He was to promise them an equal-size tract in the west if they would agree to remove. With Opothleyohola at its head, a delegation of Creek went to Washington with authority to negotiate. On January 26, 1826, a new treaty ceded all Creek lands that were claimed to be in Georgia, admitted the McIntosh Creek into the Creek Nation, and provided for exploration of land in the west. If suitable land could be found, the Creek in the ceded area could remove. A new date of January 1, 1827, was set for the Creek to vacate the land.
Troup maintained that the Indian Springs Treaty was the valid treaty. Because it called for a removal date of September 1, 1826, he ordered the survey to begin. The Creek protested his action. The situation was tense, but U.S. officials were able to convince the Creek that they should not oppose the early survey.
It was discovered that some 192,000 acres of Creek land had been left in Georgia by the boundaries drawn by the Treaty of Washington (1826). Troup made plans to send surveyors into the unceded lands. Although Adams warned him that the United States would prevent it, Troup mobilized the Georgia militia. There was talk of civil war, but the Adams administration worked out a solution. A Treaty with the Creek (1827) was negotiated at Fort Mitchell on November 15, 1827, in which they gave up all their remaining lands in Georgia.
The Creek who remained in Georgia found life difficult. A large number of the McIntosh faction removed to the west. The Creek intimidated others who wished to enroll for removal. About 7,000 were forced to move across the Alabama line and reside among the Creek there. Through the years, many became displaced and impoverished, and their desperate condition contributed in large measure to the outbreak of the Creek War of 1836 and the immediate forced removal of a large number of Creek to the west.
With the Creek out of the way, Georgia turned its full attention to the Cherokee, intent on driving them out as well. During their attack on the Creek, the Georgians had learned a valuable lesson; they could defy the United States, push the country to the brink of war, and through threats, intimidation, and underhanded tactics do what was necessary to rid the state of Native Americans. In 1826 and 1827, the state's general assembly had reaffirmed the state's claim to Cherokee lands as its own. Unwilling to tolerate a state or nation, sovereign or pretending to be, within their state's borders, Georgians were angered by the Cherokee's adoption of a constitution in 1827. In a response that was emboldened by the election of Andrew Jackson in the fall of 1828, the state passed legislation that attached the Cherokee land to five adjoining counties. The law would go into effect in 1830, at which time the state's laws would be enforced in the Cherokee lands, and the laws passed by the Cherokee council would become null and void. Georgians hoped that fear of subjection to state law would persuade the Cherokee to remove.
The Cherokee responded to these pressures first by appealing to the U.S. government to intervene in their behalf and then, in 1829, by attempting to take away the citizenship of any Cherokee who gave in to Georgia's pressures and enrolled to remove to the west. The Georgians took heart in Washington's response. Jackson was unwilling to confront either the Georgians' argument that the state had a right to nullify federal law or their flagrant violation of the Constitution, which gave sole authority in Indian affairs to the federal government. Instead, he fell back on the Compact of 1802, saying there was nothing the government could do. Angered by the Cherokee threatening those who wanted to remove, the Georgia assembly passed another, much stronger, bill on December 19, 1829, reasserting the state's authority over the Cherokee and their land.
The 1829 act encompassed earlier laws, expanded them, and applied them to any Creek still residing within Georgia. First, it attached the Cherokee lands to Carroll, DeKalb, Gwinnett, Hall, and Habersham counties. Second, on June 1, 1830, criminal and civil laws of the state were applied to those lands. Third, officers were to be compensated for carrying out the laws. Fourth, laws enacted by the Cherokee were declared null and void after June 1, 1830, and carried no validity in Georgia courts. Fifth, attempts to prohibit Cherokee from leaving Georgia or to punish them for trying to leave were punishable by four years at hard labor in the Georgia penitentiary. Sixth, attempts to prevent Cherokee from selling or ceding Cherokee lands to the United States were punishable by four to six years at hard labor. Seventh, killing Cherokee for attempting to emigrate or to sell land or to meet U.S. negotiators was punishable by hanging. Eighth, judges of counties were empowered to call out militia to protect officers who were executing the laws. Ninth, testimony by Cherokee or Creek was not valid against whites unless the whites resided in the Indian country.
Passage of the Indian Removal Act in May 1830 further strengthened Georgia's hand. The question, then, was not whether removal would take place but when. Georgia's goal now was to make the Cherokee's lives as miserable as possible, forcing them to embrace the idea of removal as relief. Georgians used the gold fields to justify their next major move. Gold had been discovered in the Cherokee lands in 1828, and by 1829 a full-fledged gold rush was underway. By 1830, there were thousands of miners, both Cherokee and non-Cherokee, working the fields. Having asserted that the Cherokee lands were Georgia lands, in late 1830, the Georgia assembly set out to take charge of the gold fields and further outlaw Cherokee control over their land.
Legislation was passed December 22, 1830, to prevent the exercise of powers by anyone whose pretext to authority came from the Cherokee and their laws; to prevent whites from living in Georgia lands "occupied" by Cherokee; and to create a guard to protect the gold fields and to enforce the state laws inside the lands claimed by the Cherokee. The law, which became effective February 1, 1831, forbade Cherokee headmen, chiefs, and warriors to assemble for any purpose, to pass laws, to hold court, or to punish Cherokee who enrolled to remove. All violations were punishable by four years in the Georgia penitentiary. Cherokees could, however, meet with U.S. commissioners. Whites within the limits of the Cherokee lands were forbidden to remain after March 1, 1831, without a license or a permit issued by the governor or his agent, except authorized agents of the federal government or Georgia or any white who was renting or occupying improvements abandoned by the Cherokee who had moved to the west. All whites with permits to stay were required to swear a loyalty oath to Georgia. The law struck a blow at some of the wealthy Cherokee by forbidding them to collect tolls on turnpikes or bridges. Finally, the governor was authorized to establish a guard of citizens under the command of a commissioner. They were specifically charged with guarding the gold fields and arresting any person who violated the law.
Despite evidence to the contrary, the Cherokee continued to trust the legal process as a way out of their dilemma. They challenged Georgia's jurisdiction over the Cherokee by filing an injunction in the case of George Tassle. Tassle had killed another Cherokee inside Cherokee lands and in 1830 had been arrested by Georgia officials, tried, and sentenced to hang. With William Wirt as their attorney, in 1831 the Cherokee argued their case before the U.S. Supreme Court in Cherokee Nation v. Georgia (1831), in which the judges evaded the constitutional question. They ruled that the Cherokee Nation could not sue for relief before the Court because it was not a foreign country, according to the language of the Constitution. In his brief, Chief Justice John Marshall called the Cherokee a "domestic dependent nation," a term that tribes have used since in arguing their cases for sovereignty. The outcome, unfortunately, meant nothing to Tassle, for Georgia had already hanged him.
The Cherokee fared better with their next major test of Georgia's claim to jurisdiction over them. After the law took effect in 1831, requiring whites residing in the Cherokee lands to acquire a license and swear allegiance to Georgia, the Georgia Guard under John W. A. Sanford arrested Samuel Worcester, Elizur Butler, and nine others. The latter took the oath or left the state. Worcester and Butler refused to take the oath and claimed illness in their families as their reason for not leaving. They were tried and convicted and sentenced to four years at hard labor. Worcester appealed his conviction, which the U.S. Supreme Court heard because Worcester was a U.S. citizen. In March 1832 in Worcester v. Georgia (1832), the Court ruled that the Georgia laws extending their jurisdiction over the Cherokee were null and void, calling the laws hostile to U.S. constitutional authority, the treaties, and the laws of Congress. The Court reversed and nullified Worcester's conviction and, by application, Butler's.
Imbued with a strong belief that the state had a right to nullify federal law, Georgia officials cared little what the Supreme Court said. They refused to release Worcester and Butler. In November 1832, Governor Wilson Lumpkin published a lengthy diatribe against the Court's decision. Seeing no use in continuing their legal battle for release, in January 1833, Worcester and Butler capitulated and appealed to Lumpkin to pardon them. Exulting in his victory, he did.
Having successfully faced down the federal government once more, Georgians set about tightening their grip on the Cherokee and, apparently with no moral sense, making their lives as miserable as possible. White intruders in the Cherokee lands had been a problem for years. The federal government refused to force them out as it had agreed to do. Georgia, of course, supported the intruders and set about legitimizing their presence on Cherokee land. In 1830, the state legislature had ordered the survey of Cherokee lands in preparation for white occupancy. In 1832, male, widowed, and orphaned citizens of Georgia registered for a lottery that turned plots of Cherokee land over to whites, who moved in and dispossessed the Cherokee whose homes were on their allotted plots. In 1833, Georgia made a legal assault primarily upon the wealthy class of Cherokee, hoping to demoralize them and encourage them to remove. Because some had taken reserves under the treaties of 1817 and 1819, Georgia argued they had no right to property thereafter claimed in the Cherokee Nation. In December 1833, the state assembly ordered the confiscation of the property of the wealthiest, among whom were the political leaders of the Nation. The next year, the Georgia Guard evicted the Cherokee, including men like Ross, John Martin, Richard Taylor, and Joseph Vann, and turned their property over to Georgians.
The Georgia Guard harassed the Cherokee in other ways. Created by the Georgia assembly in 1830, the men who made up the unit, according to Governor George Gilmer, were not responsible to anyone for their actions. They evicted Cherokee citizens; shut down the Cherokee Phoenix, the national newspaper; and even invaded Tennessee in 1834 and arrested Chief Ross.
The actions taken by the Georgians, slowly but certainly, had their desired effect. By 1834, the Cherokee were split over the question of removal. Those who followed Ross and opposed removal far outnumbered those who favored it. The latter, who came to be known as the Treaty Party, were willing to negotiate a removal treaty and did so, but the Cherokee council rejected it. In 1835, Secretary of War Lewis Cass sent John F. Schermerhorn and William Carroll to Georgia to negotiate with the Treaty Party. The commissioners met with a few hundred Treaty Party Cherokee and drafted the Treaty of New Echota (1835) in December. The United States ratified the treaty and applied its provisions to all the Cherokee. The treaty ceded their eastern lands and called for their removal by early 1838.
During the 1830s the government condoned Georgia's assault on Cherokee sovereignty, either by openly supporting it or by looking the other way. Secretary John H. Eaton, following Andrew Jackson's lead, had consistently argued that the government had no authority to intervene in Georgia's affairs. His successor, Cass, placed his support behind the Treaty Party Cherokee and ordered his agents to do what they must to get signatures on a removal treaty. Andrew Jackson, president until early 1837, did not believe in the states' right to nullify federal law, but nullifiers were less important to him than Indian removal. The civil war he avoided by refusing to confront the nullifiers was simply delayed for two and a half decades, long enough for small-arms manufacturers to improve the technology of their products to make them more deadly.
Daniel F. Littlefield, Jr.
Haveman, Christopher D. The Removal of the Creek Indians from the Southeast, 1825–1838. PhD diss., Auburn University, 2009; Berutti, Ronald A. "The Cherokee Cases: The Fight to Save the Supreme Court and the Cherokee Nation." American Indian Law Review 17(1992): 291–308; Garrison, Tim Alan. The Legal Ideology of Removal: The Southern Judiciary and the Sovereignty of Native American Nations. Athens: University of Georgia Press, 2002; "Georgia and the Conversation over Indian Removal." Georgia Historical Quarterly 91(2007): 403–423; Green, Michael D. The Politics of Indian Removal: Creek Government and Society in Crisis. Lincoln: University of Nebraska Press, 1982; Norgren, Jill. "Lawyers and the Legal Business of the Cherokee Republic in Courts of the United States, 1829–1835." Law and History Review 10(1992): 253–314; Perdue, Theda, and Michael D. Green. The Cherokee Removal: A Brief History with Documents. Boston: Bedford/St. Martins Press, 2004; Swindler, William F. "Politics as Law: The Cherokee Cases." American Indian Law Review 3(1975): 7–20.