The Removal Cases
The Removal Cases
The Removal Cases
Expansion and Conflict. The relentless pressure of westward expansion in the first quarter of the nineteenth century brought Euro-Americans and Native Americans into a conflict over who would control territory east of the Mississippi River that had, since long before the colonial period, been controlled by Indians. White Americans were eager to seize land from Native Americans in the Southeast, hoping to transform Indian towns into cotton farms to produce a crop that was then perhaps the most desirable in the Atlantic world. By the late 1820s the contest over land was particularly evident in Georgia, where the discovery of gold in 1828 only heightened whites’ desire to push Indians out of the state.
The Civilized Tribes. For much of the colonial and early republican periods Americans of European descent had argued that Indians needed the benefits that European culture could provide. Indians, so Europeans had argued as early as the sixteenth century, needed to be converted to Christianity and to live like Europeans; they needed to learn to read and write and thus lessen their reliance on oral customs and histories; and they needed to become farmers and not act like nomads forever wandering in a primeval forest. In the early nineteenth century, however, many American citizens recognized that the Indians who lived in the Southeast—the Cherokees, Creeks, Choctaws, Chickasaws, and Seminoles—were already living much like their white neighbors. Whites thus labeled these Indians the Five Civilized Tribes. According to whites’ perspective, perhaps the most “civilized” of these native peoples were the Cherokees, a group who had a written language (based on a syllabary devised by Sequoyah in 1821), had allowed Baptist missionaries to live in their nation, and possessed a written plan of government for their nation and even, in 1827, a constitution in which they called themselves a “sovereign and independent nation.” Various treaties with the U.S. government protected the Cherokee land from intrusion by non-Cherokees.
Georgians’ Desires. Although many Americans might have agreed that the Cherokees were living much like Europeans had always wanted Indians to live, residents of Georgia were nonetheless eager to find a reason to expel the Cherokees and other Indians from the state. To do so they argued that the parts of the Cherokee nation that fell within the boundaries of the state were under Georgia’s jurisdiction and that the federal government’s claim that it alone had power to deal with Indian nations violated the state’s sovereignty. Since Georgia was in fact a sovereign state before 1789, the year the U.S. Constitution came into effect, lawyers for the state argued that Georgia’s prior sovereignty meant that the United States could not eliminate Georgia’s controlling interest. In other words, though Georgians’ desires for Cherokee lands were self-serving, the state’s attorneys nonetheless articulated their views by asserting their understanding of the U.S. Constitution and its relations to specific states. Once framed in that way the issue became an ideal case for the Supreme Court, a body that (since the case of Marbury v. Madison in 1803) defined itself as the ultimate interpreter of the Constitution. The legal issue, however, evident as early as 1828, did not become significant until Congress passed the Indian Removal Act on 28 May 1830, a statute that provided “for an exchange of lands with the Indians residing in any of the states or territories, and for their removal west of the river Mississippi.”
Jackson’s Support. Andrew Jackson, elected to the presidency in 1828, was among the most eager supporters
of removal. His first comments to Congress on the subject came on 8 December 1829—his first address to the governing body—in which he outlined what he perceived were the failures of previous government policies toward American Indians and his belief that Eastern Indians would benefit if they were forced to leave their homelands and move west of the Mississippi River. When Jackson delivered his State of the Union Address in early December 1830, only seven months after passage of the act, he spent much of his time expressing his keen support for removal. Jackson, a longtime foe of various native groups, reveled in what he perceived as the triumph of Europeans in North America. “What good man would prefer a country covered with forests and ranged by a few thousand savages,” he asked, “to our extensive Republic, studded with cities, towns, and prosperous farms, embellished with all the improvements which art can devise or industry execute, occupied by more than 12,000,000 happy people, and filled with all the blessings of liberty, civilization, and religion?” Responding to critics who pointed out that forced removal of Eastern Indians was unjust, Jackson declared that the policy sprang from benevolent aspirations on the part of whites. In Jackson’s mind removal was the proper policy. “Rightly considered,” he concluded, “the policy of the General Government toward the red man is not only liberal, but generous. He is unwilling to submit to the laws of the States and mingle with their population. To save him from this alternative, or perhaps utter annihilation, the General Government kindly offers him a new home, and proposes to pay the whole expense of his removal and settlement.”
Indians and the Constitution. Jackson’s logic had little impact on the thousands of Indians who had no desire to leave their homeland. As many Cherokees pointed out, the lands that their nation inhabited not only were theirs historically but also were protected by treaties with the United States. Since the U.S. Constitution defined treaties as part of fundamental law (that is, superior to the acts passed by state or federal legislators), the Cherokees’ position seemed to many more valid than the position of the federal government, but what rights did natives have under the U.S. Constitution? The Founders, in Article 1, Section 8, had granted Congress the power to “regulate commerce with foreign nations, and among the several States, and with the Indian tribes.” In other words, the rebels who had fought a war to free themselves from what they perceived to be a despotic foreign power had defined the native peoples of North America as non-Americans, lumping them together with citizens of foreign states and thus implicitly denying them the rights that citizens of the United States retained. Further, under this clause in the Constitution, Indians were members of corporate bodies, “tribes,” and could not be treated as individuals in courts.
Cherokee Nation v. Georgia. The exact constitutional status of American Indians at the time of the Removal Act was in many ways ambiguous. However, a murder case on Cherokee land gave the Supreme Court in 1831 the opportunity to clarify the place of Indians in American law. In the case a Cherokee man named George Tassel was accused of murdering another Cherokee, with all parties agreeing that the murder took place on Cherokee territory. In response the state of Georgia ordered Tassel arrested; he was convicted at his trial, held in a Georgia courthouse, and imprisoned. The state seized jurisdiction on the grounds that the crime had taken place within the state of Georgia. The Cherokees protested, claiming that land on their reservation was under their exclusive jurisdiction. They hired William Wirt to argue their case in federal court, the only venue the Cherokees believed that they had in such an instance. As the case was moving forward, authorities in Georgia executed Tassel. Still, the Cherokees and Wirt pressed their case, with Wirt, a former attorney general for James Monroe and John Quincy Adams, articulating the fundamental constitutional issue: did the state of Georgia have jurisdiction over Cherokee territory and the citizens of the Cherokee nations? In Cherokee Nation v. Georgia, one of the most important decisions ever rendered by the Supreme Court, Chief Justice John Marshall argued that it could not decide who had jurisdiction because the Cherokee nation had no standing in an American court. In other words, the definition of Indian nations as “foreign nations” in the Constitution deprived natives of any recourse to the courts. Rather than having the right to sue another party for an alleged grievance, the Cherokees (and by extension all Indians who lived on reservations) were, in Marshall’s phrasing, a “domestic dependent nation.”
Worcester v. Georgia. In his decision in the Cherokee Nation case Marshall focused his majority opinion only on the question of whether a citizen of the Cherokee nation had standing in a U.S. court; he did not address the related issue of whether a white person—a citizen of the United States—who lived in an Indian nation had standing in a U.S. court. That issue surfaced in 1832, when Samuel Worcester and Elizur Butler, missionaries working for the American Board of Commissioners for Foreign Missions, sued the state of Georgia for refusing to sign an oath demanded by the state for every white who lived in an Indian nation. Though the state had arrested eleven missionaries who had initially refused to sign the oath, by the time the case moved forward nine had been released (either by promising to leave the state or acceding to the state’s law), and the cases of Butler and Worcester were combined as Worcester v. Georgia. In this case Marshall agreed with Worcester’s position; by doing so the Supreme Court made clear that state laws can have no effect on individuals residing in an Indian nation. In other words, after 1832, in the opinion of the Supreme Court, the ultimate arbiter of constitutional law in the United States, it was impermissible for any state to try to impose its laws on the citizens of any Indian nation, even when the members of that nation had no standing as individuals in a U.S. court.
Jackson’s State of the Union Address
There was no American more eager to move the Cherokee Indians from their homeland than President Andrew Jackson. In his State of the Union Address on 6 December 1830 Jackson enumerated the many reasons, in his opinion, removal was in the best interest of all Americans—the Cherokees as well as citizens of the United States:
The waves of population and civilization are rolling to the westward, and we now propose to acquire countries occupied by the red men of the South and West by a fair exchange, and, at the expense of the United States, to send them to a land where their existence may be prolonged and perhaps made perpetual…. Our children by thousands yearly leave the land of their birth to seek new homes in distant regions. Does Humanity weep at these painful separations from everything, animate and inanimate, with which the young heart has become entwined? Far from it. It is rather a source of joy that our country affords scope where our young population may range unconstrained in body or in mind, developing the power and faculties of man in their highest perfection. These remove hundreds and almost thousands of miles at their own expense, purchase the lands they occupy, and support themselves at their new homes from the moment of their arrival. Can it be cruel in this Government when, by events which it can not control, the Indian is made discontented in his ancient home to purchase his lands, to give him a new and extensive territory, to pay the expense of his removal, and support him a year in his new abode? How many thousands of our own people would gladly embrace the opportunity of removing to the West on such conditions! If the offers made to the Indians were extended to them, they would be hailed with gratitude and joy.
Source: Andrew Jackson, “State of the Union Address, December 6, 1830,” in The Cherokee Removal: A Brief History with Documents, edited by Theda Perdue and Michael D. Green (Boston: Bedford Books, 1995), pp. 119-120.
Cherokee Protest. The two cases handed down by Marshall’s court had a mixed legacy for the Cherokees. On the one hand, they were denied the right to have standing in a U.S. court, which meant that their ability to defend themselves in court against the actions of an external state was thereafter limited. On the other hand, the state of Georgia had no jurisdiction over affairs in the Cherokee nation. Although some Cherokees might have celebrated Worcester’s victory in 1832, neither of these decisions undermined Congress’s Removal Act of 1830. Further, division within the Cherokees over the issue of removal made it more difficult to protest this action of the federal government. During the early 1830s perhaps two thousand Cherokees decided to move west. Others, however, remained and were willing to fight for the right to retain their homeland. Among those who resisted was a group who in June 1836 issued a protest against the tide of removal. Their declaration, like many protests made by or on behalf of the Cherokees during the 1830s rested on the argument that the Cherokees’ right to their nation was legal under the U.S. Constitution.
The Trail of Tears. The Cherokees, as their memorial protest of 1836 put it, had “a correct knowledge of their own rights, and they well know the illegality of those oppressive measures which have been adopted for their expulsion, by State authority.” Though many Americans—Indians and non-Indians alike—agreed with the legitimacy of the Cherokees’ stance against removal, the lesson of the 1830s was nonetheless clear and overpowering. As a result of the Cherokee Nation case Indians had no standing in U.S. courts; even though specific states could not pass laws governing the lives of people in Indian nations (the legacy of the Worcester case), Indians were powerless to battle the force of the federal government. More significant, though Marshall’s decision in the Worcester case limited any state’s ability to govern Indians in their own nations, Jackson did nothing to prevent the state of Georgia’s continued efforts to drive Cherokees off their lands. When the federal government in the late 1830s decided to use armed troops to force thirteen thousand Cherokees westward, there was little that the protesters could do. The rule of law in the United States had no impact on the behavior of those troops or their commanders, whose tactics during the Trail of Tears led to the death of an estimated four thousand Cherokee men, women, and children, many of whom perished for lack of food or adequate clothing. The tragedy of the Trail of Tears went beyond the horrors that the marchers endured. The fact that the federal government could force the Cherokees off their homeland, protected by a treaty with the United States, suggested the limits of any court in the antebellum period to find justice for nonwhites.
In 1831, in the case of Cherokee Nation v. Georgia, Chief Justice John Marshall had written that the Cherokee nation had no standing in U.S. courts because the Cherokees were a “domestic dependent nation” who had been (along with other Indians) defined by the Constitution as foreign nationals. The following year Marshall clarified his views about the power that a state had in an Indian nation in the case of worcester v. georgia, which sprang initially from the plaintiffs’ refusal to sign an oath that the state of Georgia required for all whites who lived in Indian nations. Marshall’s ruling in this case had a fundamental impact on American law, particularly his determination that states lacked jurisdiction over matters that took place in Indian nations. In his opinion he argued that states lacked this jurisdiction because historically Indian nations had been separate sovereign entities.
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 themselves, or in conformity with treaties, and with the acts of Congress. The whole intercourse between the United States and this nation, is, by our Constitution and laws, vested in the government of the United States.
The act of the state of Georgia, under which the plaintiff in error was prosecuted, is consequently void, and the judgment a nullity. Can this Court revise and reverse it?
It is the opinion of this Court that the judgment of the Superior Court for the county of Gwinnett, in the state of Georgia, condemning Samuel A. Worcester to hard labour in the penitentiary of the state of Georga, for four years, was pronounced by that Court under colour of a law which is void, as being repugnant to the Constitution, treaties, and laws of the United States, and ought, therefore, to be reversed and annulled.
Source: United States Supreme Court, “Worcester v. Georgia, March 1832,” in The Cherokee Removal: A Brief History with Documents, edited by Theda Perdue and Michael D. Green (Boston: Bedford Books, 1995), pp. 70-75.
Joseph C. Burke, “The Cherokee Cases: A Study in Law, Politics, and Morality,” Stanford Law Review, 21 (1969): 500-531;
Theda Perdue and Michael D. Green, The Cherokee Removal: A Brief History with Documents (Boston: Bedford Books, 1995);
Anthony F. C. Wallace, The Long, Bitter Trail: Andrew Jackson and the Indians (New York: Hill & Wang, 1993);