Indian Removal: Sovereignty, Resistance & Enforcement — Print · Grade 7 Social Studies

Part 1 · The Removal Act

Andrew Jackson came to the presidency committed to moving the eastern nations west of the Mississippi, and the Indian Removal Act passed Congress in 1830. It was close: the House approved it by 102 votes to 97, after weeks of debate in which opponents argued it violated treaties the United States had signed and ratified.

The Act did not, on its face, authorise force. It empowered the president to negotiate exchanges of land, with removal voluntary. In practice the federal government declined to protect nations from state laws designed to make staying unbearable, which left the choice a formality.

Jackson defended removal as humane, and it is worth reading his argument rather than assuming it. He told Congress that the nations could not survive surrounded by states, that previous removals had let others flourish, and that the government was offering land and protection in exchange. Set beside what the states were doing with federal acquiescence, and beside what happened on the road, the argument reads as a justification constructed after the decision rather than a reason for it.

Georgia had already extended its laws over Cherokee territory, declared Cherokee law void, forbidden Cherokee people from testifying against a white person in court, and begun distributing their land by lottery. Mississippi and Alabama did the same to the Choctaw and Creek. A nation that cannot testify in court and cannot enforce its own law has not been conquered; it has been made untenable.

Part 2 · Winning in court

The Cherokee fought in the American legal system, with American lawyers, on American terms. In 1831, in *Cherokee Nation v. Georgia*, the Supreme Court declined to hear the case on jurisdictional grounds, with Chief Justice Marshall describing the nations as “domestic dependent nations” whose relationship to the United States resembled that of a ward to a guardian.

They came back the next year through a different door. Samuel Worcester, a missionary jailed by Georgia for living in Cherokee territory without a state licence, appealed. In 1832, in *Worcester v. Georgia*, Marshall held plainly that the Cherokee Nation was a distinct community in which Georgia law had no force, and that relations with it belonged to the federal government alone.

It was a complete victory and it changed nothing. Georgia ignored the ruling and kept Worcester in prison. Jackson is supposed to have said that Marshall had made his decision and could now enforce it — the quotation is almost certainly apocryphal, but it describes what happened. A Supreme Court judgement with no executive willing to back it is a piece of paper.

Part 3 · A treaty signed by the wrong people

Unable to win by law, federal officials found a faction. A small group of Cherokee, perhaps a hundred, who believed removal was now inevitable and that terms should be got while they could, signed the Treaty of New Echota in 1835. They had no authority from the Cherokee National Council, and the Council rejected the treaty outright.

Principal Chief John Ross then collected a petition against it signed by over fifteen thousand Cherokee — the great majority of the nation — and carried it to Washington. The Senate ratified the treaty anyway, by a single vote.

The division inside the nation was agonising and is worth treating seriously. The Treaty Party argued that the United States would take the land whatever happened and that negotiating now meant better terms and fewer deaths; Ross and the National Party argued that signing would ratify theft and destroy the nation’s legal standing. Both were trying to save the same people. That the Treaty Party was proved partly right about the outcome does not make it right about authority, and the nation had a law on the point.

So the legal instrument under which the Cherokee were removed was a treaty their government had rejected, signed by people it had not authorised, opposed in writing by nearly everyone it bound. Several of the signers were later killed by their own people under a Cherokee law making unauthorised land cession a capital offence.

Part 4 · The march

In 1838, General Winfield Scott's troops rounded up Cherokee families, in many cases giving them minutes to leave, and held them in stockades through a summer of dysentery and measles before the detachments set out. Roughly sixteen thousand people walked or were carried about a thousand miles to what is now Oklahoma, through the following winter.

Some did not go. Several hundred Cherokee hid in the mountains of western North Carolina rather than be taken, aided by a white trader named William Holland Thomas who bought land in his own name on their behalf because they could not hold title. Their descendants are the Eastern Band of Cherokee Indians, on that ground today, and the nation now exists in two places as a direct result of 1838.

Estimates of the dead vary and about four thousand is the figure most often given — something like a quarter of the nation, mostly the old, the very young and the sick, from exposure, disease and hunger on the road. The Cherokee call it *Nunna daul Tsuny*, the trail where they cried.

Enslaved people were on the road too, and are usually left out. Wealthier Cherokee, Choctaw and Creek families took enslaved Black people with them on the removals, and several thousand made the journey under the same conditions as those who owned them, with none of the legal standing. The nations that arrived in Indian Territory brought slavery with them, which is why the Civil War reached Oklahoma and why the treaties of 1866 required the nations to emancipate and, in several cases, to admit freedpeople as citizens.

The Cherokee were not alone. The Choctaw went first from 1831, the Creek under military escort in 1836, the Chickasaw after. The Seminole in Florida fought instead, and the Second Seminole War from 1835 to 1842 became the longest and most expensive war the United States fought against a Native nation, costing more than the entire Louisiana Purchase.