The Indian Removal Act: A Legal Deception

I. Introduction

The election of President Andrew Jackson in 1828 signaled a new era for the early United

States. For many Americans, it would be a period of unprecedented democracy in what had

typically been a republic reserved for elites.

With the advent of the Jackson administration many

of his opponents were now struck with apprehension. There was a fear that the United States was

“sinking down into despotism, under the disguise of a democratic government.”

For the Native

American tribes of the southern United States, this fear was fully manifest. The tribal sovereignty

that they had enjoyed up until this point had suddenly come under threat. Their political survival

became uncertain. The governments of the Southern states had become intrepid in dealing with

the tribes which they viewed as obstacles to expansion. President Jackson’s ascension would

instigate a tumultuous time for the tribal nations. Jackson’s popularity was partially derived from

his unwavering stance in support of rapid Indian Removal.

His election was greeted with

expectation that a solution to the “Indian Question” would finally be constructed. With the

introduction of his Indian Removal Act, of which he was instrumental in its drafting, these

expectations were met.

The bill itself could not singlehandedly force the tribes to emigrate,

however. Indian Removal was instead accomplished through a combination of unlawful state

legislation and the act itself. The Indian Removal Act would sour an already strained relationship

between the Native American tribes and the United States, as Jackson and his supporters defied

federal law to remove the Five Civilized Tribes to west of the Mississippi. With open disregard

Arthur Schlesinger, The Age of Jackson, (Little, Brown and Company, 1945), 47.

Arthur Schlesinger, The Age of Jackson, 323.

Daniel W. Howe, What Hath God Wrought: The Transformation of America, 1815-1848. (Oxford: Oxford

University Press, 2007), 342.

Daniel Howe, What Hath God Wrought, 347.

for the law, the forces of Jackson’s Democratic Party succeeded in winning a major victory for

the white supremacists, populists, and expansionists that made up the core of Jackson’s support.

The Indian Removal process was profoundly influenced by President Jackson’s own

perspective on the tribes. He was well-known for having a favorable opinion towards Indian

Removal when he entered office. To him, treatymaking was no longer a valid solution to the

issues plaguing the Southern states.

Jackson would ensure the plans to relocate the tribes would

be carried out if it came from Congress or from executive authority.

To push his Indian

Removal agenda, Jackson appointed pro-Removal politicians to various governmental boards

and organizations.

Senator Hugh White and Congressman John Bell drafted the initial Indian

Removal Act to fulfill the plans Jackson had espoused.

President Jackson often claimed

Removal was an act of mercy towards the Indian tribes. According to him, the Indian Removal

Act had saved the tribes from life under state rule.

In the long history between the Native

Americans and the American colonies, several tribes had been nearly eradicated. Jackson

believed that the Southern tribes would soon go extinct as well if they remained in the Southern

United States.

He was aware of the land-hungry whites that threatened the continued existence

of the Five Civilized Tribes. The only way to protect the tribes from invading Southerners would

be by military force. As he was averse to the idea of shedding the blood of Americans for the

sake of defending Indian rights, he continued to promote Indian Removal.

Michael Morris, "Georgia and the Conversation over Indian Removal," The Georgia Historical Quarterly 91, no. 4

(2007): 405.

Michael Morris, "Georgia and the Conversation over Indian Removal," 404.

Ibid., 406.

Ibid., 411.

Pitchlynn, John, and Andrew Jackson, Andrew Jackson to John Pitchlynn, August 5, 1830, August 5, 1830.

N. Bruce Duthu, American Indians and the Law, (New York: Viking Press, 2008), 9.

The Five Civilized Tribes, as they would come to be known as, were the Cherokee,

Choctaw, Chickasaw, Creek, and Seminole Indian tribes that inhabited the Southern United

States. Many of these tribes had drawn the ire of the American colonies after siding with the

British during the American Revolutionary War.

Once the war was over, peace between the

United States and the tribes was established in 1777. In the following decades, the tribes would

begin to thrive from their progressed agricultural societies. After the Indian Removal Act had

evicted these Native Americans from their lands in 1830, they were marched Westward to new

Indian territory in present-day Oklahoma. Once situated in their new homes, the tribes came to

be subsequently known as the Five Civilized Tribes to Americans both in recognition of their

adoption of Western cultural values and as a label to differentiate them from tribes indigenous to

the Great Plains region.

Their communities were like those of their white neighbors; they

practiced agriculture, owned slaves, worshipped the Christian God, and drafted their own

constitutions.

The tribes acculturated themselves as an attempt to assuage the whites who had

made a mission of civilizing the Indians and also to show that, as a people, they were capable of

taking care of themselves.

They had, for generations, exercised a level of independence from

the United States and still observed their own customs. Federal treaties protected the tribes in

their rights to their lands and to their self-government. However, the sanctity of these treaties

would soon come under question by those Americans who advocated their brisk Removal.

Stephen Breyer, "The Cherokee Indians and the Supreme Court," The Georgia Historical Quarterly 87, no. 3/4

(2003), 409.

Angie Debo, And Still the Water Runs: The Betrayal of the Five Civilized Tribes, (Princeton: Princeton University

Press, 1940), 5.

Debo, And Still the Water Runs, 3.

Sundquist, Matthew L, "WORCESTER V. GEORGIA: A BREAKDOWN IN THE SEPARATION OF

POWERS," American Indian Law Review 35, no. 1 (2010), 244.

The Southern states that were directly involved in the Indian Removal process were

Georgia, Tennessee, Alabama, and Mississippi with the addition of the Florida Territory. White

Americans from these states had a larger stake in Indian Removal because of their proximity to

these tribes. Indian relocation was sought for a variety of reasons. Racism against nonwhites was

one of these reasons. The rise of white nationalism, populism, and expansionism during

Jackson’s presidency had made the prospect of seizing lands from the Native Americans both

desirable and acceptable.

Potential moral qualms could be set aside if a white southerner could

delude himself with the comforting idea that the Indian was an inferior savage unworthy of his

own land. Indeed, many would decry the moral integrity of the tribal societies and their people

and paint them as barbarians. Envy and spite also fueled the drive to ruin these nations. As the

communities of these tribes had come to resemble those of their white neighbors, they had also

made improvements in education and commerce. Missionary schools were commonly available

to many Indian children. Success amongst these people was unwelcomed since it both cemented

them to their lands and presumably because it also disproved stereotypes of Native Americans

being incompetent. Many of the greedier Southern white settlers and looters were ravenous for

lands and riches that would become available if the tribes left. Still, others believed that a well-

organized and sovereign state in the form of a Native American tribe in such proximity posed a

significant threat to national security. They remembered wars fought with the tribes in the past

and thought that the new constitutions made by these tribal nations were tantamount to open

declarations of rebellion. Removing the tribes westward would mitigate this problem. Others

argued for Removal based on their own, imaginary or not, humanitarian concerns. For some, the

Daniel Howe, What Hath God Wrought, 423.

wellbeing of the Native Americans could only be ensured by relocating them away from white

societies full of racists and expansionists. This explained why those sympathetic to the Indian

cause sometimes supported Indian Removal.

One of the more particular justifications for Removal brought up by Georgia state

officials was the matter of the Compact of 1802. The compact stipulated a land cession from

Georgia to the federal government. The land ceded by this agreement formed the new states of

Alabama and Mississippi. In return, the federal government made a vow to eventually gain all

remaining Native American lands within the Georgia’s boundaries for the state’s use.

Decades

passed without the federal government fully accomplishing this promise. State officials were

particularly irate because of this lack of headway into obtaining Cherokee lands. With the

election of the pro-Removal President Jackson spurring them on, state officials took initiative in

seizing Indian lands they interpreted under the Compact of 1802 as rightfully belonging to

Georgia. The state legislature began drafting laws which placed the Cherokee tribe under

Georgia’s jurisdiction. Despite this move being unprecedented in the state’s history with the

tribes, Georgia’s leadership proceeded with the plan. Cherokees were distraught by Georgia’s

confidence in being able to achieve its goal regardless of its illegality. Plans of state enacted

Removal had been unfeasible before Jackson’s presidency. Federally recognized treaties had

acknowledged that these Native American nations owned an unquestioned right to their lands.

The tribes had made land cessions to the states in return for monetary compensation in the past

Robert S, Davis, “State v. George Tassel: States' Rights and the Cherokee Court Cases, 1827-1830,” Journal of

Southern Legal History 12, no. 1/2 (2004), 41.

but they would not part with the entirety of their lands. This idea of the tribes maintaining a

relatively separate political existence rapidly faded away in the 1820s.

The Creek tribe was the first of these tribes to fall prey to the ambition of the Southern

states. The nation was forced to cede its lands by the Treaty of Indian Springs made on February

12, 1825.

The treaty was fraudulently made by the governor of Georgia, George Troup, with

the assistance of his cousin, William McIntosh, who coincidentally happened to be a chief of the

Creek Nation. President John Quincy Adams initially ratified the treaty but suspended the treaty

soon after. The go-ahead had already been given, however, and Governor Troup proceeded to

forcibly remove the Creeks from their lands over the course of a few years. The tribesmen of the

Creek Nation were understandably outraged at this treaty which was done in secret. Chief

McIntosh’s agreement to the treaty would later result in the execution of him and his followers at

the hands of the Creek Council for the crime of treason. The debacle had made the remaining

four nations of the Five Civilized Tribes cautious in their dealings with the states and protective

of their lands.

The wariness of the remaining tribes would prove well founded as the Southern states

began claiming their dominion over the tribes at the turn of 1830s. Legislation was passed to

invalidate tribal protections and tribesmen were expected to submit to laws which made them

second-class citizens. The separate political existence of the tribes was being ignored by states

which had become impatient for Indian Removal. Amidst this controversy, President Jackson

Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln, (New York: W.W. Norton & Company,

2005) 262.

made moves to initiate his Indian Removal plan. A bill was drafted and submitted to the United

States Senate. There, a heated battle would determine the fate of the Five Civilized Tribes.

II. The Passage of the Indian Removal Act in Congress

“The Indian here makes his last appeal. All other sources of protection have failed. It

remains with us whether he shall return in joy and hope, or in sorrow and despair. Will we listen

to his appeal? If we do not, then is their sun about to set, it may be in blood and in tears. Then,

indeed, will all human means have failed, and they must be abandoned -- abandoned, O God! to

thy sovereign mercy.”

Representative George Evans’ speech before the House of

Representatives would be prophetic of the ensuing calamities that faced the Five Civilized

Tribes, the most infamous of these tragedies being the Trail of Tears. Evans, a congressman from

the Northern state of Maine, which was overwhelmingly against Jackson during the election, was

appalled by the Indian Removal Act. He deeply feared for the survival of the tribes. When

Jackson’s Indian Removal Bill was submitted to Congress, the men of the national legislature

held the fate of these people in their hands. It was right of Representative Evans to be anxious.

With President Jackson and Congress in support of the act, little existed to shield the tribes from

the upcoming tribulations.

The Indian Removal Act was a partisan loyalty issue in Congress. Politicians were

expected to vote for the bill with their party and the interests of their voter base in mind.

These

two things were usually synonymous, however. Those elected in the overwhelmingly

Representative Evans, speaking on S. 102, on May 18, 1830, 21st Cong., 1st sess., Register of Debates in

Congress 1049.

Daniel W. Howe, What Hath God Wrought: The Transformation of America, 1815-1848. (Oxford: Oxford

University Press, 2007), 352.

Democratic Southern states typically voted for the bill. To a lesser extent, those elected in the

Northern states, where the National Republican Party was more popular, were more likely to

vote against the bill. Though the political interests of the North and South differed, President

Jackson had been immensely popular during the election. Maine, New York, and Maryland had a

portion of their electoral votes counted towards Andrew Jackson.

He had won the vote of most

states minus New Hampshire, Massachusetts, Rhode Island, Connecticut, Vermont, New Jersey,

and Delaware. The North and South divide was coupled with a divide between those who

believed the state governments supreme and those who held the federal government to be the

supreme. The Indian Removal Act empowered the Southern states to claim tribal lands which

had traditionally been federally protected. As dedicated states’ rights advocates, Democrats

supported the bill on this ground as well. Coinciding with this North and South antagonism were

issues of race with prejudice against the Native Americans being at the forefront and slavery

having a profound effect, though it was not as directly addressed. Though the Five Civilized

Tribes had become so like their Southern neighbors that they too practiced chattel slavery,

Southerners had still taken issue with them for occasionally granting refuge to runaway slaves.

Additionally, the lands belonging to the tribes were desired for their potential as cotton

plantations which would expand the slave industry. Native Americans were more generally

resented for being nonwhite. Those sympathetic to the slaves out of religious and humanitarian

beliefs were likewise generally opposed to Indian Removal and were more likely to see a

common humanness with the tribesmen. Abolitionist sentiment was strongest in the North where

“Counting of Electoral Votes,”20th Cong., 2nd sess. Register of Debates in Congress, 350.

Daniel W. Howe, What Hath God Wrought, 342.

slavery was not as prevalent and lucrative as it was in the South. None of these generalizations

were universally true, however. The Indian Removal Act was so large of a controversy that even

Southern and Democratic politicians would boldly vote against it. The direness of the Indian’s

situation elicited sympathy. Jacksonian representatives from districts with high concentrations of

religious folk, for example, were more inclined to vote against the bill to fulfill the wishes of

their constituents. In the final vote of the House of Representatives, twenty-four Jacksonian

representatives would vote against the bill and twelve would abstain.

The Indian Removal Act was introduced just as conspicuously as any other bill would

have been. It was not known by the moniker of “Indian Removal Act.” It was more

complicatedly referred to as “a bill to provide for an exchange of lands with the Indians residing

in any of the States or Territories, and for their Removal West of the Mississippi.” Senator Hugh

White, who was a member of the Senate’s Committee on Indian Affairs, reported on a proposed

bill which would later come to be known as the Indian Removal Act.

The bill detailed a plan

which would exchange lands west of the Mississippi for the entirety of the lands currently

inhabited by the Five Civilized Tribes. Section One of the bill granted the President the power to

create districts west of the Mississippi to which the Native Americans could choose to move to.

On the surface, this made the bill appear voluntary. The circumstances surrounding the bill made

sure this was not the case. Section Two of the document allowed the President to exchange lands

with tribes (of which the United States had established treaties) existing within the territories of

states. This section made the bill applicable to the Five Civilized Tribes which were technically

S. 102, 21st Cong. (1830).

surrounded by states and had agreed to many treaties with the United States. Section Three

provided a guaranty that if tribes and tribesmen made the exchange, their new lands located in

present-day Oklahoma would forever belong to their people. The exception to this rule was that

should “the Indians become extinct, or abandon the same” the land would return to the

possession of the United States. This dissuaded the emigrants from leaving since. In addition to

providing for a potential scenario in which the indigenous people of North America would die

out, it ensured the United States would retake their lands after they did go extinct. The President

was granted the power to give “aid and assistance” “as may be necessary and proper” and to

protect the relocated tribes “against all interruption and disturbance” from whomever it should

come from by Sections Five and Six of the bill respectively. Of course, these protections would

have to rely on the goodwill of a President who was adamant on the rapid Removal of the

Indians and lax in his enforcement of the existing rights the tribes had. Section Seven placed the

Indians who removed forever under the “superintendence” of the President. This suggests that

Jackson wished to have a greater legitimized degree of control over these people. The tribes

would now have to answer to the president. Section Four of the initial draft allowed Indians to be

compensated for the improvements they made to their lands, which usually referred to

infrastructure such as homes, farms, mines, and the like. As Removal came into effect, this

compensation was usually paltry and often property would be violently seized from the

tribesmen under the prerogative of the state or simply by a common criminal. Section Eight

outlined a cash sum to be utilized in the enactment of the bill’s policies; the amount which would

be put towards Removal would be decided later by Congress.

The very same Senator White submitted a report from the Senate Committee on Indian

Affairs which served as an overview of the Indian Removal Act and of the Five Civilized Tribes.

It was designed to educate Senators who were perhaps not as familiar or invested in the history

of these tribes or the issues facing them at the present. Of course, it should be noted that Senator

White represented Tennessee, a Southern state which bordered Cherokee territory, and was

proud a Jacksonian Democrat. It was this man that was the chief author of this first impression

for the Senate. The report was crafted to bolster Jackson’s plan. In support of the state of

Georgia’s supposed authority over the Cherokees, the report dismissed the Cherokee Nation’s

right to form its own civil society. The committee claimed that “the Cherokees cannot be

recognized as a separate state.”

Already, tribal sovereignty was being denied in Congress. The

report gave the Senate the impression that by the Compact of 1802, tribal members living

throughout the states of Georgia and North Carolina were violating the partition of land. The

current situation, as White described it, was that the states had decided to exercise their laws and

jurisdiction over the tribe and that President Jackson affirmed that he had no power as president

to intervene. It was after this explanation that White brought attention to what he called “the only

remedy suggested by any.” This “remedy” was, in fact, the Removal of the Native Americans to

“a country West of the Mississippi.”

To put the bill in the best light, the report explained that

supposedly “one third to one half of the whole” of the Cherokee had already migrated to a

suitable plot west of the Mississippi as if to say the rest of the population would not be so hard to

U.S. Congress, Senate, Committee on Indian Affairs, (to Accompany S. 102), 21st Cong., 1st sess., 1830, S. Doc.

61, 92.

U.S. Congress, Senate, Committee on Indian Affairs, (to Accompany S. 102), 21st Cong., 1st sess., 1830, S. Doc.

61, 93.

convince into joining them. White also expounded upon the poor and miserable condition of the

Cherokee Nation. The Cherokees, as White claimed, were “without industry, without

information, unlettered, and subsisting chiefly on what they can beg.” This Removal plan would

help them, he argued.

Beyond appealing to the sympathy of the Senate, the report dismissed the right of

occupancy which the Cherokee Nation claimed. The concept of the right of discovery was

introduced in this report to support the idea that the tribes did not own their lands. Essentially,

the right of discovery as used in this context referred to the principle that whoever should

discover land would become the owner of said land. The committee stated that “when the

country was discovered, they were savages.”

Because of their status as barbarians, “it conferred

upon the nation of discoverer and settler, the right to acquire the usufructuary interest which the

natives had.” European explorers who had first encountered the indigenous peoples of the

American continents during the Age of Exploration had a rightful claim to their land under this

assumption. The European Empires which sponsored these early explorers gained possession of

tribal lands because of the self-serving idea that as a more civilized and advanced entity, it

deserved these lands. This concept would be extensively evaluated in the debates. Senator White

gave more proof to the Senate that the Indians did not own their lands. The Cherokees had

purportedly already signed away their independence in their treaties with Great Britain since they

had become a protectorate to the more powerful empire. The Committee on Indian Affairs made

the further connection that the United States had inherited the role of protector from Great

U.S. Congress, Senate, Committee on Indian Affairs, (to Accompany S. 102), 21st Cong., 1st sess., 1830, S. Doc.

61, 94.

Britain after the Revolutionary War and apparently retained the same land rights to these tribal

lands. Regarding the claims made by the supporters of tribal sovereignty that the several treaties

made between the United States and the tribes were a recognition of their sovereignty, the

committee suggested instead that the land cessions made in these treaties were proof of the

tribe’s capitulation to the United States.

Senator White declared that there was no alternative to

the Indian Removal Act. The United States owed compensation to the Cherokee in the Indian

Removal fiasco and arguments made by those who stated otherwise “could not, in the opinion of

the Committee, take anything from that character for integrity and good faith to which they are

so justly entitled.”

However, if the Cherokee did decide to remain in their territory “the

consequences which must inevitably ensue, are such as the humane and benevolent cannot reflect

upon without feelings of the deepest sorrow and distress.” The only path for the survival of the

Native American nations was to empower Congress and the president to be able to send them

elsewhere. Indian Removal provided an option to President Jackson that did not require him to

use his executive authority to intervene between the states and the tribes. White’s claim that

Removal was the only option available to them dodged the issue of Jackson’s obstinacy in

performing the role prescribed to him by federal treaties.

Numerous amendments were proposed for the newly drafted bill. Some were intended to

solely benefit the United States. Representative Jonas Earll, a Jacksonian representing New

York, proposed an amendment which barred the United States from paying for any of the

U.S. Congress, Senate, Committee on Indian Affairs, (to Accompany S. 102), 21st Cong., 1st sess., 1830, S. Doc.

61, 95.

U.S. Congress, Senate, Committee on Indian Affairs, (to Accompany S. 102), 21st Cong., 1st sess., 1830, S. Doc.

61, 97.

expenses that would result from the “extinguishing of titles, or paying for the improvements of

the lands, or of the Removal, or of the first year’s residence of the Indians.” Other amendments

were pushed forth to aid the tribes. Senator Theodore Frelinghuysen, who was a National

Republican and a prominent anti-Removal speaker in the congressional debates, feared that the

bill would enable the President to organize a forced mass exodus of Native Americans.

Frelinghuysen proposed two new sections to be included in the bill. The hypothetical Section

Nine held that “until the said tribes or nations shall choose to remove” that they would be

protected in their possessions and land rights without interruption. Section Ten made it so that

prior to Removal or any land exchange, “the rights of any such tribes or nations in the premises,

shall be stipulated for, secured, and guarantied, by treaty or treaties, as heretofore made.” What

Frelinghuysen was attempting to accomplish was to ensure that Removal would be a voluntary

process. The amendment was a safeguard to protect the tribes from exploitative state legislatures.

After the introduction of the bill was out of the way, the debates in Congress began in

earnest in the Senate. The pro-Removal camp had the support of the Southern states as well as

the president. Democrats outnumbered their opponents in both houses of Congress. The Senate

Committee on Indian Affairs, being supposed experts of the Indian situation, had wholeheartedly

endorsed the Indian Removal Act. It looked as if everything was stacked in the favor of the

Indian Removal Act. Though the issue would largely be decided by party, some senators felt it

necessary to explain their positions and to attempt to justify the Indian Removal Act as White

did. One of the obstacles facing the proponents of the bill was the sovereignty claimed by the

Native American tribes. Indian sovereignty needed to be delegitimized, otherwise the Indian

Removal Act would be considered a violation of this sovereignty. This was one issue which the

initial report had quickly addressed, but was expanded upon in the following debates. Senator

John Forsyth was eminent amongst those in the pro-Removal group. Forsyth had served previous

terms in Congress, both in the House of Representatives and in the Senate. More notably, he was

the governor of Georgia from 1827 to 1829. During this period, he was one of the state’s key

engineers of Indian Removal. As such he was greatly in favor of the bill. During the debates,

many supporters of Removal, including Forsyth, attacked the treaties which their anti-Removal

opponents relied upon to make their case. Doing so was an attempt to undermine the history of

legal tradition that their opposition held against them. To counter those who would have argued

that the treaties made with the tribes were proof of their sovereignty, he insisted that treaties

were not universally made between independent nations and therefore were not sufficient proof

that the tribes were independent.

Forsyth referenced the Treaty of Galphinton of November 12,

1785, interpreting the document as placing tribes within Georgia’s boundaries as belonging to its

political jurisdiction. The treaty was made between warriors of the Creek Nation and Georgia. As

part of the treaty, the Creek Nation was to return slaves, horses, and other property to the state.

The first article of the treaty went as far as to state that all Indians existing in Georgia belonged

to the state. Forsyth also referred to the Treaty of Dewitt’s Corner made on May 16, 1777. This

treaty brokered peace between the Cherokee Nation and South Carolina after a conflict between

the Indians and state militias. The same treaty required the tribe to cede a portion of its lands to

the state, which further implied an unequal relationship.

This treaty was apparently evidence

Senator Forsyth, speaking on S. 102, on April 15, 1830, 21st Cong., 1st sess., Register of Debates in Congress

326.

Senator Forsyth, speaking on S. 102, on April 15, 1830, 21st Cong., 1st sess., Register of Debates in Congress

326.

that the Cherokees acknowledged South Carolina as a conqueror. To top off all the supposed

treaties of conquest Forsyth pointed to, he at last made mention of the Treaty of Hopewell, which

he too believed was an implicit agreement between a conqueror and the conquered. The Treaty

of Hopewell was made between the Cherokee Nation and the federal government to both

establish peace between the two entities and place the tribe under the protection of the United

States. As per the ninth article of the treaty, the federal government held legislative power over

the tribe in managing their affairs. Forsyth took this as meaning total dominance. In a further

attempt to justify Georgia’s recent attempts to legislate against the Indian tribes, he argued that

by the Compact of 1802, Congress somehow ceded its exclusive rights to regulate Indian affairs

to Georgia. By his logic, Georgia had an irrefutable right to enact its policies on the tribes.

Forsyth’s many radical claims would be refuted as the debates went on in Congress. He had to

reason how treaties, which had been used to prove some recognition of tribal sovereignty, were

indicative that tribal sovereignty did not exist. Senator Robert Huntington Adams from

Mississippi, a fellow Democrat, also defended the Indian Removal Act in his speech made on

April 20, 1830. The purpose of the bill, as he laid out, was to simply enable the President to be

able to exchange land West of the Mississippi for the lands of the Indian tribes of the southern

United States. Of course, his political opponents in the Senate already knew of the states’ attacks

on these communities. Adams insisted there was no potential danger in such a bill since it only

empowered the President to make an exchange with those “who are willing to make it.”

found no contradiction between the Compact of 1802 and the current Indian Removal bill since

Senator Adams, speaking on S. 102, on April 20, 1830, 21st Cong., 1st sess., Register of Debates in Congress 359.

both maintained the voluntary element of the land exchange.

The amendment proposed by

Frelinghuysen would be pointless since an additional a guaranty of protection would be

redundant given that past treaties had already established this protection.

Adams portrayed the

Indian Removal Act as an innocuous bill for voluntary land exchange and nothing else. His was

an attempt to ease the fears of those who might have thought that the bill was bending the law.

He defended those supporting the bill, assuring the opposition that neither were they advocating

forced emigration of the Indians nor were they intentionally besmirching the honor of their great

country. Forsyth and Adams wanted the same thing, of course. Adams’ distaste for

Frelinghuysen’s extra protective measures was most likely because he understood these

amendments would have hindered the efficacy of the bill in removing the tribes.

The staunch Jacksonians of the Senate were not weighed down by only resorting to legal

justifications. Senator Forsyth took to making attacks on the character of those who were against

Removal. He was extremely hostile to Senator Frelinghuysen. He mocked him, stating that his

expectation that Georgia would back down was unrealistic and his attempt at persuading the

executive branch fruitless.

He also went as far as to say that Frelinghuysen advocated the

killing of white men in pursuit of his goals due to previous remarks he had made in his speech.

To diminish Frelinghuysen further, Forsyth boldly claimed that no convincing could be done to

change the minds of the administration and of the American public that the Indians were not in a

“deplorable” condition. Congress had been receiving petitions made by advocates of Indian

Senator Adams, speaking on S. 102, on April 20, 1830, 21st Cong., 1st sess., Register of Debates in Congress 360.

Senator Sprague, speaking on S. 102, on April 20, 1830, 21st Cong., 1st sess., Register of Debates in Congress

361.

Senator Forsyth, speaking on S. 102, on April 15, 1830, 21st Cong., 1st sess., Register of Debates in Congress

325.

rights scattered throughout country. Forsyth claimed these petitioners could not dissuade “the

people” from their vision of the archetypal Indian. He went to great lengths to vilify

Frelinghuysen and the petitioners which had spoken out at against the Indian Removal Bill as

delusional religious fanatics who wished to call down “the thunders of Divine wrath” against

Georgia. Not only were the Native Americans themselves “deplorable” but their laws were

repugnant and backwards.

To Forsyth, the punishments for criminal acts were, case by case,

either too severe or too lenient. Forsyth used slander to delegitimize the position of the ant-

Removal members of Congress. The hostility of those in Jackson’s camp towards those who

opposed them was quite apparent.

The approach taken by the opponents of the Indian Removal Act relied on interpreting

existing federal law as granting protections and rights to the tribes. They had federally

recognized treaties to refer to and could build a much more reasonable case on these sources

since they had dictated relations between the Five Civilized Tribes and the United States

government for years. On April 9, 1830, Senator Theodore Frelinghuysen, explained the

purposes of his amendments before the Senate. Frelinghuysen was a highly religious man from

New Jersey and was characteristically against Jackson and his bill. According to Frelinghuysen,

his amendments were intended to continue the “public duties, in relation to the Indian nations”

and to establish a plan for “future negotiations, by the mode of treaties” as was the norm in

Indian policies.

He argued that though the bill put on a harmless façade, its true purpose was

Senator Forsyth, speaking on S. 102, on April 15, 1830, 21st Cong., 1st sess., Register of Debates in Congress

339.

Senator Frelinghuysen, speaking on S. 102, on April 9, 1830, 21st Cong., 1st sess., Register of Debates in

Congress 309.

push upon the Native Americans a terrible choice between Removal or life under state laws. His

claim would invariably be true. He called upon the Senate to recognize that President George

Washington had made a mission of honoring the boundaries between the states and the territories

belonging to the Native Americans and to protect them. He made a guaranty to protect the Creek

tribe in his address to the Senate on August 22, 1789. He also wrote to the Senate on August 11,

1790 stating that in addition to honoring the commitment the United States had made in

protecting the Creek tribe’s rights to its remaining lands, “the treaties which have been entered

into with the other tribes in that quarter, must be faithfully performed on our part.” Congress had

condemned the actions of trespassers into Indian territories and demanded their Removal back in

1788. Frelinghuysen questioned why the men of Congress were disregarding the policies of their

predecessors. Washington’s plan on putting the Treaty of Hopewell into effect made it so that the

treaty would remain valid unless the Cherokees made land cessions to accommodate the new

intruders on their lands. If they did cede lands, which they had done in several treaties up until

1819, they would be compensated and the remaining lands under their possession would be

guaranteed to them. It was not as the Committee on Indian Affairs had assumed that the tribes

had somehow relinquished their land rights and sovereignty when they made land cessions. The

very idea of a land cession implied that the United States did not own the lands which they

bought from the tribes.

Frelinghuysen attempted to make it clear to the Senate that President Jackson should not,

for the preservation of the government, be able to singlehandedly nullify the commitments the

United States had made with the Indians. With disregard for the advice and counsel of other

branches of the federal government, Jackson’s bill, which redefined years of Indian treaties, was

hastily pushed through the ratification process. The senator found the whole ordeal to be an

especially cruel betrayal to the tribes which had previously looked to the United States as their

“political father.” These same tribes were now to fend for themselves against the encroaching

threat of the neighboring states. Frelinghuysen made a point of demonstrating the true intent

behind the Indian Removal Act and how it would be performed. Frelinghuysen made an example

out of instructions from the United States Department of War given to Generals Carroll and

Coffee. These instructions provided insight into the scheming tactics behind Indian emigration.

The document stated that “there is no doubt, however, but the mass of people would be glad to

emigrate” and the only people standing in their way were the “chiefs and other interested and

influential men.” The plan of turning these chiefs to the cause of Indian Removal, as outlined in

the instructions, was to approach them individually as they would less likely be persuaded while

in a general council.

It was an underhanded methodology which relied on fear tactics and

bribery, as Frelinghuysen warned. Indeed, Frelinghuysen was correct, as the Creek tribe had

fallen prey to such tactics before with the Treaty of Indian Springs. The tribe was already being

forcibly removed from its lands in Georgia as the treaty bound it to do. The remaining tribes

would suffer similar trickery from state and federal agents.

Frelinghuysen maintained that the Indians had a preeminent right to their lands, a right

that preceded that of the British crown colonies. Nothing had been enacted to the effect of

delegitimizing the Indians in their land rights which they had enjoyed since time immemorial. He

addressed the justifications which his adversaries used to rationalize the crimes committed

Senator Frelinghuysen, speaking on S. 102, on April 9, 1830, 21st Cong., 1st sess., Register of Debates in

Congress 311.

against the Indian tribes, justifications which he called a “system of artificial reasoning.” Any

laws and principles which might have enabled Europeans to claim Indian lands in the past were

entirely self-invented and for self-gain with no input from the natives they affected. Admittedly,

his reasoning was more coherent than Senator White’s convenient, arbitrary excuse-making.

Frelinghuysen insisted that if the United States desired Indian lands, an exchange would have to

be done voluntarily and with compensation as their treaties dictated. He argued that nonwhites

deserved the same justice afforded to whites. He rightly insinuated that racial prejudice played at

least some role in the Jacksonian dismissal of Indian rights. Historically, these rights had been

observed. The Cherokees only received protection as per their treaties, and did not surrender

their land rights. Land titles of the natives had been recognized from the first interaction between

European explorers and Indians and the right of discovery had not been brought up then.

Furthermore, the British did not lay claim to lands owned by the Native Americans. Their policy

was to let tribesmen enjoy their remaining lands not purchased by the crown.

Frelinghuysen

extrapolated that the same policy applied in the United States’ relationship with the tribes much

as Senator White had claimed. Though in Frelinghuysen’s model of history, the tribes

maintained sovereignty. Since 1775, the Committee on Indian Affairs had approached tribes as

independent nations and conducted diplomacy to maintain friendship. He highlighted that

Congress had made a commitment to foster religion, morality, and knowledge within the Indian

tribes and to secure them in their lands.

Despite the danger posed by the Indian Removal Act,

Senator Frelinghuysen, speaking on S. 102, on April 9, 1830, 21st Cong., 1st sess., Register of Debates in

Congress 313.

Senator Frelinghuysen, speaking on S. 102, on April 9, 1830, 21st Cong., 1st sess., Register of Debates in

Congress 316.

he expressed confidence that the people of the United States would never allow the bill to pass.

He exclaimed in a romantically grandiose tone that the people will say “our word has been given,

and we should live and die by our word.” The claim that “the Removal of the Indian tribes to the

west of the Mississippi is demanded by the dictates of humanity” was no more than a sham to

Frelinghuysen.

This assertion only came from whites who wanted to claim their tribal lands for

themselves. The same individuals also claimed that Indians could not coexist with whites, an

assumption that Frelinghuysen detested. The natives were open and cordial to the whites. The

real issue was that the white Jacksonians were not open to the natives.

In Senator Peleg Sprague’s speech before the Senate on April 17, 1830, he addressed the

claims of the proponents of the bill directly. Sprague was a fellow National Republican from

Maine. The issue he had taken with Forsyth’s use of the Treaty of Dewitt’s Corner was that the

land cession described by it had already been fulfilled.

The treaty had no bearing on the

remaining lands of the Cherokee Nation and whatever imaginary claim Georgia might have had

to them. He argued that the Treaty of Hopewell and the Compact of 1802 also could not have

been reasonably construed as transferring the regulatory powers of Congress to Georgia as

Forsyth had claimed. Sprague clarified that this power was, in the first place, “strictly personal

and fiduciary” and only exercised for the benefit of the Indians as well as on the good judgment

of Congress. The Treaty of Holston made in 1791, of which Forsyth ignored, stated that “the

Senator Frelinghuysen, speaking on S. 102, on April 9, 1830, 21st Cong., 1st sess., Register of Debates in

Congress 318.

Senator Sprague, speaking on S. 102, on April 17, 1830, 21st Cong., 1st sess., Register of Debates in Congress

344.

United States solemnly guarantee to the Cherokee all their lands not here ceded.”

The Compact

of 1802 only reaffirmed the legitimate land titles the Indians possessed and provided that if the

United States desired to acquire these titles they would have to do so “peaceably” and on

“reasonable terms.” Georgia had accepted the Treaty of Holston as law when they ratified the

Constitution.

The state had no right to ignore treaties made between the United States and the

tribes just because they found them inconvenient.

Senator Asher Robbins, also in the Anti-Jacksonian camp had taken to the Senate floor to

analyze the competency of the Indian tribes in making treaties with the United States. In his

speech made on April 21, 1830 he explained how the British Empire laid claim to the lands

inhabited by the Indian tribes as part of its right of discovery and that this right was subsequently

passed on to the United States. The tribes existing within the jurisdiction of the country were,

however, “exempt from that jurisdiction, and subject only to their own.”

According to Robbins,

the British never laid claim to the tribesmen as royal subjects. Likewise, the Indians were never

considered part of population of the states, demonstrated by their absence in state censuses. Their

“savage” status, which Senator White’s report placed undue emphasis on, was irrelevant in

determining the Indian right to their lands. With their original right proven, he rejected claims

circulating at the time that the Indians forfeited their tribal rights by adopting a constitution.

Their decision to change their form of government had not nullified their rights as they had the

Senator Sprague, speaking on S. 102, on April 17, 1830, 21st Cong., 1st sess., Register of Debates in Congress

345.

Senator Sprague, speaking on S. 102, on April 17, 1830, 21st Cong., 1st sess., Register of Debates in Congress

346.

Senator Robbins, speaking on S. 102, on April 21, 1830, 21st Cong., 1st sess., Register of Debates in Congress

376.

solemn right to form such a government. Though he was sure of righteousness of their cause,

Robbins expressed much less confidence than Frelinghuysen did on the future of the Five

Civilized Tribes. The bill’s proponents would simply not recognize the rights of the Native

Americans. Though he believed the Indian tribes were sovereign and had always been, Georgia

would have its way. Unfortunately, his lack of faith was predictive of the outcome of the debates.

On April 24, 1830, after two months, the Indian Removal Bill was passed in the Senate

by a vote of 28 to 19. It seemed that the speeches of the anti-Jacksonians were not enough to

persuade others to cross party lines. Senator Sprague’s proviso to protect the Indian tribes in the

possession of their lands until they should choose to remove was dropped.

Likewise, Senator

Frelinghuysen’s proviso which made it so that the act itself did not negate any previous

commitments established by agreements with the tribes was also dropped. Frelinghuysen’s

second provision to create a party of three people chosen by the President to survey the lands of

the Indian tribes and report on the arability of the land and, more importantly, on the inclination

of the Native Americans on Removal was denied. The provisions that were accepted ensured the

Removal process would be irreversible. Senator McKinley’s proviso that improvements to the

land paid for by the United States “shall not afterwards be permitted to any of the same tribe”

was adopted. Senator Forsyth’s provision in extinguishing Indian land claims to lands owned by

the United States also passed. Senator White amended Section Eight of the bill, specifying the

amount to be granted in enforcing the act would be $500,000. The valiant attempts of

Frelinghuysen, Sprague, and other members of the nineteen who voted against the bill in

“Proceedings April 24, 1830,” Register of Debates in Congress, Senate, 21st Cong., 1st sess., 383.

impeding its progress and persuading others to see its injustice ultimately failed within the

Senate. Already, the situation for the Five Civilized Tribes seemed dire as the Senate, though

divided, had passed a bill which would endanger their survival. The Indian Removal Bill was

then submitted to the House of Representatives for its approval.

The situation within the House of Representatives was more complex than in the Senate.

Besides being an overall closer battle between the political actors, more Democrats decided to

vote against their president out of either moral or political concerns. Nevertheless, the same

arguments used in the Senate would be echoed within the House. In the House of

Representatives, those who were in favor of the bill were significantly less vocal (scarcely had

they taken to the floor to argue in favor of the Indian Removal Act.) Congressman Wilson

Lumpkin from Georgia was one such Democrat who presented the case of the bill before the

House. On May 17, 1830, Representative Lumpkin spoke in favor of the Bill, coloring it as a

moral issue like the Senate Committee on Indian Affairs had. He envisioned the act as the last

saving grace for the Indians and that if they would remain where they were they would surely be

eradicated.

Georgia would destroy the tribe’s political community and threaten the lives of its

people. He pretentiously expressed that he had an “ardent desire to better the condition of these

remnant tribes.”

The Cherokees had wanted to emigrate as they had been begun leaving in the

early 1800’s. He believed that the Chickasaw, Choctaw, and Seminole were all eager to leave

Representative Lumpkin, speaking on S. 102, on May 17, 1830, 21st Cong., 1st sess., Register of Debates in

Congress 1016.

Representative Lumpkin, speaking on S. 102, on May 17, 1830, 21st Cong., 1st sess., Register of Debates in

Congress 1017.

their lands to move West and join the Creek Indians who had already removed.

He made

attacks against the moral character of the statesmen of the Cherokee Nation, insinuating that they

were thriving at the expense of their own downtrodden people.

Since in his vision, it would be

the optimal outcome for the natives, he demanded that the opponents of the bill give up and grant

these tribes a permanent home.

The earnestness of Lumpkin’s concerns was doubted by another

congressman. A Mr. Ellsworth of the house, promptly responded to Lumpkin’s speech sharing

his doubt that the plan would be carried out in “good faith.”

Lumpkin’s overly paternalistic and

pretentious rhetoric fell flat.

Those who were against the Indian Removal Act were much larger in number in the

House of Representatives. Their platform dominated the debates during the short time they had

to decide on the Indian Removal Act. The Jacksonians did not speak in defense of their act, no

doubt since the bill would ultimately be decided by their superior numbers, as it was in the

Senate. Representative Storrs, an anti-Jacksonian, spoke against the bill on May 15,1830, stating

that if he had honestly believed that the purpose of the bill was only to provide land west of the

Mississippi for the Indians to emigrate if they so choose to, he would have given his full support

to the bill.

Extenuating circumstances however, had led the congressman to believe that the act

was intended to aid states of the South in taking away tribal lands. He drew an unflattering

Representative Lumpkin, speaking on S. 102, on May 17, 1830, 21st Cong., 1st sess., Register of Debates in

Congress 1018.

Representative Lumpkin, speaking on S. 102, on May 17, 1830, 21st Cong., 1st sess., Register of Debates in

Congress 1022.

Representative Lumpkin, speaking on S. 102, on May 17, 1830, 21st Cong., 1st sess., Register of Debates in

Congress 1026.

Representative Ellsworth, speaking on S. 102, on May 17, 1830, 21st Cong., 1st sess., Register of Debates in

Congress 1026.

Representative Storrs, speaking on S. 102, on May 15, 1830, 21st Cong., 1st sess., Register of Debates in

Congress 994.

comparison between the Indian Removal Act and the articles of Indian Springs made in 1825

which forced the Creek tribe to cede its lands.

The aftermath of the treaty was explained before

the House of Representatives. The events of Chief McIntosh’s grisly execution for his betrayal

and the forceful coercion the Creeks were put through were to give up their remaining lands.

This debacle had made the other tribes wary in further negotiations with the United States of

which he informed his fellow congressmen. Similar events were bound to occur because of the

Indian Removal Act and because of the conduct of the states. Storrs feared the threat of

Jacksonian despotism over American politics exclaiming that “the President has assumed the

power to dispose to dispose of the whole question, and the message proposes to us little more

than to register this executive decree.”

His claim would gain new credence when Indian

Removal progressed after the Supreme Court had decried it. His inaction was largely to blame

for the current circumstances the tribes found themselves in. White trespassers had recklessly

begun invading upon Cherokee lands, spurred on by the “laxity of opinion prevailing in regard to

Indian rights.” Cherokee lives were being lost because of the more violent rogues. The terms of

the treaties protecting the Indians were absolute and the president violated these terms.

Jackson

was attempting to stretch his executive power and should he have succeeded, he would have

been capable of annulling all treaties the country entered into. Storrs appealed to his colleagues

Representative Storrs, speaking on S. 102, on May 15, 1830, 21st Cong., 1st sess., Register of Debates in

Congress 995.

Representative Storrs, speaking on S. 102, on May 15, 1830, 21st Cong., 1st sess., Register of Debates in

Congress 997.

Representative Storrs, speaking on S. 102, on May 15, 1830, 21st Cong., 1st sess., Register of Debates in

Congress 999.

to uphold the commitments of their country as well as their honor.

His appeal fell on the deaf

ears of the Jacksonian congressmen.

Representative Evans made his speech on May 18, 1830. In this speech, he insisted that

the United States had made a commitment with the Southern tribes to respect their “rights of soil

and jurisdiction.”

He argued that the United States had not attempted to drive the tribes from

their lands in the past and that there had been no intent in their treaties to deceive the Indians.

This was a claim which went against the claim of Jacksonians like Forsyth that strangely implied

that treaties were no more than proofs of conquest. Once again, the true purpose of the Indian

Removal Act was alluded to. Evans claimed that no one in Congress would surely oppose the

voluntary emigration of these tribes. Those against the bill were only against coerced Removal.

He explained that “though this bill professes in itself nothing hostile, yet, if its effect will be to

leave the Indians in circumstances where they can make but one choice.”

The choice to them

was either to flee their homelands or to suffer degradation under the laws of Georgia. The bill

was not merciful to the Indians, as Lumpkin had alleged.

Those Native Americans who had

been moved west of the Mississippi were now in worse shape because of it. As an eyewitness

account stated, “the condition of many tribes west of the Mississippi is the most pitiable to be

imagined.” Evans thought the bill would only compound the troubles of the Five Civilized Tribes

Representative Storrs, speaking on S. 102, on May 15, 1830, 21st Cong., 1st sess., Register of Debates in

Congress 1015.

Representative Evans, speaking on S. 102, on May 18, 1830, 21st Cong., 1st sess., Register of Debates in

Congress 1037.

Representative Evans, speaking on S. 102, on May 18, 1830, 21st Cong., 1st sess., Register of Debates in

Congress 1038.

Representative Evans, speaking on S. 102, on May 18, 1830, 21st Cong., 1st sess., Register of Debates in

Congress 1039.

Representative Evans, speaking on S. 102, on May 18, 1830, 21st Cong., 1st sess., Register of Debates in

Congress 1047.

rather than save them from it. The Indian Removal Act did not represent salvation for the tribes.

It instead represented a departure from self-rule as they knew it.

Near the end of the long debate over the Indian Removal Act, on May 19, 1830, Mr.

Bates of the House of Representatives attacked Georgia state laws as underhanded tactics meant

to force the Indian tribes into negotiations.

In his speech, he brought to the attention of the

House that Indians were not afforded the rights of white men under Georgia state law. As he

explained, one of Georgia’s laws made it a criminal offense for a Cherokee “to ‘endeavor’ to

prevent one of his tribe from emigrating.”

The testimony of Indians or descendants of Indians

in a court of law in the State of Georgia was inadmissible. These Georgia laws would also make

all laws drafted and enacted by the Cherokee declared null. Bates’ claims were true. Rights were

not offered to Indians under Georgia state laws. This had made them powerless in fighting the

state’s claims on their territory from the inside. Georgia legislation made it clear that the only

choice available to the Indians was Removal and not assimilation.

On May 24, 1830, the House of Representatives launched into the final stages of its

ratification of the Indian Removal Bill. Only seventy-eight members of the house had voiced the

approval of the bill in its then present form. Short exchanges between representatives were held

over proposed amendments to the bill. Representative Bell voiced his thoughts that the bill

required no further guaranty for protecting Indian rights perhaps since it would have foiled his

Representative Bates, speaking on S. 102, on May 19, 1830, 21st Cong., 1st sess., Register of Debates in Congress

1049.

Representative Bates, speaking on S. 102, on May 19, 1830, 21st Cong., 1st sess., Register of Debates in Congress

1050.

goals as a Jackson Democrat.

Storrs would argue that the amendment contained a provision

nonexistent in any of the treaties and was thus necessary in guaranteeing Indian rights.

Proponents of the bill still held fast to their assertion that the Cherokees were legally within the

jurisdiction of Georgia, that treaties were not in fact being violated, and that those in opposition

were doing so for political party reasons. Much of the House’s proceedings echoed that of the

Senate’s proceedings; Representative Hemphill proposed a similar plan to Senator

Frelinghuysen’s to send three surveyors into Indian lands to gauge their inclination for

emigration.

Hemphill argued for more information to be obtained and more time for reflection

so that the House of Representatives could make a better decision. His plan was rejected as

Frelinghuysen’s was in the Senate. On the final vote, the bill had been passed by a relatively thin

margin of 102 for the bill and 97 against.

After the bill was approved by the House of Representatives, it was returned to the Senate

with its amendments and promptly validated in that house too. President Jackson would sign the

Indian Removal Act into law on May 28, 1830. Little of the original bill had changed despite the

months of debate and proposed amendments. Section Four was amended to prevent tribes from

getting back their lands after the United States had apprised and paid for any improvements

made on it.

Section Seven’s amendment came as a small victory to those who had impeded the

bill since it was first introduced in Congress. The new provision was “Provided, That nothing in

this act contained shall be construed as authorizing or directing the violation of any existing

“Proceedings May 24, 1830,” Register of Debates in Congress, House of Representatives, 21st Cong., 1st sess.,

1122.

“Proceedings May 24, 1830,” Register of Debates in Congress, House of Representatives, 21st Cong., 1st sess.,

1133.

S. 102, 21st Cong. (1830).

treaty between the United States and any of the Indian tribes.” This amendment would fail in

protecting the southern tribes from Removal. Section Eight’s change specified an appropriation

of 500,000 dollars which would be put towards enacting the Indian Removal Act. Thus, the

answer to the “Indian Question” was settled in the District of Columbia, by President Jackson

and his supporters in Congress. The entire process was far removed from the tribes that would be

disastrously affected by the act. The Native Americans, who had no voice within the capital of

the United States, would simply have to adhere to the many laws that were now thrust upon them

by their white neighbors. Tribal response to the Indian Removal Act was volatile since they

understood it as a forced Removal plan. Many would openly resist the enactment of laws which

would compel them to leave their homes. Others would use platforms of public discourse to

speak out against what they saw as tyrannical encroachments on their rights.

II. The Cherokee Phoenix and the Response to the Indian Removal Act

“There are many true friends to the Indians in different parts of the Union, who will

rejoice to see this feeble effort of the Cherokees to rise from their ashes, like the fabled phoenix.

On such friends must principally depend the support of our paper.”

The grandeur of the

language employed in the prospectus of the Cherokee Phoenix downplayed the earnest hope it

embodied. The Five Civilized Tribes were largely removed from the political process in

Washington but this did not mean they were unaware or taken aback by the Indian Removal Act.

They had formulated their own opinions and responses to what they no doubt viewed as a

diplomatic travesty. There existed few venues for Native Americans to have their voices heard.

Elias Boudinott, “Prospectus,” Cherokee Phoenix, February 28, 1828.

Official statements made by the councils could be sent to the capital to attempt to dissuade the

federal government from pursuing a policy of Removal. The average tribesmen had no outlet for

political discourse. To attempt to represent the voices of unheard Cherokees and to guide these

people to civilization, the Cherokee Phoenix came into existence. Its editor, Elias Boudinot,

intended the paper to “state the feelings of the majority of our people” and exist as proof that

“Indians can be reclaimed from a savage state.” As a state-sponsored paper, there is little doubt

that it expressed the general feelings of the Cherokee leadership. It still came to represent the

common man of the tribe.

The Cherokee Phoenix was an exceptional development of 1828, being the first Native

American operated newspaper to be published. Elias Boudinot, a member of a prominent family

of the Cherokee Nation, was approached by the General Council and asked to collect donations

to establish a paper in the tribe’s capital located in northwestern Georgia, New Echota.

After

years of searching for white patrons interested in supporting the progress of the Cherokee Nation

and the Native Americans more generally, Boudinot had finally published the first issue on Feb

21, 1828. Articles included in the newspaper were both written in English and in Cherokee. The

fact that the paper was written in both languages ensured that it would be readable by a larger

audience. Cherokees and white sponsors of the paper could obtain the same information. In the

Cherokee Phoenix’s prospectus, it declared that the paper would generally contain laws and

public documents of the Cherokee Nation. Additionally, accounts of the manners, customs, and

progress of the Native Americans would also be published. If the information was readily

Theda Perdue, "Rising from the Ashes: The Cherokee Phoenix as an Ethnohistorical Source," Ethnohistory 24, no.

3 (1977): 207.

available, the paper would include “miscellaneous articles, calculated to promote Literature,

Civilization, and Religion among the Cherokees.” For all it wished to accomplish, the paper held

lofty ideals for the Cherokee Nation. Despite its noble intentions, the Cherokee Phoenix was

rudimentary compared to American newspapers. The survival of the publication relied heavily

on articles published in American newspapers and articles contributed by local tribesmen. News

would typically be published weeks and sometimes months after events had transpired. As a non-

profit newspaper, it still relied on monetary contributions from white patrons. The paper would

often struggle from the scarcity of donations.

The Cherokee Phoenix managed to stay afloat

throughout its early yearws.

When Boudinot wrote of progress and civilization in the Cherokee Phoenix, it was in the

same sense that the United States and European civilization had interpreted it. The paper was an

instrument of cultural acclimatization which was already a burgeoning trend within the nation. It

was not an instrument of full assimilation, however. Full assimilation would imply that the tribes

wished to become indistinguishable from their white neighbors. The Cherokee Nation had

adopted many of the cultural values of their white neighbors but it still maintained its own

traditions. The assimilation of the tribes was only to the extent they deemed beneficial. The

Cherokee Phoenix was established as a newspaper specifically for the Cherokee Nation to

“benefit” the people within the tribe. It disclosed the constitution of the Cherokee Nation to the

public both to affirm the tribe as its own sovereign entity with its own set of laws and

government as well as to put the constitution in a place that the people of the nation could access

“Constitution of the Cherokee Nation,” Cherokee Phoenix, February 21, 1828.

it. Though the tribe adopted American cultural values, its tribesmen held no desire in becoming

citizens of the United States. Such an action meant to nullify the tribal protections and rights

possessed by these people. Under the laws of Georgia, for example, they would be severely

disadvantaged compared to a white citizen of Georgia. The progress of the Cherokee people that

the publication wished to foster and demonstrate was not to prepare the Nation for statehood or

incorporation into the Union. Its celebration of “Literature, Civilization, and Religion” was

partially to show their white neighbors that the Cherokee Nation was self-sufficient and civilized.

Boudinot hoped that by becoming more like their white neighbors, the Cherokees would ensure

their own survival.

The looming threat of Indian Removal was already rooted deeply in the consciousness of

the tribesmen years before the Indian Removal Act was ever submitted to Congress. The first

issue of the Cherokee Phoenix reported on plans for a mass emigration of Native Americans to

the West of the Mississippi. Colonel Thomas McKenney, superintendent of Indian Affairs,

insisted that the federal government of the United States intervene “as a parent” in the matter of

the Native Americans and that the natives would even be grateful for it.

The multipart plan

proposed by McKenney was that “a suitable (and none other would be offered to them) and last

home” would have to found. Next, these people would have to be transported to this location

whilst ostensibly “taking them kindly but firmly by the hand and telling they must go and enjoy

it.” Finally, as part of his grand plan, no outside force would be allowed to interfere.

McKenney’s plan was a forced Removal plan. Just as bothersome was his statement on the Five

“Indian Emigration,” Cherokee Phoenix, February 21, 1828.

Civilized Tribes that “they ought not to be encouraged in forming a constitution and

government…” Instead, they should have just accepted life under the paternal judgment of the

states and the federal government. McKenney was speaking about a conglomerate of people and

their wishes as if he known them himself. His condescending plan implied that the Indians could

not do what was best for their own good without a figure of authority guiding them. Elias

Boudinot wrote a response to McKenney’s letter, understandably irate about its content. He

claimed that the colonel erroneously believed that a great number of Cherokee would embark on

this emigration to some unknown location. Boudinot expressed that “we are confident that this

belief is founded upon no evidence whatever.” As he made clear, “the Cherokee (I think

unanimously) are adverse to remove.” McKenney, by his own admission, claimed that he did not

personally observe the Cherokee people. The complaint of the editor was that as Colonel

McKenney never paid the Cherokee Nation a visit he could not truly know the sentiment of the

people. McKenney had taken agency away from the tribes and developed a plan without first

consulting them. Worse still was that this plan seemed, by its rhetoric, to imply forced Removal.

Boudinot stated that “coercive measures,” if employed, would necessarily work against the

benefit of the Cherokee Nation. The tribe had been regulating itself and creating its own laws for

decades, so McKenney’s sudden interest came across as peculiar to the editor. More confusing

was that he discouraged the civilizing process that former Presidents George Washington and

Thomas Jefferson so desired the Native Americans to experience. McKenney’s plan was built

upon a regurgitation of several commonly held beliefs amongst Democrats at the time. The myth

of the Indians’ willingness to emigrate was a political ploy to ease the concerns of those on the

fence. McKenney’s advice against Indian self-improvement was only to make the tribes less

attached to their lands. His entire plan was riddled with strange assumptions that many Native

Americans would find insulting. The Cherokee Phoenix would soon after encounter many

similar reports which Boudinot responded to with similar criticism.

Misinformation was rampant during the Removal process with McKenney’s report only

being one of many examples. Conspiracy theories were abounding on why the Native Americans

were refusing to emigrate despite the supposedly obvious benefit of it. On December 29, 1828,

an official report was published in the paper which stated that the Cherokees wished to emigrate

but were being halted from doing so by “cunning white, and half breeds, for their own

purposes.”

This idea appalled Boudinot who corrected the claim writing that no one was

stopping the Indians from leaving; they simply did not wish to leave. “The fact is,” the editor

clarified, “every citizen of this Nation is cunning.” Despite the tribes being urged to move by

public officials, Indian emigration was rare before coercive measures were employed. On

January 28, 1829, two families had embarked on their journey west of the Mississippi. As

Boudinot explained, these were the only families who had chosen to go he was aware of.

March 18, 1829, Colonel McKenney made another report to the Secretary of War that the chiefs

of the Southern Indian tribes were threatening tribesmen willing to emigrate.

Boudinot

interpreted the report as McKenney once again being taken in by false statements made by those

in favor of emigration. The report owed nothing to fact. The chiefs were uninvolved with these

nonexistent threats. A year later, on March 10, 1830, Colonel McKenney made a report that

“Cherokees and Georgia,” Cherokee Phoenix, December 29, 1828.

“Emigrating Families,” Cherokee Phoenix, January 28, 1829.

“Col. McKenney’s Threat,” Cherokee Phoenix, March 18, 1829.

upwards of 600 Cherokee had emigrated.

This surprised Boudinot who had heard of no such

mass emigration. Though it was false, it was difficult to disprove claims like these as Cherokees

were not competent witnesses in the state Georgia and did not have a platform to speak to the

American masses from. Paranoia had taken hold of Southerners in some cases. Fears of an Indian

rebellion were rising. On April 7, 1830, A false story was being spread by Southerners that the

Creek Nation was preparing for war.

This story came at a time when Southern news outlets

such as the Columbus Enquirer were advocating war against the tribes.

Tensions between the

tribes and states were only rising as time went on.

The bickering over the fate of the Native American tribes East of the Mississippi was the

Cherokee people. The Cherokee Phoenix frequently included articles showing the Cherokees

were quite aware and pressured by the constant discussion of Removal that Georgia state

officials and federal officials both endorsed. For a publication that had been initially presented as

one which covered a variety of topics, there was one constant subject discussed and reported.

Stories detailing threats to tribal sovereignty were consistently published. Articles detailing

Indian Removal plans, whisperings of Georgia making attempts extending its laws over the tribe,

and incidents involving white intruders were consistently included in the newspaper. The

prospectus itself disclosed an anxiety of the Cherokee fading into obscurity as many other Native

American tribes had in the past.

This fear stemmed from plans of “removing and concentrating

Indians” that were already well-known by the first issue of the Cherokee Phoenix. At first, it

“Cherokee Removal,” Cherokee Phoenix, March 10, 1830.

“Press Misrepresentions Abouts Indians,” Cherokee Phoenix, April 7, 1830.

“War Against Indians,” Cherokee Phoenix, April 7, 1830.

“Prospectus,” Cherokee Phoenix, February 28, 1828.

appeared that negotiations between the polities were still going strong. On February 29, 1828, a

letter was disclosed in the paper detailing a land dispute between the Creek tribe and the state of

Georgia being resolved.

Notably, Colonel McKenney paid a council of Creek Indians gathered

there a sum of $47,491 for lands that supposedly were within the state borders of Georgia. In the

same issue, the Choctaw reportedly had their own share of land disputes with Georgia. In an

article containing an excerpt from a letter written by Chief David Folsom from the Choctaw

tribe, he confidently asserted that “the Choctaw people are determined to hold on to their land.”

He also boasted of the success of his people in the fields of modernization and education. He

acknowledged, however, that many were against them in their mission. These enemies of Native

American progress would soon change the chief’s pride to grief. On July 9, 1828, a report was

published in the paper on a new treaty which was established with a group of Cherokees living

West of the Mississippi.

The treaty would place them further west in unspoiled territory. The

drafter of the treaty expressed the hope that Cherokees remaining within Georgia might soon

follow suit and join their brethren westward. This notion was not fondly received by Boudinot.

Those living west could test this emigration experiment; those living east of the Mississippi

thought it to be a fruitless effort. On August 27, 1828 Colonel Hugh Montgomery, an agent of

the United States, was sent to gather Cherokees for emigration despite the protests of Cherokee

Nation.

Federal officials would come to aid the states in removing their Indian problems. On

September 10, 1828, a report from the Western Carolinian was released that new land exchange

“Creek Indians,” Cherokee Phoenix, February 28, 1828.

“Choctaws,” Cherokee Phoenix, February 28, 1828.

“A Cherokee Treaty,” Cherokee Phoenix, July 9, 1828.

“Hugh Montgomery,” Cherokee Phoenix, August 27, 1828.

prices were to be proposed to the General Assembly of the Cherokee Nation.

It was assumed

that the plan would be accepted. The same issue, however, had an article from the Pensacola

Argus which detailed that Creek tribesmen who had agreed to move according to an emigration

agreement were dissatisfied from it.

A regiment was sent to put down Indians and whites

within the Creek Nation who were creating an uproar against emigration. Although Removal

deals were being negotiated with the tribes, the Creek tribe had already been forced to leave at

gunpoint. It was likely that the other nations would be forced to follow suit. Pretenses of

cordiality between the tribes and the Union were giving way to animosity. Another report came

in that citizens of Montgomery County Alabama had met on August 9 to discuss the topic of

Creek lands.

Mosely Baker, editor of the Alabama Journal made a speech in which he argued

that the Indians lacked good judgment, so much so that they could not see how Removal would

obviously benefit them. They were “bound down by the iron mask of ignorance and savageness.”

This talk of Removal would set the stage for things to come. Eventually the overwhelming pro-

Removal sentiment of the Southern states would reach its boiling point.

The issue of Indian Removal was reported on more frequently as more information

rushed in on what exactly the states were planning to do about their Indian problem. A

contributor to the Cherokee Phoenix gave his opinion on Removal on September 17, 1828. He

saw the fate of the Cherokees who had emigrated to Arkansas in a previous Removal plan

befalling those who would emigrate westward.

Those Cherokees who had moved to Arkansas

“Cherokee Lands,” Cherokee Phoenix, September 10, 1828.

“Creek Indians,” Cherokee Phoenix, September 10, 1828.

“Acquiring Creek Lands in Alabama,” Cherokee Phoenix, September 10, 1828.

“Arkansas Cherokees,” Cherokee Phoenix, September 17, 1828.

had little means of supporting themselves besides hunting. The writer feared losing his homeland

and the progress of his nation and entreated the United States to uphold and protect the land

rights of the tribe. His cries would go unanswered. On November 26, 1828 Georgia’s patience

with the Indian tribes was quickly growing thin.

The Compact of 1802 had gone unfulfilled and

this was infuriating for state officials. The agreement bound the United States to obtain, for the

use of the state of Georgia, Indian lands. The reluctance of the tribes to consent to land cessions

had exasperated the state government. The new constitutional government set up by the

Cherokee was branded as an act of rebellion against the United States by these disgruntled

statesmen. The solution to this perceived threat was to extend Georgia laws over these Indians

and to forcibly incorporate their territory within the state’s jurisdiction to extinguish their

defiance. Either the Indians would become second-class citizens of Georgia or they would

abandon their lands and move elsewhere. In any case, Georgia would victoriously seize these

lands. In response Georgia’s claim regarding the Compact of 1802, a contributor to the Cherokee

Phoenix submitted an article on December 10, 1828 which recounted a treaty made with the

Cherokees simultaneously with the Compact of 1802.

The treaty guaranteed all lands to the

Cherokee “not hereby ceded.” It also pledged that the Cherokees would be “led to a greater

degree of civilization” and that the United States would “furnish gratuitously” to accomplish this.

In spite of these high-minded goals, the Committee of Georgia on the State of the Republic on

December 5, 1827 suspected that improving the lives of the Cherokee would only attach them

more firmly to their lands and advised against this. These Georgia officials insisted that Georgia

“Georgia and the Cherokees,” Cherokee Phoenix, November 26, 1828.

“Cherokees and Georgia,” Cherokee Phoenix, December 10, 1828.

needed these lands and would get them. The writer found the actions of these state officials to be

contemptible and unlike the Christian civilized demeanor they projected. Another letter from a

Cherokee reader of the paper was published on February 4, 1829, with the author expressing

surprise that President Jackson was pressuring Congress into accepting an Indian Removal

plan.

He also confided his sorrow that the general government had betrayed the traditionally

friendly relationship it had with the Indian tribes in the past. From the perspective of this

Cherokee, the United States had always been desirous of Indian lands, with its pledges of

protection only existing to veil this want. Once it had become clear that the Cherokee Nation

would not cede further land voluntarily, the general government had changed strategies. On,

March 4, 1829, plans were announced to include Cherokee territory into Georgia by the then

acting Governor Forsyth.

These lands were extended from Georgia’s original claim to Creek

lands which had been ceded earlier. This resulted from a controversy over where Creek and

Cherokee lands intersected. The federal government and the government of the states were both

acting to undermine Indian land rights even before the momentous Indian Removal Act was

passed.

When the tribes were being faced with the looming Indian Removal Act which was

quickly being pushed through Congress, the Cherokee Phoenix provided articles to keep readers

up to date and informed on how adverse it would be for the tribes. To combat the prevalent belief

that the Indian Removal Act was more innocent than it was, the paper set out on a mission of

exposing it as the heavy-handed means of dealing with the Five Civilized Tribes that it was. On

“United States and Cherokees,” Cherokee Phoenix, February 4, 1829.

“Georgia Claims on Cherokee Land,” Cherokee Phoenix, March 4, 1829.

March 31, 1830, the paper issued a heated response to the report made by the Committee on

Indian Affairs.

The report was wholly dismissed as a petty justification for Removal. The

Cherokee people had made their intention to stay where they were blatant with the Cherokee

Constitution. The committee no doubt conjured their information from thin air and had by

“political fraud” passed it off as fact. Boudinot found the report’s opinion of missionaries living

within the Indian territories especially loathsome. He professed the dedication and sacrifice that

the missionaries went through to defend and help the Indians which often made them branded as

traitors in their own country. Under the new and very real threat of the Indian Removal Act,

which had been submitted to the Senate, the future existence of the Five Civilized Tribes became

questionable. The tribes were putting up a strong front maintaining that they would not back

down and emigrate by compulsion. On April 7, 1830 Chief of the Choctaw Nation, David

Folsom once again avowed his unwillingness to relocate to federal officials.

He refuted the

common misconception of the bill’s advocates that whites within tribal lands were influencing

the decision-making of the tribes. He expressed regret that the President Jackson had been

trusting these false reports made on the tribes. Folsom maintained that the lands they stood on

had always belonged to them and that even as white settlers descend upon their nation, they

would go nowhere else. No good could come of moving west of the Mississippi away from the

country they had improved over generations. With the resolution of the tribes to remain a given,

all they could reasonably do was wait for their sentencing from Congress.

“Remarks on the House Committee on Indian Affairs Report,” Cherokee Phoenix, March 31, 1830.

“Opinions and Feelings of the Choctaws With Regard to Removal,” Cherokee Phoenix, April 7, 1830.

As the debates in Congress proceeded, the fears of the Cherokees were not easily

alleviated. On June 12, 1830, The Cherokee Phoenix reported that the House of Representatives

had voted in favor of an amendment to the bill that “the faith of treaties with the Indians shall not

be violated.”

The provision was a poor comfort a people which day in and day out witnessed

these very treaties being violated by predatory state officials. Boudinot took the opportunity to

address the assumption made in Congress that the Indians would go extinct where they were now

in the Southern United States. Such an assumption was misguided as, Boudinot explained since

the population of the Cherokees was growing swiftly within their territory. On June 19, 1830,

Boudinot included an update on the proceedings of Congress.

He had received news that the

Senate had approved of the bill after it was sent back to them by the House of Representatives.

The Indian Removal Act was nearly set to go into effect. Boudinot no doubt already expected

President Jackson to have ratified the bill. He explained how dangerous the bill was to readers

still unconvinced of its apparent danger. To his knowledge, a majority of Congress, especially

those in favor of the bill, openly believed the Indian treaties to be unconstitutional. Additionally,

every amendment which was shot down served to protect the Indians further suggesting there

was a plot against them.

On June 26, 1830, a report came from a Cherokee community which declared its

unwavering resistance to Removal.

A decision made by Congress could not persuade these

people to leave their homeland. The author of the report stated that the Cherokees who elected to

remain were eagerly awaiting successful litigation against Georgia. The people of this

“House Votes to Uphold Indian Treaties,” Cherokee Phoenix, June 12, 1830.

“Senate Passes Indian Removal Bill” Cherokee Phoenix, June 19, 1830.

“Gov. Gilmer of Georgia Claims Jurisdiction Over Cherokees” Cherokee Phoenix, June 26, 1830.

community would have to hold out until a case finally reached the Supreme Court though. In the

meantime, a proclamation was handed down by Governor Gilmer that Georgia’s jurisdiction had

been extended to the Cherokee Nation. Additionally, all Indian laws had been abolished. It was

made a criminal offense to prevent Indians from emigrating or preventing land cessions to

Georgia. Georgia completely dismantled their hope for survival where they currently resided.

They were being forced out of their lands under the powers of these sweeping pieces of

legislation. Their government was delegitimized by state law. The outrage of the Cherokees was

amplified now that the state had gone as far as to attack the foundation of their civil society. Not

only had the governor implied that the Cherokees were always within Georgia’s jurisdiction but

he had made criminals out of their leaders. Boudinot argued that Georgia had no such right to

accomplish any of this since from the dawn of the tribe it had always had a right to a government

of its own choosing. Now it was suddenly being taken away.

The injustices the Native Americans faced because of the Indian Removal Act were

numerous and in the following months, the already distressing situation become more troubling.

On July 3, 1830, an article brought to light a fact that as part of a previous treaty established two

years prior, Native Americans were promised a sum of $50,000 upon emigrating.

It had been

recently discovered that the federal government had never made this payment in this incident.

Without compensation, the treaty acted more as an act of deception and robbery than as an

agreement. The author lamented the fate of the remaining natives who would now be forcibly

moved from their homes, perhaps without compensation. By the end of the year, desperation had

“Government Fails to Compensate Emigrating Indians,” Cherokee Phoenix, July 3, 1830.

taken hold of the tribes. Whether the tribes stayed or left, they would lose far too much and

compensation was not guaranteed. Many were adamantly averse to Removal, so much so that

they urgently looked for some way to have President Jackson intervene and protect. September 4,

1830, A letter from the Choctaw Council addressed to President Jackson was published in the

Cherokee Phoenix.

Colonel David Folsom chief of the Choctaw Nation, had called upon the

learned people of his tribe to write to the president and Congress on behalf of the tribe. As he

stated, he “thought it better to bow before the oppressor.” The letter was a result of this popular

idea of appeasement. The document itself expressed the confusion of the Choctaw that their

“Father” President Jackson would plainly tell them to submit to the laws of Mississippi or leave.

Jackson was asked for an explanation for this horrible decision laid before them. “Father, is not

the country in which we live, ours?” the council pleaded. The nation had done nothing to forfeit

their land rights, it did not make sense to them that they were now expected recognize the

authority of Mississippi. No consent had been given to the United States for it to incorporate the

Choctaw Nation into Mississippi. Notwithstanding their belief in their own righteousness, the

council told Jackson “we shall submit to whatever fate awaits us, with calmness and

resignation.” Additionally, the Choctaw exclaimed “if we have mistaken our ancient rights, if we

have misunderstood treaties, if we have built our hopes on sand, when we thought they were

founded on a rock, then we must yield.” These statements had little real effect as Mississippi was

already determined to take the tribe’s lands even if it did not acknowledge its authority.

Appealing to President Jackson’s reason to see the legitimacy of their rights was futile. More

useless was to appeal to his sympathy. With their final statement “our earnest and last request is,

“Choctaw Address to Pres. Jackson Never Delivered” Cherokee Phoenix, June 26, 1830.

that you would not forsake us,” the Choctaw Council threw itself at the mercy of President

Jackson. Ultimately this plea would not be delivered to Jackson. It is doubtful if it would have

elicited his compassion regardless.

The Cherokee Phoenix could provide perspectives on issues from outside the Cherokee

Nation as well. Its reliance on American newspapers as sources provided a window into the

minds of Americans. Over the years, Boudinot would publish many tracts that displayed

sympathy for the Cherokees. An article originally published in the New York Observer was

included in the issue of the Phoenix released on December 30, 1829.

The passage sung the

praises of the Five Civilized Tribes for being extraordinarily civilized compared to other Indian

tribes. They possessed a “regular government, a written language, and a considerably advanced

state of civilization among Indians.” The article detailed that the whites of the neighboring

Southern states, instead of aiding and training the tribes to emulate higher degrees of civilization,

struggled to remove the tribes and send them back into a savage state. Despite a forced Removal

plan being needlessly destructive of the tribes, the article expected such plans to be attempted

through Congress. This assumption was proven true. These types of articles would be published

in the paper perhaps because it would be comforting to the average Cherokee reader that there

existed allies within the country which threatened to seize everything from them. In any case,

these articles would be continuously submitted to the paper. An article from the Massachusetts

Journal included on March 3, 1830, explained that tribes even more sparse and rudimentary than

the Five Civilized Tribes still enjoyed tribal sovereignty.

Massachusetts had not extended its

“Indians” Cherokee Phoenix, December 30, 1829.

“Independence of Indian Communities” Cherokee Phoenix, March 3, 1830.

laws over these tribes unless as prescribed by voluntary compacts, as was the case with the

Southern tribes but until recently. What this story proved was that there was no universal

principle that decided if tribes were within a state’s jurisdiction or not. The exampled begged for

comparison with the jurisdictional controversy of the Cherokee Nation with Georgia. Boudinot

used such accounts to reinforce the rights that the Cherokee Nation laid claim to.

These articles from outside publications were in no short supply especially during the

time when the Indian Removal Act became a nationwide talking point. In the issue of the

Cherokee Phoenix published on May 22, 1830, the newspaper ran a passage from another

publication which admonished the Senate for passing the act as well as for presumably expecting

the act to go unchallenged as an affront to the wellbeing of the tribe.

The author stated that the

American public would not stand for what was effectively a forced emigration plan for these

people. The Indian Removal Act was a betrayal of historic treaties between the United States and

Native American tribes. The author acknowledged that the President George Washington made

and honored these treaties with the Native American tribes which spoke further to the severity of

Jackson’s disdain for Indian precedent. He was turning his back on a Founding Father which was

tantamount to sacrilege for the writer. The author of a separate piece described the Indian

Removal Act as “artfully contrived.” A further complaint was made that it was a small majority

of the Senate that had repeatedly rejected attempts to guard Native Americans from possible

exploitation. A fact which greatly annoyed the contributor.

“Senate Indian Removal Bill Violates US-Indian Treaties,” Cherokee Phoenix, May 22, 1830.

On May 29, 1830, the day after the bill had been signed by President Jackson, an article

which was run in the Cherokee Phoenix stated that the vote in the Senate for the Indian Bill was

plainly shocking.

The fact that such an act could be passed demonstrated how far public

sentiment had fallen to “political depravity.” In the words of the author, “the proposition to expel

the Indians from their native soil would have been spurned with indignation.” The sudden

turnaround of U.S.-Indian relations had instilled a fear in Americans that the country was

morally degrading. Still others clung to the faint hope that the people would band together to

cease this Indian Removal nonsense. Another publication declared its faith that the American

public would not be tricked by the deception of the Indian Bill. The federal government had

refused to fulfill their treaties with the Indian tribes even though they were the supreme law of

the land by passing the bill. The article exclaimed that the guardian of the Native Americans, the

United States, “has avowed his intention to shoot his ward.” When given a choice between losing

self-government to the state of Georgia or emigrating westward, the tribes would inevitably be

forced to choose the latter. The Indian Removal bill was presented to Congress as only affecting

tribes that would choose to remove though this was a falsity. The people would not be taken in

by this cheap ploy, however. The author had hoped that they would rise above the lies. Many

American newspapers had expressed frustration and pity for how the Five Civilized Tribes were

being taken advantage of. They evinced that a portion of the American public were on the side of

the tribes in the Removal controversy. Hope had not yet been lost for these nations as it seemed

“House to Decide Indian Removal Bill” Cherokee Phoenix, May 29, 1830.

the people would rise against the foul play of President Jackson, Congress, and the governments

of the states.

As news of the bill’s passage began coming in from all over the Union, opinion pieces on

the Indian Removal Act began being published in the Phoenix. On June 26, 1830, a writer from

the Hudson Republican vented his frustration at how not just such a morally reprehensible but

awfully costly bill could be passed.

The estimate he provided was a range of “fifteen to twenty

millions of dollars,” a price which seemed too great for the people of America to shoulder. A

separate publication stated that the cost of enactment would not fall short of “twenty-four

millions of dollars.” At any case, it would be an extremely expensive bill especially for the

standards of 1830. Taxpayer money would go towards the widescale uprooting of indigenous

people from their homes. Articles form other publications also received news of the Indian

Removal Act with much alarm. One writer claimed that now Congress along with the president

had made their intentions exceedingly clear to turn their backs against legal tradition. They had

also betrayed the trust the Indians had placed in the federal government. The federal government

had “trampled under foot the most solemn obligations imposed by treaties repeated and renewed

with all the formalities and sanctions of law.” An article from the Norwich Courier explained

that the approval process in Congress was rushed by the Jacksonians.

100

The author suggested

that those in favor of Removal “seemed to fear, as well they might, an exposition of the subject.”

Those in favor of the bill avoided discussion and shot down amendments. The bill had pushed its

way through ratification not by persuasion but through sheer force of number. The writer

“Press Reaction to Indian Removal Bill” Cherokee Phoenix, June 26, 1830.

100

“Indian Removal Bill Abrogates Indian Treaties” Cherokee Phoenix, June 26, 1830.

suggested that it was plain to see the Indian Removal Bill was designed for forced Removal by

language and intent. The Philadelphia Sun expressed similar distrust and outrage at the Indian

Removal Bill stating that it was a “national disgrace.” More concern was raised that the United

States was betraying the trust the Indian tribes had placed in it to nurture and protect their

communities. On July 17, 1830, a writer from the Arkansas Gazette expressed dismay that the

United States pledged to protect the Indian tribes and bolster their “civilization, intelligence, and

morality” but was now defrauding them.

101

Tribes were forced to look towards the federal

government for its goodwill; they had to prostrate themselves before a nation which had

disobeyed its contracts with the remnants of these once proud peoples. The Removal plan pushed

by Georgia had no regard for what human suffering it would bring. Now tragedy once again

faced the Native Americans and justice from a human source seemed improbable.

The Native Americans would have to constantly deal with the Southern states which had

a newfound prerogative to exert their dominion over the tribes and their people. Even in the

context of its time, the Indian Removal Act was understood as a colossal shift from what had

previously been a relationship built on the rule of law and a rhetoric of friendship. Despite the

pretenses of President Jackson and his supporters, the bill was a predatory act which gave the

Southern states greater leeway to exercise dominion over the homelands of the Five Civilized

Tribes. Now that the tribes were considered part of the territories of the states, claims the Indians

made of trespassers on their lands were ignored. Intrusions into the Cherokee Nation from

outsiders had been a common occurrence even before tribal protections had been lifted. The

101

“Press Reaction to Indian Removal” Cherokee Phoenix, July 17, 1830.

Cherokee Phoenix reported one such incident on February 4, 1829.

102

Settlers from Georgia had

taken it upon themselves to move onto Cherokee lands and seize these lands as their own.

Though such a situation would have been typically resolved with the Removal of the trespassers,

as the law dictated, Boudinot expressed uncertainty as to whether Jackson would intervene and

remove the intruders. It was his hope that since the Cherokees had not broken their treaties with

the United States by taking the matter into their own hands, the federal government would send a

military detachment to expel these invaders.

The squatter problem would be amplified in the following year. With the Indian Removal

Act as well as the state laws of Georgia in effect, the possibility of intruders being properly dealt

with vanished. The discovery of gold and precious minerals within Cherokee territory made

trespassing more worthwhile for these criminals. Gold would shake the foundation of the

Cherokee Nation as Georgia now scrambled urgently to obtain these riches. On April 7, 1830,

intruders into a gold mine had returned twofold, failing to be punished after an initial incident

when a federal agent had detained them.

103

Boudinot found it to be not surprising in the least as

he suspected federal agents of encouraging rogues into entering Indian lands. They were rallying

them onwards to cause mayhem within the nation, stooping to murder in some circumstances. To

Boudinot’s understanding, forced Removal would be accomplished not by “open force,” but

“they will wear them out by permitting, yea, encouraging intruders to come in their midst, and by

harassing them in other innumerable ways.”

102

“Settlers on Cherokee Lands” Cherokee Phoenix, February 4, 1829.

103

“Intruders” Cherokee Phoenix, April 7, 1830.

State governments began enacting their plans to seize Indian property shortly before the

Indian Removal Act was passed. On June 26, 1830, a proclamation from Governor George

Gilmer was included in the Cherokee Phoenix.

104

Within the tract, Gilmer addressed that gold

had been discovered within Cherokee territory. The precious minerals being harvested within the

territory were declared to be the public property of the state of Georgia. Gilmer reaffirmed that

the Cherokee were within the jurisdiction of the state of Georgia and that these miners were now

effectively criminals. Essentially the proclamation declared that these mines would be

commandeered from their Cherokee owners. Now that the state seemed intent on circumventing

Indian rights including property rights, it was unclear as to what Georgia could not do. Sure

enough, on July 3, 1830, it was announced in the paper that Georgia had fully enacted its law to

remove Cherokee tribesmen from their gold mines.

105

It was expected that President Jackson

would at least uphold the property rights as he originally promised. Now it was apparent that

Georgia could get away with ignoring any claim the tribe had and Jackson would deliberately

overlook the affair. The report elucidated that the Indian Removal Act’s true purpose was to

coordinate with Georgia laws in exploiting the Native Americans. Treaties made with the United

States in the past might as well have been nonexistent.

A report from a Cherokee goldminer made on June 24, 1830 described that an assembly

of federal troops had stationed itself at a goldmine after an incident in which nine miners from

Georgia had intruded into the Cherokee mine. The men who had been arrested a few days prior

had been released from jail without facing charges. Instead, the writer of the report and his group

104

“Gov. Gilmer Claims Gold and Silver on Cherokee Land for Georgia” Cherokee Phoenix, June 26, 1830.

105

“US Troops to Aid Georgia in Oppression of Cherokees” Cherokee Phoenix, July 3, 1830.

of miners were arrested by a group of “about thirty or forty men” on the charge of stealing

Georgia’s gold. The writer claimed that he was “working the lands of my forefathers.” His

captors were subsequently intercepted and taken in by federal troops. Unfortunately, for the

author and his fellow miners, the federal troops settled the conflict by allowing the state officials

of Georgia to continue to exercise law enforcement over the Cherokees. The Georgia officer

threatened to arrest the miner and his men sometime in the following days. His second letter

written on June 27 recounted the details of when he was set upon by a colossal force of a

hundred men while again mining for gold. These men then began destroying the machinery the

miners had been using to mine for gold. The writer revealed that an arrangement had been

entered in which the federal soldiers, which had in the past served to protect the Native

Americans in their rights, were cooperating with the state of Georgia in enforcing jurisdiction

over the tribe. Tribesmen of the nation were outraged by the treatment they were receiving from

the country they had previously hailed as their protector. On July 10, 1830, an individual

publishing his opinion in the paper under the moniker “Socrates” accused Jackson of

irresponsibility.

106

Socrates had taken issue with Jackson’s disregard for the laws which

compelled him to expel trespassers from Cherokee lands. All the while, the president claimed

that he was blameless in the matter. More insulting was the fact that after what seemed to be a

historically amicable relationship between nations, Jackson stated that it would be better for the

Cherokee to be “without any hope that he will interfere” and act accordingly. He understood the

106

“Anonymous Letter on Indian Removal and Violation of Treaties” Cherokee Phoenix, July 10, 1830.

tribes were facing a crisis. President Jackson simply did not want to intervene on behalf of the

tribes.

With the president refusing to perform the duties of his office, the Cherokee people had

to look elsewhere for aid. Outrage was already turning to action. On the same day, the Cherokee

Phoenix ran an article detailing that tribesmen were currently working towards bringing their

controversies with Georgia to the Supreme Court.

107

If successful, it was supposed that the

Judicial Branch could cease the mishandling of federal law the president and Congress were

perpetrating. The president would be forced into action to intervene and remove the trespassers

from the Cherokee Nation. If Georgia state laws were ruled wholly unconstitutional, it would

free the tribe from its grip. The federal government would be obligated to “afford them

protection against injustice, oppression, and lawless violence.” Success in a trial could prove to

be the salvation of the Five Civilized Tribes. Jackson’s Indian Removal plans could be struck

down as unconstitutional. With conditions swiftly deteriorating within the Cherokee Nation, the

Cherokee Nation would eventually bring lawsuits to the “Highest Court in the Land.” These

appeals would become part of a last-ditch effort to maintain Cherokee civilization it had existed

since time immemorial.

IV. The Supreme Court and the Cherokee Cases

With the Indian Removal Act in effect, the remainder of the Five Civilized Tribes had

little means to fight back against what was now the supreme law of the land. As their sovereignty

and their homelands were at stake, the Cherokee Nation and its tribesmen attempted to protect

107

“Press Reaction to the Indian Removal Bill” Cherokee Phoenix, July 10, 1830.

their rights by appealing their controversies to the Highest Court of the Land. The Supreme

Court was the last source of relief available to the tribes as it appeared the sun was about to set

on their civilization. If Jackson and Georgia would be defeated, it would have to be by Chief

Justice Marshall’s court. Marshall’s predilections towards federal supremacy and the

“conservatism” of the Anti-Jacksonians were well known.

108

The old Federalist party leanings of

the Court put it at odds with an otherwise predominantly Democratic government. This had

created friction between the Judicial branch and the Executive. As the founder of the Democratic

Party, Jackson advocated greater state sovereignty even if it came at the expense of the rule of

law, as the Indian Removal process had demonstrated. Marshall had been wholly responsible for

developing the power of judicial review in Marbury v. Madison. This power allowed the

Supreme Court to strike down laws which contradicted the Constitution and laws made in the

same spirit.

109

Marshall had also established in the case of Fletcher v. Peck that the Supreme

Court had the power to strike down state laws.

110

It seemed possible that Marshall would rule

against Georgia and provide relief for the Cherokee tribe. Surely the Court would hold the laws

of Georgia unconstitutional and invalid since they disregarded federal treaties. This was the hope

of the plaintiffs who placed the destiny of the nation in the hands of these Supreme Court

justices. It was unclear what the Court’s position on tribal sovereignty would be.

The Cherokee Cases, as they have come to be known as, arose from conflicts stemming

from the Georgia state legislature and its exertion of its authority over the Cherokee Nation. The

beginning of this set of lawsuits was a controversy involving a Cherokee man who had been

108

Arthur Schlesinger, The Age of Jackson, (Little, Brown and Company, 1945), 322.

109

Marbury v. Madison, 5 U.S. 1 Cranch 137 137 (1803).

110

Fletcher v. Peck, 10 U.S. 6 Cranch 87 87 (1810).

convicted of murdering another Cherokee in 1830. George “Corn” Tassel, had been tried for

murder not in the Cherokee Nation but in the state of Georgia.

111

Since the state officials had

chosen to process the criminal under state law instead of leaving it up to the Cherokee Nation to

handle its own affairs, concerns over tribal sovereignty inevitably developed amongst the

tribesmen. Tassel’s representation appealed to a convention of state judges, making the argument

that the trial should be held in Cherokee Nation since crimes occurring within the tribal

boundaries were outside the jurisdiction of Georgia. The judges disagreed, and avowed that the

power to manage Indian nations that Great Britain had exercised during America’s colonial days

passed on to the individual states.

112

Tassel appealed for a writ of error from the Supreme Court,

hoping to reverse his sentence there. Chief Justice Marshall had granted the writ on December

12, 1830 and it seemed that the case would be heard.

113

Unfortunately, the case was nullified

before it could be presented to the Supreme Court. Once the news had reached the statesmen of

Georgia on December 22, 1830, they scrambled to execute Tassel on December 24, two days

later. George Tassel was briskly hanged by the state of Georgia, removing the plaintiff in the

controversy thus making it void and unpresentable to the Supreme Court. Although the case was

dismissed, it was significant in developing the political maelstrom that the Cherokee Cases were

born from. Georgia had made its intentions to skirt federal law clear. It was neither the first nor

last time Georgia would subdue the Cherokee through force. The incident would, however, lead

111

Stephen Breyer, "The Cherokee Indians and the Supreme Court," 413.

112

Robert S. Davis, “State v. George Tassel: States' Rights and the Cherokee Court Cases, 1827-1830,” Journal of

Southern Legal History 12, no. 1/2 (2004), 51.

113

Robert S. Davis, “State v. George Tassel: States' Rights and the Cherokee Court Cases, 1827-1830,” 56.

to the major Supreme Court case of Cherokee Nation v. Georgia as Tassel’s execution would be

one of several issues the nation’s leadership had taken up with Georgia.

114

In the aftermath of the Tassel case, William Wirt, the former United States attorney

general and attorney for Tassel, chose to represent the Cherokee Nation in a lawsuit against

Georgia.

115

He intended to sue the state and obtain an injunction from the Supreme Court to

prevent state officials from enforcing Georgia’s laws within Cherokee territory. The case of The

Cherokee Nation v. The State of Georgia began in the January of 1831. The complaint filed by

Wirt was regarding various state laws with one such law criminalizing the self-governance

exercised by the Cherokee Nation. The laws specified in the complaint would, as Wirt had

argued, “annihilate the Cherokees as a political society.” These new laws which sprouted from

Georgia’s unwavering mission to extend its sovereignty over the lands of the Indians, had

continuously met with much resistance from the Cherokee Nation. Wirt had denied the validity

of the laws on the basis that the Cherokee Nation was a foreign nation. As a foreign nation,

Georgia could not legislate for it. Wirt made the claim in their case that “from time immemorial,

the Cherokee Nation have composed a sovereign and independent State.” The several treaties

that had been made in up until 1819 including the Treaty of Hopewell made in 1785 and the

Treaty of Holston made in 1791 all recognized this fact. “All of which treaties and conventions

were duly ratified and confirmed by the Senate of the United States” and were the supreme law

of the land. It was by these treaties that the Cherokee Nation made its case for its own self-

sovereignty and independence from the jurisdiction of the Georgia state legislature.

114

Robert S, Davis, “State v. George Tassel: States' Rights and the Cherokee Court Cases, 1827-1830,” 57.

115

Stephen Breyer, "The Cherokee Indians and the Supreme Court," 414.

Chief Justice Marshall delivered the majority opinion of the Supreme Court. The subject

of consideration were the laws which the requested injunction would essentially abolish. The

laws in question “which, as is alleged, go directly to annihilate the Cherokees as a political

society, and to seize, for the use of Georgia, the lands of the nation which have been assured to

them by the United States in solemn treaties repeatedly made and still in force.”

116

The Court

understood the severity of such an outcome and did not seek to downplay the concerns the

Cherokees had. Marshall lamented the fate of the Cherokee, averring that “if courts were

permitted to indulge their sympathies, a case better calculated to excite them can scarcely be

imagined.” Despite any pity the Court felt for the Cherokee tribe, it would decide the case based

on a literalistic interpretation of federal law. The true focus of Cherokee Nation v. Georgia was

whether or not the case was within the original jurisdiction of the Supreme Court as outlined by

the Constitution. If the Court had found the case beyond its own jurisdiction, it would disqualify

Court from being the arbiter of the controversy. Article III of the Constitution established the

Supreme Court and outlined its powers. In the Court’s deliberation, Section 2 of Article III of the

Constitution was meticulously referred to. The section stated that the Supreme Court possessed

original jurisdiction in “controversies between a State or the citizens thereof and foreign states,

citizens or subjects.” This single phrase would decide the result of the trial. According to the

criteria set by Article III, the state of Georgia was summarily considered a valid party to the

controversy as it was a state of the Union. Marshall then took to examining the Cherokee Nation

and its status in in relation to the article. The question the Court considered was “is the Cherokee

116

Cherokee Nation v. Georgia, 30 U.S. 5 Pet. 1 1 (1831).

nation a foreign state in the sense in which that term is used in the constitution?” The Court

established that the tribe was indeed a state and that the Cherokees “have been uniformly treated

as a State since the settlement of our country.” Further elaboration was given to the legitimacy of

the Cherokee Nation being a state as “the numerous treaties made with them by the United States

recognise them as a people capable of maintaining the relations of peace and war; of being

responsible in their political character for any violation of their engagements, or for any

aggression committed on the citizens of the United States by any individual of their community.”

Marshall viewed the Cherokees as a sovereign and competent people which went against what

their detractors in Congress attempted to argue. Marshall’s statement additionally established

that the laws and treaties of the United States had always been built on an admission of Indian

sovereignty, to a degree. These treaties were also indeed valid. Native Americans tribes were not

bands of conquered peoples. Tribes were entities with which the United States would conduct

negotiations with and could not arbitrarily dispose of as they pleased. The Court further declared

that the tribes “have an unquestionable, and heretofore an unquestioned, right to the lands they

occupy until that right shall be extinguished by a voluntary cession to our Government.” This

came as reaffirmation that the rights claimed by the Cherokee from the numerous treaties they

held with the United States were indeed lawful. With the Supreme Court partial to the Cherokee

cause, appeared that they would grant the injunction after all.

It was decided, however, that the Cherokee Nation did not qualify as a foreign state. The

Court explained that the Cherokee Nation was instead one of several “denominated domestic

dependent nations” existing in “a state of pupilage” to the United States. The relationship of the

Native American tribes and the United States as described by Chief Justice Marshall was like

“that of a ward to its guardian.” Although the Supreme Court in this case believed the Cherokee

Nation possessed rights as a state, it declined to arbitrate the case since as a “domestic dependent

nation” it was an entity outside the scope of the Court’s power. The Supreme Court did not

accept the argument that as a sovereign entity with some degree of separation from the Union,

the Cherokees were, in fact, a foreign state. The justices of the Court alleged that the many grey

areas in their relations with the United States prevented the Cherokee tribe from being

recognized as truly independent. The lands belonging to Native American tribes were understood

as part of the United States, appearing on maps and in laws. The United States had the sole right

to engage in commerce with the tribes; foreign nations could not negotiate with them. Treaties

had placed the Cherokees under the protection of the United States, an idea which the Indians

had consented to in the past. The treaty of Hopewell, which predated the United States

Constitution allowed the Cherokee “to send a deputy of their choice, whenever they think fit, to

congress" implying an ingrained political connection between the two states. These factors led

the Court to come to its perplexing conclusion. In the Court’s opinion, the Cherokee had the sole

legitimate right to their lands “until that right shall be extinguished by a voluntary cession to our

government.” Georgia had clearly overstepped its boundaries and had undermined this right. But,

since the United States acted as its sovereign and guardian and possessed a preeminent right to

its lands if they became available, Indian tribes could not reasonably fall under the definition of

“foreign nation.” Marshall insinuated from the Constitution that the framers never intended

Indian tribes to be parties in a court of the United States. Albeit condescendingly, Marshall

makes the assertion that utilizing the court system for remedy “had perhaps never entered the

mind of an Indian or of his tribe” at the time of the Constitution’s drafting. Thus, the Supreme

Court maintained the idea that, for whatever reason, Indian tribes were intentionally excluded

from the justice system. The Commerce Clause in its establishment of Congress as the major

regulator of commercial affairs, used the specific term “Indian tribes” suggesting a difference

between tribes and “foreign nations” which are mentioned in the same clause. The Supreme

Court refused to rule “on the laws making it criminal to exercise the usual powers of self

government in their own country by the Cherokee nation.” There was an additional concern that

the injunction requested by the Cherokee Nation would require “too much of the exercise of

political power to be within the proper province of the Judicial Department.” Though the

statement effectively mattered little since it was already a null case, it demonstrated that the

Supreme Court was inclined to exercise judicial restraint. What had been typically a Court which

was diametrically opposed to the Jackson administration was wary of interfering in its affairs.

Marshall did not wish to intervene in the affairs of the states if the interference would drastically

affect its public officials and lawmaking process. In its appeal to the Supreme Court, the

Cherokee Nation had been invalidated by the institution it had envisioned as its last hope. The

issue of these Georgia state laws would have to be settled by another case with valid parties.

A few of Marshall’s colleagues gave their own concurring opinions on the case. The

opinions of Justices Johnson and Baldwin were scathingly unsympathetic to the Cherokee

Nations’ predicament. The opinion by Justice Johnson dismantled the case of the Cherokee

Nation by attacking its status as a state. He expressed disgust at the idea of considering Indian

tribes to be their own states as they were comprised of “people so low in the grade of organized

society.” The Cherokee Nation, being part of this general collection of Indian tribes could never

be a state based on principle. Johnson also denied the sovereignty claimed by the Indian tribes

over their lands and instead insisted that the right of discovery espoused by European explorers

in early colonial years was the same right from which the United States had derived rights to

Native American lands. He questioned what evidence the treaties discussed by Wirt provided

that the Indian tribes were indeed sovereign states. No other nation saw the tribes as states, as

Johnson contended. He insisted that the line between what constitutes a state and what does not

must be firmly sustained. Justice Baldwin in his opinion also denied the Indian tribes the status

of foreign nations pointing to the separation of the office of Foreign Affairs and Indian Affairs as

ample proof of this disparity. He made a point that the terms used to describe the Native

Americans in treaties had been “nations, tribes, hordes, savages.” The absence of terms such as

“prince, state, sovereignty” seemed cause enough to Baldwin to completely discredit the

Cherokee Nation as a state. Ordinances made in the past had also disregarded the Indian’s sacred

right to his lands, suggesting that these rights were not as consistently upheld as the Cherokee

believed. The prospect of future success in an appeal to the Supreme Court seemed quite grim

for the Cherokee Nation. Disheartening enough was that Marshall, an apparent anti-Jacksonian

champion, had refused to adjudicate at all. Worse though was that there were justices who saw

them as feral primitives with no rights.

As it would otherwise appear the entire Court was unwilling to intervene and the odds

were stacked against the Cherokee Nation, Justice Thompson provided an exceptional opinion

which demonstrated his full belief in the righteousness of the Indian cause. His perspective on

the case would be astonishingly influential as the other justices of the Court would adopt many

of his principles in another case fought in the subsequent year. His argument was that Cherokee

Nation v. Georgia was well within the jurisdiction of the Supreme Court and that relief was

possible for the tribe. Thompson conceded that “relief to the full extent prayed by the bill may be

beyond the reach of this court,” however. He also saw the injunction as a political issue as much

as his colleagues did and that the solution would ultimately have to be carried down by the

executive branch.

He maintained that the Cherokee Nation constituted a state. He countered Baldwin’s

complaint that tribes had not been referred to specifically as states in the past by explaining that

“the terms state and nation are used in the law of nations, as well as in common parlance, as

importing the same thing.” As Thompson contended, a state reserved the right to manage its own

affairs and create its own laws. The Cherokees were a people “governed solely and exclusively

by their own laws, usages, and customs within their own territory” and were thus a state. When

the Cherokees yielded their lands to the United States, it was done with treaties and with

compensation. The Cherokee Nation, though it may have been in an unequal alliance, was an

independent state if it did not relinquish its power of self-governance. It had always been treated

as a state even before the Constitution was ratified. This state had always been essentially

foreign. The Native American tribes were independent entities well before the formation of the

United States and the discovery of America; this would necessitate that they were originally

foreign states. Thompson posed the question “when or how have they lost that character, and

ceased to be a distinct people, and become incorporated with any other community?” He denied

the supposition that the United States effectively conquered these Indian tribes seeing as how the

tribes retained the right to self-government. The tribes, which had established rights and distinct

communities which were uncharacteristic of a conquered people. The United States, if it was

truly a conqueror, had neglected to act out as one. To further prove his point that the they were

sovereign, Thompson indicated that treatymaking with European Nations and treatymaking with

the Cherokees were the same process. He supported this sameness by referring to the law of

nations which described a treaty as “an agreement or contract between two or more nations or

sovereigns, entered into by agents appointed for that purpose, and duly sanctioned by the

supreme power of the respective parties.” He claimed that by this aspect of their relationship the

tribes were not part of the Union. Furthermore, the rights guaranteed to the Indians were earned

after, as part of their contracts with the United States, a consideration of land was paid to enforce

the contract. It would be baffling if the United States could have chosen to simply not fulfill its

obligations as per the treaty. Thompson argued that evaluating the legality of Georgia state laws

in conjunction with Cherokee treaties was a wholly judiciable issue for the Supreme Court as

“the constitution expressly gives to the court jurisdiction in all cases of law and equity arising

under treaties made with the United States.” In response to those who believed that the Cherokee

Nation emulated American society too closely to be considered a separate entity, he argued

instead that the strides the Cherokees had been making in improving their civilization did not

nullify their separation from the United States. As Thompson stated, the nation “retains its

usages and customs and self-government, greatly improved by the civilization which it has been

the policy of the United States to encourage and foster among them.” The Treaty of Hopewell

and the Treaty of Holston acknowledged the separate criminal justice jurisdiction of the tribe.

The Commerce Clause’s regulation of “the Indian tribes” did not exclude them from being

foreign nations. What else could they be but foreign? The Cherokees were never considered

citizens of the United States or of any of the states. Multiple treaties had provided pathways to

citizenship for tribesmen, attesting to their otherness. The Treaty of Hopewell guaranteed the

Cherokees rights to their property. The fifth article provided for the Removal and punishment of

trespassers on Cherokee lands. President George Washington had, upon violation of this treaty,

renewed his oath to honor the boundaries of the Cherokee Nation and had removed intruders into

their lands.

Though the Five Civilized Tribes had made land cessions in the past, they expressed a

strong desire to remain where they had lived for centuries with each exchange. Georgia laws

were “directly repugnant” to the numerous treaties made between the tribes and the United

States. The boundary line had been violated. The Indian Removal Act itself stated “nothing in

this act contained shall be construed as authorising or directing the violation of any existing

treaty between the United States and any Indian tribes.” The Compact of 1802, referred to at

great length by the officials of Georgia, did provide that the United States would attain Indian

lands within its boundaries for the state’s use. Although, this would only happen “as soon as it

can be done peaceably and upon reasonable terms." The issue the state of Georgia may have had

with the United States’ unfulfillment of this agreement had little to do with the Cherokee Indians

and their rights. An act of congress made in 1802 which outlawed surveying of Cherokee lands

delegitimized the actions Georgia was enacting to bring Cherokee lands into the state. Of course,

Justice Thompson was alone in his opinion with none of his fellow justices agreeing with him on

the foreign nation or on the relief issue. He declined to explore what sorts of relief would be

possible on the part of the Court for the Cherokee tribe. To expatiate on the matter would be

useless since the case had already been invalidated. He only suggested that partial relief was

possible within the powers of the Supreme Court. In the matter of property rights, the Court

could have intervened to provide relief. The trespassing issue of the Cherokees could have been

quickly resolved. The assertion with which the state of Georgia made over the gold and silver

mines within Cherokee territory could have been nullified. There existed an abundance of

precedent which showed how Georgia was acting out of line. The state officials were attempting

to destroy the rights of the Cherokee Indians and Thompson understood this. He concluded that

the Cherokee were a foreign state and a valid party to the controversy, the subject matter of the

case was valid for judicial review, and that the injunction was a writ of which the Supreme Court

can issue. The Cherokee Nation would have to bring a separate controversy to the Court in the

future. For a time, the states would be allowed to further exploit and dominate the tribes.

In 1832, a case involving Georgia’s claim of sovereignty over the Cherokee Nation

would once again be brought to the attention of the Supreme Court. This time, as mentioned in

the decision of Cherokee Nation v. Georgia, it would be a “proper case with proper parties.”

Worcester v. Georgia would be the culmination of previous legal battles fought over the Indian

Removal Act. Once again, the issue of Native American sovereignty was brought to the Court,

an issue that remained contentious even after the passing of the Indian Removal Act. The case

which was presented to the Supreme Court was an appeal for a writ of error for Samuel

Worcester, the plaintiff, who was convicted under one of Georgia’s new laws which required

whites living on Cherokee lands to register with the state of Georgia and receive a license.

Failure to obtain a license, as prescribed by the law, “shall be punished by confinement to the

penitentiary at hard labour for a term not less than four years.”

117

Worcester was a missionary

from Vermont who had been staying and operating within the Cherokee Nation with the approval

117

Edwin A. Miles, "After John Marshall's Decision: Worcester v. Georgia and the Nullification Crisis," The

Journal of Southern History 39, no. 4 (1973), 521.

of both the tribe itself and President Jackson. Worcester had been a major contributor to the

Cherokee Phoenix as well.

118

He did not have a license from the state of Georgia and had been,

along with several other missionaries, compelled by state officials to leave. Georgia had given

him a grace period during which he could receive a license or choose to remove. Either choice

would have been an acknowledgement of Georgia’s proclaimed right to legislate for the

Cherokee Nation, so in an act of protest, Worcester and his associates chose to remain. William

Wirt, the attorney from the previous cases, was hired once again to bring his case to the Supreme

Court. The initial plea that Worcester made in the Gwinnett county court in which he was tried

was that “several treaties had been entered into by the United States with the Cherokee Nation by

which that Nation was acknowledged to be a sovereign nation, and by which the territory

occupied by them was guaranteed to them by the United States.” This was the same argument

that the Cherokee and their allies had made so many times before to appeal to the reason of their

American “guardian.” Eventually the case reached the Supreme Court. The European right of

discovery angle was discussed once again, this time the Court evaluated that this right to land did

not affect the land rights of the Native Americans. Following the precedent of the British

monarchy, no evidence of any interference with the internal affairs of the Indian tribes was

apparent to the Supreme Court. The Treaty of Hopewell it was true the Cherokee Indians under

the protection of the United States and “of no other power.” However, they "perceived in this

protection only what was beneficial to themselves.” This meaning that the alliance of protection

between the tribes and the British monarchy and subsequently the United States was only that, an

agreement that their protector would protect them. There was an understanding in all their

118

Edwin A. Miles, "After John Marshall's Decision: Worcester v. Georgia and the Nullification Crisis,” 520.

treaties that the monarchy had “practically no claim to their lands, no dominion over their

persons.”

In Worcester v. Georgia, Chief Justice Marshall delivered the majority opinion for the

case as he did before in Cherokee Nation v. Georgia.

119

Marshall deemed that the case had been

presented to the Court according to proper procedure and then evaluates it based on whether it is

a valid case for the Supreme Court to rule on. The charges facing Mr. Worcester were “residing

within the limits of the Cherokee nation without a license,” and “without having taken the oath to

support and defend the constitution and laws of the state of Georgia.” Samuel Worcester’s

defense made the assertion that as a resident of the Cherokee Nation whose supposed crimes

were conducted in New Echota, the state of Georgia had no jurisdiction. He was authorized by

the “American Board of Commissioners for Foreign Missions” to conduct his missionary work

in the Cherokee Nation. He was admitted also with the permission of the President of the United

States and this permission had not been rescinded even after his arrest. Not only had Worcester

been preaching and translating religious texts with the permission of the tribe, he had been

carrying out what had supposedly been the American goal of nurturing religiosity and progress

within the Indian tribes. It seemed unreasonable for Georgia to force its hand in removing him.

Worcester’s representative made the point that the many treaties the United States had made with

the Cherokee tribe from 1785 to 1819 had cemented their status as a sovereign state and that they

had an inalienable right to govern themselves without the interference from the states. The

treaties to which the Senate had approved were the supreme law of the land and Georgia’s laws

119

Worcester v. Georgia, 31 U.S. 6 Pet. 515 515 (1832).

which placed gold and silver mines under the state’s possession and laws requiring whites living

within the nation to obtain a license were “repugnant to the aforesaid treaties.” Worcester’s

argument was that the Georgia laws were unconstitutional and that the Congress of the United

States had the sole right to conduct intercourse with the Indian tribes as laid out in the Commerce

Clause of Article I. The states had no such power.

In the majority opinion, the Court sought to address the validity of these treaties to which

Worcester’s case referred to as well as to assess the legality of the statute he was prosecuted

under. In studying the law in question, the Court came to interpret the licensing law as an

unabashed claim over the lands belonging to the Cherokee Nation. On the matter of the right of

discovery, the Court rejected the idea of it being transferable by force. Marshall mused that “it is

difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could

have rightful original claims of dominion over the inhabitants of the other, or over the lands they

occupied.” In a statement which seemed to echo the argument made by Justice Thompson a year

prior, the fact that the Indian tribes were originally a collection of independent self-governing

nations with their own laws and customs made them eternally a separate entity. Marshall

proposed “that discovery gave title to the government by whose subjects or by whose authority it

was made, against all other European governments, which title might be consummated by

possession." Such was the generally accepted belief amongst the empires of the era as a way

avoiding constant disputes amongst themselves. It was a simpler way to divvy up the new

continents which were now open to them. The Court denied that this right of discovery,

established by the Europeans, gave them right to the lands they discovered should the tribes

existing there be unwilling to part with them. The same rights that belonged to Great Britain

belonged to the United States, meaning the same limitations exists. Marshall found it an

“extravagant and absurd idea” that the original crown settlements laid claim over the entirety of

the American continent when they had to contend with much more numerous and powerful tribes

who were “equally willing and able to defend their possessions.” Invasions in that time were

only sanctioned if they were retaliatory and on “just cause.” “The power of war was given only

for defence, not for conquest.” Besides this fact, a policy of extermination would be

incompatible with the goals of the original settlers which was to convert the Indians to

Christianity. The various European Empires at that time made gifts to these tribes to gain their

favor and the tribes indulged in aiding their benefactors “so long as their actual independence

was untouched, and their right to self-government acknowledged.” True to its commitments, the

British Royal Crown, aside from barring negotiations with foreign nations, never interfered with

their self-governance. Indian lands were always purchased and never seized if the tribal

leadership was unwilling to sell. A Mr. Stuart, a superintendent of Indian Affairs for the British

Empire, made a speech in 1763 in which he avowed that “it is the king's order to all his

governors and subjects, to treat Indians with justice and humanity, and to forbear all

encroachments on the territories allotted to them.” The king himself made a proclamation in the

same year in which he ordered that settlers living on tribal lands not yet purchased by Great

Britain should hastily “remove themselves from such settlements.” What all this established was

that in their history with Great Britain, the Indian tribes were sovereign nations which the empire

made binding treaties with which they mutually obeyed. Violations of these treaties were grave

issues responded with immediate action. The United States was certainly not following the

precedent left behind for them by the British Empire. It was unclear what had changed over the

decades.

When the Revolutionary War had first sparked, the colonies had made a mission of

“securing and preserving the friendship of the Indian nations.” Marshall saw the establishment of

three Indian departments by Congress at that time as a sign that the Union was scrambling to

maintain cordial relations with the tribes. A treaty made with the Delaware tribe in 1778

stipulated amnesty, peace, and friendship. The Union negotiated using treaties similar to those

made between European powers, suggesting the treaties were done in earnest and not just as a

formality. The Court also addressed the Treaty of Hopewell, one of the more important pieces of

legislation discussed in the ongoing debate of tribal sovereignty. If the popular interpretation of

the treaty was one of a conqueror to the conquered, the Cherokee tribe did not understand it as

such. The peace established by the treaty was mutual. Prisoners were restored to their respective

nations. The protection established by the treaty was merely a vow made on the part of the

United States to repel invasions into Indian territories and did not signify something greater.

“The Indians,” as the Court expresses, “perceived in this protection only what was beneficial to

themselves — an engagement to punish aggressions on them.” This did not imply a “surrender of

their national character.” As the law of nations provided, “a weaker power does not surrender its

independence…by associating with a stronger, and taking its protection.” To make it further

clear as to what this relationship allowed, Marshall stated that “protection does not imply the

destruction of the protected.” The treaty also drew the boundaries of the Cherokee Nation, giving

no reason to believe that it gave the protector claim to their lands. Squatters from the United

States, should they choose to remain on tribal lands for a period of six months would be punished

according to Hopewell, which was now being conveniently ignored. The Commerce Clause

authorized that Congress had “the sole and exclusive right of regulating the trade with the

Indians, and managing all their affairs, as they think proper.” The stipulation of this power was

that regulation must be “for the benefit and comfort of the Indians.” Once again, the Court

affirmed that by this article the tribes had not surrendered their autonomy. Such an assumption

would be incoherent with the subsequent treaties made with the tribes. The Treaty of Holston,

made in 1791, formed a more perfect peace with the tribes. The protection offered to the

Cherokee was reaffirmed. This treaty rewrote the boundaries between the two nations once

again. Holston also changed the powers of regulation possessed by the United States to

management of trade, no further powers were stated. Holston guaranteed all lands not yet ceded

to belong to the Cherokee Nation. United States citizens who chose to enter the Cherokee Nation

would have to do so with a passport. Thus, the Court interpreted this treaty as solidifying the

Cherokee right to self-government. Acts passed by Congress had routinely acknowledged the

sovereignty and rights of the Indians and had been constructed to avoid infringing on the

protection promised to them by their treaties. In 1819, Congress, in pursuit of bettering the lives

of the Indians, passed an act “for the purpose of providing against the further decline and final

extinction of the Indian tribes” authorizing the president to appoint people to civilize and aid the

Indians in matters of education and agriculture. Samuel Worcester, as a missionary could be seen

as one such individual mentioned in this act. The Court took this as meaning that in the federal

government’s mission to preserve these tribes, they intended for the tribes to remain where they

were. The land belonging to the tribes had always been contemplated as separate from the states

and that the federal government alone may legislate for the tribes. Congress had been responsible

for maintaining war and peace with the tribes even during the Confederation. The states had

relinquished any powers they might have had in maintaining diplomacy with Indian tribes.

Federal treaties were inviolable by the states.

Georgia had accepted these federal treaties in the past. The cession they had made in the

Compact of 1802 was proof enough to Marshall that they had recognized the right the Cherokee

had to their lands. Georgia statesmen had formerly recognized the federal government’s sole

right in regulation as well as that the Cherokee Nation occupied a territory separate from their

jurisdiction. The laws legislating against the Cherokees established by Georgia in 1828 violated

these past agreements. Because of this blatant violation, the Supreme Court declared that the

state of Georgia had no jurisdiction over the Cherokee and that citizens of the state could only

enter with the permission of the tribe. Any license issued by Georgia would be meaningless. The

conviction of Worcester was consequently void. The laws of Georgia violated the supreme law

of the land as was established by the “constitution, laws, and treaties of the United States.” The

judgment of the lower court was reversed and negated.

With the constitutionality of Georgia state laws disproved by the Supreme Court, the

decision looked to be a victory for tribal sovereignty. There no longer existed any legal coercive

method to have the remaining tribal members move westward. No longer did the tribes face the

quandary of whether to stay and lose sovereignty or to leave and retain their tribal rights. At least

this is what was expected. The ruling of Worcester v. Georgia surprisingly mattered little.

Georgia would simply not obey the judgment of the Supreme Court. As President Jackson

described it, the decision of the Court came out “still born.”

120

Nothing could be done to force

the President’s hand to intervene until the following year. While Cherokees had celebrated their

initial victory, doubts had grown that Jackson would or could be made to enforce the Supreme

Court’s judgment.

121

After Jackson’s re-election, beating out his competition for the presidency

which included William Wirt, the fate of the Worcester decision became more unclear.

122

The

newly appointed Governor Lumpkin of Georgia had repealed the law that had convicted

Worcester and his fellow missionaries on December 22, 1832. The governor was pressured by

politicians within the Vice President Martin Van Buren’s inner circle to pardon the missionaries

and be free of the issue.

123

Worcester and his compatriots, who had remained in shackles for all

this time, had become uncertain as to the gain they were providing the Cherokee tribe in

maintaining their stance in the controversy.

124

Eventually their long incarceration broke their

fortitude down. The missionaries appealed to the governor for release, stating that they would not

pursue the lawsuit any further and submitted themselves to the “magnanimity of the State.” With

their release, Worcester v. Georgia became an event of obscurity. Jackson would not be

entreated upon to liberate men who were already free. The Cherokee Nation and its allies were

gravely disheartened by this; Removal became an inevitability in their minds. Senator

Frelinghuysen, a champion of Native American rights, now hoped the tribes would peaceably

agree to remove westward.

125

Justice McLean who wrote a concurring opinion to the decision in

Worcester told a delegation of Cherokee to accept Removal as unavoidable. The possibility of

120

Edwin A. Miles, "After John Marshall's Decision: Worcester v. Georgia and the Nullification Crisis,” 528.

121

Ibid., 533.

122

Ibid., 535.

123

Ibid., 538.

124

Ibid., 540.

125

Ibid., 529.

the federal government rescuing them from their demise at the hands of a land-hungry Georgia

crumbled away. Jackson’s Indian Removal plans were going into effect and nations would

eventually be pushed westward.

V. Conclusion

Despite its illegality, forced Indian Removal would inexorably be carried out during the

1830s. The Cherokee, Choctaw, Chickasaw, and Seminole Nations would meet the same fate of

the Creek Nation. President Jackson’s plan was remarkably shortsighted for how prodigious of

an issue Indian emigration had been for the past years. Tribal lands were bought at a horribly

depreciated value during the exchange. The funds allocated to removing the Native Americans

were miserable which led to dour complications to those who made the trek. Nations eventually

ceded their lands one after another, not wishing to risk losing their sovereignty to the states. Just

as the Creek Nation had been coerced by a false treaty, so did the Cherokee Nation with the

Treaty of New Echota made in 1835.

126

Though it contained multiple false signatures, it bound

the Cherokees to relocate in 1838. After nearly resisting for a decade, the Cherokee Nation

would be forced by militia to embark on what would come to be known as the Trail of Tears.

Thousands of Cherokee lives were lost on this journey to the newly districted lands west of the

Mississippi.

127

This tragedy would mark the fulfillment of the Indian Removal Act and the

promise of the Compact of 1802. However, the impact of the process would reverberate forever

after the act had completed its purpose. Removal had irreversibly altered the lives of the people

126

William L. Anderson, "The Trail of Tears through Fictional Reminiscence," The Georgia Historical Quarterly

73, no. 3 (1989): 616.

127

Sean Wilentz, The Rise of American Democracy: Jefferson to Lincoln, (New York: W.W. Norton & Company,

2005), 327.

who suffered through it and moved entire civilizations far from the lands that served as their

cradles.

The Indian Removal Act had been highly controversial amongst Americans. Over one

million Americans had petitioned Congress, asking their representatives to vote against the

bill.

128

Christian missionaries across the country condemned the bill as well.

129

The American

Board of Commissioners for Foreign Missions disapproved of the Jackson administration’s

Removal policy. Despite this outcry against the Indian Removal Act, the Jackson administration

was popular enough to sidestep away from the controversy. Jackson’s re-election in 1832 was a

landslide victory, demonstrating that the anti-Jacksonians were a minority in the United States.

130

President Jackson would leave office content with the support shown to him by the American

public during his presidency. Having enacted Indian Removal, he claimed that the tribes were

now saved from extinction.

131

The tribes could enjoy their civilization far away from the states

though they now existed under the superintendence of the president.

President Jackson and his party accomplished their goal of Indian Removal through

unscrupulous means. The Indian Removal Act had no legitimate power to force the tribes to

relocate to the new Indian territory. At its core, it only authorized land exchanges with the tribes

which provided territory west of the Mississippi to which they could relocate. Attempts made by

the southern states to incorporate the tribes within their boundaries were unconstitutional as

determined in Worcester v. Georgia. Federal treaties should have been enough to guarantee the

128

N. Bruce Duthu, American Indians and the Law, 10.

129

Michael Morris, "Georgia and the Conversation over Indian Removal," 404.

130

Ibid., 421.

131

Ibid., 422.

tribes their rights to their lands. Forced Removal should have been a legal impossibility as it

violated the supreme law of the land. Despite this, the tribes were compelled to abandon their

lands. Due to conniving political actions and sheer force of numbers, President Jackson and

fellow Removal enthusiasts could accomplish Removal without punishment. The power Jackson

and his party held over the federal government had ensured the success of Removal. Forced

emigration of the Five Civilized Tribes was committed through illegal means and forever

changed the relationship between the tribes and the United States.

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