- Explain the legal wrangling, opposition, and changes that surrounded the Indian Removal Act
In his first message to Congress, Jackson had proclaimed that Native American groups living independently within states, as sovereign entities, presented a major problem for state sovereignty. This message referred directly to the situation in Georgia, Mississippi, and Alabama, where the Creek, Choctaw, Chickasaw, Seminole, and Cherokee peoples stood as obstacles to White settlement. These groups were known as the Five Civilized Tribes, because they had largely adopted Anglo-American culture, speaking English and practicing Christianity. Some held slaves like their White counterparts.
The Cherokee provide an excellent example of the ways in which the nations acculturated in the interests of survival. In 1827, the Cherokee adopted a government modeled on the American system. They adopted a written constitution that outlined a three-branch system of government including a principal chief, a two-house legislature, and an independent judiciary with a Supreme Court. Most Cherokee lived and dressed like the average American, and some converted to Christianity. Most Cherokee, moreover, became literate after the development of a written Cherokee syllabary; the nation published their own newspaper, The Cherokee Phoenix (ᏣᎳᎩ ᏧᎴᎯᏌᏅᎯ). The wealthiest Cherokee owned plantations and slaves and grew cotton. Like their American counterparts, the group developed and improved the land, building grist mills, saw mills, blacksmith shops, and tanning yards. By most standards and measures, the Cherokee had acculturated to an American way of life; instead of ensuring the survival of the group, however, it intensified the desire of White settlers for this improved Indian land.
Whites especially resented the Cherokee in Georgia, coveting the tribe’s rich agricultural lands in the northern part of the state. The impulse to remove the Cherokee only increased when gold was discovered on their lands. Paradoxically, Whites insisted the Cherokee and other Native peoples could never be good citizens and harmoniously integrated neighbors because of their savage ways, even as the Cherokee and other tribes adopted the practices and appearances of White culture.
Jackson’s anti-Indian stance struck a chord with a majority of White citizens, many of whom shared a hatred of nonwhites that spurred Congress to pass the 1830 Indian Removal Act. The act called for the removal of the Five Civilized Tribes from their home in the southeastern United States to land in the West, in present-day Oklahoma. Jackson declared in December 1830, “It gives me pleasure to announce to Congress that the benevolent policy of the Government, steadily pursued for nearly thirty years, in relation to the removal of the Indians beyond the White settlements is approaching to a happy consummation. Two important tribes have accepted the provision made for their removal at the last session of Congress, and it is believed that their example will induce the remaining tribes also to seek the same obvious advantages.”
The Choctaw were the first of the Five Civilized Tribes to agree to move. For decades, the Choctaw had been pressured to give up lands to White settlers; in the period between 1801 and 1825, the nation signed seven treaties with the U.S. government, ceding some 15,000,000 acres. On September 15, 1830, the nation met with Secretary of War John Eaton and General John Coffee to negotiate the terms for removal west of the Mississippi. The Treaty of Dancing Rabbit Creek was the result. It guaranteed that in exchange for Choctaw lands east of the Mississippi (about 11 million acres), the nation would receive 15 million acres in what is now the state of Oklahoma, then known as Indian Territory. It also established the boundaries of the relationship between the U.S. government and the government of the Choctaw nation. It also agreed to continue to pay annuities established in previous treaties the Choctaw had made with the United States; for instance, Choctaw who had fought in the American Revolution would continue to receive annuities. After the signing of the treaty, many reluctantly prepared to leave the Choctaw homeland.
In his “Farewell Letter to the American People,” George Harkins voiced this frustration, saying, “We as Choctaws choose to suffer and be free, than live under the degrading influence of laws, where our voice could not be heard in the formation…Much as the state of Mississippi has wronged us, I cannot find in my heart any other sentiment than an ardent wish for her prosperity and happiness.” Removal began in the fall of 1831 and was scheduled to end in 1833. Since this was the first, Jackson was anxious to make this the model for his policy of “Indian removal.” Nearly 15,000 Choctaw made the trip; some 2,500 died on the journey. The Choctaw removal came to be called “the trail of tears and death,” a phrase later used to describe the removal of other nations as well.
Worcester v. Georgia
The Cherokee decided to fight the federal law, however, and took their case to the Supreme Court. Their legal fight had the support of anti-Jackson members of Congress, including Henry Clay and Daniel Webster, and they retained the legal services of former attorney general William Wirt. In Cherokee Nation v. Georgia, Wirt argued that the Cherokee constituted an independent foreign nation, and that an injunction (a stop) should be placed on Georgia laws aimed at eradicating them. In 1831, the Supreme Court found the Cherokee did not meet the criteria for being a foreign nation.
Another case involving the Cherokee also found its way to the highest court in the land. This legal struggle—Worcester v. Georgia—asserted the rights of non-Natives to live on Native American lands. Samuel Worcester was a Christian missionary and federal postmaster of New Echota, the capital of the Cherokee nation. A Congregationalist, he had gone to live among the Cherokee in Georgia to further the spread of Christianity, and he strongly opposed Native removal.
By living among the Cherokee, Worcester had violated a Georgia law forbidding Whites, unless they were agents of the federal government, to live in Native American territory. Worcester was arrested, but because his federal job as postmaster gave him the right to live there, he was released. Jackson supporters then succeeded in taking away Worcester’s job, and he was re-arrested. This time, a court sentenced him and nine others for violating the Georgia state law banning Whites from living on Native American land. Worcester was sentenced to four years of hard labor. When the case of Worcester v. Georgia came before the Supreme Court in 1832, Chief Justice John Marshall ruled in favor of Worcester, finding that the Cherokee constituted “distinct political communities” with sovereign rights to their own territory.
Chief Justice John Marshall’s Ruling in Worcester v. Georgia
In 1832, Chief Justice of the Supreme Court John Marshall ruled in favor of Samuel Worcester in Worcester v. Georgia. In doing so, he established the principle of tribal sovereignty. Although this judgment contradicted Cherokee Nation v. Georgia, it failed to halt the Indian Removal Act. In his opinion, Marshall wrote the following:
From the commencement of our government Congress has passed acts to regulate trade and intercourse with the Indians; which treat them as nations, respect their rights, and manifest a firm purpose to afford that protection which treaties stipulate. All these acts, and especially that of 1802, which is still in force, manifestly consider the several Indian nations as distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guaranteed by the United States. . . .
The Cherokee Nation, then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent of the Cherokees themselves or in conformity with treaties and with the acts of Congress. The whole intercourse between the United States and this nation is, by our Constitution and laws, vested in the government of the United States.
The act of the State of Georgia under which the plaintiff in error was prosecuted is consequently void, and the judgment a nullity. . . . The Acts of Georgia are repugnant to the Constitution, laws, and treaties of the United States.
How does this opinion differ from the outcome of Cherokee Nation v. Georgia just one year earlier? Why do you think the two outcomes were different?
Treaty with the Cherokee
The Supreme Court did not have the power to enforce its ruling in Worcester v. Georgia, however, and it became clear that the Cherokee would be compelled to move. Those who understood that the only option was removal traveled west, but the majority stayed on their land.
Jackson wanted a solution that might preserve peace and his reputation. He sent Secretary of War Lewis Cass to offer title to western lands and the promise of tribal governance in exchange for relinquishing the Cherokee’s eastern lands. These negotiations opened a rift within the Cherokee Nation. Cherokee leader John Ridge believed removal was inevitable and pushed for a treaty that would give the best terms. Others, called nationalists and led by John Ross, refused to consider removal in negotiations. The Jackson administration refused any deal that fell short of large-scale removal of the Cherokee from Georgia, thereby fueling a devastating and violent intratribal battle between the two factions. Eventually, tensions grew to the point that several treaty advocates were assassinated by members of the national faction.
The Trail of Tears
In 1835, a portion of the Cherokee Nation led by John Ridge, hoping to prevent further tribal bloodshed, signed the Treaty of New Echota. This group came to be called the Treaty Party. The Treaty of New Echota ceded lands in Georgia for $5 million and, the signatories hoped, a compromise that would limit future conflicts between the Cherokee and White settlers. However, most of the tribe, now organized as the National Party, refused to adhere to the terms, viewing the treaty as illegitimately negotiated. Additionally, women were excluded from the treaty negotiations, even though women held power in the Cherokee matrilocal tradition. In response to the negotiations, John Ross pointed out the U.S. government’s hypocrisy. “You asked us to throw off the hunter and warrior state: We did so—you asked us to form a republican government: We did so. Adopting your own as our model. You asked us to cultivate the earth, and learn the mechanic arts. We did so. You asked us to learn to read. We did so. You asked us to cast away our idols and worship your god. We did so. Now you demand we cede to you our lands. That we will not do.”
President Martin van Buren, in 1838, decided to press the issue beyond negotiation and court rulings and used the New Echota Treaty provisions to order the army to forcibly remove those Cherokee not obeying the treaty’s cession of territory. Harsh weather, poor planning, and difficult travel compounded the tragedy of what became known as the Trail of Tears. Sixteen thousand Cherokee embarked on the journey; only ten thousand completed it. Not every instance was of removal was as treacherous or demographically disastrous as the Cherokee example. Regardless, over sixty thousand Native Americans were forced west prior to the Civil War. The Creek, Choctaw, Chickasaw, and Seminole peoples were also compelled to go. The removal of the Five Civilized Tribes provides an example of the power of majority opinion in a democracy.
Link to Learning
Explore the interactive Trail of Tears map at PBS.org to see the routes the Five Civilized Tribes traveled when they were expelled from their lands. Then listen to a collection of Cherokee oral histories including verses of a Cherokee-language song about the Trail of Tears.
What do you think is the importance of oral history in documenting the Cherokee experience?
Lastly, visit this website to learn 18 interesting facts related to the Indian Removal Policy and the Trail of Tears.
Watch this video to learn more about the Trail of Tears.
Black Hawk’s War
The policy of removal led some Native Americans to actively resist. In 1832, the Fox and the Sauk, led by Sauk chief Black Hawk (Makataimeshekiakiah), moved back across the Mississippi River to reclaim their ancestral home in northern Illinois. A brief war in 1832, Black Hawk’s War, ensued. White settlers panicked at the return of the Native peoples, and militias and federal troops quickly mobilized. At the Battle of Bad Axe (also known as the Bad Axe Massacre), they killed over two hundred men, women, and children. Some seventy White settlers and soldiers also lost their lives in the conflict. The war, which lasted only a matter of weeks, illustrates how much Whites on the frontier hated and feared Natives during the Age of Jackson.
What was the Trail of Tears?
Five Civilized Tribes: the five tribes—Cherokee, Seminole, Creek, Choctaw, and Chickasaw—who had most thoroughly adopted Anglo-American culture; they also happened to be the tribes that were believed to stand in the way of western settlement in the South
Indian Removal Act: the 1830 act that removed the Five Civilized Tribes from their home in the Southeast and forcibly relocated them in the west
Trail of Tears: the route of the forced removal of the Cherokee and other tribes from the southeastern United States to the territory that is now Oklahoma
Treaty of New Echota: the 1835 agreement that ceded Cherokee land in Georgia and prepared the legal framework for the Trail of Tears
- George Harkins, “Farewell Letter to the American People,” in Great Documents in American Indian History, ed. Wayne Moquin with Charles Van Doren (New York: Praeger, 1973), 152. ↵
- John Ross, quoted in Brian Hicks, Toward the Setting Sun: John Ross, the Cherokees, and the Trail of Tears (New York: Atlantic Monthly Press, 2011), 210. ↵