Settlers and Native Lands

Early in the 19th century, while the rapidly-growing United States expanded into the lower South, white settlers faced what they considered an obstacle. This area was home to the Cherokee, Creek, Choctaw, Chickasaw and Seminole nations. These Native nations, in the view of the settlers and many other white Americans, were standing in the way of progress. Eager for land, the settlers pressured the federal government to acquire Indian territory. This pressure was particularly strong in Georgia, where the discovery of gold added to white settlers’ land-hunger.

Jackson’s Indian Wars. Andrew Jackson, from Tennessee, was a forceful proponent of Indian removal. In 1814 he commanded the U.S. military forces that defeated a faction of the Creek nation. In their defeat, the Creeks lost 22 million acres of land in southern Georgia and central Alabama. The U.S. acquired more land in 1818 when, spurred in part by the motivation to punish the Seminoles for their practice of harboring fugitive slaves, Jackson’s troops invaded Spanish Florida.

U.S.-Native Treaties. From 1814 to 1824, Jackson was instrumental in negotiating nine out of eleven treaties which divested the southern tribes of their eastern lands in exchange for lands in the west. The tribes agreed to the treaties for strategic reasons. They wanted to appease the government in the hopes of retaining some of their land, and they wanted to protect themselves from white harassment. As a result of the treaties, the United States gained control over three-quarters of Alabama and Florida, as well as parts of Georgia, Tennessee, Mississippi, Kentucky and North Carolina. This was a period of voluntary Native migration, however, and only a small number of Creeks, Cherokee and Choctaws actually moved to the new lands.

The “Five Civilized Tribes.” Although the above five southeastern Native nations had made earlier attempts at resistance, many of their strategies were non-violent. One method was to adopt Anglo-American practices such as large-scale farming, Western education, and slave-holding. This earned the nations the designation of the “Five Civilized Tribes.” They adopted this policy of assimilation in an attempt to coexist with settlers and ward off hostility. But it only made whites jealous and resentful.

Continued Warfare. Some Native nations simply refused to leave their land — the Creeks and the Seminoles even waged war to protect their territory. The First Seminole War lasted from 1817 to 1818. The Seminoles were aided by fugitive slaves who had found protection among them and had been living with them for years. The presence of the fugitives enraged white planters and fueled their desire to defeat the Seminoles.

Jackson and Indian Removal

In 1830, just a year after taking office, Jackson pushed a new piece of legislation called the “Indian Removal Act” through both houses of Congress (see below). It gave the president power to negotiate removal treaties with Native tribes living east of the Mississippi. Under these treaties, Native-Americans were to give up their lands east of the Mississippi in exchange for lands to the west. Those wishing to remain in the east would become citizens of their home state. This act affected not only the southeastern nations, but many others further north. The removal was supposed to be voluntary and peaceful, and it was that way for the tribes that agreed to the conditions. But the southeastern nations resisted, and Jackson forced them to leave.

Jackson explained the motives and attitudes behind the removal policy in a key speech of 1829 (see below). At the time many white Americans thought that the United States would never extend beyond the Mississippi. Removal would save Indian people from the depredations of whites, and would resettle them in an area where they could govern themselves in peace. But some Americans saw this as an excuse for a brutal and inhumane course of action, and protested loudly against removal.

The Supreme Court and Indian Removal

As the reality of Indian Removal gradually took shape, aspects of this policy were debated in the Supreme Court in a series of important cases, which generally did more to facilitate than to restrain this policy.

Native Land Titles Nullified. Although concerning Illinois rather than the Southeast, in the case of Johnson v. M’Intosh (1823) the Supreme Court prepared the ground for removal, whether intentionally or not. John Marshall’s decision in this case held that private individuals could not purchase lands from Native Americans–even though this had traditionally been a common practice–because they lacked valid legal titles to their land.

In Johnson v. M’Intosh Marshall asserted that, while Native-Americans could occupy lands within the United States, they could not hold title to them, because the their “right of occupancy” was subordinate to the United States’ “right of discovery.” By affirming in this way the use of the “discovery doctrine,” an idea whose American roots can be traced to the earliest colonial charters (see above, Module 2), the court provided a convenient legal rationale for overriding Native claims to their land.

The Cherokee’s Legal Strategy. The Cherokee took the distinctive approach of trying to use the courts to protect their rights. In 1827 they adopted a written constitution declaring themselves to be a sovereign nation. They based this on United States policy; in former treaties, Indian nations had been declared sovereign so they would be legally capable of ceding their lands. Now the Cherokee hoped to use this status to their advantage. The state of Georgia, however, did not recognize their sovereign status, but saw them, as suggested by the discovery doctrine, as tenants living on state land.

The Cherokee took their case to the Supreme Court. In the first of two landmark cases, Cherokee Nation v. Georgia (1831), the Marshall court expressed sympathy for the Cherokee, but ruled that it lacked jurisdiction to intervene on their side, because they were not a truly sovereign nation, but rather, a “domestic dependent nation.” This concept has had a long legacy, one that still today defines the relationship between the independent tribes and the federal government.

The Cherokee were more successful in a second case of 1832, Worcester v. Georgia (see below). The court decided in favor of the Cherokee, holding that they had the right to self-government based on federal treaties. But neither the state of Georgia nor the federal government did anything to enforce this decision.

The Trail of Tears

Their protests did not save the southeastern nations from removal. For many years the United States continued the forced relocation of the southeastern nations. The majority of the Seminoles refused to leave, and the resulting Second Seminole War lasted from 1835 to 1842. As in the first war, fugitive slaves fought beside the Seminoles who had taken them in.

The Cherokee, on the other hand, were tricked with an illegitimate treaty. In 1833, a small faction agreed to sign a removal agreement: the Treaty of New Echota. The leaders of this group were not the recognized leaders of the Cherokee nation, and over 15,000 Cherokees — led by Chief John Ross — signed a petition in protest. The Supreme Court ignored their demands and ratified the treaty in 1836. The Cherokee were given two years to migrate voluntarily, at the end of which time they would be forcibly removed. By 1838 only 2,000 had migrated; 16,000 remained on their land. The U.S. government sent in 7,000 troops, who forced the Cherokees into stockades at bayonet point. They were not allowed time to gather their belongings, and as they left, whites looted their homes. Then began the march known as the Trail of Tears, in which 4,000 Cherokee people died of cold, hunger, and disease on their way to the western lands.

By 1837, the Jackson administration had removed 46,000 Native American people from their land east of the Mississippi, and had secured treaties which led to the removal of a slightly larger number. Most members of the five southeastern nations had been relocated west, opening 25 million acres of land to white settlement and to slavery.

Sources: these introductory comments are based mostly on PBS’s website on Indian Removal. This website has much more information and related texts, as does that of the Library of Congress, under the Indian Removal Act.