“That of a Ward to his Guardian”Indian Removal and States Rights

Chris Morini

HIST 430 – Senior Seminar: Manifest DestinyDr. Threlkeld

17 December 2015

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In the middle of an intense Congressional debate, Senator John Forsyth of Georgia took

the floor to defend his state. Pressured and scrutinized by his fellow Senators, Forsyth jumped to

the defense of his state and its recently enacted laws: “We are told here, that, should we persist, a

tone of moral feeling will be roused that will make Georgia tremble.” He continued: “Little does

the Senator [of New Jersey] know the character of the State. It is not made of such frail

materials…Threats of force of the United States? The bayonets of the regular army have been

flashed in our faces…we have endured all, without shrinking.” Forsyth concluded with one last

proclamation: “Responsible to no earthly tribunal for the exercise of her sovereign authority,

Georgia is not to be questioned in this body, composed of the Representatives of the States, for

the wisdom, the justice, or equity of her laws.”1 Forsyth’s aggressive and hostile speech to his

fellow Senators came not on the eve of southern secession from the United States, but nearly

thirty years earlier, during the Congressional debate over the Indian Removal Act. Throughout

the extensive debate, the overarching theme was the issue of states rights. Did Georgia have the

legitimacy to remove the Native Americans from within her boundaries? Did Georgia

undermine the supremacy of the United States government and its treaties, or was Georgia, and

all other states, delegated the power to handle Native American affairs within their sovereign

land? The rhetoric of states rights was prevalent in the arguments of the pro-removal Senators,

while anti-removalists argued moral and legal issues surrounding removal made the act

unconstitutional. By narrow margins in both the Senate and House of Representatives, the

Indian Removal Act of 1830 passed and was enacted by President Andrew Jackson in May 1830.

Nearly thirty-years later, South Carolina would be the first state to secede from the Union and

initiate the Civil War. So, in 1830, to what extent did the issue of states rights influence the

debate and subsequent enactment of the Indian Removal Act of 1830?

1 6 Cong. Deb. 325-383 (1830).

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Most historians consider Indian Removal one of the darkest moments in United States

history. The forced removal of thousands of Native Americans decimated the tribes and their

populations. For example, of the more than 16,000 Cherokees forcibly removed from their land,

around 4,000 died during the “Trail of Tears.” Historians however have disagreed over the

United States’ justification of Indian removal. They argue Indian removal was justified through

economic, social, racial, and political motivations. Those that argue for economic justifications

believe Americans were fueled primarily by greed. Their desire for Native American hunting

grounds fueled the push for their removal from profitable lands.2 There are historians who

consider racial and social justifications one in the same. The ideas that whites were more

“civilized” than and racially superior to Native Americans are construed into a single argument.3

Politically, historians agree that proponents of removal believed it was within the power and

sovereignty of the individual state. Representatives from southern states sought to implement

their right as a state by removing “disobedient” populations from within their borders.4 While

most historians agree removal was a tragedy, they differ in their explanations of the justifications

of the forced removal of Native Americans.2 See Jason Edward Black, American Indians and the Rhetoric of Removal and Allotment (Jackson: University Press of Mississippi, 2015); Ethan Davis, “An Administrative Trail of Tears: Indian Removal,” The American Journal of Legal History 50, no. 1 (January 1, 2008): 49-100; Mary Hershberger, “Mobilizing Women, Anticipating Abolition: The Struggle against Indian Removal in the 1830s,” The Journal of American History 86, no. 1 (June 1, 1999): 15–40; Tim Garrison, The Legal Ideology of Removal: The Southern Judiciary and the Sovereignty of Native American Nations (Athens: The University of Georgia Press, 2002); Michael Morris, “Georgia and the Conversation over Indian Removal,” The Georgia Historical Quarterly 91, no. 4 (December 1, 2007): 403–23; Mary E. Young, “Indian Removal and Land Allotment: The Civilized Tribes and Jacksonian Justice,” The American Historical Review 64, no. 1 (October 1, 1958): 31-45.3 See Bethany Berger, “Red: Racism and the American Indian,” UCLA Law Review, no. 56 (2009): 591-656; Jason Edward Black, American Indians and the Rhetoric of Removal and Allotment (Jackson: University Press of Mississippi, 2015); Mary Young, “Racism in Red and Black: Indians and Other Free People of Color in Georgia Law, Politics, and Removal Policy,” The Georgia Historical Quarterly 73, no. 3 (October 1, 1989): 492–518.4 See Tim Garrison, The Legal Ideology of Removal: The Southern Judiciary and the Sovereignty of Native American Nations (Athens: The University of Georgia Press, 2002); William Hoffman, “Andrew Jackson, State Rightist: The Case of the Georgian Indians,” Tennessee Historical Quarterly 11, no. 4 (December 1, 1952): 329-45; William McLoughlin, “Georgia’s Role in Instigating Compulsory Indian Removal,” The Georgia Historical Quarterly 70, no. 4 (December 1, 1986): 605-32; Jason Meyers, “No Idle Past: Uses of History in the 1830 Indian Removal Debates,” Historian 63, no. 1 (September 1, 2000): 53–66; Michael Morris, “Georgia and the Conversation over Indian Removal,” The Georgia Historical Quarterly 91, no. 4 (December 1, 2007): 403–23.

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The research I conducted contributes to the discussion of the justifications of Indian

removal, specifically the argument in favor of states rights. There are arguments for economic

and racial motivations throughout my sources, but the justification of states rights is most

prevalent. Given the context of the time period – the United States in the 1830s – racial and

social discrimination against Native Americans was widespread. The politicians who advocated

for Indian removal were bigots and it was present in their speeches that called on the states to

enforce their power over Native Americans and the federal government. Yes politicians were

racist, yes they wanted to utilize Native American land for the benefit of the United States, but

they supported and justified removal as an enforcement of state sovereignty.

The sources used in my research – speeches, transcripts, treaties, laws, and court cases –

are primary sources from the most powerful politicians during the removal debate. The speeches

and transcripts of politicians provide direct quotes that explain their standpoints on the issue of

removal. They display racial undertones and explain their support of the removal of indigenous

populations. Each make specific arguments in favor of states rights and they explain their

justifications. The court cases, treaties, and laws enacted before and during Indian removal

support the arguments from the speeches and transcripts. The Supreme Court and appellate

courts showcase the federal government’s messages to the states and the states’ disregard of

federal authority while treaties and laws were interpreted to support the arguments of the pro-

removal advocates in Congress and the Oval Office.

To successfully utilize the above-mentioned sources and address my topic, this paper is

divided into two sections. The first section discusses the politicians involved in Indian removal.

President Andrew Jackson, Senator John Forsyth of Georgia, and Senator Robert Adams of

Mississippi were instrumental figures in the removal debate. By exploring Jackson’s speeches

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and actions, we see Jackson advocated for states’ rights and challenged the Supreme Court to

secure the safety of state sovereignty. I analyze the Congressional debate over the Indian

Removal Act and show Senators Forsyth and Adams argued the states, primarily Georgia and

Mississippi, were granted authority over Native Americans from previous treaties, laws, and the

federal government. The second section of this paper studies the legal documents surrounding

removal. More specifically, I look at state appellate courts and the Supreme Court and their

cases surrounding Indian removal. The appellate rulings show the states undermined the federal

government in favor of the states, while the Supreme Court cases were ignored and challenged

by the local and federal governments.

The Indian Removal Act and the debate surrounding the controversial law divided the

federal government. Congressmen on both sides presented their arguments, but it was the

proponents who secured the enactment of the act in May 1830. Proponents argued the “Indian

question” should be answered by the states. They argued Native American populations within a

state’s boundaries were subject to the jurisdiction of the state, not the federal government.

According to proponents, past treaties and laws delegated the power to handle Native American

affairs from the federal government to the local governments. Opponents rejected the claims

made by proponents, but they failed to generate enough sympathy to squander the Indian

Removal Act. Proponents successfully justified Indian removal as an extension of state

sovereignty and as an inherited power of the states.

I

President Andrew Jackson advocated for states’ rights and challenged the Supreme Court

to secure the safety of state sovereignty during the Indian removal crisis. After a successful

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military career, Jackson was elected President in 1829. He was known as Old Hickory for his

toughness and he took a strong stance against the Native American population in favor of the

states. On December 8, 1929, Jackson gave his first annual message to Congress and spoke of

numerous topics, including the Indian question. Jackson stated, “it has long been the policy of

Government to introduce among them the arts of civilization, in the hope of gradually reclaiming

them from a wandering life.”5 Jackson accurately described the federal government’s attempt to

assimilate Native Americans into the American lifestyle. They attempted to convert them from

an “uneducated,” hunter-gatherer society to an “educated” and reformed agrarian culture.

However, as Jackson noted, the program failed because the federal government repeatedly

purchased lands from the Native American tribes, pushing them farther west and simultaneously

hindered the integration process. Jackson proposed a new plan, what would become the Indian

Removal Act. Jackson believed, “setting apart an ample district west of the Mississippi, and

without the limits of any State or Territory now formed, to be guaranteed to the Indian tribes as

long as they shall occupy it”6 would solve the Indian question.

Jackson’s plan to move Native American tribes west of the Mississippi River was created

to benefit the states, not the Native Americans, although his language appeared to sympathize

with the indigenous tribes. He insisted removal was “voluntary” and that once relocated, the

tribes had sole control over their districts without interference from the United States

government.7 However, shortly before this part of his speech, Jackson justified removal as a

legislation that protected state sovereignty. The Cherokee tribe established its own constitution

and attempted to erect an independent sovereignty within the limits of Georgia and Alabama.

5 Andrew Jackson: "First Annual Message," December 8, 1829. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=29471.6 Jackson, “First Annual Message.”7 Jackson, “First Annual Message.”

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Jackson cited the US constitution: “‘no new State shall be formed or erected within the

jurisdiction of any other State’ without the consent of its legislature.” Neither the state nor

federal government approved of the establishment of a sovereign nation within those state

boundaries. Jackson continued, “There is no constitutional, conventional, or legal provision

which allows them less power over the Indians within their borders than is possessed by Maine

or New York.” Here, Jackson argued previous states prevented Native American tribes from

establishing a sovereign nation within the borders of the state. If these states stopped the tribes

within their borders, then Georgia and Alabama could do the same to the Cherokees. He

finished, “If the principle involved in the obvious answer to these questions be abandoned, it will

follow that the objects of this Government are reversed, and that it has become a part of its duty

to aid in destroying the States which it was established to protect.”8 Jackson argued if the United

States allowed previous tribes to establish sovereignties in other states, like New York and

Maine, then they must permit the Cherokees to do the same. If they did, the federal government

would have failed to act on behalf of the states, which the Constitution required them to protect.

Jackson’s removal plan was proposed in favor of the states, not the indigenous tribes. Southern

tribes attempted to establish an independent nation within the boundaries of the states of Georgia

and Alabama and Jackson cited the Constitution, which protected the states from the

establishment of sovereign nations within its borders without the states’ consent.

In Jackson’s second annual message to Congress his rhetoric surrounding removal

changed after the Indian Removal Act was enacted. On December 6, 1830, Jackson spoke to

Congress and he spoke of the now enacted Indian Removal Act of 1830. When he spoke of the

Removal Act, Jackson said, “The benevolent policy of the Government, steadily pursued for

nearly 30 years, in relation to the removal of the Indians beyond the white settlements is

8 Jackson, “First Annual Message.”

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approaching to a happy consummation.”9 Jackson’s rhetoric surrounding removal changed. In

his first speech, Jackson spoke of the federal government’s failed attempts to civilize the Native

Americans, not the repeated efforts of removal. His change in language resulted from the

enactment of the bill. In 1829, he had to convince Congress the Native Americans would benefit

from this new, radical plan that answered the Indian question. Now, in 1830, the Indian

Removal Act was enacted and Jackson focused on the real issue at hand – removing the Native

Americans beyond the Mississippi River.

According to Jackson, the Indian Removal Act benefitted the federal government, states,

and Native American tribes. He stated the advantages promised to the federal government were

the “least of its recommendations” and he indicated the states would benefit the most. Jackson

believed the removal of Native American tribes from the southern states would “strengthen the

southwest frontier and render the adjacent States strong enough to repel future invasions without

remote aid” and it would “relieve” Mississippi and Alabama of indigenous “occupancy and

enable those States to advance rapidly in population, wealth, and power.”10 Based upon

Jackson’s description of the Removal Act, it was evident why state representatives supported the

bill. Jackson used the term “relieve” to show that the states suffered from the indigenous

populations within their borders. Removal would strengthen and secure the states, while

simultaneously generating wealth and power for the American population within each state.

Jackson also noted it was the duty of the federal government to ensure the sovereignty of

the states regarding the Indian question. He stated the federal government’s duty was to

“extinguish” Indian titles to land in each state. However, it did not force the indigenous

populations to move; if they remained, they must abide by state laws. But, overall, it ensured the

9 Andrew Jackson: "Second Annual Message," December 6, 1830. Online by Gerhard Peters and John T. Woolley, The American Presidency Project. http://www.presidency.ucsb.edu/ws/?pid=29472.10 Jackson, “Second Annual Message.”

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sovereignty of the states. Jackson acknowledged, “no act of the General Government has ever

deemed necessary to give jurisdiction” over the Native Americans. The federal government was

not required to deem state jurisdiction necessary because it was a given right as a sovereign

entity. Jackson said jurisdiction was possessed “by virtue of their sovereign power within their

own limits…nor can this government add to or diminish it.”11 Jackson ended his message about

the Indian Removal Act defending the power of the states. He believed the sovereignty and

power of the states was undisputable and no government action could do anything to change that

status. Jackson relinquished federal jurisdiction over Indians affairs to the states in his second

annual message. If he denied the states their right to oversee the indigenous populations, he

would have ignored the constitution and betrayed the states.

Jackson’s first term as president was defined by the promotion of states rights. He spent

four years “proclaiming the compact doctrine of state sovereignty,” but it was during the Indian

removal debate that his support of states rights had great significance.12 Jackson argued the

Articles of Confederation prevented the federal government from interfering with Native

American tribes within the states. Although the Articles were replaced, Jackson insisted the

Constitution did not require the states to surrender their jurisdiction over the Native Americans to

the federal government. Therefore, when the Cherokee pled to the Jackson administration for

protection, Jackson “proclaimed that state sovereignty prevented it from protecting the

Indians.”13 Jackson’s outright support of state sovereignty conflicted with the Supreme Court’s

decision in Worcester v. Georgia. Chief Justice John Marshall overturned a previous case,

Cherokee Nation v. Georgia, and ruled the Cherokees were a sovereign state. However, Jackson

11 Jackson, “Second Annual Message.”12 Hoffman, Andrew Jackson, State Rightist, 330.13 Hoffman, Andrew Jackson, State Rightist, 339-40.

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refused to enforce Marshall’s ruling; instead, he exclaimed, “John Marshall made his decision,

now let him enforce it.”14

Although Jackson advocated for states rights during the removal debate, he restricted the

rights of South Carolina during the nullification crisis. In 1828 and 1832, South Carolina

declared two tariffs enacted by the federal government null and void and threatened to secede

from the Union. Jackson responded and asked Congress to use military force to ensure the tariffs

were enacted. However, before the Force Bill was decided, a compromise tariff was signed and

South Carolina remained in the Union.15 Jackson’s response to the nullification of federal tariffs

contradicted his standpoint on states rights during removal. But, Jackson’s upbringing and

military experience explains his animosity towards Native Americans and why he supported

Georgia. Jackson lived on the frontier of Waxhaws in South Carolina, an area at risk of Native

American raids. It was also at risk of mistreatment by the British during the Revolutionary

War.16 During the Revolution, Jackson’s older brother and cousin died and Jackson himself was

captured by the British.17 He avenged those sufferings during the War of 1812 when he

dispatched the British from New Orleans and saved the nation from British invasion. His

animosity towards Native Americans increased during the First Seminole War, but as President

he finally had “the chance to handle the Indian situation.” His executive power and the public

support of removal in most southern states influenced his promotion of the Removal Act.18 He

supported Georgian legislation against the Cherokee nation and refused to interfere with

Georgia’s handling of its indigenous population. He maintained his advocacy for states rights

14 Hoffman, Andrew Jackson, State Rightist, 341-45.15 Elise Stevens Wilson, “The Nullification Crisis | The Gilder Lehrman Institute of American History,” accessed December 16, 2015, https://www.gilderlehrman.org/history-by-era/age-jackson/resources/nullification-crisis.16 Morris, Georgia and the Conversation over Indian Removal, 405.17 H. W. Brands, Andrew Jackson: His Life and Times (New York: Anchor Books, 2006), 19-28.18 Morris, Georgia and the Conversation over Indian Removal, 405.

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because Georgia sought to remove the Cherokee beyond its borders, a policy Jackson promoted

himself. He justified removal as an extension of states rights to ensure Georgian legislators were

not interfered with during removal.

Like Jackson, Senators Forsyth and Adams argued the states, primarily Georgia and

Mississippi, had the authority over Native Americans and they believed the states were granted

sovereignty from previous treaties, laws, and the federal government. Before the Indian

Removal Act of 1830 was enacted, it underwent significant debate in the both houses of

Congress. In the Senate, the act endured nearly two weeks of debate. Both proponents and

opponents of the act took the floor and each side had an outspoken leader. Senator John Forsyth

of Georgia defended Georgia and the act, while Senator Theodore Frelinghuysen of New Jersey

led the opponents of the act. Senator Forsyth defended Georgian laws that were enacted in

December of 1829. Georgian legislators were unhappy with the Cherokee’s continued refusal to

relocate from within the states’ boundaries and instituted a series of laws to force the Cherokees

to move. The laws declared Cherokee territory would be added to Georgian counties, the

Cherokees themselves would be subject to Georgian rule, and all Cherokee laws would be

nullified.19 Forsyth defended this law: “Georgia stands perfectly justified, upon his own

principles…with regard to those Cherokees who reside within her territorial limits.” He

questioned the legitimacy of the treaties signed between the United States and the Cherokees, as

well as those between Georgia and the Cherokees. The treaties, he said, were legitimate if both

the United States and Cherokees mutually acknowledged the other’s independence. According

to Forsyth, the Cherokees became dependents of the United States. He cited the treaty of

Galphinton of 1785: “Indians…within the limits of the State of Georgia, have been, members of

19 Theda Perdue and Michael D. Green, The Cherokee Removal: A Brief History with Documents (Bedford/St. Martin’s, 2005), 63.

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the same, since the day and date of the constitution of…Georgia.”20 Forsyth defended Georgian

law via the Galphinton treaty, which decreed the Native American populations within Georgia

were members of the state, not the Indian nation. Forsyth’s argument however, occurred before

Worcester vs. Georgia was decided, which established Native Americans as dependents of the

United States federal government.

Forsyth also cited the treaty of Hopewell and the compact of 1802 to defend Georgian

law. The treaty of Hopewell was signed in 1785 between the United States and the Cherokee

nation, while then President Thomas Jefferson and the state of Georgia signed a compact in

1802. The ninth article of the treaty of Hopewell stated, “the United States in Congress

assembled shall have the sole and exclusive right of regulating the trade with the Indians, and

managing all their affairs in such manner as they think proper.”21 Forsyth explained that this

treaty would negate his argument, but he cited the compact of 1802 as his defense. The first

article of the compact stated Georgia would surrender land to the United States, for $1.25 million

dollars, which would become Mississippi and Alabama. Jefferson also agreed the United States

would “extinguish” all Indian titles to their land and that land would become the property of

Georgia once the Cherokees vacated.22 This compact, argued Forsyth, indicated the United

States “obtained, by treaty, the power to legislate over the Cherokees, and transferred it to

Georgia.”23

Forsyth continued and pointed to New York and Maine; he said Georgia was simply

following in the footsteps of those states. Both New York and Maine, enacted legislation, which

gave the state jurisdiction over the Native Americans within their boundaries. Forsyth pointed to

20 6 Cong. Deb. 325 (1830).21 Charles Joseph Kappler, Indian Affairs: Treaties (U.S. Government Printing Office, 1904), 8-11.22 “The Articles of Agreement and Cession,” 24 April 1802, in American State Papers, Public Lands 2 vols. (Washington, 1834), vol. 1, 125-26.23 6 Cong. Deb. 326 (1830).

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one piece of New York legislation that was “worthy of notice, as an evidence of the undisputed

power of State legislation, and of the necessity for its exercise.” The law proclaimed New York

had the exclusive power to try and punish all persons in the state, including Native Americans.

In Maine, the state legislature enacted a law “for the regulation of the Penobscot and

Passamaquoddy tribes of Indians.” Forsyth used those two pieces of legislation to gain

sympathy for Georgia in the Senate. According to Forsyth, Georgia “proceeded to follow the

example of the other States.” Georgia and its laws were not just protected by precedent; Forsyth

cited article seven in the Constitution, which stated that there was a distinction “between foreign

nations, states, and Indian tribes.” Forsyth also noted two prohibitions in the Constitution

imposed upon the states. The second stated, “No State shall, without the consent of Congress,

enter into any agreement or compact with another State, or with a foreign Power.” The

prohibition does not forbid the enactment of compacts with Native American tribes and Forsyth

interpreted it as a defense of Georgian legislation. Therefore, if a compact between a state and

an indigenous tribe was not forbidden, nor was it a treaty, then the state can enact them “at their

pleasure.”24

Senator Adams of Mississippi took the floor after Senator Forsyth and continued to

defend Georgian law and the Indian Removal Act. He believed the states, “from the declaration

of independence, possessed every attribute of sovereignty.” Adams highlighted the right of the

conqueror, which the United States benefitted from after the end of the Revolutionary War. The

United States declared itself independent on July 4, 1776, defeated the British in 1783, and

enacted a peace treaty that acknowledged the sovereignty of the United States. Adams said, “all

our statesmen and jurists consider that the independent sovereignty of each State in the Union,

respectively, commenced” when the Declaration of Independence was signed. He believed

24 6 Cong. Deb. 336-37 (1830).

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whatever was gained from the Revolution belonged to the United States, but he did not believe

the United States, as the conqueror, acquired sovereignty and legislation. On the contrary,

Adams believed the sovereignty of the states was certain and that all persons within the limits of

a state were attributes of that sovereignty, which indicated the indigenous tribes in each state

were subject to state legislation.25

Adams also claimed the treaties between the United States and Native Americans

infringed upon the rights and sovereignty of the states and they indicated the federal government

was on the verge of a transformation into a monarchial power. He discussed the treaty-making

power of the United States and said although the federal government has the right to make

treaties it is a limited power. If it were unlimited, the President and Senate could “destroy the

rights of any or every State in the Union.” Therefore, any treaty that would take away the

reserved rights of the states was unconstitutional. Thus, if a treaty was made with an indigenous

tribe within a state (Georgia), the right of the state to legislate over the Indians could be taken

away. What then, Adams argued, prevented the United States from taking away the states’

power to legislate over its foreign citizens or slaves?26 If Georgia were stripped of its right to

legislate over its citizens, the state would protest. Since Georgia was told its legislation over its

Native American population was unconstitutional, its legislators protested in the Senate and the

House of Representatives. Adams was disgusted with the federal government’s “unlimited

power” and he warned “the day is not far distant, when the omnipotence of an American

Congress will be as little startling.” Soon, he believed, the relationship between the states and

federal government would mimic that of Parliament and the colonies on the eve of the

Revolution.27 Adams feared the federal government would become too powerful – more so than

25 6 Cong. Deb. 363 (1830).26 6 Cong. Deb. 363-64 (1830).27 6 Cong. Deb. 364 (1830).

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it already was in his eyes. The federal government refused to recognize the sovereignty of the

states and Georgia did not sit idly as the federal government waged a so-called “war” against its

rights.

Senators Forsyth and Adams both used and interpreted past legislation to prove the states

had sovereignty over the Native Americans and were justified to remove them from within their

boundaries. Forsyth cited the compact of 1802 and “simply wanted what belonged to

[Georgia].” The federal government promised Georgia it would nullify Cherokee land claims

within its borders, but twenty-eight years later, the Cherokee still possessed its land. Forsyth

also noted Georgia did not protest Ohio when it discarded Indian land claims during the

settlement of the state.28 Georgia proposed its laws because the legislators believed the

government had failed to fulfill its promises, therefore Georgia itself had to take action. Senator

Adams also defended his state of Mississippi and argued they were entitled to the same rights as

the original thirteen states were upon entry into the Union. That included the right to deal with

its own indigenous tribes. He accused Congress of supporting the northern states and said they

wanted to “‘make the South pay.’” He also accused the federal government of enacting

unconstitutional treaties and for becoming too powerful. But, he wanted to entrust President

Jackson with removal authority because Jackson “already committed to removal” and was a

devout advocate.29

The political proponents of Indian removal justified the Indian Removal Act as an

extension of state sovereignty and an implementation of states rights. President Jackson allowed

the states to carry out their distinct actions against local indigenous populations because Jackson

was pro-removal. In fact, if the Indian Removal Act was not enacted, Jackson “would have

28 Meyers, No Idle Past, 60.29 Meyers, No Idle Past, 60.

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carved out such an act under the guise of executive authority.”30 Jackson was also a states

rightist and believed the federal government should not interfere with a states’ sovereignty. With

Jackson as President, Senators Forsyth and Adams capitalized on the support they garnered from

the Oval Office. The laws proposed by Georgian legislators led to the debate over the Indian

Removal Act. Forsyth and Adams defended their states’ policies and claimed the Constitution

and treaties protected Georgia and Mississippi. Forsyth was also greatly supported in his home

state. The population of Georgia widely supported Indian removal. Citizens believed it was

their “constitutional right, as a sovereign state, to assume jurisdiction over all the inhabitants

living within their borders.”31 The justification of states rights used by politicians to implement

the Indian Removal Act of 1830 is evident throughout their speeches and debates.

II

The most powerful politicians justified Indian removal as an extension of states rights.

Jackson, Forsyth, and Adams argued state sovereignty extended over the indigenous populations

within the borders of a state. In this section, the legal documents of removal – the act itself,

Supreme Court cases, and appellate court cases – are discussed. The Indian Removal Act

declared the federal government the supervisor and administrator of removal, but Jackson

allowed the states to carry out the act unsupervised. The Supreme Court ruled on two landmark

cases, but the appellate courts of Georgia, Alabama, and Tennessee challenged and defied Chief

Justice John Marshall’s rulings. Both the Cherokee Nation v. Georgia and Worcester v. Georgia

cases were ignored and overruled by the appellate courts, solidifying the states’ rights claim

argued by Jackson, Forsyth, Adams, and the proponents of removal in the south.

30 Morris, Georgia and the Conversation Over Indian Removal, 404.31 McLoughlin, Georgia’s Role in Compulsory Indian Removal, 606.

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The Indian Removal Act of 1830 has only seven sections, but the seventh declares the

President “to have the same superintendence and care over any tribe or nation in the country to

which they remove.”32 This placed the jurisdiction over the Native Americans in the hands of the

federal government, but Jackson wanted to keep that jurisdiction with the states. The states were

able to carry out the act in their own manner and did not face resistance from the federal

government. Had an indigenous tribe or council protested, as they had in the past, they were

turned away. In 1829, the Cherokee Council arrived in Washington DC to discuss a treaty

signed with Georgia, but were swiftly denied by the Jackson administration. They were told by

Secretary of War John Eaton the federal government could not interfere with Georgian

sovereignty: “the arms of this country can never be employed to stay any state of the Union from

those legitimate powers which attach and belong to their sovereign character.”33 The Native

Americans only hope of protection was the Supreme Court, but it, too, was ignored by the local

and federal government in favor of states rights.

The Supreme Court decided on two landmark cases related to removal, but the first did

not protect the Native Americans and the federal and state governments ignored the second. In

1831, the Supreme Court ruled on Cherokee Nation v. Georgia and in 1832 it ruled on Worcester

v. Georgia. Cherokee v. Georgia hindered the efforts of the Cherokees to prevent removal,

while Worcester v. Georgia supported their efforts, but was ignored by the federal and local

governments. In 1831, a delegation of Cherokees brought their case to the Supreme Court. They

argued Georgian law was enacted to destroy their existence. The state of Georgia argued the

Cherokees could not sue, as they were not a sovereign entity. The Supreme Court did not hear

the case, but they made a ruling. Chief Justice John Marshall ruled the Cherokees were not a

32 Perdue and Green, The Cherokee Removal: A Brief History with Documents, 116-17.33 McLoughlin, Georgia’s Role in Compulsory Indian Removal, 629.

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foreign nation – they were domestic dependent nations. The Constitution identified them distinct

from foreign nations and the states. Marshall ended the opinion of the court and said the

Supreme Court could not help the indigenous tribe: “If it be true that the Cherokee Nation have

rights, this is not the tribunal in those rights are to be asserted. If it be true that wrongs have

been inflicted, and that still greater are to be apprehended, this is not the tribunal which can

redress the past or prevent the future.” Marshall did acknowledge the Cherokee and all

indigenous tribes were subject to the laws of the United States34, but Jackson delegated that

jurisdiction to the states. The Supreme Court ruled it could not defend the Cherokee nation, or

any indigenous tribe. The wrongs they suffered were beyond the Court’s jurisdiction and it was

the federal government the Native Americans had to rely on. But, both the federal and state

governments advocated for removal and justified it as an extension of state sovereignty.

In Worcester v. Georgia, the Supreme Court reversed Cherokee Nation v. Georgia in

favor of the Cherokee, but Jackson and the states ignored the Marshall’s decision. Samuel

Worcester, a missionary, was arrested in Georgia for living on Cherokee land without

authorization. The Supreme Court ruled Worcester was wrongfully arrested and the law enacted

by Georgia that led to his arrest was unconstitutional. Marshall argued treaties signed between

the United States and the various indigenous tribes, specifically the Cherokees, established their

sovereignty. Marshall reversed his decision in Cherokee Nation v. Georgia and declared the

Native Americans were independent and sovereign nations, not domestic dependent nations of

the United States. Marshall’s opinion also declared the Indian Removal Act unconstitutional and

they ordered Worcester be released and Georgia terminate its laws against the Cherokee.35

Finally, the Cherokee were heard and supported by a higher power in the United States

34 Cherokee Nation v. Georgia, 30 U.S. 1 (1831).35 Worcester v. Georgia, 31 U.S. 515 (1832).

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government. But, Jackson famously rejected the decision and argued the Supreme Court could

not “coerce Georgia to yield to its mandate.”36 Georgia also ignored the ruling. Representatives

of Georgia “neglected to appear” at the hearing and Worcester and other missionaries remained

imprisoned.37 Jackson rejected the ruling and in doing so prevented the release of the imprisoned

missionaries. The Supreme Court reversed its initial ruling, but the Cherokee remained isolated.

Jackson and the state of Georgia refused to yield and continued their joint effort to remove

Native Americans west of the Mississippi River.

Georgia and Jackson’s refusal to accept the Supreme Court’s decision inspired other

states to do the same. Whigs in office believed Jackson’s “refusal to use federal power” to

enforce the Supreme Court “opened the door to the dismantling of federal authority through state

nullification.”38 The Whigs’ fears came to fruition: Alabama and Tennessee challenged the

Supreme Court with their appellate courts. In Alabama, the appellate court heard the case

Caldwell v. Alabama in 1831 and the appellate court of Tennessee heard the case Tennessee v.

Forman in 1835. But, before those two cases occurred, Georgia initiated the trend of southern

courts “challenging the principle of tribal sovereignty.”39 In 1830, the Georgian appellate court

heard the case Georgia v. Tassels. George Tassel, a Cherokee, was accused of the murder of a

fellow Cherokee on indigenous land within Georgia’s boundaries. Tassel was tried in a

Georgian courthouse and was sentenced to death for his crime. Tassel and his lawyers appealed

and claimed Tassel was wrongfully tried in a Georgia courthouse. They argued Tassel should

have had an indigenous trial because he was on Cherokee land. The Georgian appellate court

heard the appeal and ruled the state had jurisdiction over Indian affairs. They cited various

36 Cave, Abuse of Power, 1349.37 Davis, An Administrative Trail of Tears, 62.38 Cave, Abuse of Power, 1344.39 Garrison, The Legal Ideology of Removal, 6.

Morini 20

treaties and recently enacted law that provided the state of Georgia with the jurisdiction over

Tassels’ trial. Tassels was executed and the case influenced Worcester v. Georgia.40 Tassels’

execution by the state of Georgia challenged the Cherokees’ claim to sovereignty over their

lands. Georgia tried and executed Tassels because the state believed it had jurisdiction over the

indigenous population within its borders. Georgia did not recognize the sovereignty of Native

Americans and argued past treaties and compacts with the United States and Native Americans

provided Georgia with the jurisdiction to handle its Indian affairs.

Alabama challenged Cherokee Nation v. Georgia in the 1831 case Caldwell v. Alabama

in favor of the states. James Caldwell, a white farmer, was arrested for the murder of Fushatchee

Yoholo, a Creek Indian. Caldwell was arraigned and pled not guilty. The single witness pinned

the crime on Caldwell because he said he overheard Caldwell admit to the crime. Caldwell and

his lawyers claimed he shot Yoholo in self-defense, but surprisingly, the jury sentenced Caldwell

to death. Immediately, Caldwell and his lawyers appealed. The key witness, William C.

Thompson, was allegedly brought into the jury room to clarify his testimony, which meant the

jury tampered with the witness. If Thompson’s testimony was tampered with, Caldwell could be

released. But, Caldwell and his lawyers did not challenge the witness; instead they argued

Alabama court did not have jurisdiction over the trial because the murder occurred in Creek

territory. Caldwell’s appeal became the only incident of a person with “legal standing to

challenge Alabama’s legislative attack on Creek sovereignty.”41 Alabama’s appellate court did

not accept Caldwell’s appeal. The three judges who decided on the case agreed with the

legislature’s plan to expand Alabama’s territory and economy into Creek lands. Also, the

Alabama media covered Caldwell’s case with the South Carolina nullification crisis and

40 Garrison, The Legal Ideology of Removal, 111-24.41 Garrison, The Legal Ideology of Removal, 153-56.

Morini 21

intertwined the rhetoric of states rights in both stories. The Caldwell case was most important to

judge John Taylor. He said the case would “decide whether the jurisdiction of this state is to be

restricted to about two-thirds of its extent, or to be coextensive with its limits.”42 The appellate

court of Alabama rejected Caldwell’s appeal in favor of states rights. The judges argued

Alabama had jurisdiction over the entirety of the state, including the Creek territory. They

argued against Cherokee Nation v. Georgia and affirmed the states were “the true trustees of

Indian ancestors,” not the federal government.43

In 1835, Tennessee’s appellate court rejected Worcester v. Georgia and reinforced state

sovereignty over its Native American population. John Walker Jr., a highly respected Cherokee,

was shot and killed by James Forman and Anderson Springston. Walker challenged the

Cherokee National Council on its resistance to removal and believed “national migration to the

West” was the only way the Cherokee could survive and be independent.44 Forman and

Springston were accused of his murder and were indicted before a grand jury. Their lawyer,

Spencer Jarnigan, argued Tennessee law, which allowed the state jurisdiction over the Cherokee,

was unconstitutional. The Supreme Court case, Worcester v. Georgia, had been decided and

because the federal government and Georgia failed to enforce the decision, Tennessee enacted its

own policy. Tennessee’s legislation was far less invasive of Cherokee jurisdiction; the law only

extended over the Cherokee for murder, rape, and larceny crimes. Nonetheless, Jarnigan argued

Tennessee wrongfully interfered with Cherokee jurisdiction.45 Jarnigan successfully defended

his clients and the judge declared the Tennessee law was unconstitutional. But, attorney general

Samuel Frazier asked for a writ of error and the trial was brought before the Tennessee appellate

42 Garrison, The Legal Ideology of Removal, 156-57.43 Garrison, The Legal Ideology of Removal, 165.44 Garrison, The Legal Ideology of Removal, 199-200.45 Garrison, The Legal Ideology of Removal, 204-05.

Morini 22

court. The court was divided, but chief judge John Catron confirmed the constitutionality of the

extension of Tennessee’s laws. Tennessee refused to follow the precedent set down by the

Supreme Court and the decision represented “the final and fatal strike against the idea of Native

American sovereignty for the Cherokees and the other Southeastern tribes.” The rejection of the

Supreme Court’s decisions by Georgia, Alabama, and Tennessee indicated a “states’ rights

interpretation of the Constitution’s Supremacy, Commerce, and Contract Clauses.”46 The

appellate courts of Georgia, Alabama, and Tennessee challenged and defied the decisions set

down by the Supreme Court. Each state argued they had sovereignty and therefore had

jurisdiction over the indigenous populations within their borders. Jackson refused to enforce

Worcester v. Georgia and his decision allowed the south to carry out its own legislation. The

states faced no opposition that could successfully repeal its legislations.

The debate over the Indian Removal Act of 1830 divided both houses of Congress.

Proponents argued the United States transferred jurisdiction over the Native Americans to the

states. President Andrew Jackson supported the southern legislators’ cause and allowed the

states to handle their indigenous populations without interference from the federal government.

Jackson himself supported states rights and refused to intervene. He also defied Chief Justice

John Marshall and the Supreme Court to ensure state sovereignty. Senators Forsyth and Adams

led the proponents in the Senate debate over the removal act and argued the states, as a sovereign

entity, could control their indigenous populations. The appellate courts of Georgia, Alabama,

and Tennessee challenged the Supreme Court and openly defied its rulings. They ignored the

Court’s decisions in an obvious defiance of the supreme law of the land. The state courts

46 Garrison, The Legal Ideology of Removal, 217.

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indicated states had the right to pick and choose which pieces of legislation they would abide by.

On May 28, 1830, the Indian Removal Act was signed into law by Congress and the proponents

successfully justified removal as an extension of states rights.

Approaching Indian removal as an issue of states’ rights changes how some historians

understand removal. Historians have argued economic, racial, and social factors motivated

politicians to support removal, but understanding the real justifications of removal changes those

motivations. During the entire two-week debate in the Senate, the only proponents of removal to

take the floor justified removal as an extension of states rights. Opponents argued against that

justification; they argued it was the federal government, not the states, which could control the

indigenous populations. They argued against removal on other grounds – racist, immoral, etc. –

but they nonetheless challenged the validity of the proponents’ justification for removal. This

political divide caused by removal could be the next step forward in understanding removal.

Whigs and Jacksonian Democrats challenged one another for power in the United States

throughout most of Jackson’s presidency. Some historians argue this divide created the multi-

party system in the United States and the Indian removal debate might be the cause. What about

Jackson’s power as a president? He challenged the Supreme Court and defied the Constitution

on several occasions. Indian removal could be a place to study Jackson’s abuse of his executive

powers. Lastly, the issue of sectionalism was ever present in the removal debate. Thirty years

after the Indian Removal Act was enacted, the United States was engaged in the Civil War; a war

that began because of extreme sectionalism. Did Indian removal cause the divide between the

northern and southern states that would culminate in civil war?

Indian removal was one of the major events in the United States during the period of

Manifest Destiny. John O’Sullivan coined the term to explain America’s mission: “to

Morini 24

overspread the continent allotted by Providence for the free development of our yearly

multiplying millions.”47 O’Sullivan used the word “overspread” to explain America’s expansion

west. Indian removal encompasses O’Sullivan’s definition and encompasses a major theme of

Manifest Destiny: sectionalism. Slavery divided the nation, literally, in half and the subsequent

Civil War devastated the nation and forced a Reconstruction period of the Union. The debate

over Indian removal divided the nation as well, but it was more than just the northern and

southern states. It divided the federal and local governments, the President and both Houses of

Congress, and the Supreme Court and the appellate courts. It even divided the social structure of

the United States much like slavery did. Indian removal is more than a racial and economic

issue, it is a factor in the division of the nation that culminated in a bloody Civil War.

47 Anders Stephanson, Manifest Destiny: American Expansion and the Empire of Right (New York: Hill and Wang, 1995), xi.

Morini 25

Bibliography of Consulted Works

Primary Sources

6 Cong. Deb. (1830).

American State Papers, Public Lands. “The Articles of Agreement and Cession,” 24 April 1802.

Washington, 1834.

Cherokee Nation v. Georgia, 30 U.S. 1 (1831).

Jackson, Andrew. “First Annual Message.” December 8, 1829, The American Presidency Project

http://www.presidency.ucsb.edu/ws/?pid=29471.

Jackson, Andrew. “Second Annual Message.” December 6, 1830, The American Presidency

Project http://www.presidency.ucsb.edu/ws/index.php?pid=29472.

Kappler, Charles Joseph. Indian Affairs: Treaties. U.S. Government Printing Office, 1904.

Purdue, Theda, and Michael D. Green, eds. The Cherokee Removal: A Brief History with

Documents. Boston: Bedford Books of St. Martin's Press, 1995.

Worcester v. Georgia, 31 U.S. 515 (1832).

Secondary Sources

Berger, Bethany. “Red: Racism and the American Indian.” SSRN Scholarly Paper. Rochester,

NY: Social Science Research Network, September 17, 2008.

http://papers.ssrn.com/abstract=1269527.

Black, Jason Edward. American Indians and the Rhetoric of Removal and Allotment. Jackson,

MS: University Press of Mississippi, 2015.

Brands, H W. Andrew Jackson: His Life and Times. New York: Anchor Books, 2006.

Morini 26

Cave, Alfred A. “Abuse of Power: Andrew Jackson and the Indian Removal Act of 1830

(2003).” Historian 65, no. 6 (December 1, 2003): 1330–1353.

Davis, Ethan. “An Administrative Trail of Tears: Indian Removal.” The American Journal of

Legal History 50, no. 1 (January 1, 2008): 49–100.

Garrison, Tim A. The Legal Ideology of Removal: The Southern Judiciary and the Sovereignty of

Native American Nations. Athens, GA: The University of Georgia Press, 2002.

Guttman, Allen. States Rights and Indian Removal: The Cherokee Nation v. the State of Georgia.

Glen Rock, NJ: Microfilming Corp. of America, 1973.

Hershberger, Mary. “Mobilizing Women, Anticipating Abolition: The Struggle against Indian

Removal in the 1830s.” The Journal of American History 86, no. 1 (June 1, 1999): 15–40.

Hoffman, William S. “Andrew Jackson, State Rightist: The Case of the Georgia Indians.”

Tennessee Historical Quarterly 11, no. 4 (December 1, 1952): 329–45.

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

Oxford: Oxford University Press, 2007.

McLoughlin, William G. “Georgia’s Role in Instigating Compulsory Indian Removal.” The

Georgia Historical Quarterly 70, no. 4 (December 1, 1986): 605–32.

Meyers, Jason. “No Idle Past: Uses of History in the 1830 Indian Removal Debates.” Historian

63, no. 1 (September 1, 2000): 53–66.

Morris, Michael. “Georgia and the Conversation over Indian Removal.” The Georgia Historical

Quarterly 91, no. 4 (December 1, 2007): 403–23.

Purdue, Theda, and Michael D. Green, eds. The Cherokee Removal: A Brief History with

Documents. Boston: Bedford Books of St. Martin's Press, 1995.

Morini 27

Rolater, Fred S. “The American Indian and the Origin of the Second American Party System.”

The Wisconsin Magazine of History 76, no. 3 (April 1, 1993): 180–203.

Stephanson, Anders. Manifest Destiny: American Expansion and the Empire of Right. New

York: Hill and Wang, 1995.

Stevens Wilson, Elise. “The Nullification Crisis | The Gilder Lehrman Institute of American

History.” Accessed December 16, 2015.

https://www.gilderlehrman.org/history-by-era/age-jackson/resources/nullification-crisis.

Strickland, William M. “The Rhetoric of Removal and the Trail of Tears: Cherokee Speaking

against Jackson’s Indian Removal Policy, 1828–1832.” Southern Speech Communication

Journal 47, no. 3 (September 1, 1982): 292–309.

Wilkins, David Eugene, and K. Tsianina Lomawaima. Uneven Ground: American Indian

Sovereignty and Federal Law. University of Oklahoma Press, 2001.

Young, Mary E. “Indian Removal and Land Allotment: The Civilized Tribes and Jacksonian

Justice.” The American Historical Review 64, no. 1 (October 1, 1958): 31–45.