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The Legal Ideology of Removal

The Legal Ideology of Removal: The Southern Judiciary and the Sovereignty of Native American Nations

Copyright Date: 2002
Pages: 336
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  • Book Info
    The Legal Ideology of Removal
    Book Description:

    This study is the first to show how state courts enabled the mass expulsion of Native Americans from their southern homelands in the 1830s. Our understanding of that infamous period, argues Tim Alan Garrison, is too often molded around the towering personalities of the Indian removal debate, including President Andrew Jackson, Cherokee leader John Ross, and United States Supreme Court Justice John Marshall. This common view minimizes the impact on Indian sovereignty of some little-known legal cases at the state level. Because the federal government upheld Native American self-dominion, southerners bent on expropriating Indian land sought a legal toehold through state supreme court decisions. As Garrison discusses Georgia v. Tassels (1830), Caldwell v. Alabama (1831), Tennessee v. Forman (1835), and other cases, he shows how proremoval partisans exploited regional sympathies. By casting removal as a states' rights, rather than a moral, issue, they won the wide support of a land-hungry southern populace. The disastrous consequences to Cherokees, Creeks, Choctaws, Chickasaws, and Seminoles are still unfolding. Important in its own right, jurisprudence on Indian matters in the antebellum South also complements the legal corpus on slavery. Readers will gain a broader perspective on the racial views of the southern legal elite, and on the logical inconsistencies of southern law and politics in the conceptual period of the anti-Indian and proslavery ideologies.

    eISBN: 978-0-8203-2641-2
    Subjects: Law, History

Table of Contents

  1. Front Matter
    (pp. i-viii)
  2. Table of Contents
    (pp. ix-x)
    (pp. xi-xvi)
  4. Introduction
    (pp. 1-12)

    IN THE FALL OF 1837, John Ross, the principal chief of the Cherokee Nation, traveled to Washington to meet with Martin Van Buren, the president of the United States. Van Buren had established May 23, 1838, as the final date for the removal of the Cherokees, and Ross hoped to persuade the president either to postpone the deadline or, even better, to renegotiate the removal and cession provisions of the Treaty of New Echota. For weeks, Ross tried to obtain concessions for the Cherokees, but Van Buren and his aides consistently rebuffed the chief’s entreaties. The president indicated that he...

  5. CHAPTER ONE Removal: The Separation Solution
    (pp. 13-33)

    JOHN MITCHELL, an English cartographer and botanist, was perhaps the first to propose removing the Indians in eastern North America beyond the reach of white settlement. In 1767 he pointed out that the Indian tribes were the only obstacle preventing Great Britain’s colonies from expanding all the way to the Mississippi River. Mitchell suggested that the British government consider relocating the Creeks and the Choctaws to Florida, which he described as noninhabitable for any people other than Indians. The tribes in the northern half of the continent, he added, could be reestablished in Canada and around the Great Lakes. A...

  6. CHAPTER TWO Spiritual Sovereignty: The Emergence of the Cherokee Nation
    (pp. 34-58)

    ON JULY 4, 1827, a convention of twenty-four delegates from the eight districts of the Cherokee Nation met in New Echota to draft a national constitution. Though the convention implemented a number of civil reforms, it essentially left the existing legal and political structure in place. The nation was already governed by a chief executive called the principal chief and a bicameral legislature. Legal disputes were already heard and resolved by an independent, hierarchical judiciary. What the convention did was to pull these institutions, created separately over the previous two decades, into the rubric of a republican constitution. More important,...

  7. CHAPTER THREE The Precedents: Sources of Law for the Southern State Courts during the Removal Crisis
    (pp. 59-102)

    AMERICAN JUDGES DURING the Removal Crisis had a relatively fertile literature at their disposal when they considered the question of what rights the Indian tribes possessed in the United States. They looked, for example, to the scholarship on the law of nations produced by legal and political philosophers of the colonial era. They also reviewed the English common law precedents on property rights, the histories of the European exploration and colonization of the Americas, the propaganda of European imperialists, and the statutes and cases of the colonial assemblies and courts. These diverse English and continental sources offered two schools of...

  8. CHAPTER FOUR The Supremacy of State Jurisdiction: Georgia v. Tassels
    (pp. 103-124)

    THE CHEROKEE NATION’S PROMULGATION of a republican constitution in the summer of 1827 enraged the removers in Georgia. Rather than fostering support for their cause with the federal government, the Cherokees had essentially unified the southern states against their position. Georgia responded to the Cherokees’ declaration of independence with its own legislation. In December the state extended the criminal jurisdiction of the northern counties of Carroll and DeKalb over acts committed by or against whites within the Cherokee Nation. The legislature also forwarded a resolution to Congress denouncing the establishment of the Cherokee constitutional government as a provocative attack on...

  9. CHAPTER FIVE Domestic Dependent Nations: Cherokee Nation v. Georgia
    (pp. 125-150)

    DESPITE JOHN ROSS’S OPTIMISM, the execution of George Tassel was a devastating setback to the Cherokees’ legal strategy. To make matters worse, in 1830 Andrew Jackson suspended annuity payments to the Cherokees. Jackson reportedly said that he “would not break sticks to put in other people’s hands to break his own head with.” He would not, in other words, subsidize the Cherokees’ litigation. Consequently, Ross was having a difficult time coming up with funds to pay the nation’s lawyers. The principal chief sent Elias Boudinot north to drum up financial and political support for the Cherokee cause, while he traveled...

  10. CHAPTER SIX The Southern Response to Marshall: Caldwell v. Alabama
    (pp. 151-168)

    PERHAPS A CLEAR PRONOUNCEMENT in favor of Indian sovereignty by a united Court in Cherokee Nation would have stalled the fervor for removal. More than likely, though, it would have only pushed Georgia so far toward rebellion that the state might have joined South Carolina in its nullification challenge to the federal government. Instead, Marshall’s refusal to grant standing to the Cherokees persuaded Georgia officials to give the federal government time to arrange an agreement with the tribe to effect its relocation. In the meantime, the state pressures for removal that had plagued the Cherokees for so long had spread...

  11. CHAPTER SEVEN Sovereign Nations: Worcester v. Georgia
    (pp. 169-197)

    THE MAJOR NEWSPAPERS IN ALABAMA AND GEORGIA did not mention James Caldwell’s case. Instead, editorial interest remained focused on Georgia, where a group of Congregational missionaries were challenging the state’s authority to extend its jurisdiction over the Cherokee Nation. By the 1820s, more than thirty missionaries from several Christian denominations were attempting to win converts in the Cherokee Nation. Funded in part by the United States government, these ministers were also responsible for instructing the Cherokees in the ways and means of American culture, politics, and economics. In 1825 the American Board of Commissioners for Foreign Missions, a Congregationalist evangelical...

  12. CHAPTER EIGHT The Law of the Land: Tennessee v. Forman
    (pp. 198-233)

    THE GEORGIA GOVERNMENT had never allowed the Worcester controversy to deter it from its removal strategy. During the course of the case, the state had proceeded with the survey, lottery, and sale of the Cherokee Nation’s lands. By the time the state released Worcester and Butler from the penitentiary, hundreds of white Georgians had purchased lots to 40- and 160-acre parcels of land that, according to the U.S. Supreme Court, were still owned by the Cherokee Nation. Although the Georgia General Assembly attempted to keep lottery winners out of the Cherokee Nation until the United States had concluded a removal...

  13. EPILOGUE The Triumph of the Southern Removal Ideology
    (pp. 234-246)

    THE BITTER DIVISION BETWEEN the Ross and Treaty parties, which devolved into civil war in the Indian Territory, was only one of the consequences of the Indian Removal. Clearly the greatest tragedy of the Removal was the staggering death toll produced by the forced march to Oklahoma. The general consensus among scholars is that approximately four thousand Cherokees, perhaps a quarter of the nation’s population, died as a result of starvation, malnutrition, disease, exposure, and heartbreak on the Trail of Tears. Russell Thornton, a demographer of Indian depopulation, has argued that the Removal impacted the Cherokee population in a far...

  14. NOTES
    (pp. 247-290)
    (pp. 291-312)
  16. INDEX
    (pp. 313-331)