The Supreme Court, the Executive, and Native American Removal in the 1830s

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1 The Supreme Court, the Executive, and Native American Removal in the 1830s Essential Question: How did popular opinion allow the Executive to override the Judiciary in the pursuance of Indian Removal? Main Ideas: Students will be expected to: 1. Understand Jackson s feelings about Native Americans through his Indian Removal Act of 1830 and his subsequent Second Annual Message to Congress. 2. Be familiar with the status attributed to Indians according to the Constitution 3. Know the decisions and dissents made in the 1831/32 Cherokee cases heard before the Supreme Court 4. Analyze the statistics of Indian movement out of the east. 5. See the perspective of the Indians who were being removed 6. Witness the results of both the actions and inactions of Jackson Assignment/Assessment: 1. Create two political cartoons that can be published any time between 1832 and 1836 which contain representations of Jackson and the Cherokee. a. The first cartoon must be one which might appear in the Phoenix. b. The second cartoon must be one which might appear in the Carolina Observer. 2. Using the primary sources, write two different editorials that might accompany those cartoons in their respective papers. a. The editorial must address the actions of the Supreme Court and Jackson. b. Each editorial must include quotations from no fewer than two of the given sources. Note: the date of your cartoon and editorial must be historically accurate. Make sure you only address issues that have occurred prior to your date of publication. Historical Background: In the beginning of the 19 th century, Andrew Jackson proved instrumental in the removal of Native Americans from the eastern to the western part of the United States. He began his involvement as a member of the military, commanding US forces to remove the Creek from Alabama and Georgia. He continued his involvement as a negotiator of many treaties that further took away property rights from the tribes who resided east of the Mississippi. His legacy came to a peak when, in 1830, Jackson introduced the Indian Removal Act, essentially finishing what he had been so much a part of for the past twenty years. His goal was remove all tribes beyond the white settlements for, as he put it, the benefit of both the whites and the Native Americans. President Jackson created the Indian Removal Act of 1830 with the support of white settlers, who wanted to live on the land occupied by the Cherokee Indians of Georgia. The fact that this was prevailing sentiment at the time was evidenced in essays as published in The North American Review. The author endeavors to describe how the Indian population decreased in eastern

2 America in the recent past. The author notes that population decrease is quite evident and thorough. The author does not, however, suggest that the decrease in population is a significant problem. At one point the author argues that the progress and prosperity of the white Americans living and thriving in the areas once populated by the Native Americans are blessings obtained at a smaller sacrifice. Describing the Native Americans as barbarous, the author suggests that even if the Native Americans were given the option of remaining on the lands of their origin, the ways of subsistence in the past are impossible to continue in the modern use of those lands by the more civilized white population. In the 1830s there were also many who spoke out against Indian Removal. The sources are most notably found in papers like the Cherokee s Phoenix. We hear the voices of men like Chief John Ross eloquently plea for what they believe to be their right to their Native lands. More importantly, the Cherokee sought to regain rights to their lands through the United States courts. In 1830 the state of Georgia passed a series of laws resulting in an uncompensated redistribution of Cherokee land to white Georgians. This disposal of Indian property was made possible through the breaking all former contracts and treaties with the Cherokee. Georgia also took possession of the gold and silver mines on Cherokee land and provided for the punishment of any trespassers on that land. The Cherokee, assuming the position of a foreign nation, went directly to the Supreme Court in the case known as Cherokee Nation vs. Georgia, to ask for an injunction to stop Georgia from carrying out the recently passed laws. The Supreme Court, in a decision written by John Marshall, rejected the Cherokee request and permitted Georgia to continue. Georgia continued to make Cherokee existence within its state boundaries difficult. The state legislature soon passed a law that required all white inhabitants of the Cherokee land to obtain a license from the state of Georgia to live inside Cherokee territory. Samuel Worcester, a missionary living with the Cherokee, failed to apply for the license. Georgian authorities arrested Worcester and sentenced him to four years of hard labor. In the case Worcester vs. Georgia, Worcester appealed his sentence to the Supreme Court under the grounds that the licensing law was unconstitutional. Only a year after his decision in Cherokee Nation v. Georgia, Chief Justice Marshall wrote the opinion of the court that completely differed from his previous decision. The Cherokee won this case and hoped that this would secure their tribe from removal. Clearly, despite their win in the Supreme Court, the Cherokee lost their battle against Jackson. Jackson continued to pursue removal through force and trickery. In 1836, four years after the Cherokee had beaten back Georgia s attempts to rule, an unofficial group of Cherokee Indians made a treaty with Federal authorities to give up land and move out west. This validity of this group and their was rejected immediately by Chief John Ross, the delegated leader of the Cherokee Nation. Chief Ross wrote to the United States legislature to ask for reconsideration. This was rejected as well. The Trail of Tears in 1838 and 1839 permanently etched their paths as they were forcefully evicted from their native lands and moved to Oklahoma where, as Jackson famously stated: As long as the grass grows or the water runs, in peace and plenty. It will be yours forever.

3 Indian Removal Act (1830) Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That it shall and may be lawful for the President of the United States to cause so much of any territory belonging to the United States, west of the river Mississippi, not included in any state or organized territory, and to which the Indian title has been extinguished, as he may judge necessary,, for the reception of such tribes or nations of Indians as may choose to exchange the lands where they now reside, and remove there; Sec. 2 it shall and may be lawful for the President to exchange any or all of such districts,, with any tribe or nation of Indians now residing within the limits of any of the states or territories, and with which the United States have existing treaties, for the whole or any part or portion of the territory claimed and occupied by such tribe or nation, within the bounds of any one or more of the states or territories, where the land claimed and occupied by the Indians, is owned by the United States, to extinguish the Indian claim thereto. Sec. 3 it shall and may be lawful for the President solemnly to assure the tribe or nation with which the exchange is made, that the United States will forever secure and guarantee to them, and their heirs or successors, the country so exchanged with them; Provided always, That such lands shall revert to the United States, if the Indians become extinct, or abandon the same. Sec. 4 if, upon any of the lands now occupied by the Indians, and to be exchanged for, there should be such improvements as add value to the land claimed by any individual or individuals of such tribes or nations, it shall and may be lawful for the President to [appraise and] ascertain value to be paid to the person or persons rightfully claiming such improvements. And upon the payment of such valuation, the improvements, shall pass to the United States, and possession shall not afterwards be permitted to any of the same tribe. Sec. 5 it shall and may be lawful for the President to cause such aid and assistance to be furnished to the emigrants as may be necessary and proper to enable them to remove to, and settle in, the country for which they may have exchanged; and also, to give them such aid and assistance as may be necessary for their support and subsistence for the first year after their removal. Sec. 6 it shall and may be lawful for the President to cause such tribe or nation to be protected, at their new residence, against all interruption or disturbance from any other tribe or nation of Indians, or from any other person or persons whatever. Sec. 7 it shall and may be lawful for the President to have the same superintendence and care over any tribe or nation in the country to which they may remove,, that he is now authorized to have over them at their present places of residence: Sec. 8 for the purpose of giving effect to the provisions of this act, the sum of five hundred thousand dollars is hereby appropriated Perdue, Theda and Michael D. Green ed. The Indian Removal Act: The Cherokee Removal: A Brief History With Documents. New York: St. Martin's Press, 1995: p

4 After reading the Indian Removal Act, answer the following questions: 1. Take the following segment of the Indian Removal Act: it shall and may be lawful for the President of the United States to cause so much of any territory belonging to the United States, west of the river Mississippi, not included in any state or organized territory, and to which the Indian title has been extinguished, as he may judge necessary, to be divided into a suitable number of districts, for the reception of such tribes or nations of Indians as may choose to exchange the lands where they now reside, and remove there and rewrite it so that your peers could more easily understand it in one reading, rather than in several. Make sure it is not awkward and choppy. Make it coherent and smooth. This might take a little rearrangement. 2. After reading the entire Act, how do you think Jackson views the powers of the executive in contrast to the powers of the other branches and that of the states? Why? 3. What does section 3 promise Native Americans? Was this promise genuine or hollow? Why? 4. What does section 6 promise Native Americans? Why is this such a difficult promise to make? How will he follow through on this promise?

5 Andrew Jackson's Second Annual Message 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 consequences of a speedy removal will be important to the United States, to individual States, and to the Indians themselves It puts an end to all possible danger of collision between the authorities of the General and State Governments on account of the Indians. It will place a dense and civilized population in large tracts of country now occupied by a few savage hunters. By opening the whole territory between Tennessee on the north and Louisiana on the south to the settlement of the whites it will incalculably strengthen the southwestern frontier and render the adjacent States strong enough to repel future invasions without remote aid. It will relieve the whole State of Mississippi and the western part of Alabama of Indian occupancy, and enable those States to advance rapidly in population, wealth, and power. It will separate the Indians from immediate contact with settlements of whites; free them from the power of the States; enable them to pursue happiness in their own way and under their own rude institutions; will retard the progress of decay, which is lessening their numbers, and perhaps cause them gradually, under the protection of the Government and through the influence of good counsels, to cast off their savage habits and become an interesting, civilized, and Christian community. What good man would prefer a country covered with forests and ranged by a few thousand savages to our extensive Republic occupied by more than 12,000,000 happy people, and filled with all the blessings of liberty, civilization and religion? The present policy of the Government is but a continuation of the same progressive change by a milder process. The tribes which occupied the countries now constituting the Eastern States were annihilated or have melted away to make room for the whites. The waves of population and civilization are rolling to the westward, and we now propose to acquire the countries occupied by the red men of the South and West by a fair exchange, and, at the expense of the United States, to send them to land where their existence may be prolonged Doubtless it will be painful to leave the graves of their fathers; but what do they more than our ancestors did or than our children are now doing?... Can it be cruel in this Government when, by events which it can not control, the Indian is made discontented in his ancient home to purchase his lands, to give him a new and extensive territory, to pay the expense of his removal, and support him a year in his new abode? How many thousands of our own people would gladly embrace the opportunity of removing to the West on such conditions! And is it supposed that the wandering savage has a stronger attachment to his home than the settled, civilized Christian? Is it more afflicting to him to leave the graves of his fathers than it is to our brothers and children? Rightly considered, the policy of the General Government toward the red man is not only liberal, but generous. He is unwilling to submit to the laws of the States and mingle with their population. To save him from this alternative, or perhaps utter annihilation, the General Government kindly offers him a new home, and proposes to pay the whole expense of his removal and settlement. Richardson, James D. Andrew Jackson's Second Annual Message 1830:A Compilation of the Messages and Papers of the Presidents , Volume II, New York: Bureau of National Literature and Art,1908

6 After reading Jackson s speech, answer the following questions: 1. Clearly, Jackson is using this speech to justify the removal of Native Americans. Create a bulleted list of Jackson s justifications. Paraphrase when appropriate. 2. What audience was most receptive to these types of arguments? Why? 3. Take three of his justifications and write counter arguments from the perspective of the Cherokee 4. Take those arguments that you created from the perspective of the Cherokee, and respond from the perspective of the Georgian.

7 Cherokee Nation vs. Georgia (1831) The condition of the Indians in relation to the United States is perhaps unlike that of any other two people in existence. In the general, nations not owing a common allegiance are foreign to each other. The term foreign nation is, with strict propriety, applicable by either to the other. But the relation of the Indians to the United States is marked by peculiar and cardinal distinctions which exist nowhere else. The Indian Territory is admitted to compose a part of the United States. In all our maps, geographical treatises, histories, and laws, it is so considered. In all our intercourse with foreign nations, in our commercial regulations, in any attempt at intercourse between Indians and foreign nations, they are considered as within the jurisdictional limits of the United States, subject to many of those restraints which are imposed upon our own citizens. They acknowledge themselves in their treaties to be under the protection of the United States; they admit that the United States shall have the sole and exclusive right of regulating the trade with them, and managing all their affairs as they think proper; and the Cherokees, in particular, were allowed by the treaty of Hopewell, which preceded the Constitution, "to send a deputy of their choice, whenever they think fit, to Congress " Though the Indians are acknowledged to have an unquestionable, and heretofore unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government, yet it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases. Meanwhile they are in a state of pupilage. Their relation to the United States resembles that of a ward to his guardian. They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the President as their Great Father. They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States that any attempt to acquire their lands, or to form a political connexion with them, would be considered by all as an invasion of our territory and an act of hostility. These considerations go far to support the opinion that the framers of our Constitution had not the Indian tribes in view when they opened the courts of the union to controversies between a State or the citizens thereof, and foreign states The Court has bestowed its best attention on this question, and, after mature deliberation, the majority is of opinion that an Indian tribe or Nation within the United States is not a foreign state in the sense of the Constitution, and cannot maintain an action in the Courts of the United States. The motion for an injunction is denied. Cherokee Nation v. Georgia, 5 Pet. 1 (1831) Worcester v. Georgia (1832) The plaintiff is a citizen of the State of Vermont, condemned to hard labour for four years in the penitentiary of Georgia under colour of an act which he alleges to be repugnant to the Constitution, laws, and treaties of the United States.

8 The legislative power of a State, the controlling power of the Constitution and laws of the United States, the rights,, the political existence of a once numerous and powerful people, the personal liberty of a citizen, are all involved in the subject now to be considered To accommodate the differences still existing between the State of Georgia and the Cherokee Nation, the Treaty of Holston was negotiated in July The existing Constitution of the United States had been then adopted, and the Government, having more intrinsic capacity to enforce its just claims, was perhaps less mindful of high sounding expressions denoting superiority the first article declares that there shall be perpetual peace and friendship between all the citizens of the United States of America and all the individuals composing the Cherokee Nation. The second article repeats the important acknowledgement that the Cherokee Nation is under the protection of the United States of America, and of no other sovereign whosoever. The meaning of this has been already explained. The Indian nations were, from their situation, necessarily dependent on some foreign potentate for the supply of their essential wants and for their protection from lawless and injurious intrusions into their country. That power was naturally termed their protector. They had been arranged under the protection of Great Britain, but the extinguishment of the British power in their neighbourhood, and the establishment of that of the United States in its place, led naturally to the declaration on the part of the Cherokees that they were under the protection of the United States, and of no other power. They assumed the relation with the United States which had before subsisted with Great Britain. This relation was that of a nation claiming and receiving the protection of one more powerful, not that of individuals abandoning their national character and submitting as subjects to the laws of a master The fourth article declares that "the boundary between the United States and the Cherokee Nation shall be as follows: beginning," &c. We hear no more of "allotments" or of "hunting grounds." A boundary is described, between nation and nation, by mutual consent. The national character of each, the ability of each to establish this boundary, is acknowledged by the other By the seventh article, the United States solemnly guaranty to the Cherokee Nation all their lands not hereby ceded. The eighth article relinquishes to the Cherokees any citizens of the United States who may settle on their lands, and the ninth forbids any citizen of the United States to hunt on their lands or to enter their country without a passport. The remaining articles are equal, and contain stipulations which could be made only with a nation admitted to be capable of governing itself. This treaty, thus explicitly recognizing the national character of the Cherokees and their right of self-government, thus guarantying their lands, assuming the duty of protection, and of course pledging the faith of the United States for that protection, has been frequently renewed, and is now in full force 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 act of the State of Georgia, under which the plaintiff in error was prosecuted, is consequently void, and the judgment a nullity. Worcester v. Georgia, 6 Pet. 515 (1832)

9 Use the two Supreme Court rulings to answer the following questions: 1. Do you agree with Marshall s definition of a foreign state? Why or why not? 2. Using the first four paragraphs of Cherokee Nation v. Georgia, describe how the relationship of the Cherokee and the United States is unique? 3. The Court must view the Cherokee differently from citizens of the United States. Explain how the Court sees the Cherokee as: a. A foreign nation? b. A dependent part of the United States? c. Different from the individual states? 4. What does Marshall justify his rejection of the first Cherokee case? 5. In contrast, how does Marshall support the Cherokee claim in the second case? 6. Clearly, Jackson will disapprove of Marshall s ruling in the second court case. How can Jackson continue his plan for Indian Removal now that the Court has ruled against it?

10 Letter from Chief John Ross, "To the Senate and House of Representatives" 1836 It is well known that for a number of years past we have been harassed by a series of vexations With a view to bringing our troubles to a close, a delegation was appointed on the 23rd of October, 1835, by the General Council of the nation, clothed with full powers to enter into arrangements with the Government of the United States, for the final adjustment of all our existing difficulties. The delegation failing to effect an arrangement with the United States commissioner, then in the nation, proceeded to Washington City, for the purpose of negotiating a treaty with the authorities of the United States. After the departure of the Delegation, a contract was made purporting to be a "treaty, concluded at New Echota, in the State of Georgia by commissioners on the part of the United States, and the chiefs, headmen, and people of the Cherokee tribes of Indians." A spurious Delegation, in violation of a special injunction of the general council of the nation, proceeded to Washington City with this pretended treaty, and by false and fraudulent representations supplanted in the favor of the Government the legal and accredited Delegation of the Cherokee people, and the recognition of the United States Government. And now it is presented to us as a treaty, ratified by the Senate, and approved by [Andrew Jackson], and our acquiescence in its requirements demanded, under the sanction of the displeasure of the United States, and the threat of summary compulsion, in case of refusal. It comes to us, not through our legitimate authorities, the known and medium of communication between the Government of the United States and our nation, but through the civil and military [powers.] By the stipulations of this instrument, we are despoiled of our private possessions, the indefeasible property of individuals. We are stripped of every attribute of freedom and eligibility for legal self-defence. Our property may be plundered before our eyes; violence may be committed on our persons; even our lives may be taken away, and there is none to regard our complaints. We are denationalized; we are disfranchised. We are deprived of membership in the human family! We have neither land nor home, nor resting place that can be called our own We are overwhelmed! Our hearts are sickened, our utterance is paralized, when we reflect on the condition in which we are placed, by the audacious practices of unprincipled men, who have managed their stratagems with so much dexterity as to impose on the Government of the United States, in the face of our earnest, solemn, and reiterated protestations. The instrument in question is not the act of our Nation; we are not parties to its covenants; it has not received the sanction of our people. The makers of it sustain no office nor appointment in our Nation, under the designation of Chiefs, Head men, or any other title, by which they hold, or could acquire, authority to assume the reins of Government, and to make bargain and sale of our rights, our possessions, and our common country. And we are constrained solemnly to declare, that we cannot but contemplate the enforcement of the stipulations of this instrument on us, against our consent, as an act of injustice and oppression, which, we are well persuaded, can never knowingly be countenanced by the Government and people of the United States; nor can we believe it to be the design of these honorable and highminded individuals, who stand at the head of the Govt., to bind a whole Nation, by the acts of a few unauthorized individuals. And, therefore, we, the parties to be affected by the result, appeal with confidence to the justice, the magnanimity, the compassion, of your honorable bodies, against the enforcement, on us, of the provisions of a compact, in the formation of which we have had no agency. Moulton, Gary E. ed. Cherokee Chief John Ross s letter protesting the Treaty of New Echota: The Papers of Chief John Ross, vol 1, , Oklahoma: University of Oklahoma Press,

11 Use the letter from Chief John Ross to answer the following questions: 1. Why is Chief John Ross writing to the federal government in reference to their removal? Refer to the other documents if necessary. 2. What was Ross s complaint about the treaty signed at New Echota? 3. In the second paragraph, Ross refers to the spurious Cherokee. What might be the motivation for the spurious Cherokee to sign a treaty with the federal government? 4. How effective do you think Ross was in persuading the members of Congress to rethink the treaty? Reflect on the experiences of the Cherokee in the previous six years.

12 Tracing the paths of Native American removal Beginning from their earliest encounters with European American settlers Indians experienced displacement from their native lands. As the number of European settlers increased on the eastern coast of America, the Native Americans were increasingly crowded out and pushed west. Keeping track of this displacement was not a priority of either the settlers or the Indians. This leaves us with less information that we might like. Using the following maps, the chart from the North American Review and the painting of the Trail of Tears, answer the following questions: 1. Take the first map and describe it to someone who is familiar with the current map of the United States but cannot see this map. 2. Using the chart from the North American Review create a new chart in which the state/territory with the greatest population of Native Americans is at the top and the state/territory with smallest population of Native Americans is at the bottom. a. Why do you believe that the Native American populations remained significantly larger in the top three states/territories? b. Why do you believe that the Native American populations had fallen so dramatically in the rest of the states? c. What do you deduce from the statistics presented about the populations of Indians residing West of the Mississippi? d. Considering what you know about the perspectives of the author, what do you think the author hoped to prove with these numbers? 3. Using the two maps, attempt to document which tribes were removed when. 4. On a blank map of the United States, draw a path or paths that you think would have been taken by Native Americans in the Trail of Tears. 5. Where on the second map would you find the Cherokee residing during the Treaty of Echota? You will have to do a little research on this one.

13 Removal of the Indians The North American Review, January 1830 Removal of the Indians The North American Review, January 1830, Volume 0030 Issue 66, [pp ] text;idno=nora0030-1;didno=nora0030-1;view=image;seq=00068;node=nora0030-1%3a1

14 Distribution of the Barbarous Tribes (1491) A map of the Native American families and groups in North America east of the Mississippi River circa The map shows Florida to be in the Maskoki or Southern Indian family, with the Seminole group predominately in peninsular Florida and the Creek and Choctaw groups in the panhandle region of the state. Charles K. Adams and William P. Trent, Distribution of the Barbarous Tribes: A History of the United States Boston, MA: Allyn and Bacon,

15 Cessions of Indian Lands, A map of the cession of Native American lands in Florida. By 1823 the majority of the Native American lands had been ceded to the U.S. with a large reserve established in central peninsular Florida. Fox, Dixon Ryan, Cessions of Indian Lands, : Harper's Atlas of American History New York, NY: Harper and Brothers,

16 The Trail of Tears By Robert Lindneux (1942) In 1838 and 1839, as part of Andrew Jackson's Indian removal policy, the Cherokee nation was forced to give up its lands east of the Mississippi River and to migrate to an area in present-day Oklahoma. The Cherokee people called this journey the "Trail of Tears," because of its devastating effects. The migrants faced hunger, disease, and exhaustion on the forced march. Over 4,000 out of 15,000 of the Cherokees died. This picture, The Trail of Tears, was painted by Robert Lindneux in It commemorates the suffering of the Cherokee people under forced removal. If any depictions of the "Trail of Tears" were created at the time of the march, they have not survived. Lindneux, Robert, The Trail of Tears New York: Granger Collection,