THE TRAIL OF TEARS:
The Forced Relocation of Indian Nations from the
Southeastern United States
Southeastern
Indian Lands
1820s
(Adapted from Sam Bowers Hilliard, "Indian Land Cessions" [detail], Map Supplement 16, Annals of the Association
of American Geographers, vol. 62, no. 2 [June 1972].)Key: 1. Seminole 2. Creek 3. Choctaw 4. Chickasaw 5.
Cherokee 6. Quapaw 7. Osage 8. Illinois Confederation
US COLONIZING LEGAL THEORY
• Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543, 5 L.Ed. 681,1823.
– Facts: This is an action to quiet title to land. Plaintiff asserted
ownership based on a transfer by Chiefs of the Illinois and Piankeshaw
nations. Defendant asserted title based on a Revolutionary War land
bounty issued by the United States.
– Holding: Indians possessed “aboriginal title” to land which was a right
of occupancy and not a right in fee simple. Therefore, they cannot
alienate (transfer ownership) in land.
– Reasoning: The U.S. is the successor in interest to the colonial rights
established under the doctrine of discovery and hold superior title to
the land based on the conquest of the Indian peoples
Importance of the case: Incorporates the doctrine of discovery into
the U.S. Supreme Court’s American Indian jurisprudence.
The Cherokee Cases
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L.Ed. 25, 1831.
• Factual background: State of Georgia had tried a Cherokee citizen for the
murder of another Cherokee within the boundaries of the treaty reserved
lands of the Cherokee Nation. Georgia ignored the Supreme Court’s writ of
habeas corpus which was based on the Cherokee’s entitlement to their own
courts and the invalidity of state jurisdiction in the matter. Governor of
Georgia ignored the writ, and the Cherokee defendant was hung five days
later. The Cherokee Nation sought relief in the Supreme Court from the
incursion of state law into their reservation.
• Legal issue: Is the Cherokee Nation a “foreign” state within the meaning of
Art. 3 of the U.S. Constitution that grants “original” jurisdiction to the Court to
decide cases or controversies “between a state or the citizens thereof, and
foreign states, citizens or subjects?
• Holding: The Court held that it did not have original jurisdiction in the matter
because the Cherokee Nation was a “domestic dependent nation” and not a
foreign state.
• Dissent: Just because the Cherokee Nation is a weaker state does not mean
that it is not a “foreign country” within the meaning of Art. 3. The dissent is
looking to see that the sovereign govern itself by its own authority and laws.
• Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L.
Ed. 483, 1832.
 Facts: Plaintiff was a missionary who had violated
a Georgia law which required that non-Indians
living within the Cherokee Nation obtain a permit
from the State of Georgia. He was convicted of
violating the law and was sentenced to four years
hard labor. Case was heard on appeal.
 Holding: Georgia law is void and the judgment a
nullity.
 Reasoning: The exclusive authority in the area of
Indian affairs is vested in the federal authority.
The state has no role. The decision establishes the
duty to protect tribes from state incursions – the
doctrine is referred to as federal pre-emption.
THE TRAIL OF TEARS
Southeastern Tribes Forced to Relocate
•
•
•
•
•
1831 Choctaw
1832 Seminole
1834 Muscogee
1837 Chickasaw
1838 Cherokee
46,000 American Indians removed from their
southeastern homelands by 1837 = 25 million acres
opened for non-Indian settlement
Indian Removal Act of 1830
• Excerpt from the Indian Removal Act
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 guaranty 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.
Choctaw Removal
• Voluntary, 17,000 over 3 years approximately 2500-6000 died
• Treaty of Dancing Rabbit Creek: cession of remaining Creek lands in
1831 (provided for 5000-6000 Choctaw to remain Mississippi)
• It is with considerable diffidence that I attempt to address the
American people, knowing and feeling sensibly my incompetency;
and believing that your highly and well improved minds would not
be well entertained by the address of a Choctaw. But having
determined to emigrate west of the Mississippi river this fall, I have
thought proper in bidding you farewell to make a few remarks
expressive of my views, and the feelings that actuate me on the
subject of our removal ... We as Choctaws rather chose to suffer and
be free, than live under the degrading influence of laws, which our
voice could not be heard in their formation.
George W. Harkins, Farewell Letter to the American People
Seminoles
• Seminole War: resisted removal in a war that
cost the US $20,000,000 (equal to
$453,655,172 today) and ended after 10 years
in 1842.
• Some Seminole were captured and removed
to Creek lands in Oklahoma. Several hundred
remained in the Florida Everglades.
Creek
• Creeks were forcibly removed from by the state
of Georgia in violation of their treaty.
• Federal troops were dispatched to intervene and
the Governor called out the militia. Federal
authority backed down and conceded to the
state.
• In 1824, Upper Creeks in Alabama were forced to
sign the Treaty of Cusseta under which they
received allotments which they could sell to
remove west or keep and submit to state law.
Chickasaw
• Chickasaws received financial compensation
from the US for their southeastern tribal
homelands. Other tribes exchanged land
grants.
• They travelled with all of their property
including livestock and slaves.
Cherokee
•
Forced relocation that resulted in the death of approximately 4,000 Cherokees
•
Referred to in Cherokee as Nu na da ul tsun yi, “the Place Where They Cried.”
•
1829 Georgia Gold Rush resulted in trespassing on Cherokee lands
•
Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832) – no federal enforcement of the latter
•
1830 Indian Removal Act gave President authority to negotiate removal treaties
•
Treaty of New Echota – never accepted by the elected tribal leadership or a majority of the Cherokee
people. Three of the 4 members of the Treaty party were executed by other Cherokees, upon arriving in
Oklahoma’
•
Treaty passed Congress by one vote.
•
7000 militia mustered from the neighboring states rounded up 13000 Cherokees
•
Deaths were due to exposure, communicable diseases, and starvation.
Discussion Questions
•
What were some of the reasons that the state of Georgia wanted the Cherokee to leave?
•
Compare the Cherokee conception of land to the Anglo-American view of land as property. Did accommodation help the Cherokee Nation keep
its land land? Did accommodation help individual Cherokees? How do you think adopting elements of white culture impacted the traditional
practices of the Cherokees?
•
Did the federal government have the right to force the Cherokee to leave? Was Cherokee removal easier because the Cherokee were not citizens
of the United States? Did the question of citizenship even matter to the issue of Indian Removal?
•
What do you think of John Ross' letter to the United States Congress reminding them of the memorable declaration that “all men are created
equal”? Were the Cherokee people being treated as equals? What do you think of Ross’ argument in light of the fact that he owned slaves?
•
Ridge v. Ross – Some believe that Ridge and the signors of the Treaty of New Echota were realists trying to make the best of a quickly
deteriorating situation. Others believe that Ross was a hero for resisting removal. Articulate the arguments in support of either Ridge or Ross.
The class will be the Cherokee Nation Council and must vote on whether to approve the Treaty of New Echota.
•
Some members of Congress opposed the Indian Removal Act and the ratification of the Treaty of New Echota. If you had been a member of
Congress opposed to these actions, what arguments would you have made?
•
What do you think life was like along the Trail of Tears?
•
Although the United States was founded on the principles of liberty and justice, it has taken many years and many struggles to make progress
toward extending the blessings of liberty and justice to all who live in the United States. The Trail of Tears was a huge injustice done to the
Cherokee people. What other groups have suffered injustices? What steps have been taken to right these injustices?