How the Supreme Court Failed to Stop the Brutal Relocation of Indigenous American Nations
Joel Richard Paul on the Legal Challenges to Racist Presidential Policy That Led to The Trail of Tears
In August 1830, Andrew Jackson traveled from his home in Nashville twenty miles south to Franklin for a meeting with a delegation of Chickasaw chiefs. They gathered at a plain Presbyterian church on the corner of Fourth and North Margin Streets. “Brothers,” Jackson began in a fulsome tone, “Your Great father… can cherish none but the best feelings for his red children,” whom he promised to make “a happy and prosperous people.”
He feared that if they remained in their land, their nation would be swallowed up and obliterated by the swelling numbers of white settlers. His voice dripping with sincerity, he warned them that he could do nothing to stop the states from exercising authority over them. His “earnest desire is, that you may be perpetuated and preserved as a nation.” He would do nothing to force them out of their territory, but he could see no other alternative for their survival than to move west. “Forget the prejudices you feel for the soil of your birth, and go to a land where you can preserve your people as a nation,” the president admonished them.
The Great White Father had noticeably upset the assembled chiefs, but they trusted Jackson enough to agree to consider his words carefully. Four days later they met again with Jackson at the Masonic Hall. Their sad faces made it clear that Jackson had triumphed. Relying on the president’s good faith, the chiefs reluctantly acquiesced in surrendering their nation’s territory in exchange for a strange land promised to them beyond the Mississippi.
Over the course of the next few years, Jackson signed more than seventy treaties with tribal nations ceding around one hundred million acres in exchange for little more than thirty million acres of barren land in what is now Oklahoma. Chiefs were often bribed to betray their people, and if they did not accede, they were warned that the US military was prepared to drive them from their homes.
Jackson asked the secretary of war, Lewis Cass, to oversee the relocation. Cass had a low opinion of the Native American as “reckless of consequences, …Unrestrained by moral considerations, whatever his passions prompt he does.” The tribes were “clinging with a death grasp” to habits of “listless indolence,” in Cass’s view. If Jackson had cared to treat the tribes humanely, as he had promised to do, he chose the wrong man to implement his removal policy.If Jackson had cared to treat the tribes humanely, as he had promised to do, he chose the wrong man to implement his removal policy.
The relocation was an appalling example of Jackson’s hypocrisy and the government’s bad faith. The Choctaw were the first to be relocated from the Arkansas Territory to Oklahoma in 1831. They were subjected to a grueling winter’s march to a desolate land where there were neither homes nor farms. They had no support from the government and no means to support themselves. Jackson later expressed regret for their suffering, but he cared less about the welfare of the tribe than the public’s reaction in the North.
Most northerners were skeptical of the removal policy, or opposed it. As Jackson candidly acknowledged to Congress, “Humanity has often wept over the fate of the aborigines of this country, but its progress has never for a moment been arrested.” And Jackson left no doubt that he was on the side of progress. It was an unavoidable fact of life that “the extinction of one generation” makes room for the next. Though Jackson had promised to provide the tribes with transportation, logistical support, food, supplies, and compensation for the inconvenience and loss of their property, the government’s largesse merely opened new opportunities for corrupt white men to profit at the expense of the tribal nations.
By 1832 the Choctaw, Chickasaw, Seminoles, and Creek had all signed treaties. The only holdouts were the Cherokee, whose proud leader, Chief John Ross, steadfastly defended his nation’s right to remain on their ancestral land, both before Congress, the president, and the courts. The president was accustomed to getting what he wanted, and his patience with the Cherokee was soon exhausted. The federal government owed the Cherokee nation annual payments for land already purchased from the tribe. Jackson cut off legally required lump sum payments to the tribal government. Instead, he gave a nominal amount to each member of the tribe so that the Cherokee government was unable to finance basic services for its people.
Jackson cheerfully reported to Congress that the resettled tribes were “prosperous and contented” in their new homes. Once the Senate consented to the remaining treaties, all the “difficult and embarrassing questions arising out of their anomalous political condition” would end. As for the Cherokee and the Creek, he said they could not remain surrounded by whites. “They have neither the intelligence, the industry, the moral habits, nor the desire of improvement which are essential to any favorable change in their condition. Established in the midst of another and a superior race, and without appreciating the causes of their inferiority or seeking to control them, they must necessarily yield to the force of circumstances and ere long disappear.”
A year earlier, a number of New England missionaries, who were sent to proselytize and support the Cherokee, were arrested in Georgia for residing on Cherokee land in violation of state law. Among these missionaries was Samuel Worcester, a Vermont Congregationalist minister, who had the audacity to preach the Gospel to the Cherokee. The case came before Judge Augustin Clayton of the State Superior Court in Gwinnett County. Judge Clayton found that since Worcester also served as the postmaster in the Cherokee capital at New Echota, he and his fellow missionaries were deemed federal agents and could not be subject to arrest by any state. Conveniently, Judge Clayton sidestepped the real issue: whether Georgia law governed the sovereign territory of the Cherokee nation.The chief justice dismissed the idea that the mere discovery of the continent by white men gave them title to all the land.
But that was not the end of the matter. Georgia’s racist governor George Gilmer petitioned Jackson to strip Worcester of his immunity as postmaster, and the president complied. Worcester and nine other missionaries were rearrested and promptly convicted for violating state law. Judge Clayton sentenced the men to four years of hard labor for the infamous crime of spreading the word of the Lord. All this was good politics in Georgia, but the governor preferred to get them to go away. Gilmer dangled pardons for all of the missionaries if they promised to leave Georgia posthaste. Eight chose the pardon, but the redoubtable Worcester and one other, Elizur Butler, refused, and appealed their convictions.
Cherokee chief Ross asked Daniel Webster to represent the tribe pro bono before the Supreme Court. As one of the leading Supreme Court practitioners and a defender of Indian rights, Webster was the perfect candidate. Nevertheless, Webster declined. Creditors were always knocking at his door. Despite his marriage to an heiress, his extravagant lifestyle made him dependent on the generous legal fees he could command from paying clients. So Ross turned to William Wirt, the former US attorney general. Wirt accepted the case, hoping it would help him win support from the North for the presidential election in 1832.
The case reached the Supreme Court of the United States on February 20, 1832. Cherokee chiefs in otter-skin caps and leather breeches sat shoulder to shoulder with white men in finely tailored suits and ladies who, despite the frigid weather, were fashionably attired in silk dresses and feathered hats. Chief Justice John Marshall, who was recovering from brutal surgery to remove bladder stones, could barely raise his voice above a whisper. In a related case brought by the Cherokee, Cherokee Nation v. Georgia, Marshall had held that the Cherokee nation did not have standing to sue the state of Georgia in a federal court. Worcester’s appeal now gave the Court the opportunity to define the relationship between sovereign tribal nations and states.
Marshall held strong views on the rights of the original occupants of the land. In Johnson v. M’Intosh, another famous case argued by Webster, Marshall acknowledged the injustices that Native Americans had suffered at the hands of whites. He held that the tribes had an absolute right to occupy the land. Still, he reluctantly concluded that “the Courts of the conqueror cannot deny” the supreme authority of the national government over the tribes. Marshall was not happy with the outcome of the case in Cherokee Nation, and he was eager for the chance to challenge the power of states over the tribes. He had confided to Senator Theodore Frelinghuysen, the Indians’ champion in the Senate, that “the subject has always appeared to me to affect deeply the honor, the faith and the character of our country.” He regretted that “The cause of these oppressed people has been most ably though unsuccessfully sustained.” The moment had arrived for the chief justice to right the record.What kind of justice let the losing party rob the winners of their prize?
Georgia chose not to appear in court. The governor defiantly maintained that the Supreme Court had no authority in a matter of state law. Only the Cherokee were represented, and Wirt commanded the packed courtroom with the power of his words. He insisted that Congress’s authority superseded the state’s power over the Cherokee’s territory. Georgia could not make laws governing tribal land, so the state had no right to imprison Worcester and Butler. Justice Joseph Story could not contain his enthusiasm. He interrupted Wirt’s argument to commend his “uncommonly eloquent” presentation. Story later mused, “I blush for my country, when I perceive that such legislation, destructive of all faith and honor towards the Indians is suffered to pass with the silent approbation of the present Government of the United States.”
Less than a fortnight later Marshall delivered the Court’s opinion. The chief justice dismissed the idea that the mere discovery of the continent by white men gave them title to all the land. “The extravagant and absurd idea that the feeble settlements made on the seacoast” conferred the right on whites to “occupy the lands from sea to sea, did not enter the mind of any man.”
Nothing preordained that whites would occupy an empire from coast to coast. The tribal nations “had always been considered distinct, independent political communities, retaining their natural rights, as the undisputed possessors of the soil, from time immemorial,” subject only to the exclusive right of the federal government to purchase their property. Marshall concluded that Georgia had no right to assert its jurisdiction over tribal land, and the state’s law was “repugnant to the constitution, laws, and treaties of the United States.” Georgia was ordered to release the missionaries.
Story exulted. “Thanks be to God the Court can wash its hands clean of the iniquity of oppressing the Indians.” Cherokee celebrated with feasts and dancing. But the governor of Georgia shrugged off the Supreme Court’s decision. For the first time in American history, a state stubbornly refused to recognize the Court’s authority. Worcester and Butler remained chained doing hard labor. Georgia began surveying the Indians’ land to be divided and distributed among whites by lottery. Cherokee legislators, fearing arrest, fled their capital at New Echota to Tennessee, where they conducted their nation’s business in secret.
Freshman Supreme Court justice John McLean, the former postmaster general whom Jackson had appointed to the Court to prevent him from running for president, met privately with some of the Cherokee chiefs in Washington. McLean, who later challenged Lincoln for the Republican nomination in 1860, offered the Indians unsolicited advice: they should accept Jackson’s “liberal” terms for removal. McLean predicted that neither Georgia nor the president would carry out the Court’s judgment. How strange the white man’s law must have seemed to the Cherokee. What kind of justice let the losing party rob the winners of their prize?
McLean’s prediction proved correct. President Jackson, whose career evinced a penchant for action, sat on his hands and did nothing. The New-York Tribune famously but falsely quoted Jackson saying, “John Marshall has made his decision; now let him enforce it.” Though Jackson never said that, he surely thought it. “The decisions of the supreme court fell still born,” he reported. The Court had no means to compel Georgia’s compliance. No other president before or since has failed to enforce an order of the Supreme Court.
Excerpted from Indivisible: Daniel Webster and the Birth of American Nationalism by Joel Richard Paul. Copyright © 2022. Available from Riverhead Books, an imprint of Penguin Publishing Group, a division of Penguin Random House, LLC.