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

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

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

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


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.


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 had no interest in further negotiations and was resolved to carry the Cherokees’ removal through to its conclusion. in April 1838, Ross wrote a final desperate missive to Van Buren: “If the evil of external exile from our sacred inheritance…must come upon us, I am most desirous of enabling you to accomplish the favorite purpose of your nation…‘peaceably and on reasonable terms.’”

Van Buren responded by ordering federal troops into the Cherokee Nation. United States soldiers began rounding up Cherokee families and herding them into makeshift stockades. To prevent their escaping, the troops crept up and surrounded Cherokee homes, captured the inhabitants, and forced them to depart with barely an opportunity to collect their personal belongings. Those who witnessed the roundup described it to James Mooney, the ethnologist who studied the Cherokees in the late nineteenth century: “Families at dinners were startled by the sudden gleam of bayonets in the doorway and rose up to be driven with blows and oaths along the weary miles of trail that led to the stockade.” Some of those who were marched to the stockades told Mooney that when they turned back for one last look, “they saw their homes in flames, fired by the lawless rabble that followed on the heels of the soldiers to loot and pillage.” To make matters worse, they told Mooney, “systematic hunts were made by the same men for Indian graves, to rob them of the silver pendants and other valuables deposited with the dead.”

When Ross heard the disturbing reports of what was taking place back . . .

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