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Legal Ideology of Removal

The Southern Judiciary and the Sovereignty of Native American Nations

Tim Alan Garrison

Publication Year: 2002

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.

Published by: University of Georgia Press

CONTENTS

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pp. ix-

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ACKNOWLEDGMENTS

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pp. xi-xiii

In the 1830s the state of Georgia seized the land of the Cherokee Nation, divided it up into parcels, and sold it in a lottery to the citizens of the state. My ancestors lived on land they acquired in one of the Cherokee land lotteries. Since becoming familiar with the story of the Indian Removal, I have acquired a deep sense of guilt about that personal heritage. I think ...

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INTRODUCTION

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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 ...

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CHAPTER ONE: Removal: The Separation Solution

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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 ...

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CHAPTER TWO: Spiritual Sovereignty: The Emergence of the Cherokee Nation

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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 ...

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CHAPTER THREE: The Precedents: Sources of Law for the Southern State Courts during the Removal Crisis

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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 ...

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CHAPTER FOUR: The Supremacy of State Jurisdiction: Georgia v. Tassels

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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 ...

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CHAPTER FIVE: Domestic Dependent Nations: Cherokee Nation v. Georgia

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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, ...

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CHAPTER SIX: The Southern Response to Marshall: Caldwell v. Alabama

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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 ...

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CHAPTER SEVEN: Sovereign Nations: Worcester v. Georgia

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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 ...

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CHAPTER EIGHT: The Law of the Land: Tennessee v. Forman

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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 ...

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EPILOGUE: The Triumph of the Southern Removal Ideology

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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 ...

NOTES

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pp. 247-290

BIBLIOGRAPHY

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pp. 291-312

INDEX

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pp. 313-331


E-ISBN-13: 9780820326412
E-ISBN-10: 0820326410
Print-ISBN-13: 9780820322124
Print-ISBN-10: 0820322121

Page Count: 336
Publication Year: 2002

Series Title: Studies in the Legal History of the South

Research Areas

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Subject Headings

  • Indians of North America -- Legal status, laws, etc. -- Southern States -- History.
  • Cherokee Indians -- Relocation -- History.
  • Trail of Tears, 1838-1839.
  • States' rights (American politics).
  • Sovereignty.
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