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

INTRODUCTION

Introduction 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.’ ”1 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.”2 When Ross heard the disturbing reports of what was taking place back 2 the legal ideology of removal in the Cherokee Nation, he decided to return home. When the chief arrived in early July, he found the nation in disarray. Thousands of his people were locked up and preparing to march to the Indian Territory, which Congress had recently established west of Arkansas. When the chief visited the holding camp at Aquohee on August 1, he discovered that several members of the Cherokee National Council were imprisoned along with their constituents. Ross called the council members into an impromptu meeting. He told them that he had been unable to delay the federal government’s removal plans. He added that he had informed Winfield Scott, the commander of the American removal troops, that the Cherokees would peacefully depart for the West if the tribe’s leadership could organize the effort. Ross reported that Scott had consented to the arrangement, and he asked the council members to provide him with authority to superintend the removal expeditions. After agreeing to Ross’s request, the council issued one last memorial before departing on the Trail of Tears. “The title of the Cherokee people to their lands is the most ancient, pure, and absolute known to man,” the council said, “its validity confirmed and illustrated by possession and enjoyment antecedent to all pretense of claims by any other portion of the human race.” As such, “the natural, political and moral relations existing among the citizens of the Cherokee nation toward each other and toward the body politic; cannot in reason and justice be dissolved by the expulsion of the nation from its territory by the power of the United States Government.” With that, the council declared that the “inherent sovereignty of the Cherokee nation, together with the Constitution, laws and usages of the same,” remained “in full force . . . in perpetuity.”3 This last spasm of defiance, directed at the federal and state forces that had expropriated their national territory, concluded the Cherokees’ struggle to retain their national autonomy in the Southeast. With the exile of the Cherokees in the winter of 1838–39, and the subsequent surrender of the Seminoles to federal troops in 1842, the United States had expelled every major Native American nation from the Southeast. Pulled up from their ancestral roots and forced to surrender their...