What was at stake was land. Here is a map of the Cherokee territories in 1815. One look is enough to indicate how much land. One band ceded their territory in Tennessee in 1816 and migrated to the Indian Territory (the present Oklahoma) where they battled with the relocated Osage who did not wish to share their land. The large majority of Cherokee determined to stay in the Southeast and to refuse any further land cessions. White Southerners, however, wanted Cherokee land, especially after the discovery of gold on it. So they pushed their way in. They established settlements, staked out mining claims, and came into immediate conflict with the Cherokee.

The whites turned to the Georgia state government. It passed legislation stating that all of the land in the state fell under the laws of the state. This directly contradicted the terms of all of the treaties signed between the United States and all of the tribes. Every treaty reserved land for Indian use and stipulated that the tribes would live according to their own customs, rules, and practices. Georgia denied the validity of these guarantees. It also legalized the various land and mineral rights claims whites entered. Georgia also demanded the complete removal of the Cherokee. With the election of Andrew Jackson in 1828 and a Democratic House and Senate, Georgia got its wish in the form of the 1830 Indian Removal Act.


To provide for the removal of the Indian Tribes within any of the States and the Territories, and for their permanent settlement West of the river Mississippi.

Be it enacted by the Senate and House of representatives of the United States of America in Congress assembled, That the President of the United States be, and he is hereby, authorized to cause so much of any territory belonging to the United States, West of the river Mississippi, and not within the limits of any State or organized Territory, as he may judge necessary, to be divided into a suitable number of districts, for the permanent residence of such tribes of Indians, or any individuals or the same, coming within the provisions of this act, as may choose to settle upon them.

SEC. 2. And be it further enacted, That it shall be lawful for the President of the United States to exchange any, or all such districts so laid off, with any tribe or individuals thereof, now residing within the limits of any State or territory, and with which the United States have any existing treaties, for the whole or any part of the land claimed or occupied by any such tribe.

The bill did not mandate removal. Instead it empowered the president to exchange land west of the Mississippi for land east of it by treaty. The law, that is, affirmed that the federal government could in fact make legally binding agreements with tribes in which Indians would trade land for assurances that they could live according to their own desires. The house committee Report, which accompanied the bill, however, affirmed that no federal treaty could entitle Native Americans to any exemption from any state laws even when the express purpose of those laws was to abrogate that treaty and the protections it promised.

Small wonder that the great majority of Cherokee rejected the notion of removal. Instead the tribe took the state to court. By this time the Cherokee were far advanced along an ambitious transformation. They had adopted a written constitution modeled upon that of the United States. They had taken up farming, started schools, established a newspaper, the Cherokee Phoenix, and invited Christian missionaries into their territory. This last step violated a new Georgia law that prohibited outsiders from entering the territory. As a result, two cases reached the Supreme Court. In Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832) the court ruled that Georgia could not abrogate treaty provisions. The Constitution explicitly gave that power to the federal government. President Jackson famously commented: "Justice Marshall has made his decision. Now let him enforce it." Jackson was not the first president to hold that the Supreme Court did not have the power to determine constitutional questions. Both Thomas Jefferson and James Madison argued that only states could determine the question of constitutionality during the controversy over the Alien and Sedition laws in 1798. The principal difference, of course, was that the Alien and Sedition laws violated the Constitution by giving the federal government powers it was explicitly prohibited from exercising.

Jackson's refusal to enforce either ruling gave Georgia and Tennessee state authorities the power to do whatever they pleased to the Cherokee. Georgia arrested Chief John Ross; a mob burned the offices of the Cherokee Phoenix. Individual Cherokee were beaten, robbed, and killed. When Ross went to Washington to protest, Jackson refused to see him. Instead the administration courted a small faction of Cherokee who accepted the necessity of removal. This so-called Treaty Party, some three to five hundred of the more than seventeen thousand Cherokee, signed the Treaty of New Echota in 1835 in which they ceded all of the land east of the Mississippi in return for seven million acres in the Indian Territory and five million dollars. Ross and 16,000 others signed a petition protesting the illegitimacy of the treaty. The U.S. Senate nonetheless ratified it by a single vote. And, in 1837, new president Martin Van Buren ordered Major General Wilfield Scott and virtually the entire army to forcibly remove the Cherokee.

Thousands died on the "trail of tears." Those Cherokee opposed to the treaty murdered the leaders of the Treaty Party once they got to the Indian Territory. They then set about re-establishing their community, including plantation slavery. In 1861 the Cherokee joined Georgia, Tennessee, and nine other southern states in forming the Confederate States of America. It was an action the victorious Union avenged by seizing still more Cherokee land.