In a crucial case involving Indians in 1823, Johnson v. M’Intosh, the Court had proclaimed that Indians were not in fact owners of their land, but merely had a “right of occupancy.” Chief Justice John Marshall, himself a speculator in western lands, claimed that from the early colonial era, Indians had lived as nomads and hunters, not farmers. Entirely inaccurate as history, the decision struck a serious blow against Indian efforts to retain their lands. In Cherokee Nation v. Georgia (1831), Marshall described Indians as “wards” of the federal government. They deserved paternal regard and protection, but they lacked the standing as citizens that would allow the Supreme Court to enforce their rights. The justices could not, therefore, block Georgia’s effort to extend its jurisdiction over the tribe.
The removal of the so-called Five Civilized Tribes from the Southeast all but ended the Indian presence east of the Mississippi River.
Marshall, however, believed strongly in the supremacy of the federal government over the states. In 1832, in Worcester v. Georgia, the Court seemed to change its mind, holding that Indian nations were a distinct people with the right to maintain a separate political identity. They must be dealt with by the federal government, not the states, and Georgia’s actions violated the Cherokees’ treaties with Washington. But despite his strong assertion of national supremacy in the nullification crisis, Jackson refused to recognize the validity of the Worcester ruling. “John Marshall has made his decision,” he supposedly declared, “now let him enforce it.”
With legal appeals exhausted, one faction of the tribe agreed to cede their lands, but the majority, led by John Ross, who had been elected “principal chief” under the Cherokee constitution, adopted a policy of passive resistance. Federal soldiers forcibly removed them during the presidency of Jackson’s successor, Martin Van Buren. The army herded 18,000 men, women, and children into stockades and then forced them to move west. At least one-quarter perished during the winter of 1838-1839 on the Trail of Tears, as the removal route from Georgia to the area of present-day Oklahoma came to be called. (In the Cherokee language, it literally meant “the trail on which we cried.”)
During the 1830, most of the other southern tribes bowed to the inevitable and departed peacefully. But the Seminoles of sparsely settled Florida resisted. Osceola, one of the leaders of Seminole resistance to removal, was a Red Stick who had survived Andrew Jackson’s assault on hostile Creeks during the War of 1812. The Indians were assisted by escaped slaves. As early as colonial times, Florida had been a refuge for fugitive slaves from South Carolina and Georgia, to whom Spanish officials offered freedom. The administration of George Washington attempted to persuade the Seminoles to expel the fugitives, but they refused. Georgia sent the militia into Florida to recapture them, but it was driven out by Seminole and African-American fighters. In the Second Seminole War, which lasted from 1835 to 1842 (the first had followed American acquisition of Florida in 1819), some 1,500 American soldiers and the same number of Seminoles were killed, and perhaps 3,000 Indians and 500 blacks were forced to move to the West. A small number of Seminoles managed to remain in Florida, a tiny remnant of the once sizable Indian population east of the Mississippi River.
The Trapper and His Family (1845), by the artist Charles Deas, depicts a white pioneer who married an Indian woman.
Buffalo Chase over Prairie Bluffs, a painting from the 1830s by George Gatlin, who created dozens of works depicting Native Americans in the trans-Mississippi West. Catlin saw himself as recording for posterity a vanishing way of life. At the time, millions of buffalo inhabited the West, providing food and hides for Native Americans.
In 1831, William Apess, a descendant of Metacom, or King Philip, who had battled New England colonists in the 1670s, published A Son of the Forest, the first significant autobiography by a Native American. The son of a white man and an Indian woman, Apess had served with American forces in an unsuccessful attack on Canada during the War of 1812. He later converted to Methodism and became a revivalist preacher. His book appealed for harmony between white Americans and Indians. “How much better it would be if the whites would act like civilized people [and] give every one his due,” Apess wrote. “What do they, the Indians, want? You have only to look at the unjust laws made for them and say, They want what I want.’” Removal was the alternative to the coexistence championed by Apess. It powerfully reinforced the racial definition of American nationhood and freedom. At the time of independence, Indians had been a familiar presence in many parts of the United States. John Adams once recalled how, when he was young, local Indians “were frequent visitors in my father’s house,” and how he would visit a nearby Indian family, “where I never failed to be treated with whortleberries, blackberries, strawberries or apples, plums, peaches, etc.” By 1840, in the eyes of most whites east of the Mississippi River, they were simply a curiosity, a relic of an earlier period of American history. Although Indians still dominated the trans-Mississippi West, as American settlement pushed relentlessly westward it was clear that their days of freedom there also were numbered.