Trail of Tears - Legal Background

Legal Background

The territorial boundaries claimed as sovereign and controlled by the Native American nations living in what was then known as the Indian Territories—the portion of the early United States east of the Mississippi River not yet claimed or allotted to become Oklahoma -- were fixed and determined by national treaties with the United States Federal government under terms recognizing these entities as dependent but internally sovereign, or autonomous nations under the sole jurisdiction of the Federal government.

While retaining their tribal governance, which included a constitution or official council in tribes such as the Iroquois and Cherokee, many portions of the southeastern Native American nations had become partially or completely economically integrated into the economy of the region. This included the plantation economy in states such as Georgia, and the possession of slaves. These slaves were also forcibly relocated during the process of removal. A similar process had occurred earlier in the territories controlled by the Confederacy of the Six Nations in what is now upstate New York prior to the British invasion and subsequent U.S. annexation of the Iroquois nation.

Under the history of U.S. treaty law, the territorial boundaries claimed by Federally recognized tribes received the same status under which the Southeastern tribal claims were recognized; until the following establishment of reservations of land, determined by the Federal government, which were ceded to the remaining tribes by de jure treaty, in a process that often entailed forced relocation. The establishment of the Indian Territory and the dissolution of Indian territories east of the Mississippi anticipated the establishment of the U.S. Indian reservation system, which was subsequently imposed on remaining Indian lands.

The statutory argument for Native American sovereignty persisted until the Supreme Court ruled in Cherokee Nation v. Georgia (1831), that (e.g.) the Cherokees were not a sovereign and independent nation, and therefore not entitled to a hearing before the court. However, in Worcester v. Georgia (1832), the court re-established limited internal sovereignty under the sole jurisdiction of the Federal government, in a ruling that both opposed the subsequent forced relocation and set the basis for modern U.S. case law.

While the latter ruling was famously defied by Jackson, the actions of the Jackson administration were not isolated because state and federal officials had violated treaties without consequence, often attributed to military exigency, as the members of individual Native American nations were not automatically United States citizens and were rarely given standing in any U.S. court.

Compounding this was the fact that while citizenship tests existed for Native Americans living in newly annexed areas before and after forced relocation, individual U.S. states did not recognize tribal land claims, only individual title under State law, and distinguished between the rights of white and non-white citizens, who often had limited standing in court; and Indian removal was carried out under U.S. military jurisdiction, often by state militias. As a result, individual Native Americans who could prove U.S. citizenship were nevertheless displaced from newly annexed areas. The military actions and subsequent treaties enacted by the Jackson and Van Buren administrations pursuant to the 1830 law are widely considered to have directly caused the expulsion or death of a substantial part of the Native Americans then living in the southeastern United States.