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

by Tim Alan Garrison

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.

Genres: History, Native Americans

331 pages, Hardcover

First published April 9, 2002

Reviews

[Walter Knapp · Rating 5 out of 5]

Best book I've read that shines a light on the legal justifications for the removal of the Cherokee from Georgia. It obliterates all the myths you learned about the travesty, assuming you were ever taught anything about it at all.

[Jeni Enjaian · Rating 3 out of 5]

If you're looking for a book on the legal history of the Trail of Tears aka Indian Removal, I recommend a book I read previously, The Cherokee Cases by Jill Norgren, not this one.

The one good thing I can say about this book is that Garrison is not skimpy on the information. He describes almost every possible aspect of the court cases he selected to review (the three Supreme Court cases as well as a couple cases on the state Supreme Court level). For that reason I appreciated the book and learned a lot.

However, Garrison's prose is not as welcoming and understandable as Norgren's is. Neither is it objective. Though it is easy to see that the Cherokee's were mistreated by the states (Georgia, Alabama and Tennessee), to some extent the Supreme Court as well as the President, it does not do their story justice to paint it with a wide brush of sympathy. A historian should be as objective as possible. In many stories there is no good guy or bad guy and the evidence supports that assertion. In some stories, however, there is clearly a "good guy", a wronged person, and a "bad guy", the person who commits the wrong. I believe that is the case with the actions of the United States government (and individual state governments) against the Cherokees and many other tribes. To romantize (granted, this romanticization is muted in the book but it's definitely there) the wronged party does not serve their cause. An honest, objective telling of history does.

That by far was my biggest problem with this book.

The other major problem I had was with the density of the text. Garrison crammed way too much information into a limited space. Each chapter was full of pertinent (and sometimes not so pertinent) information. Some of this information including the frequent description of judge's backgrounds and direct quotes from opinions could have been omitted or parsed and Garrison's point still would have been made, loud and clear.

The ironic thing about Garrison's book is that he refers to Norgren's book several times in quite glowing terms. I second his opinion.