How Cherokee Law Challenged Georgia And Jackson

A constitution became a shield. That’s the unlikely turning point at the heart of this story, where the Cherokee Nation adopted a written charter in 1827—not to surrender identity, but to defend communal land, translate sovereignty into American legal language, and meet Georgia’s power grab head on. We unpack how democratic expansion, gold fever, and Jacksonian politics collided to produce one of the fiercest policy battles of the early republic.

We walk through the difference between long-running removal policy and the specific removal crisis of the late 1820s, then trace Georgia’s aggressive strategy: extend state law over Cherokee territory, nullify tribal governance, and silence Native witnesses. In Washington, a seemingly harmless appropriations bill—the Indian Removal Act—masked the machinery of coercion. Senator Theodore Frelinghuysen’s six-hour floor speech ripped the lid off, reading instructions that urged federal agents to isolate leaders, offer gifts, and exploit divisions to force “voluntary” treaties. Petitions poured in, and the House vote teetered, proving nothing about removal was inevitable.

The courtroom battles reshaped American law. Cherokee Nation v. Georgia coined the strange category “domestic dependent nations,” acknowledging a federal relationship while limiting tribal standing. A year later, Worcester v. Georgia struck down Georgia’s laws and reaffirmed that only the federal government may deal with tribes, establishing a key pillar of tribal sovereignty. Yet without enforcement from the executive branch, even a clear Supreme Court win could not stop the march toward forced removal. We place Jackson’s defiance within the storm of nullification and state resistance, then ask what it means when constitutional victories die in practice.

This episode connects the dots from the 1802 compact with Georgia to the Marshall Court’s foundational trilogy and forward to modern questions about jurisdiction, compacts, and the limits of state power on tribal land. If you were taught removal was a foregone conclusion, prepare to meet the people, arguments, and razor-thin choices that might have changed the outcome. Subscribe, share with a friend who loves American history, and leave a review telling us the moment that most challenged what you thought you knew.

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Transcript

SPEAKER_00 0:47

All right, welcome back to Civics in here. I am so stoked because I have been learning Dr. Kitchener on Republicans pretty much since we started. And I finally voluntoled some people in him into doing it. So today I'm excited to welcome Dr. Aaron Kitcher, who is an assistant professor at ASU School of Civic and Economics, someone in leadership, and someone who I get to work with quite a bit, does a lot of our teacher events, and teachers just absolutely love him. But Dr. Kutter, today we're talking about a couple things here. We're talking about the Indian Removal Act in 1830, the Supreme Court cases, Cherokee Nation versus Georgia in 1831, excuse me, and Worcester versus Georgia in 1832. So, first of all, welcome to the podcast. Why can you tell us what is going on at this time in American history that these, you know, this act and these two Supreme Court cases come about?

Removal Policy Versus Removal Crisis

Cherokee Constitution And Sovereignty

Georgia’s Gold Rush And Power Grab

The 1802 Compact With Georgia

Treaties, Sovereignty, And Georgia’s Claims

Jacksonian Politics And The Removal Bill

Frelinghuysen’s Six-Hour Defense

Razor-Thin Vote And Public Uproar

Cherokee Nation v. Georgia Ruling

Worcester v. Georgia And Missionaries

SPEAKER_01 1:46

I'd like to start by differentiating between Indian removal and the Indian removal crisis. So Indian removal is a broader policy from the United States federal government that several state governments had also adopted, namely Georgia, Alabama, Mississippi. Indian removal is a broader effort by United States officials, American citizens, state officials to ethnically cleanse the American Southwest and to remove indigenous peoples and indigeno nations and the jurisdictional questions that arose because of those tribal nations existing within and across state lines, removing these peoples and these governments from United States soil. This is a broader policy that extends beyond the 1830s. The Indian removal crisis, as it's typically known, really begins in 1827 with the passage of, or excuse me, the ratification of the Cherokee Nations Constitution in 1827. The first indigenous constitution made in the model of United States constitutions in order to create a more centralized Republican government grounded in a concept and understanding of Western law. So the Indian removal crisis takes place between the mid to late 1820s and extends all the way to the Trail of Tears, 1838 and 1839, which specifically for those unfamiliar refers to the Cherokee Nations forced migration west across the Mississippi River. So with that said, what's going on in the 1820s is the election of Andrew Jackson and the broader democratic push in the United States to democratize the process of governing. This includes removing property requirements to vote for many states, or removing these requirements. There are more people flooding the electorate. And these people who are flooding the electorate still by and large white male citizens, of course, but these people see themselves as distinct from the elite that had taken over Washington. John Quincy Adams, the son of the second president, represents this New England elite. On paper, John Quincy Adams is probably the most qualified person to have ever been president. This guy had served as ambassador to many countries. He had served in many different levels of government. This guy was the son of a president immersed in politics. Mr. America. But he is sort of roundly hated by a lot of people in the country who see him as representing this oppressive New England distant elitist establishment. And Andrew Jackson represents for many people a breath of fresh air. We're kicking out the corruption. We're kicking out these elites. The Virginia dynasty is gone. That's Jefferson, Madison, Monroe, these Virginians who had been president three years in a row. Now we have someone from the West, someone who is un or self-educated, someone who is a soldier, someone who talks like the common man, who speaks the language of the oppressed common person, who doesn't trust banks, doesn't trust big government, doesn't trust elites. All of this is going on at the same time as the state of Georgia and other states in the southeast are ramping up their force, their oppression against the tribal nations and trying to remove them. Why does the Cherokee Nation create a constitution in 1827? They had been told for the past 30 years that they should civilize in the model of the American people. Thomas Jefferson in 1808 famously writes a letter to the Cherokee chiefs. At the time, they have a decentralized series of villages that are more or less autonomous. Jefferson writes a letter to them all saying that ours is not a racial prohibition. You could all be American citizens as long as you adopt our cultural habits. Give up hunting, give up your matrilineal household ownership, right? So Cherokeean society and most southern southeastern tribal nations are matrilineal, so that women are in charge of a lot of the day-to-day affairs in their communities. Men are hunters, soldiers, warriors. Women do most of the farming. And Jefferson says, well, if you if you switch that, women should remain in the house, raise the children, stop farming, stop doing all this manual labor, let the men do that and stop fighting and hunting. And also own land individually. We got to stop this communal land ownership, which is one of the most common arrangements among the southeastern tribes. They did not own land as individuals. The tribe owned land. And therefore, everyone had a peace. Everyone had a place to live. There's no homelessness because everyone has space to live. And there's free access to all natural resources. So there's no extreme poverty. People have this communal sharing ethic in Cherokee called Gadougi, where it means sort of right living. So people would share, they would have places to go to get what they needed. And the Americans said this was the main thing standing in the way of getting that land, because they had quite a bit of land. And so to encourage American expansion to facilitate it, Jefferson and others had been constantly saying, look, we'll teach you how to farm, we'll give you all this equipment, we'll give you guns, we'll tell you the women how to sew, how to make clothing, we'll basically acculturate all of you. And in exchange, the American expectation is the Cherokee peoples and other peoples will just assimilate. And okay, we'll get the land. Okay. I love to point this out to students in class because it's one of the greatest examples of unintended policy consequences that we have. I mean, we could just point to this and say the federal government did this, all this acculturalization. They called it civilization policy among the American politicians. But what happens instead is instead of giving up their communal land, the Cherokee Nation creates a constitution in the model of American constitutions, specifically to protect their tribal practices. So Article I of the Cherokee Nation Constitution says our lands shall be held in common and are ours forever. And this is something that shocks the Americans who are paying attention. It shocks the Georgians, it shocks President John Quincy Adams, it shocks everyone of them. We didn't want that to happen. And yet here it is. The Cherokee Nation, under the leadership of people like Chief John Ross, Charles Hicks, and others, Major Ridge, had adapted the Western legal system to suit their needs. And so what we don't see a flipping, a full acculturation, we see this co-narrative of law, both ancient and modern, in the Cherokee Nation at this time, as they're starting to resemble an American state, for lack of a better word. But really they're asserting their tribal sovereignty, which had always been theirs and which was never given up by treaty. Georgia doesn't take kindly to this. And it just so happened at the same time that you have a fellow like Andrew Jackson who hates American Indians, who, in the words of David E. Wilkins and Vine Deloria Jr., wanted to remove Indians from the southwest or southeast, if not from the face of the earth. Jackson is a deeply sort of prejudiced man on this issue and is willing to look the other way. Well, what is he looking the other way on? It's the folks in Georgia, governors George Troop, Governor John Forsyth, later Governor Wilson Lumpkin, and all these other folks who are sort of running that state during this time period, they discover gold on the Cherokee lands. At the same time as the Cherokee Nation is developing a constitution to defend their land titles. There's gold discovered, and Georgia is it's very explicit if you go back through the record, the laws. They talk about the gold mines. They they want the gold, and they they also want the land and they want the indigenous people, they want the people gone. The Creek Nation is also wrapped up in this story for a good book about that. It's called The Politics of Indian Removal by Michael D. Green. It's a great book if you're interested in the Creek Nation's struggle against Georgia. I'm focused today here on the Cherokee Nation. Time to backtrack for a second. Okay. In 1802, the United States federal government signs a treaty, a deal with Georgia, the state. Some of you may or may not know, what was once claimed by Georgia was the current territory that we now call Alabama and some of Mississippi. Georgia was a lot bigger than it is now. The federal government makes a deal with Georgia in 1802 to cleave off over about half of itself. In exchange, the federal government in 1802 promises as soon as is practicable and as is peaceable, we will remove the tribal nations from within your borders in 1802. Georgia has been making requests ever since to the federal government, and these are always either ignored or there are land deals done. The Cherokee Nation signs a lot of treaties during this time, the Creek Nation signs away a lot of its land during this time. But there's a shift in the Cherokee Nation, as I mentioned before, especially as they start their own tradition of written law of constitutional government, to saying we're done signing away land. We will sign away no more. And Georgia points to that 1802 document. So George Troop, for example, points to that 1802 document, says, No, you're you're going. There's deception, there's fraud, there's all this sorts of conniving going on behind the scenes with the Creek Nation, with the Cherokee Nation, but the Cherokee Nation refuses, is the important point here. We're done, Chief John Ross and the roughly 15,000, 16,000 Cherokee Nation citizens at the time. So Georgia begins creating these constitutional arguments saying that the treaties that the Cherokee Nation had signed with the United States suggest a giving up of sovereignty over time. Because in the Treaty of Hopewell, which is 1785, before the United States government even has their own constitution, they have given up, the Cherokee Nation has given up its ability to legislate for itself because they have placed themselves under the protection of the United States. This is Georgia's argument, to which Chief John Ross of the Cherokee Nation says, no, we didn't. So Georgia is sort of making this claim that if you don't have the full right of sovereignty, you are not fit to sign treaties in the first place. And Georgia is trying to bend over backwards to argue that these particular treaties are null. Or at least we don't have to listen to them, because state sovereignty is superior. John Forsyth has a line during the Indian removal debate themselves in Congress where he says, and I paraphrase the petty sovereignty or the intrusive sovereignty of a petty tribe of Indians does not bear any actual political weight. He says this on the Senate floor. It's part of Georgia's case against the Cherokee Nation. They just want them gone. They also argue that, and this is sort of where it gets even more kind of confusing for those of you paying attention, you're familiar with constitutional law, Article 4, Section 4 of the United States Constitution prevents other states from being erected within the boundaries of current states. And so Georgia's arguing that this constitution that the Cherokee Nation has created is, in effect, a new state arising within the boundaries of Georgia and therefore is unconstitutional, and the Fed better get in here and remove them. To which the Cherokee Nation replies, We've always been here. We've here longer than you. We are not a new sovereign nation. We've always been a sovereign nation. We're just reorganizing ourselves. Again, the goal of this reorganization, one of them, was to prove themselves legitimate in the eyes of the U.S. legal system and to better articulate legal defenses of their communal lands. That was one of the goals the Cherokee Nation leaders had in doing this in the first place. And Georgia throws it in their face. The Indian Removal Act became sort of that one of the signature pieces of legislation in Jackson's first term. As soon as Jackson gets into office, he tells Congress, we need an Indian removal bill. He helps ensure through his allies, this is we're looking at here the birth of the Democratic Party. So they're usually called the pro-administration, the pro-Jackson faction in Congress. They're not quite Democrats yet, but they will be for the next cycle. So the pro-administration folks in Congress make sure that the Indian Affairs Committees in the House and the Senate are both staffed by Southerners, by Georgians, and by people who are agree with Jackson on this policy. So you see Hugh Lawson White in the Senate from Tennessee, Jackson's home state, heading that Indian Affairs Committee. You see a Georgian Bell in the House doing the same, and they propose very similar bills for Congress to remove Indigenous peoples in 1830. One of the things to know about the 1830 Indian Removal Act is that the debate that they have is really over the implications in the subtext because the actual text of the bill is fairly benign if you don't know what's going on. It doesn't remove anyone. The Indian Removal Act of 1830 does nothing. It's an appropriations bill. It appropriates$500,000 to the president to hand out in the event that the president can secure treaties agreeing to removal. So there it doesn't remove anyone. It seems benign, which is how the Southerners would bill it in Congress. They're like, no, no, no, it's all voluntary. But in his now famous defense of the Cherokee Nation in the Senate, Senator Theodore Frailinghizen of New Jersey, who's this first-term senator, comes out of nowhere. And no one's sort of expecting him to do this. He talks for six hours on the Senate floor across three days to defend the Cherokee Nation because he realizes what's going on. And he reads at the beginning of his long, long speech this document that the War Department, the president's office, had sent to Indian agents in the South telling them the exposure of this document. You can think of the parallels today. You know, we have these the Epstein reports come out and people are named. This document is inflammatory because the War Department is instructing its Indian agents. The indigenous peoples of the South are communal people. They meet in council, they deliberate and decide things together. You need to get them each alone in order to affect Indian removal treaties. Get them alone, offer them gifts, appeal to their prejudices. And he's reading this on the Senate floor, and it sparks this national controversy. All these letters, these women's groups, Catherine Beecher in the North organizes a women's petition campaign where they all write letters to Congress. Jeremiah Everts in the North is petitioning people, Christians of the United States, to oppose Indian removal because they're exposing the sort of tactics they were using to affect Indian removal at any price. So Fralinghizen in 1830, debating the bill, opposing it, is saying, look, yeah, the bill reads benign, but don't let that fool you. It was never about federal Indian policy, it was never about really caring for indigenous peoples, he argues. It was about getting land. And he says one of the famous lines from his speech is that United States officials, Americans are like horse leeches screaming, give, give their insatiable cupidity, right? I paraphrase there, but that's his implication. So he targets Georgia very specifically. Because Georgia, after the Cherokee Nation had ratified its constitution, elected its chief and its council members in democratic elections. Georgia, through its General Assembly, extends its laws. They pass laws, extending their laws over the Cherokee Nation territory, nullifying Cherokee Nation law, saying that this government and this pretended sovereignty actually doesn't have any real power. All these indigenous peoples, these Cherokee peoples, these Creek peoples, anyone else, is now under the jurisdiction. Of Georgia. And Fralinghusen says, Well, let's pay close attention to the law. Anyone who is of Indian descent is not capable, as is not qualified to be a witness in court. So Fralinghuisen says, Well, you're putting people under your jurisdiction, but you're actually preventing them from being citizens. So you're you're subjugating them, you're enslaving them. Like, what is this? What this is this is bad. You can't do this. So this crisis, this situation is what leads to those Supreme Court cases you alluded to earlier. Cherokee Nation v. Georgia, and then Worcester v. Georgia later. The Indian Removal Act in Congress passes in the Senate 28-19. And it passes in the House. The Senate debates first. The Senate passes it first. And it's 28-19. So you think that's maybe not that close. The debate in the firestorm, again, you think of it like you know, the Affordable Care Act in our more recent memory. That's how big a deal this was. Like everyone was talking about it, everyone's arguing about this at home, on the street, in the bars, wherever. The House sees what happened in the Senate, and being more attuned to the people, it's a lot closer. It's 102 to 98 or 97, excuse me. It's much closer. And all these representatives from Pennsylvania flip-flop during the debate. Here's how contentious it was. There's a representative from Pennsylvania who pretends to be sick so that he won't have to vote on the final passage. They have the sergeant at arms go out and drag him in, and he comes in and he's, you know, coughing. He's got a towel on his forehead and he's acting all kind of delirious. And they get to his name and he votes yes, and then he's kind of acting confused. The Cherokee Nation reporters for the Cherokee Phoenix are up in the balcony watching. And then a couple hours later, the Cherokee Nation officials or the reporters say, well, he makes a miraculous recovery because a few hours later he's on his feet screaming because his bill that he had sponsored came up later. So that just goes to show sort of the contentiousness that was in the country and in Congress at the time. Like this was not a done deal. There was a chance that this got went the other way. Had people make it different choices. So I pushed back against a lot of times when you hear about Indian removal, you hear the phrase foregone conclusion, or that it was inevitable, but really it wasn't in Congress. These are people that made choices. And thinking of it as inevitable really lets them off the hook. So I think that we should remember that they made these decisions. You have three future presidents in in Congress at the time as well. None of the three of them really say anything. James Buchanan, John Tyler, James Polk. So that's always an interesting thing as well. Well, the Cherokee Nation, on the advice of counsel, supported by people like Theodore Frelinghison, take their case against Georgia to the Supreme Court, where Chief Justice John Marshall, famously in Cherokee Nation v. Georgia, decides that the Cherokee Nation is a ward, a domestic dependent ward of the United States government. And if that confuses you, it confused everyone then as well, too. Because what does this actually mean? Are they a sovereign government? Were they a sovereign government? That is no longer. Are they, as Andrew Jackson called them, his children? This presents sort of a legal, a legal difficulty. The other case, Worcester v. Georgia, arises because of one of the Georgia laws passed that Fralinghizen referred to. Georgia passes a couple laws after the Cherokee Nation ratifies its constitution, attempting to subjugate them. One of the stipulations in one of the laws said that any white man living in the nation, working in the nation, must leave or swear an oath of loyalty to Georgia and stop helping the Cherokee Nation resist removal. Well, who helps the Cherokee Nation resist removal but the missionaries. There are quite a few missionaries in Georgia at the time, Samuel Worcester being the one for whom the case is named. These men refuse to swear loyalty oath to Georgia. They continue helping the Cherokee people resist removal. And they're all arrested and imprisoned by the Georgians. And so that court case arises because Worcester is a U.S. citizen and has therefore standing in court, unlike apparently the Cherokee Nation the year prior, has standing in court to actually sue the state as a constitutional matter. So the constitutional question here is: can Georgia actually do this? And in that case, Worcester v. Georgia, Chief Justice John Marshall rules that the state laws are unconstitutional. They can't do this. Georgia is out of bounds. The United States Constitution clearly gives the federal government the authority to treat with and deal with tribal nations. And that the states essentially gave up this power when they ratified the Constitution at the founding. So states no longer have the authority or ability to do anything with the indigenous nations. That doesn't involve sort of immediate security matters if there's a skirmish or something, the state does. But anything else, no, you don't have authority here. Worcester should be freed. And again, he's not the only one who's in prison. So these missionaries need to be freed. This is an unconstitutional law. There's an apocryphal statement that everyone thinks Jackson made. And it would have been really cool had Jackson actually made it. And you know where I'm going with this. I do know where you're going. Yeah, I promised Dr. Sean Beyenberg that I would I would say this. And this is, it's unfortunate that he didn't, because it would kind of be cool. But the the statement that a lot of people attribute to Jackson is John Marshall has made his decision. Now let him enforce it. He doesn't actually say this, unfortunately. But the sentiment is still there. Jackson still chooses to ignore the court's decision here, effectively deferring to Georgia because there's a broader crisis. So there are some scholars, some historians who will, if not defend Jackson here, at least push back on the claim that Jackson just sort of hates indigenous peoples and will do anything to get rid of them. I'm not saying I agree with this. I'm saying that there's a there's a contingent of historians that will say Jackson is dealing with a broader issue of nullification and potential civil war in the country. South Carolina is going crazy with nullification. Georgia is going crazy with basically challenging the federal government's authority. You have these southern states who are really pushing back, and not just with words. There's a point at which John Quincy Adams sends or threatens to send federal troops to Georgia to make sure that a fraudulent treaty is properly investigated, to which Governor George Troop of Georgia summons the state militia and says, come, come try. We'll fight you out of the state. And Quincy Adams backs down. And so Jackson, from this perspective, is attempting to avert a larger conflict between states and the federal government, effectively civil war. I don't think that that particular sense is incompatible with Jackson's well-documented antipathy towards Indigenous peoples. I don't think we should overlook that. I just thought I would mention that there is a broader context of states challenging the federal government going on at the same time.

Marshall’s Decision And Jackson’s Defiance

SPEAKER_00 31:36

So when you're talking about jurisdiction, does that Supreme Court case kind of set like set the standard? Because I know here in Arizona, we have 22 recognized tribal nations. And, you know, my students would always ask the question like, if, and this is, you know, the laws have since changed, but why can't we gamble in Phoenix, but they can do it on, you know, the Indian reservation? So is does that case kind of set the standard for the jurisdiction, you know, for the reservations or you know, land is to the federal government and not the state government? Or when does that kind of come come to be?

SPEAKER_01 32:30

Yeah, the answer with most of these things is confusing and complicated. Simplify these three cases. So there's three cases here actually. There's a prior case, I believe 1823. It's called the Macintosh case. Macintosh plus Cherokee Nation v. Georgia plus Worcester v. Georgia, are considered the three that establish for the first time the Supreme Court's kind of basic understanding of what tribal nations are in relationship to A, the United States, and B, the state governments. So those three cases are generally seen as establishing the baseline from which future court decisions and legislation are based. Okay.

SPEAKER_00 33:18

Don't tell anybody else, but you're my favorite. And I really, I really do appreciate you doing this. Well, thank you.

SPEAKER_01 33:24

I appreciate that.