A leading Jackson historian on Andrew Jackson's Indian removal policy

Daniel Feller is a historian who is the editor and director of the Andrew Jackson Papers at the University of Tennessee. In this 2018 videos, he looks at Andrew Jackson's Indian removal project.

He does a good job of defining what I've called the "Tragedy/Happy Ending problem" in looking at the history of European settler colonialism and its gruesome consequences for the native populations. Each country in North, South, and Central America has its own particular histories. But settler colonialism was the model that the colonial powers and their later successor states was how that entire area became what it is today.

Andrew Jackson and the Trail of Tears: Setting the Record Straight Readex 02/14/2018:

More reports on McGirt v. Oklahoma

The PBS Newshour has a good report on the McGirt v. Oklahoma Supreme Court decision just handed down, The Supreme Court's 'landmark decision' on tribal sovereignty 07/11/2020:

Laurel Amsley also reports for NPR, Supreme Court Rules That About Half Of Oklahoma Is Native American Land 07/09/2020. The headline leaves something to be desired, because it leaves the impression that the ruling was somehow about land rights. It wasn't. It was about the sovereignty of reservations in criminal law. As Neil Gosuch's majority opinion states in the second paragraph, "Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word."

Amsley notes that the Creek reservation includes the City of Tulsa:

The ruling will have significant legal implications for eastern Oklahoma. Much of Tulsa, the state's second-largest city, is located on Muscogee (Creek) land. The Muscogee (Creek) Nation cheered the court's decision.

"The Supreme Court today kept the United States' sacred promise to the Muscogee (Creek) Nation of a protected reservation," the tribe said in a statement. "Today's decision will allow the Nation to honor our ancestors by maintaining our established sovereignty and territorial boundaries." ...

The ruling has a number of significant consequences for criminal law in the relevant portion of Oklahoma.

The first is that going forward, certain major crimes committed within the boundaries of reservations must be prosecuted in federal court rather than state court, if a Native American is involved. So if a Native American is accused of a major crime in downtown Tulsa, the federal government rather than the state government will prosecute it. Less serious crimes involving Native Americans on American Indian land will be handled in tribal courts. This arrangement is already common in Western states like Arizona, New Mexico and Montana, said [Kevin] Washburn. ...

It's important to note that the case concerned jurisdiction, not land ownership.

Ruling that these lands are in fact reservations "doesn't mean the tribe owns all the land within the reservation, just like the county doesn't own all the land within the county. In fact, it probably doesn't own very much of that land," Washburn explained. "That's not what a reservation is these days." [my emphasis]

The case certainly has historical significance because it's based on laws and treaties going back to the Indian Removal Act, as I described in an earlier post. And it's always possible that the decision will set a precedent that could affect other questions relating to Indian treaties. But it's not as though it upended previously established laws. It clarifies a question on criminal law.

McGirt v. Oklahoma (2020), the Trail of Tears, and Creek Nation sovereignty

Along with a couple of important rulings on Presidential accountability to Congress and the law, the Supreme Court (SCOTUS) handed down a ruling in McGirt v. Oklahoma that is based on one of the most controversial policies in American history, the Indian Removal Act of 1830 during Andrew Jackson's Administration. (Chris Casteel, US Supreme Court rules against Oklahoma in Creek Nation case The Oklahoman 07/09/2020)

The case had to do with a dispute between the Creek Nation and the State of Oklahoma involving tribal sovereignty in criminal law. It ruled resoundingly in the Creeks' favor based on their treaty rights. Gorsuch wrote the majority opinion joined by Ginsburg, Breyer, Sotomayor, and Kagan. The ruling is based on legislation, treaties, and court decisions going back 190 years, including:

• Indian Removal Act (1930)
• Treaty With the Creeks (1832)
• Treaty With the Creeks (1833)
• Treaty with Creeks and Seminoles (1856)
• Treaty Between the United States and the Creek Nation of Indians (1866)
• Five Civilized Tribes Act (1906)

In the case before the court, SCOTUS ruled that a person convicted of a felony offense committed in Creek Territory but prosecuted by the State of Oklahoma was invalid because the state did not have legal jurisdiction in the case. Instead, the federal Indian court had jurisdiction. Gorsuch responded to claims by Oklahoma that this could set off a wave of dangerous criminals going scot free:

... Oklahoma and the dissent fear, “[t]housands” of Native Americans like Mr. McGirt “wait in the wings” to challenge the jurisdictional basis of their state-court convictions. Brief for Respondent 3. But this number is admittedly speculative, because many defendants may choose to finish their state sentences rather than risk reprosecution in federal court where sentences can be graver. Other defendants who do try to challenge their state convictions may face significant procedural obstacles, thanks to well-known state and federal limitations on post-conviction review in criminal proceedings.

In any event, the magnitude of a legal wrong is no reason to perpetuate it. [my emphasis]

One sentence in the majority opinion could also serve for the larger history of the US relations to Indian tribes, "One thing everyone can agree on is this history is long and messy."

There's usually lots of legalese in SCOTUS opinions, of course. But it has a lot historical detail describing subsequent land grabs, oil discoveries, and State of Oklahoma chicanery. The decision doesn't directly address land ownership issues as such. But it does say, "And for a time Oklahoma’s courts appear to have entertained sham competency and guardianship proceedings that divested Tribe members of oil rich allotments."

It also directly involves the legal and historical question (not just the rhetorical one) of whether the Indian expulsions involved in the 1930 Act constitute genocide (though it doesn't directly deal with that). Because like criminal law, the UN definition of genocide involves intent. If the 1830 laws and 1832 and 1833 treaties are still substantively protecting the Creek Nation here 190 years later, then the government's stated purpose to preserve the tribes involved may have been serious. (For an extended treatment of this question with the 1830 Act, see: Jeffrey Ostler, Surviving Genocide: native Nations and the United States from the American Revolution to Bleeding Kansas, 2019)

The two opening paragraphs of the opinion emphasize that the legal assurances given are still in effect, whatever the hidden intent may have been:

On the far end of the Trail of Tears was a promise. Forced to leave their ancestral lands in Georgia and Alabama, the Creek Nation received assurances that their new lands in the West would be secure forever. In exchange for ceding “all their land, East of the Mississippi river,” the U. S. government agreed by treaty that “[t]he Creek country west of the Mississippi shall be solemnly guarantied to the Creek Indians.” Treaty With the Creeks ... (1832 Treaty). Both parties settled on boundary lines for a new and “permanent home to the whole Creek nation,” located in what is now Oklahoma. Treaty With the Creeks, ... (1833 Treaty). The government further promised that “[no] State or Territory [shall] ever have a right to pass laws for the government of such Indians, but they shall be allowed to govern themselves.” 1832 Treaty....

Today we are asked whether the land these treaties promised remains an Indian reservation for purposes of federal criminal law. Because Congress has not said otherwise, we hold the government to its word. [my emphasis]

Confederate "Heritage" Month 2019, April 2: Andrew Jackson, states rights and the South

This is a re-up (and very slight re-working) of a previous post of mine from early in this blog's history in 2003. It deals with the how the real history of early and antebellum America give the lie to basic assumptions of neo--Confederate ideology. I'll note by way of introduction, I refer at the end to the Indian Removal Act, which was the legislative authorization of what now is known as the Trail of Tears. Here, I'm not looking at the grim topic of that Act in itself, but rather at how the regional political alignments over it contradict a key part the neo-Confederate narrative.

The pro-Confederate view of history, also known as the Lost Cause ideology, insists that slavery was not the cause of the Civil War. Instead, in that view, the war was fought primarily over the issue of states rights. One of the main set-pieces in this argument is the Nullification Controversy of 1831-32, during Old Hickory's first Administration.

Briefly, the federal Tariff of 1828 was extremely unpopular in South Carolina. Many South Carolina leaders threatened to "nullify" the tariff, arguing that a state could impose its authority to block the implementation of a federal law it rejected. The dispute escalated to a point where a military confrontation threatened. Through the compromise efforts of Kentucky Senator Henry Clay, President Jackson secured from Congress both a reduction of the disputed tariffs and a Force Bill expressly authorizing him to use military force to put down state defiance of the federal law.

Lost Cause advocates love to point to this as a key event leading to the secession of 1861, though it occurred three decades earlier. In the Lost Cause view, this was an instance where the Southern states were grouped against a sectional bloc of Northern states, the latter using national power in the form of Jackson and the Force Act to impose an unconstitutional law on a state. And the issue here was a sectional one focused on tariffs, not slavery.

So the argument goes. But it has several obvious problems. Why does one need to go back 30 years before secession for such an example? Because every other major North-South confrontation from 1833 to 1860 had slavery as an explicit issue. Why does the Lost Cause dogma prefer to gloss over the fact that Jackson was a Southerner and a slaveowner and his movement was primarily based in the South? Because those facts are reminders that the controversy was not at all exclusively a North-vs.-South sectional issue.

Also, it's a matter of some serious dispute among real historians - not just a phony pseudohistorical issue made up by ideologues - as to whether the Nullification Controversy was really primarily about tariffs.

The South Carolina radicals certainly realized that the issue could come to a head over slavery. It had already come up in the slavery controversy settled by the Missouri Compromise of 1820. In 1831, the Nat Turner Rebellion had scared the Slave Power into a near frenzy. And that same year, free farmers from western Virginia forced the legislature to begin what became the last serious free debate about abolishing slavery in the states that eventually joined the Confederacy. (The debate was not "free" to slaves, of course.) The Slave Power felt increasingly on the defensive.

John C. Calhoun, Old Hickory's main opponent on the nullification issue, anonymously authored a pamphlet called The South Carolina Exposition which the defiant South Carolina legislature published. In it, Calhoun argued that the tariff controversy was merely the occasion for demanding the right of nullification. The real issue was defending the "peculiar institution of the Southern States," i.e., slavery.

Jackson later said from his deathbed that he regretted that he hadn't hanged Calhoun for treason over the nullification incident. "My country would have sustained me in the act, and his fate would have been a warning to traitors in all time to come." (And you think political rhetoric today is harsh!) And Jackson was a Southern political leader who saw the issue of secession as being something other than a purely sectional issue. What Jackson the Southern President said in his proclamation to the people of South Carolina in December, 1832, was:

Those who told you that you might peaceably prevent [the] execution [of the laws] deceived you; they could not have been deceived themselves. They know that a forcible opposition could alone prevent the execution of the laws, and they know that such opposition must be repelled. The object is disunion. But be not deceived by names. Disunion by armed force is treason. Are you really ready to incur its guilt?

That's what patriotic American Southerners thought of secession - in 1832 and in 1861.

No wonder old Jackson Democrats during the war used to grumble that if the General were still around, the slaveowners would never have dared to try seceding.

And no wonder the Lost Cause crowd doesn't like to recall great Southerners like Andrew Jackson very often. That part of their "heritage" they would prefer not to remember, much less "honor."

But there was another major North-South controversy during Jackson's Presidency, one in which the vote in Congress was even more clear-cut than on the Nullification Controversy. That was the Indian Removal Act of 1830, in which slavery figured as a very minor issue, if at all.

Yet the silence about this Act from the Lost Cause crowd is deafening, even though it involved a North-South sectional controversy and national power vs. state rights, and slavery was not an issue. Wouldn't this be a perfect example for the Lost Cause argument that the Civil War was a sectional controversy over state rights, and slavery had nothing to do with it?

Well, it would. Except for one little catch. In this case, it was the Southerners, both in Congress and the Presidency, who were pressing for the use of national power to remove Indian tribes from lands coveted by the American whites. And they were willing to override states rights to achieve it. While that wasn't a central argument in the debate, Northern opponents of the bill mocked the Southerners for their willingness to overlook states rights when it was a measure they favored.

Over the following 30 years, there would be other occasions when the Slave Power would be willing to sacrifice the principle of states rights for the preservation of their "sacred institutions of slavery and white supremacy." And for "Southern honor," of course - though not a brand Old Hickory would have recognized as such.

See: Full text of 1832 Proclamation to the People of South Carolina