The idea for Indian removal was hardly new. Either by persuasion, coercion, or "force" it had been implemented since before the United States became a country to varying degrees. By the 1820s, it was becoming more and more clear (at least to the government and many of its citizens) that coexistence was no longer possible and "room" was needed for the growing population and further settlement. Things began to be seen almost in a black and white "removal or extermination" way.
Almost making things worse was that some of the Indians known as the Five Civilized Tribes (Cherokee, Chickasaw, Choctaw, Creek, and Seminole) had actually in many ways begun assimilating themselves into American society and culture (though remaining as separate entities). In fact, the Cherokee not only had plantations and farms, businesses and slaves, they also had a congress, a court system, and a constitution based on that of the United States. This "set" them up as a seemingly independent nation within the country—thus making future removal more difficult.
Part of what helped get Andrew Jackson elected in 1828 was his policy (by then, an "official unofficial" government policy) on removal. In 1830, Congress passed and he signed the Indian Removal Act, giving legislative (and therefore, eventual military) force to the policy and opening the door for the future removals referred to as the various " Trails of Tears" (often used specifically in respect to the Cherokee, it's often used for the other removals as well) during which large numbers died due to disease, exposure, neglect, and mistreatment. The vast majority of Indians then living east of the Mississippi River (an estimated 100,000 in the 1830s alone) were "removed" to "Indian Territory" over the next twenty-five years.
The Cherokee attempted to escape the act by taking cases to the Supreme Court. The first failed as it was ruled they were not a "foreign nation" (and immune to the act) but a "domestic, dependent nation," over which the court had no jurisdiction. Eager to get at the Cherokee land (mainly because of gold being discovered there), the state of Georgia made a series of laws in order to facilitate removal. One was aimed at missionaries on Indian land who were trying to help the Cherokee (any "white" living on Indian land had to be licensed through the state or face imprisonment—some chose to risk it and were incarcerated). As a result of the law, the second case went to the Supreme Court. This time it was a victory. It was ruled that
the Cherokee Nation then, is a distinct community, occupying its own territory, with boundaries accurately described, in which the laws of Georgia have no force, and which the citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with acts of Congress.
Because of that, Georgia had no authority over them and the laws were null and void.
Despite the victory, the court and Cherokee had no way to enforce the ruling which was ignored by the state. By then Georgia had begun displacing the Indians by giving away their land through a lottery system. No help came from President Jackson, either, who supposedly said that "[Chief Justice] John Marshall has made his decision. Now let him enforce it."
All the court decision was able to do was postpone the inevitable by requiring a treaty to enforce removal. A small faction of the tribe (many of the better respected and best educated Cherokee—but, by far the minority), believing that the choice, indeed, was a matter of "removal or extermination" signed a treaty in 1835 with full knowledge that doing so was signing their own death sentence.
An originally unspoken law that made it into the Cherokee constitution stated that "if any citizen or citizens of this nation should treat and dispose of any lands belonging to this nation without special permission from the national authorities, he or they shall suffer death" and that "any person or persons, citizens of this nation, may kill him or them so offending in any manner most convenient...and shall not be held accountable for the same." The major leaders of the treaty faction were eventually murdered.
And in 1838, the Cherokee began their Trail of Tears. They were not alone.
(Sources:John Ehle Trail of Tears 1988, Gloria Jahoda TheTrail of Tears 1975, Carl WaldmanAtlas of the North American Indian rev. ed. 2000, JamesWilson The Earth Shall Weep: the history of Native Americans, www.americanpresident.org/KoTrain/Courses/AJA/AJA_Domestic_Affairs.htm,numerous other sources consulted, text of the act from www.udayton.edu/~race/02rights/native10.htm)
Text of the Act
Not surprisingly, the "aid," assistance," "protection," and "appropriations" promised by the act were either insufficient and/or slow in coming or nonexistent. It should also be noted that the territory "not included" in any "state or organized territory" continued to shrink due to settlement and population encroachment, future treaties, and the Dawes Act (or General Allotment Act, 1887). The members of the Five Civilized Tribes were exceptions to the act at first, but the Curtis Act (1898) dissolved tribal government and title to the lands (other than that offered through the allotment system). In 1907, what was left of "Indian Territory" became Oklahoma.
Indian Removal Act (1830)
Chapter CXLVIII
An Act to provide for an exchange of lands with the Indians residing in any of the states or territories, and for their removal west of the river Mississippi.
Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That it shall and may be lawful for the President of the United States to cause so much of any territory belonging to the United States, west of the river Mississippi, not included in any state or organized territory, and to which the Indian title has been extinguished, as he may judge necessary, to be divided into a suitable number of districts, for the reception of such tribes or nations of Indians as may choose to exchange the lands where they now reside, and remove there; and to cause each of said districts to be so described by natural or artificial marks, as to be easily distinguished from every other.
Sec. 2 And be it further enacted, That it shall and may be lawful for the President to exchange any or all of such districts, so to be laid off and described, with any tribe or nation of Indians now residing within the limits of any of the states or territories, and with which the United States have existing treaties, for the whole or any part or portion of the territory claimed and occupied by such tribe or nation, within the bounds of any one or more of the states or territories, where the land claimed and occupied by the Indians, is owned by the United States, or the United States are bound to the state within which it lies to extinguish the Indian claim thereto.
Sec. 3 And be it further enacted, That in the making of any such exchange or exchanges, it shall and may be lawful for the President solemnly to assure the tribe or nation with which the exchange is made, that the United States will forever secure and guarantee to them, and their heirs or successors, the country so exchanged with them; and if they prefer it, that the United States will cause a patent or grant to be made and executed to them for the same:
Provided always, That such lands shall revert to the United States, if the Indians become extinct, or abandon the same.
Sec. 4 And be it further enacted, That if, upon any of the lands now occupied by the Indians, and to be exchanged for, there should be such improvements as add value to the land claimed by any individual or individuals of such tribes or nations, it shall and may be lawful for the President to cause such value to be ascertained by appraisement or otherwise, and to cause such ascertained value to be paid to the person or persons rightfully claiming such improvements. And upon the payment of such valuation, the improvements so valued and paid for, shall pass to the United States, and possession shall not afterwards be permitted to any of the same tribe.
Sec. 5 And be it further enacted, That upon the making of any such exchange as is contemplated by this act, it shall and may be lawful for the President to cause such aid and assistance to be furnished to the emigrants as may be necessary and proper to enable them to remove to, and settle in, the country for which they may have exchanged; and also, to give them such aid and assistance as may be necessary for their support and subsistence for the first year after their removal.
Sec. 6 And be it further enacted, That it shall and may be lawful for the President to cause such tribe or nation to be protected, at their new residence, against all interruption or disturbance from any other tribe or nation of Indians, or from any other person or persons whatever.
Sec. 7 And be it further enacted, That it shall and may be lawful for the President to have the same superintendence and care over any tribe or nation in the country to which they may remove, as contemplated by this act, that he is now authorized to have over them at their present places of residence:
Provided, That nothing in this act contained shall be construed as authorizing or directing the violation of any existing treaty between the United States and any of the Indian tribes.
Sec. 8 And be it further enacted, That for the purpose of giving effect to the provisions of this act, the sum of five hundred thousand dollars is hereby appropriated, to be paid out of any money in the treasury, not otherwise appropriated.