The Trail of Tears refers to the forced removal and relocation of the Cherokee people from their native ground in 1838, originally located in the Southeastern state of Georgia, to territory designated by the Government known as ‘Indian Territory’ (present-day Oklahoma) west of the Mississippi River. The case of Mabo v. the State of Queensland (No. 2) (1992) 175 CLR 1, which I will simply refer to as Mabo, refers to a High Court decision that retrospectively abolished the doctrine of terra nullius (“land of no one”) on which Australia was founded. As this case served as a reversal of a land dispossession, rather than an expropriation, references to Mabo throughout this essay will focus more on the period prior to Mabo and the doctrine of terra nullius, simply to make a better comparative surface for the Trail of Tears.

The differences between these major events, both relating to the dispossession of land from the indigenous peoples, extend back to the circumstances at the time of colonisation. When the British settled in 1788, Australia was considered uninhabited land—a legal doctrine known as terra nullius (“land of no one”). And even after the realisation that there was a significant indigenous population, the “advantages of assuming absence of people were so great” that the British colonists found it favourable not to take into consideration the sovereignty of indigenous people, with the reasoning that they were too primitive to be considered a civilisation (Reynolds, 1996:x). Consequently, the Crown immediately usurped the Aboriginal people, along with their “indigenous rights, customs or law, including any land interests,” once it acquired sovereignty (Tehan, 2005:527).

This was not the case at the time of colonisation in the United States. America was never considered a terra nullius. American courts considered the rights of the indigenous people from the very beginning when the European justice system was brought to the New World (Reynolds, 1996:124).From the earliest stages of the United States in 1802, Thomas Jefferson stated in his address to the Indians, “we, indeed, are always ready to buy land; but we will never ask but when you wish to sell…” From the time of colonisation, even until the Trail of Tears, the land rights and native title of the indigenous people in the United States had, according to Marshall in John v McIntosh in 1823, “never been contended [to] amount to nothing” (Wheaton, 1836:574). The Indians always had the right to both possession and use of their land, and also to govern their people.

On the contrary, the Australian colonists never granted sovereignty or land rights to the indigenous people. The events prior to Mabo were progressively leading in one direction until they culminated in 1992 when indigenous native title was finally officially recognised. The Trail of Tears, however, was also a progression but in the opposite direction, as rights of the Indians granted at colonisation were gradually being eroded until that culminated in a forced mass removal. The reasoning for the removal and relocation of Indian land ended up being similar to that of Australia at colonisation; that is, the indigenous people were somehow inferior and “primitive” in comparison to the white counterparts sharing the land. One of the justifications asserted in a pro-removal essay by Lewis Cass in 1830 was that all of the American Indians were by “inherent” nature

less provident in arrangement, less frugal in enjoyment, less industrious in acquiring, more implacable in their resentments, more ungovernable in their passions, with fewer principles to guide them, and with less knowledge to improve and instruct them (Cass cited in Perdue and Green, 1995:106-14).

In effect, the United States policy on indigenous relations had taken a major step backwards from the original quest to form a harmonious political system between the indigenous and non-indigenous nations, as opposed to Mabo, which was a significant step forward in amending the riff between the indigenous and non-indigenous people in Australia.

Most of the legal tension and ambiguity in Australian indigenous relations boiled down to the legitimacy of the declaration of terra nullius; that is, whether or not Australia was in fact a “land of no one” at the time of colonisation. The problem that had clouded the objectivity behind this declaration in the past had been the fact that it was based on British law, brought to Australia at the time of colonisation, which naturally contained an inherent bias in its “self-serving Eurocentric jurisprudence” (Reynolds, 1996:xii).

And especially as the “advantages of assuming absence of people were so great,” it would only be natural that the British chose the less complicated option of declaring terra nullius, as it best served their interests. The status of terra nullius lasted from 1788 well into the 19^th century, when in the case of Cooper v. Stuart in 1889, Lord Watson maintained that Australia was “practically uninhabited” at the time of colonisation, a decision Justice Blackburn considered binding when he found that “the Yirrkala people had no common law rights to traditional lands in the Gove Land Rights case in 1971” (Reynolds, 1996:xi).

Then, during that decade, a change in Australian indigenous relations was witnessed as the indigenous people began a vocal political movement to institute the recognition of their rights and, most importantly, reverse the decision of terra nullius.

By the 1970s… it was clear to the wider community that the Aboriginal society was not being absorbed or assimilated. Instead, the opposite was occurring. ‘We Have Survived’, the banners proudly proclaimed in the marches and demonstrations of the period. When the Aboriginal political movement dramatically advanced across the national stage the prime objective was land rights—the attempt to reverse the decision taken at the birth of colonial society to treat the continent as a terra nullius (Reynolds, 1996:xi).

In the High Court case of Coe v Commonwealth in 1979, Justice Murphy offered a reconsideration of the earlier British prejudice against the indigenous people regarding their level civilisation, stating that “[the indigenous Australians] had a complex social and political organization” and that “their laws were settled and of great antiquity” (1979:403). This was a precursor to a similar argument regarding indigenous civilisation from Justices Dean and Gaudron in the Mabo decision:

In different ways and to varying degrees of intensity, [the indigenous Australians] used their homelands for all the purposes of their lives: social, ritual, economic (1992:99-100).

Because the American colonists had never considered Native Americans as a primitive people devoid of a functioning civilisation, this was never an issue during the Trail of Tears. The fact that the land removal was framed as a relocation to ‘Indian territory’ meant that the Indians still retained their sovereignty, self-governance and land right—just not the land east of the Mississippi in Georgia. It was not a question of land or no land, as with the indigenous Australians, but rather whose land, which land, and where.

The President primarily responsible for the Trail of Tears, Andrew Jackson, noted on the Indian Removal Act—the act that initiated the events leading to the removals—that the justification for it was due to the Indians’ refusal to assimilate to Georgian law:

Rightly considered, the policy of the General Government toward the red man is not only liberal, but generous. He is unwilling to submit to the laws of the States and mingle with their population. To save him from this alternative, or perhaps utter annihilation, the General Government kindly offers him a new home, and proposes to pay for the whole expense of his removal and settlement (Jackson cited in Sturgis, 2007:37).

The dispossession of Indian land followed a similar mentality to that of Australian colonists, belittling the legitimacy of the culture and laws of the indigenous Cherokee people who by chance happened to live within physical boundaries the white people deemed to be under Georgian law. The difference, however, was that the Americans had no intention of eliminating the indigenous people or their culture, even if it was felt be inferior, and allowed them to preserve their sovereignty so long it was elsewhere.

In Australia, the colonists did not offer the indigenous people any kind of compromise, let alone sovereignty. There was no allocated land for the Aborigines akin to the Cherokee Nation. Erasure of the indigenous people, however, was certainly a consideration, intentional or otherwise, and by physical or cultural means. Although there were no drastic or heinous measures taken, such as sanctioned acts of genocide, the fact that the British expected the Aborigines to eventually “die out” meant that they had no incentive to prevent the decline in the indigenous population. As Reynolds states (1996:xi):

The catastrophic fall in the Aboriginal population as a result of disease, deprivation and violence suggested that indigenous demographic decline would resolve the vexed question of prior ownership once and for all.

Ironically, however, despite the promises of aid and protection in the forced removal of the Cherokee Nation, the Trail of Tears caused a massive death toll, with estimates varying from more than 4,000 up to 8,000, out of the 15,000 to 21,000 Cherokees removed (Thornton, 1991:92-93), dying as a result of the removal from “hunger, exposure and disease” (Cherokee Nation, 2008). The means of removal were also violent, with troops leading out many of the Cherokees at gunpoint (Sturgis, 2007:55-64). Deaths such as these were inevitable, considering it was a 2,200-mile journey by foot, proving the Jackson administration did not have the interests of the Cherokee people as much at heart as proclaimed. This made their actions no more honourable than the colonists in Australia who took no preventative measures against the deaths of Aboriginal people.

Still, the United States government and the Jackson administration went to great lengths to justify the forced removal of the Cherokee people. Firstly, it was wrapped in the pretence of a treaty. The Treaty of New Echota, ratified in 1836, made it appear as though the Cherokee people had agreed to the relocation, when in fact no official representative of the Cherokee Nation had signed or was even present at its signing. Their absence, rather, was considered by the government as acquiescence (Sturgis, 2007:47). Prior to this in 1832, in the seminal case of Worchester v. Georgia, the Supreme Court ruled that

the Cherokee nation… is a distinct community, occupying its own territory, with boundaries accurate described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter… (Perdue and Green, 1995:74).

In spite of this decision, a decision by the highest judicial body in the United States, Jackson opted to simply ignore it, effectively disregarding the lawful rights of the Cherokee people. What ensued was an invasion by the Georgians on Cherokee territory, and the Cherokees were “powerless to resist… both federal and state authorities” and ultimately had “no alternative to negotiating removal” (Perdue and Green, 1995:137).

After considering the arduous nature of the events surrounding the Trail of Tears, the more straightforward expropriation policy of terra nullius in colonial Australia, though still an inexcusable injustice against the indigenous people, was a wiser decision on the part of Australian colonists. Granting sovereignty would only be of significance if it continues to be honoured without the violation of other rights, particularly land rights, and an incident such as the Trail of Tears is a defeat of the whole purpose of sovereignty. In the end, despite the different circumstances at colonisation in relation to indigenous rights, both the United States and Australia managed to encroach upon the land rights of the natives.

Upon a cursory analysis, the United States and Australia are two settler nations accountable for expropriating land from the indigenous peoples. However, the circumstances of policy surrounding the two nations differ vastly; in fact, when one compares the events leading up to the Trail of Tears with those leading to the Mabo decision, the shifts in policy have actually travelled in direct opposition. While the United States settled on the decision to grant the indigenous people sovereignty, it was, in effect, taken away once the government found it an inconvenience to the settled non-indigenous people. Mabo, on the other, saw a slow shift in the other direction, from the declaration of terra nullius at colonisation that denied the indigenous people their land rights, to the overturning of terra nullius two centuries later which reinstated the native title. Though it is not a flawless comparison—the events being of completely different eras and spanning over different time frames—it does give a solid indication of the Eurocentric imperialism ingrained in doctrines of both colonies, even if one is less conspicuous than the other.
References:

ALGA, NNTT and ATSIC (1999) Working with Native Title. 2^nd ed. Deakin: ALGA, NNTT and ATSIC

Coe v the Commonwealth (1979) 118, ALR 195

Cooper v Stuart (1889) 14 App Cas 286

Jefferson, T. (1802) ‘To Brother Handsome Lake,’ Nov. 3 <http://libertyonline.hypermall.com/Jefferson/Indian.html>

Mabo v the State of Queensland (No. 2) (1992) 175 CLR 1

Milerrprum v Nabalco (1970), 17 FLR, 141

Perdue, T. and M.D. Green (eds) (1995) The Cherokee Removal: A Brief History with Documents. New York: St. Martin’s

Reynolds, H. (1996) Aboriginal Sovereignty: reflections on race, state and nation. Sydney: Allen & Unwin

Sturgis, A.H. (2007) The Trail of Tears and Indian Removal. Westport: Greenwood

Tehan, M. (2003) ‘A hope disillusioned, an opportunity lost? Reflections on common law native title and ten years of the Native Title Act’, Melbourne University Law Review. 27(2): 523-71

Thornton, R. (1991) ‘The Demography of the Trail of Tears Period: A New Estimate of Cherokee Population Losses,’ in W.J. Anderson (ed) Cherokee Removal: Before and After, Athens: University of Georgia Press