Ethan Davis, ‘An Administrative Trail of Tears: Indian Removal’, American Journal of Legal History 50 (2010).

Abstract

In the early nineteenth century, the federal government uprooted the so-called five “Civilized Tribes” of the South and sent them westward to modern day Oklahoma. This article rediscovers the long-forgotten administrative system that guided the removal of one of those tribes: the Choctaws. Because judicial review was non-existent, control of the removal was concentrated in the so-called external law-the statutes passed by Congress and the treaties between the United States and the Indian tribes – and in the so-called internal law – the regulations promulgated by the War Department and the operational system developed by the administrators themselves. Drawing almost exclusively on primary sources, this article shows how the interrelationships between these layers of administrative law produced a tragic result.