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Worcester v. Georgia

This decision was one of several adjudicated by U.S. Supreme Court Justice John Marshall during the 1820s and 1830s that define the relationship of Native Americans with the U.S. government to this day. It was the third of the "Marshal Trilogy," with Johnson v. M'Intosh (1823) and Cherokee Nation v. Georgia (1831) that underlie most of the government's presumptive powers vis à vis American Indians.

Worcester v. Georgia upheld limited sovereignty for the Cherokee Nation in 1832 against President Andrew Jackson's demands for removal. Jackson's actions ultimately comprised contempt of the Supreme Court (an impeachable offense under the Constitution). In the incendiary years before the Civil War, however, the political cost of following the Supreme Court's rulings upholding Cherokee sovereignty proved too great for Jackson's sense of political expediency or for Congress.

The specific issue that spurred the lawsuit was the refusal by Samuel Worcester, a missionary among the Cherokees, to sign an oath acknowledging Georgia's sovereignty while on Cherokee land. The case thus became a test of the Cherokees' right to a homeland within the bounds of Georgia. The state's officials argued that the Constitution prohibited the establishment of one state within the boundaries of another.

Justice Marshall wrote that Native nations had always been considered distinct, independent political communities, retaining original natural rights. Georgia's law, according to Marshall, interfered forcibly with the relations between the United States and the Cherokee Nation, the regulation of which, according to the settled principles of the U.S. Constitution, is committed exclusively to the federal government.

31 U.S. 515 . . .

A writ of error was issued to "The Judges of the Superior Court for the County of Gwinett in the State of Georgia" commanding them to send to the Supreme Court of the United States the record and proceedings in the said Superior Court of the County of Gwinett, between the State of Georgia, plaintiff, and Samuel A. Worcester, defendant, on an indictment in that Court. The record of the Court of Gwinnett was returned, certified by the clerk of the Court, and was also authenticated by the seal of the Court. It was returned with, and annexed to, a writ of error issued in regular form, the citation being signed by one of the Associate Justices of the Supreme Court and served on the Governor and Attorney General of the State more than thirty days before the commencement of the term to which the writ of error was returnable.

By the Court: The Judicial Act, so far as it prescribes the mode of proceeding, appears to have been literally pursued. In February, 1979, a rule was made on this subject in the following words:

It is ordered by the Court that the clerk of the Court to which any writ of error shall be directed may make return of the same by transmitting a true copy of the record, and of all proceedings in the same, under his hand and the seal of the Court.

This has been done. But the signature of the judge has not been added to that of the clerk. The law does not require it. The rule does not require it.

The plaintiff in error was indicted in the Supreme Court for the County of Gwinnett in the State of Georgia, . . . The indictment and plea in this case draw in question the validity of the treaties made by the United States with the Cherokee Indians; if not so, their construction is certainly drawn in question, and the decision has been, if not against their validity, "against the right, privilege, or exemption specifically set up and claimed under them." They also draw into question the validity of a statute of the State of Georgia

On the ground of its being repugnant to the Constitution, treaties, and laws of the United States, and the decision is in favour of its validity. . . . The relation between the Europeans and the natives was determined in each case by the particular government which asserted and could maintain this preemptive privilege in the particular place. The United States succeeded to all the claims of Great Britain, both territorial and political, but no attempt, so far as it is known, has been made to enlarge them. So far as they existed merely in theory, or were in their nature only exclusive of the claims of other European nations, they still retain their original character, and remain dormant. So far as they have been practically exerted, they exist in fact, are understood by both parties, are asserted by the one, and admitted by the other.

. . . Certain it is that our history furnishes no example, from the first settlement of our country, of any attempt, on the part of the Crown, to interfere with the internal affairs of the Indians farther than to keep out the agents of foreign powers who, as traders or otherwise, might seduct them into foreign alliances. The King purchased their lands when they were willing to sell, at a price they were willing to take, but never coerced a surrender of them. He also purchased their alliance and dependence by subsidies, but never intruded into the interior of their affairs or interfered with their self-government so far as respected themselves only.

The third article of the treaty of Hopewell acknowledges the Cherokees to be under the protection of the United States of America, and of no other power.

This stipulation is found in Indian treaties generally. It was introduced into their treaties with Great Britain, and may probably be found in those with other European powers. Its origin may be traced to the nature of their connexion with those powers, and its true meaning is discerned in their relative situation.

The general law of European sovereigns respecting their claims in America limited the intercourse of Indians, in a great degree, to the particular potentate whose ultimate right of domain was acknowledged by the others. This was the general state of things in time of peace. It was sometimes changed in war. The consequence was that their supplies were derived chiefly from that nation, and their trade confined to it. Goods, indispensable to their comfort, in the shape of presents, were received from the same hand. What was of still more importance, the strong hand of government was interposed to restrain the disorderly and licentious from intrusion into their country, from encroachments on their lands, and from the acts of violence which were often attended by reciprocal murder. The Indians perceived in this protection only what was beneficial to themselves—an engagement to punish aggressions on them. It involved practically no claim to their lands, no dominion over their persons. It merely bound the Nation to the British Crown as a dependent ally, claiming the protection of a powerful friend and neighbour and receiving the advantages of that protection without involving a surrender of their national character.

This is the true meaning of the stipulation, and is undoubtedly the sense in which it was made. Neither the British Government nor the Cherokees ever understood it otherwise.

The same stipulation entered [into] with the United States is undoubtedly to be construed in the same manner they receive the Cherokee Nation into their favour and protection. The Cherokees acknowledge themselves to be under the protection of the United States, and of no other power. Protection does not imply the destruction of the protected. The manner in which this stipulation was understood by the American Government is explained by the language and acts of our first President.

So with respect to the words "hunting grounds." Hunting was, at that time, the principal occupation of the Indians, and their land was more used for that purpose than for any other. It could not, however, be supposed that any intention existed of restricting the full use of the lands they reserved.

To the United States, it could be a matter of no concern whether their whole territory was devoted to hunting grounds or whether an occasional village and an occasional cornfield interrupted, and gave some variety, to the scene.

These terms had been used in their treaties with Great Britain, and had never been misunderstood. They had never been supposed to imply a right in the British Government to take their lands or to interfere with their internal government.

The sixth and seventh articles stipulate for the punishment of the citizens of either country who may commit offences on or against the citizens of the other. The only inference to be drawn from them is that the United States considered the Cherokees as a nation.

The ninth article is in these words:

For the benefit and comfort of the Indians, and for the prevention of injuries or oppressions on the part of the citizens or Indians, the United States, in Congress assembled, shall have the sole and exclusive right of regulating the trade with the Indians and managing all their affairs as they think proper.

To construe the expression "managing all their affairs" into a surrender of self-government would be a perversion of their necessary meaning, and a departure from the construction which has been uniformly put on them. The great subject of the article is the Indian trade. The influence it gave made it desirable that Congress should possess it. The commissioners brought forward the claim with the profession that their motive was "the benefit and comfort of the Indians and the prevention of injuries or oppressions." This may be true as respects the regulation of their trade and as respects the regulation of all affairs connected with their trade, but cannot be true as respects the management of their affairs. The most important of these is the cession of their lands and security against intruders on them. Is it credible that they could have considered themselves as surrendering to the United States the right to dictate their future cessions and the terms on which they should be made, or to compel their submission to the violence of disorderly and licentious intruders? It is equally inconceivable that they could have supposed themselves, by a phrase thus slipped into an article on another and more interesting subject, to have divested themselves of the right of self-government on subjects not connected with trade. Such a measure could not be "for their benefit and comfort," or for "the prevention of injuries and oppression." Such a construction would be inconsistent with the spirit of this and of all subsequent treaties, especially of those articles which recognise the right of the Cherokees to declare hostilities and to make war. It would convert a treaty of peace covertly into an act annihilating the political existence of one of the parties. Had such a result been intended, it would have been openly avowed.

The Treaty of Holston, negotiated with the Cherokees in July, 1791, explicitly recognising the national character of the Cherokees and their right of self-government, thus guarantying their lands, assuming the duty of protection, and of course pledging the faith of the United States for that protection, has been frequently renewed, and is now in full force.

. . . The Indian nations had always been considered as distinct, independent political communities retaining their original natural rights as undisputed possessors of the soil, from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed, and this was a restriction which those European potentates imposed on themselves, as well as on the Indians. The very term "nation," so generally applied to them, means "a people distinct from others." The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among the powers who are capable of making treaties. The words "treaty" and "nation" are words of our own language, selected in our diplomatic and legislative proceedings by ourselves, having each a definite and well understood meaning. We have applied them to Indians as we have applied them to the other nations of the earth. They are applied to all in the same sense.

. . . The act of the State of Georgia under which the plaintiff in error was prosecuted is consequently void, and the judgment a nullity.

The acts of the Legislature of Georgia interfere forcibly with the relations established between the United States and the Cherokee Nation, the regulation of which, according to the settled principles of our Constitution, is committed exclusively to the Government of the Union.

They are in direct hostility with treaties, repeated in a succession of years, which mark out the boundary that separates the Cherokee country from Georgia; guaranty to them all the land within their boundary; solemnly pledge the faith of the United States to restrain their citizens from trespassing on it; and recognise the preexisting power of the Nation to govern itself.

They are in equal hostility with the acts of Congress for regulating this intercourse and giving effect to the treaties.

The forcible seizure and abduction of the plaintiff in error, who was residing in the Nation with its permission and by authority of the President of the United States, is also a violation of the acts which authorize the Chief Magistrate to exercise his authority. . . .

Worcester v. Georgia. Available at: 0031_0515_ZS.html. Accessed January 20, 2007.


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