Worcester v. Georgia

Summary

In the late 1820s the Cherokee Nation, whose lands lay largely within Georgia's chartered limits, adopted a written constitution. Georgia responded by extending its jurisdiction over Cherokee country, and the discovery of gold in 1829 sharpened the conflict. In 1830 Congress passed the Indian Removal Act, and in 1831 the Court, in Cherokee Nation v. Georgia, declined to hear a suit by the Nation on the ground that it was not a foreign state. A Georgia act of 22 December 1830 required every white person living in the Cherokee Nation to obtain a license from the governor and swear an oath to support the laws of Georgia. Samuel A. Worcester, a Vermont-born missionary of the American Board of Commissioners for Foreign Missions, and his colleague Elizur Butler refused, were convicted in the Superior Court of Gwinnett County, and were sentenced to four years at hard labour. They brought writs of error to the Supreme Court. William Wirt and John Sergeant argued for Worcester that the Constitution gave the regulation of relations with Indian nations exclusively to the national government; that the treaties of Hopewell (1785) and Holston (1791) and the federal intercourse acts guaranteed the Cherokee their lands and self-government; and that the Georgia statute contradicting them was void. Georgia sent no counsel. Its position, stated by its governor and legislature, was that the state held sovereignty over all territory within its boundaries, that the United States had promised in the Compact of 1802 to extinguish Indian title within Georgia, and that the Court had no authority over the state's criminal judgments. On 3 March 1832 the Court reversed the convictions, 5-1. After holding the record properly before the Court under the Judiciary Act of 1789, Chief Justice Marshall traced the history of European claims by discovery, the British crown's dealings with the tribes and the treaties of the United States, concluding that discovery gave rights only against other European powers and that the Indian nations remained distinct political communities. The Cherokee Nation was therefore a distinct community in which the laws of Georgia could have no force, and the act under which Worcester was prosecuted was void. Justice McLean concurred separately; Justice Baldwin dissented on the ground that the record was not properly certified. The library text includes the reporter's statement of the Georgia statute and the record, Marshall's opinion, and an excerpt from McLean's concurrence; footnotes and Baldwin's dissent are absent. Georgia refused to release the missionaries, and the Court adjourned without a further means of compelling compliance. Worcester and Butler were freed by Governor Wilson Lumpkin in January 1833 after withdrawing their suit. A minority faction of Cherokee leaders signed the Treaty of New Echota in 1835, and in 1838-1839 federal troops removed the Cherokee to the Indian Territory west of the Mississippi on the journey remembered as the Trail of Tears, during which several thousand died.

Plot or Argument

• The statute, the record and the arguments of counsel

  The reporter prints Georgia's act of December 1830, the charge brought against the missionaries, the writ of error allowed by Justice Baldwin, the citation served on Governor Lumpkin, and the four positions argued by Sergeant and Wirt: jurisdiction, regularity of the writ, the unconstitutionality of the statute, and the nullity of the conviction.

• Jurisdiction: is the record properly before the Court?

  Marshall describes the case as involving the legislative power of a state, the supremacy of federal law and the political existence of a people. He holds that the clerk's certification satisfies the Court's 1797 rule and that section 25 of the Judiciary Act reaches a state criminal judgment drawing a treaty or federal law into question.

• Discovery, charters and the British practice

  Surveying the arrival of Europeans, Marshall holds that discovery gave the discovering nation an exclusive right, against other Europeans, to acquire land from the natives, not a title over their persons or self-government. Royal charters granted only what the crown could convey, and Britain dealt with the tribes as nations through treaties and agents.

• Treaties and the laws of the United States

  Under the Articles and the Constitution, the United States made treaties of peace and boundary with the Cherokee at Hopewell and Holston, guaranteeing their lands and recognizing their government, and Congress regulated intercourse with them by statute. Georgia's own legislation, including the 1802 compact of cession, acknowledged these arrangements.

• A distinct community where Georgia's laws have no force

  Marshall concludes that the Cherokee Nation is a distinct political community whose relations are committed exclusively to the national government. Georgia's acts interfere with those relations, contradict treaties and acts of Congress, and were enforced by the seizure of a missionary residing in the Nation with federal permission.

• Judgment and mandate

  The act is void and the judgment a nullity. The conviction is reversed and annulled, and a special mandate issues to the Gwinnett County court; the same judgment is entered in Butler's case.

• Justice McLean's concurrence

  McLean concurs and addresses jurisdiction at length: the clerk's return is sufficient, section 25 applies to criminal as well as civil cases, and the Court may review a state conviction when it infringes the Constitution, a treaty or a law of the Union. The excerpt ends with his defence of the long acceptance of section 25.

Characters

• John Marshall, Chief Justice; author of the opinion

  Wrote the opinion holding the Cherokee Nation a distinct community beyond the reach of Georgia law.

• John McLean, Associate Justice; concurrence

  Ohio justice, appointed by Jackson, who concurred with an extended treatment of jurisdiction.

• Henry Baldwin, Associate Justice; dissent

  Pennsylvania justice who dissented on the ground that the record had not been properly returned.

• Samuel A. Worcester, plaintiff in error

  Congregational missionary and translator living at New Echota who refused Georgia's oath and license.

• Elizur Butler, plaintiff in error in the companion case

  Missionary physician convicted with Worcester under the same statute.

• William Wirt, counsel for Worcester

  Former Attorney General who also represented the Cherokee Nation.

• Wilson Lumpkin, Governor of Georgia

  Received the Court's citation, declined to appear, and later released the missionaries in 1833.

• John Ross, Principal Chief of the Cherokee Nation

  Led the Nation's legal and political resistance to removal.

Lessons

• Nations within a nation

  Marshall describes the Cherokee as a distinct people with their own territory and government, connected to the United States by treaty and protection rather than absorbed into a state. His reasoning draws on the law of nations: a weaker power that places itself under a stronger one's protection does not thereby give up self-government.

  • What does Marshall say the word nation means, and why does it matter to his argument?
  • How did the treaties of Hopewell and Holston describe the relationship between the Cherokee and the United States?
  • Can a people be both under the protection of another government and self-governing at the same time?

• What discovery did and did not convey

  Marshall reinterprets the European doctrine of discovery: it settled competing claims among European powers and gave the discoverer the exclusive right to purchase land, but it did not give title over the native inhabitants or their government. Royal charters that drew lines across the continent conveyed only what the crown actually held.

  • According to Marshall, against whom did discovery give rights?
  • Why does Marshall think the royal charters cannot support Georgia's claim to govern the Cherokee?

• Georgia's claim of sovereignty

  Georgia regarded the Cherokee lands as part of its own territory, guaranteed to it by the boundaries of its royal charter and by the 1802 compact in which the United States had promised to extinguish Indian title. The state saw a separate government within its borders as incompatible with its sovereignty and refused to appear before a federal court it believed had no authority over it.

  • What did Georgia believe the United States had promised in 1802?
  • Why did Georgia decline to send counsel to argue the case?
  • How should a federal system resolve a conflict between a state's claim to its territory and a national treaty?

• When a judgment is not obeyed

  The Court reversed the convictions, but Georgia did not release the missionaries, and the federal executive took no action to compel it. The case shows that judicial decisions depend on the cooperation of other branches and of the states. The often-repeated line attributed to Jackson, that Marshall had made his decision and should now enforce it, is not reliably documented.

  • What happened to Worcester and Butler after the decision?
  • Why did the Court lack an immediate means to enforce its mandate?
  • What does this case suggest about Hamilton's description of the judiciary as having neither force nor will, but merely judgment?

• A missionary's conscience

  Worcester and Butler could have avoided prison by taking Georgia's oath or leaving the Nation, as most of their fellow missionaries did. They refused, believing the oath would deny the rights the Cherokee held under federal treaties and abandon the people they served. Their decision to remain imprisoned rather than accept a pardon on the state's terms kept the case alive.

  • What did Georgia's law require of white residents in the Cherokee Nation?
  • Why did Worcester refuse to comply, and what did his refusal cost him?

Context

The Cherokee had adopted a written alphabet devised by Sequoyah, a newspaper, the Cherokee Phoenix, edited at New Echota, and a constitution in 1827. Georgia, citing its charter boundaries and the federal promise of 1802, enacted laws from 1828 to 1830 bringing Cherokee country under its jurisdiction, and President Jackson supported removal of eastern tribes beyond the Mississippi. The Indian Removal Act of 1830 authorized exchanges of land, and Northern missionary societies and their supporters in Congress, such as Senator Theodore Frelinghuysen, opposed the policy.

Composition

Worcester and Butler were arrested in July 1831, convicted in September, and sentenced to four years at hard labour in the state penitentiary at Milledgeville. The case was argued in February 1832 by Wirt and Sergeant, with no appearance for Georgia, and decided on 3 March 1832. The library text, from Wikisource, gives the reporter's statement, Marshall's opinion and part of McLean's concurrence.

Reception

Supporters of the Cherokee celebrated the decision, while Georgia's governor and legislature denounced it and declined to comply. The Nullification Crisis of late 1832 led the Jackson administration and Georgia's leaders to seek an end to the standoff, and the missionaries were released in January 1833. In 1992 the Georgia State Board of Pardons and Paroles granted posthumous pardons to Worcester and Butler. The decision has since been treated as a foundational statement of tribal sovereignty in federal Indian law, though later cases modified its holding that state law has no force in Indian country.

Comparisons

• fletcher-v-peck

  In the Yazoo case of 1810 Marshall held that Georgia could be seised in fee of lands subject to Indian title; Worcester revisits Georgia's claims to the same region and emphasizes the political rights of the Cherokee.

• the-founding-documents

  Marshall relies on the Constitution's grant to Congress of power to regulate commerce with the Indian tribes and on the clause making treaties the supreme law of the land.

• articles-of-confederation

  Article IX gave Congress power over affairs with the Indians not members of any state, and the Treaty of Hopewell was made under that authority before the Constitution.

• the-federalist-papers

  Federalist No. 78's observation that the judiciary has neither force nor will is often recalled in discussions of Georgia's refusal to comply.

• democracy-in-america

  Tocqueville, who travelled in the United States in 1831-1832, described the condition of the southern tribes and the removal policy in his chapter on the three races.

Quotes

For Students

A reading companion for classical Christian high school students. See the student guide.

Reading Guide

Watch for

• The reporter's text of the Georgia act of December 1830 and its oath and license requirements.
• Marshall's opening list of what the case involves: a state's legislative power, federal supremacy, a people's political existence and a citizen's liberty.
• The reinterpretation of discovery as a right against other European powers.
• The repeated appeal to treaty language and to the meaning of the word nation.
• McLean's defence of the Court's jurisdiction over state criminal judgments.

Key terms and names

Writ of error

The process by which the Court reviewed the Georgia court's judgment for errors of federal law.

Section 25 of the Judiciary Act

The 1789 provision allowing the Court to review a state's highest court when it rules against a claim under the Constitution, a treaty or a federal law.

Doctrine of discovery

The European principle that the nation whose subjects discovered a land gained rights there against other European nations.

Treaty of Hopewell

The 1785 treaty between the United States and the Cherokee setting boundaries and placing the Cherokee under federal protection.

Mandate

The Court's formal order directing a lower court to carry out its judgment.

Sovereignty

Supreme political authority over a territory and people; claimed in this case by both Georgia and the Cherokee Nation.

Removal

The federal policy of exchanging eastern tribal lands for territory west of the Mississippi and moving the tribes there.

Seminar Questions

1. Comprehension What did Georgia's act of 1830 require, and why were Worcester and Butler imprisoned?
2. Comprehension Which treaties and federal laws does Marshall cite to show the relationship between the Cherokee and the United States?
3. Comprehension What did Georgia do after the decision, and what finally became of the missionaries?
4. Interpretation Why does Marshall begin by examining whether the record was properly before the Court?
5. Interpretation How does Marshall's account of discovery limit what the royal charters could grant to Georgia?
6. Interpretation Why do you think Georgia refused to appear, and how might its strongest argument have been framed?
7. Big Question What should a citizen or a court do when the law, rightly declared, is not carried out by those who hold power?

Faith Connections

• Acts 5:27-29 (Scripture)

  Peter and the apostles answer the council that they ought to obey God rather than men; Worcester and Butler understood their refusal of Georgia's oath as a matter of Christian conscience.

• Psalm 15:4 (Scripture)

  The righteous man swears to his own hurt and changes not; Marshall's opinion insists that the United States keep the treaties it had repeatedly sworn with the Cherokee.

• Deuteronomy 19:14 (Scripture)

  Thou shalt not remove thy neighbour's landmark; the treaties marked a boundary between the Cherokee country and Georgia that Marshall held the state could not cross by legislation.

Logic and Rhetoric

Central argument: Because discovery gave Europeans rights only against one another, because the United States repeatedly treated the Cherokee as a nation capable of making treaties, and because the Constitution commits relations with the tribes to the national government, the Cherokee Nation is a distinct community where Georgia's laws have no force, and Worcester's conviction under such a law is void.

Rhetorical device: argument from definition. Marshall rests part of his case on what the word nation means, a people distinct from others (quote 1), and argues that by using that word in treaties the United States acknowledged the Cherokees' separate political existence.

Debate: Resolved: that the federal executive was obliged to enforce the Court's judgment in Worcester v. Georgia.

Memory Work

The Cherokee nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can 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 the acts of congress.

the settled doctrine of the law of nations is, that a weaker power does not surrender its independence-its right to self government, by associating with a stronger, and taking its protection.

Writing Prompts

Essay: Describe the competing claims of Georgia, the Cherokee Nation and the United States in 1832, explain how Marshall resolved them, and discuss what the events after the decision show about the limits of judicial power.

Comparison with The Federalist Papers: Compare Hamilton's argument in Federalist No. 78 that the judiciary is the least dangerous branch with what happened after Worcester v. Georgia. Does the case confirm or challenge Hamilton's account?

Medical Lens

Elizur Butler was a missionary physician, but the opinions concern jurisdiction, treaties and tribal sovereignty and say nothing about medicine.

Creative Prompts

• Classroom

  Prepare a moot court in which one team argues Wirt and Sergeant's four positions for Worcester and a second team writes and argues the brief Georgia declined to file, grounded in the state's charter limits and the Compact of 1802.

• Essay

  Explain how Marshall's account of the doctrine of discovery in Worcester differs from a claim of full ownership, and assess how well his reading fits the treaties he cites.

• Dialogue

  Write a conversation in the Milledgeville penitentiary in late 1832 between Worcester and Butler as they decide whether to withdraw their case.

• Essay

  Using the case and its aftermath, write about the relationship between a court's judgment and the power to carry it out, drawing on Federalist No. 78.

• Poetry

  Write a poem in the voice of a Cherokee reader of the Cherokee Phoenix learning the news from Washington in March 1832.

Further Reading

• The Cherokee Cases: Two Landmark Federal Decisions in the Fight for Sovereignty, Jill Norgren

  Account of Cherokee Nation v. Georgia and Worcester v. Georgia and the lawyers and leaders involved.

• The Cherokee Removal: A Brief History with Documents, Theda Perdue and Michael D. Green

  Collection of primary sources, including Cherokee, Georgian and federal voices, with an introduction.

• Cherokees and Missionaries, 1789-1839, William G. McLoughlin

  Study of the missionary societies among the Cherokee, including Worcester and Butler.

• John Ross, Cherokee Chief, Gary E. Moulton

  Biography of the principal chief during the years of the Cherokee cases and removal.