CASE SUMMARY – Worcester v. Georgia (1832)

In December 1829, President Andrew Jackson announced his Indian removal proposal in an address to the U.S. Congress. (Indian country - land and soil- in the State of Georgia was appreciating in value by leaps and bounds. Speculators, banksters, investors, railroad robber barons, carpetgbaggers, fortune-seekers, conmen, attorneys, etc. etc, flocked into the State. An excuse, explanation, or justification was sorely needed.)

In 1830 Congress passed the Indian Removal Act, which authorized the president to grant the Indians unsettled lands west of the Mississippi River in exchange for Indian lands within existing state borders. (The SCOTUS did not endorse this political question although legislation allowed the removal in total and utter breach of the Indian Commerce Clause, Art. 1, sec. 8. Cl. 3. U.S. Constitution. Trading with Indians does not include their removal and the taking of their lands !! The COTUS was already suspended and dysfunctional as far back as 1830.)

The U.S. Supreme Court under Chief Justice John Marshall addressed the Indian lands question in two cases:Cherokee Nation v. Georgiain 1831 andWorcester v. Georgiain 1832.

Both cases developed out of Georgia’s attempt to assert its jurisdiction over Cherokee land within the state that was protected by federal treaty. In the first case,Cherokee Nation v. Georgia, the Supreme Court ruled that it had no jurisdiction to hear the Cherokee request to prevent Georgia’s attempt. (WHY? 1790, 1802, 1834 Indian Trade and Intercourse Act)

The Court determined that the Cherokees were “a domestic, dependent nation” (in other words, a ward of the United States), rather than “a sovereign nation.” By refusing to hear the case, the Court left the Cherokees at the mercy of the state of Georgia.

The Georgia Legislature meanwhile had passed a law requiring anyone other than Cherokees who lived on Indian territory to obtain a license from the state. Samuel Worcester and several other non-Cherokee Congregational missionaries settled and established a mission on Cherokee land at the request of the Cherokees and with permission of the U.S. government. The state of Georgia charged Worcester and the other missionaries with “residing within the limits of the Cherokee nation without a license.” They were tried, convicted, and sentenced to four years of hard labor. Worcester and the other missionaries appealed their convictions to the U.S. Supreme Court. (Freedom of religion thrown out….see – the US Const. was not functioning in the 1830s….)

LEGAL ISSUE SCOTUS HAD TO TACKLE

Does a state have the power to pass laws concerning sovereign Indian nations?

DECISION

Chief Justice John Marshall delivered the opinion of the court.

Marshall Court (1801-1835)

Speaking through Chief Justice John Marshall, the Supreme Court, with only one justice dissenting, ruled in favor of Worcester and the Cherokees.

The Court reasoned that the Cherokee nation was “a distinct community” with “self-government” in which the laws of Georgia had no force.

Marshall explains that the government of the United States inherited from Great Britain the powers that that nation formerly held, including the sole power to deal with the Indian nations. (THIS IS CRUCIAL because when the Revolutionary Government disbanded its political association and ties with Great Britain, the Indians as a sovereign nation of tribes were not contemplated in any treaty except the 1812 Treaty of Ghent)

He writes: “From the commencement of our government, Congress has passed acts to regulate trade … with the Indians; which treat them as nations, respect their rights, and manifest a firm purpose to afford that protection which treaties stipulate. All these acts … manifestly consider the several Indian nations as distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guaranteed by the United States … .” Marshall goes on to write that the citizens of Georgia have no right to enter Cherokee land “but with the assent of the Cherokees themselves, or in conformity with treaties, and with the acts of Congress. (Art. VI, sec. 2, U.S. Const. Freedom of religion not brought up at all !!)

The whole intercourse (The Indian Trade and Intercourse Act of 1790 foremost in CJ Marshall’s mind for sure) between the United States and this nation (he is referring to the Cherokee nation like it was a foreign nation-state), is, by our Constitution and laws, vested in the government of the United States.” Therefore, the Chief Justice concludes, “The acts of Georgia are repugnant to the Constitution, laws, and treaties of the United States.”(Bury it with Marbury v. Madison; Talton v Mayes yet to come – same conclusion in 1896; CJ Marshall did NOT endorse the 1830 Indian Removal Act)

PREAMBLE

In the cases Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832), the U.S. Supreme Court considered its powers to enforce the rights of Native American "nations" against the states. MIND YOU, THE IRA WAS ALREADY PASSED IN 1830.

In Cherokee Nation, the Court ruled that it lacked jurisdiction(the power to hear a case) to review claims of an Indian nation within the United States.

In Worcester (the very next year), the Court ruled that only the United States, and not the individual states, had power to regulate or deal with the Indian nations.WHT THE DAMNED HELL DIDN’T THEY SAY THIS IN 1831???
In 1828, the state of Georgia passed a series of laws stripping local Cherokee Indians of their rights. The laws also authorized Cherokee removal from lands sought after by the state. In defense, the Cherokee cited treaties that they had negotiated, as an independent "nation," with the United States, guaranteeing the Cherokee nation both the land and independence. (since when did states have the right to do this? ONY the federal government does, and that too, if it obeys the treaties and the applicable federal Indian laws)

After failed negotiations with President Andrew Jackson and Congress, the Cherokee, under the leadership of John Ross, sought aninjunction("order to stop") at the Supreme Court against Georgia to prevent its carrying out these laws.(Politics versus the law; policy versus the forces of divine law, ancient law, natural law)
The Court, in Cherokee Nation v. Georgia, ruled that it lacked jurisdiction to hear the case and could not resolve it. The Court began by sympathizing with the Cherokees' plight, acknowledging that they had been persecuted and marginalized by America's European settlers, then asserted that Indian nations were both "foreign nations" and people within U.S. boundaries.

In other words, the Cherokee, though sometimes viewed as an independent nation, were also dependent people on the nation that envelopes them. Thus, the Court asserted that "foreign nations," as used in the Constitution, could not include "Indian nations." (DOUBLESPEAK AND DOUBLETHINK….)

Because the Constitution only authorizes the Supreme Court to hear cases brought by "foreign nations," not "Indian nations," the Court was not authorized to entertain this case and dismissed it. Meanwhile, in 1830, Georgia passed another law requiring its citizens to obtain a state license before dwelling inside the Cherokee Nation. A group of missionaries residing there, including Samuel Austin Worcester, refused to obtain such a license. The missionaries were known supporters of Cherokee resistance to Georgia's removal efforts. Worcester and a fellow missionary were indicted by a Georgia court, brought to trial, and convicted. Worcester appealed to the U.S. Supreme Court, claiming that the Georgia court lacked authority to convict them.
On review of the case, the Supreme Court in Worcester v. Georgia ruled that because the Cherokee Nation was a separate political entity that could not be regulated by the state, Georgia's license law was unconstitutional and Worcester's conviction should be overturned. The Court first pointed to evidence proving that the Native American communities were conceived of as "separate nations" dating back to the time of early colonial America. The Court then argued that today's "treaties and laws of the United States [also] contemplate the Indian territory as completely separated from that of the states; and provide that all intercourse with them shall be carried on exclusively by the government of the union." Therefore, only the United States can negotiate the terms of Indian lands and the use thereof. States lack constitutional power to deal with such "nations" at all. Thus, Georgia could not pass the license law and convict Worcester for violation of that law.
The Supreme Court's ruling, however, was neither followed by Georgia nor enforced by the U.S. government. President Andrew Jackson, sensitive to Georgia's claims of independence at a time when the states wielded considerable power, had no interest in enforcing the Court's decree. The missionaries remained imprisoned until 1833, when a new Georgia governor negotiated for their release. The Georgia Cherokees themselves were forcibly relocated in 1838, pursuant to a U.S. treaty, to present-day Oklahoma ("the Trail of Tears").

Today, the substantive ruling in Worcester is no longer binding: the Supreme Court holds that, to a certain extent, a state may regulate the Indian territories within its boundaries.

Still want casinos?

At last in August 1814, peace discussions began in the neutral city of Ghent. As the peace talks opened American diplomats decided not to presentPresident Madison'sdemands for the end of impressment and suggestion that Britain turn Canada over to the U.S.

They were quiet and instead the British opened with their demands, chief of which was the creation of an Indian barrier state in the American Northwest Territory (the area from Ohio to Wisconsin). It was understood the British would sponsor this Indian state.

The British strategy for decades had been to create a buffer state to block American expansion. TheAmericans refused to consider a buffer state and the proposal was dropped.

Article IX of the treaty included provisions to restore to Natives "all possessions, rights and privileges which they may have enjoyed, or been entitled to in 1811", but the provisions were unenforceable and in any case Britain ended its practice of supporting or encouraging tribes living in American territory.

The British, assuming their planned invasion of New York state would go well, also demanded that Americans not have any naval forces on theGreat Lakesand that the British get certain transit rights to theMississippi Riverin exchange for continuation of American fishing rights offNewfoundland. The U.S. rejected the demands and there was an impasse.[10][11]American public opinion was so outraged when Madison published the demands that even the Federalists were willing to fight on.[12]