In 1827, the state of Georgia passed several acts that affected the Cherokee Nation within Georgia’s borders. Georgia extended criminal jurisdiction over crimes committed by Cherokees within the Cherokee Nation. Traditionally and legally, the Cherokee had their own criminal jurisdiction. The Georgia legislature also declared the Cherokees had no legal title to the land that the state would respect. Consequently, surveyors were dispatched with military support to begin surveying Cherokee land for development and settlement. The governor was authorized to take possession of Cherokee gold mines. All contracts made between Georgia and the Indians were voided. Georgia legislators believed the Cherokee, in light of events would leave voluntarily.
The Cherokee however, chose the path to the Supreme Court, where they declared to be “the Cherokee nation of Indians, a foreign state, not owing allegiance to the United States, nor to any state of this Union, nor any prince, potentate or state, other than their own.” The Cherokee claimed the over eleven treaties signed with the United States, recognized their status as a fully sovereign independent nation, placing them beyond the reach of state jurisdiction. The legal jurisdiction seemed clear.
Chief Justice John Marshall did not consider the merits of the case and began with the jurisdictional question as laid out in Article III, Section 2 which provides federal jurisdiction over cases “between a State, or citizens thereof and foreign States…” Marshall asked “Is the Cherokee nation a foreign state, in the sense in which the term is used in the constitution?” In a very brief opinion, the answer was no. The Cherokees were not a foreign nation and could not sue. Marshall wrote:
“They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert title independent of their will, which must take effect in point of possession, when their right to possession ceases. Meanwhile they are in a state of pupilage; their relation to the United States resembles that of a ward to his guardian.”
This was no surprise. In McIntosh v. Johnson (1823), the Marshall court declared that Indians did not have full title to the land where they lived. Land belonged to the discoverer (first Europeans, then ceded to the United States). Thus: “ [T]he rights of the original inhabitants were, in no instance, entirely disregarded; but were, necessarily, to a considerable extent, impaired…their rights to complete sovereignty, as independent nations, were necessarily diminished.” The American government was the landlord and the Indian was the lessee.
Cherokee was not a unanimous case. In a 4 – 2 decision, Justices William Johnson and Smith Thompson dissented. Johnson agreed that tribes were dependent but doubted their domestic nation status. Tribes could not be any kind of nation because Johnson described them as “a people so low in the grade of organized society” they did not rise to the elevated status of a nation.
Worcester v. Georgia did not directly involve the tribe. In 1831, Samuel A. Worcester and several other missionaries from the American Board of Commissioners for Foreign Nations challenged a Georgia law prohibiting all white persons from living on or going into the Cherokee nation without a permit. Worcester and Dr. Elizur Butler refused to comply and were arrested and sentenced to four years’ hard labor. Worcester claimed Georgia’s action was unconstitutional based on three arguments: Georgia had violated federal treaties; impaired the obligation of contracts between the United States and the Cherokee; and interfered with the federal power to regulate commerce with Indians.
Worcester was a “win” for the Cherokee. Marshall pointed out the commerce clause specifically granted Congressional regulation of commerce with the Indians. Also treaties were the supreme law of the land which forbid Georgia’s actions. The long process of negotiating and making treaties merely supported the proposition that tribes were “distinct, independent, political communities.”
With Worcester, Marshall refuted Johnson’s dissent and elaborated upon the concept of a “domestic dependent nation”. Tribes were a quasi-sovereign state. Marshall wrote:
“[T[he 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. A weak state, in order to provide for its safety, may place itself under the protection of one more powerful, without stripping itself of the right of government, and ceasing to be a state. Examples of this kind are not wanting in Europe.”
This statement recognized that self-government was and is an inherent right of tribes. It was not surrendered when a weaker tribal government sought protection from the federal government. Tribes had a governmental relationship solely with the federal government, not the individual states and states had no jurisdiction within Indian lands.
Worcester, when read with Cherokee Nation, gives much definition to the concept of “domestic dependent nation”. While tribes under the doctrine of discovery lost some sovereign powers, they were not reduced to political ciphers. Marshall summed up the Court’s support for self-governance by confirming federal power and the unique status of tribes. Indian tribes,
“had always been considered as distinct, independent, political communities, retaining their original natural rights, as the undistinguished 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 laws of Georgia can have no force, and which citizens of Georgia have no right to enter, but with the assent of the Cherokees themselves, or in conformity with treaties, and with acts of congress. The whole intercourse between the United States, and this nation, is, by our constitution and laws, vested in the government of the United States.”
This strong judicial language of course, could not defeat the U.S. government’s drive for removal. Georgia refused to honor the judgment and as President Andrew Jackson would have the power of the sword over Marshall’s waxing rhetoric, the federal government did nothing to enforce it. In 1835 the Treaty of New Echota was negotiated and the Cherokee left Georgia.
Cherokee Nation v. Georgia (1831) Supreme Court decision: http://caselaw.findlaw.com/us-supreme-court/30/1.html
Worcester v. Georgia (1832) Supreme Court decision: http://caselaw.findlaw.com/us-supreme-court/31/515.html
Dr. John Vinzant is a political science professor at Lincoln Land Community College in Springfield, IL.