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Cherokee Indian Cases Cherokee Nation v. Georgia 5 Peters 1 (1831) Worcester v. Georgia 6 Peters 515 (1832)

CHEROKEE INDIAN CASES Cherokee Nation v. Georgia 5 Peters 1 (1831) Worcester v. Georgia 6 Peters 515 (1832)

The Cherokee Indian Cases prompted a constitutional crisis marked by successful state defiance of the Supreme Court, the Constitution, and federal treaties. The United States had made treaties with the Georgia Cherokee, as if they were a sovereign power, and pledged to secure their lands. Later, in 1802, the United States pledged to Georgia that in return for its relinquishment of the Yazoo lands (see fletcher v. peck) the United States would extinguish the Cherokee land claims in Georgia. The Cherokee, however, refused to leave Georgia voluntarily in return for wild lands west of the Mississippi. In 1824 Georgia claimed legislative jurisdiction over all the Indian lands within its boundaries. The Cherokee, who had a written language and a plantation economy, then adopted a constitution and declared their sovereign independence. Georgia, which denied that the United States had authority to bind the state by an Indian treaty, retaliated against the Cherokee by a series of statutes that nullified all Indian laws and land claims and divided Cherokee lands into counties subject to state governance. President andrew jackson supported the state against the Indians, and Congress, too, recognizing that the Indians could not maintain a separate sovereignty within the state, urged them to settle on federally granted land in the west or, if remaining in Georgia, to submit to state laws.

The Cherokee turned next to the Supreme Court. Claiming to be a foreign state within the meaning of Article III, section 2, of the Constitution, the Indians invoked the Court's original jurisdiction in a case to which a state was a party and sought an injunction that would restrain Georgia from enforcing any of its laws within Cherokee territory recognized by federal treaties. By scheduling a hearing the Court exposed itself to Georgia's wrath. Without the support of the political branches of the national government, the Court faced the prospect of being unable to enforce its own decree or defend the supremacy of federal treaties against state violation.

The case of Corn Tassel, which suddenly intervened, exposed the Court's vulnerability. He was a Cherokee whom Georgia tried and convicted for the murder of a fellow tribesman, though he objected that a federal treaty recognized the exclusive right of his own nation to try him. On Tassel's application Chief Justice john marshall issued a writ of error to the state trial court and directed the governor of the state to send its counsel to appear before the Supreme Court. Georgia's governor and legislature contemptuously declared that they would resist execution of the Court's writ with all necessary force, denounced the Court's infringement of state sovereignty, and hanged Corn Tassel. Justice joseph story spoke of "practical nullification." Newspapers and politicians throughout the nation took sides in the dispute between the Court and the state, and Congress in 1831 debated a bill to repeal section 25 of the judiciary act of 1789. Although the House defeated the repeal bill, Whigs despondently predicted that the President would not support the Court if it decided the Cherokee Nation case contrary to his view of the matter.

The Court wisely decided, 4–2, to deny jurisdiction on the ground that the Cherokee were not a foreign state in the sense of Article III's use of that term. Although Marshall for the Court declared that the Cherokee were a "distinct political society" capable of self-government and endorsed their right to their lands, he candidly acknowledged that the Court could not restrain the government of Georgia "and its physical force." That, Marshall observed, "savors too much of the exercise of political power" and that was what the bill for an injunction asked of the Court.

A year later, however, the Court switched its strategy. At issue in Worcester was the constitutionality of a Georgia statute that prohibited white people from residing in Cherokee territory without a state license. Many missionaries, including Samuel Worcester, defied the act in order to bring a test case before the Supreme Court, in the hope that the Court would endorse Cherokee sovereignty and void the state's Cherokee legislation. Worcester and another, having been sentenced to four years' hard labor, were the only missionaries to decline a pardon; they applied to the Court for a writ of error, which Marshall issued. Georgia sent the records of the case but again refused to appear before a Court that engaged in a "usurpation" of state sovereignty. The state legislature resolved that a reversal of the state court would be deemed "unconstitutional" and empowered the governor to employ all force to resist the "invasion" of the state's administration of its laws. The case was sensationally debated in the nation's press, and nearly sixty members of Congress left their seats to hear the argument before the Supreme Court.

In an opinion by Marshall, with Justice henry baldwin dissenting, the Court reaffirmed its jurisdiction under section 25, upheld the exclusive power of the United States in Indian matters, endorsed the authority of the Cherokee Nation within boundaries recognized by federal treaties, declared that the laws of Georgia had no force within these boundaries, and held that the "acts of Georgia are repugnant to the Constitution, laws, and treaties of the United States." The Court also reversed the judgment of the Georgia court and commanded the release of Worcester.

Why did the Court deliberately decide on the broadest possible grounds and challenge Georgia? In a private letter, Justice Story, noting that the state was enraged and violent, expected defiance of the Court's writ and no support from the President. "The Court," he wrote, "has done its duty. Let the nation do theirs. If we have a government let its commands be obeyed; if we have not it is as well to know it.…" Georgia did resist and Jackson did nothing. He might have made the famous remark, "John Marshall has made his decision; now let him enforce it." But Jackson knew Marshall's reputation for political craftiness, knew that a majority of Congress resisted all efforts to curb the Court, and knew that public opinion favored the Court and revered its Chief as the nation's preeminent Unionist. Jackson did nothing because he did not yet have to act. The state must first refuse execution of the Court's writ before the Court could order a federal marshal to free Worcester, and it could not issue an order to the marshal without a record of the state court's refusal to obey the writ. Not until the next term of the Court could it decide whether it had a course of action that would force the President either to execute the law of the land or disobey his oath of office. Marshall believed that public opinion would compel Jackson to execute the law. In the fall of 1832, however, Marshall pessimistically wrote that "our Constitution cannot last.… The Union has been prolonged thus far by miracles. I fear they cannot continue."

A miracle did occur, making the Court's cause the President's before the Court's next term; the south carolina ordinance of nullification intervened, forcing Jackson to censure state nullification of federal law. Georgia supported Jackson against South Carolina, and he convinced Georgia's governor that the way to dissociate Georgia from nullification was to free Worcester. The governor pardoned him. Worcester, having won the Supreme Court's invalidation of the Georgia Cherokee legislation, accepted the pardon. The lawyers for the Cherokee persuaded them to desist from further litigation in order to preserve a Unionist coalition against nullificationists. In 1838, long after the crisis had passed, the Cherokees were forcibly removed from their lands. The Court could not save them. It never could. It had, however, saved its integrity ("The Court has done its duty") by defending the supreme law of the land at considerable risk.

Leonard W. Levy


Burke, Joseph C. 1969 The Cherokee Cases: A Study of Law, Politics, and Morality. Stanford Law Review 21:500–531.

Warren, Charles 1923 The Supreme Court in United States History, 3 vols. Vol. 2:189–229. Boston: Little, Brown.

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