With the creation of the U.S. Constitution and a national government, political and legal policy-makers had to determine how to deal with Native American tribes that resided on lands granted to them by treaties. By the 1820s, U.S. policy toward what was regarded as the "Indian problem" was one of forced removal and resettlement to lands to the west. In 1830, Congress passed the Indian Removal Act (4 Stat. 411) and appropriated $500,000 for that purpose, signaling a determination to affect great changes.
The Cherokee, faced with growing hostility to their presence in the state of Georgia, were the first group of Native Americans to press their legal rights all the way to the U.S. Supreme Court. The Court issued decisions in two cases that are commonly known as the Cherokee Cases: Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 8 L. Ed. 25 (1831), and Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 8 L. Ed. 483 (1832). These are landmark cases that have continued to shape judicial analysis of disputes between tribal governments and state and federal governments. A key issue in both cases was the legal and political status of Native American tribes. The Cherokee claimed they were an independent, sovereign state, akin to a nation such as France or Great Britain. The Supreme Court rejected this claim in the first case but developed a different theory of sovereignty in the second decision.
In Cherokee Nation, the Cherokee asked the Court for an injunction that would prevent Georgia from executing laws that the tribe contended were being used to drive them off their land and to "annihilate" their existence as a political society. Chief Justice john marshall, writing for the Court, acknowledged that the plight of the Cherokee and other Native American tribes was real: they were "gradually sinking beneath our superior policy." The Court, however, could not base its analysis on sympathy.
Marshall concluded that before the merits of the Cherokee case could be considered, the Court had to determine whether it had jurisdiction to hear the case at all. The Cherokee argued they were a foreign state, pointing out that the tribe was a distinct political society that managed its own affairs, and that both the colonial and U.S. governments had regarded them as a state. The fact that the federal government negotiated treaties with the Cherokee seemed to be good evidence that the tribe was regarded as a foreign state.
The Court rejected these claims. Marshall stated that the Cherokee tribe was not a foreign state "in the sense of the Constitution" since the Indian Territory was located inside the geographical and jurisdictional boundaries of the United States. Moreover, the Cherokee had acknowledged, in the very treaties in question, that they were under the protection of the United States. Therefore, a better classification for the Cherokee and other Native American tribes was that of "domestic dependent nations."
The Court noted that the Constitution was silent on the issue of permitting the federal courts to hear disputes between states and Indian nations. Chief Justice Marshall found that the commerce clause empowers Congress to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes." This clause clearly distinguished between foreign nations and Native American tribes, making them distinct entities. The relation between the tribes and the United States resembled that of a ward and his guardian rather than of coequal states. Based on this analysis the Supreme Court dismissed the case for lack of jurisdiction.
The Cherokee returned to the Supreme Court the following year in Worcester, and this time had the opportunity of arguing the merits of the case. The issue in question involved Georgia legislation, which made it a crime for white persons to live in Cherokee country without first obtaining a license from the state. The state of Georgia indicted Samuel A. Worcester, a missionary of the American Board of Commissioners for Foreign Missions, and six other white persons for the offense of "residing within the limits of the Cherokee nation without a license." All seven defendants were convicted and sentenced to four years in prison.
Worcester and the other defendants appealed to the Supreme Court, arguing that Georgia had no jurisdiction over Cherokee sovereign territory. Under the Constitution, Congress has the power to regulate commerce with Native American tribes. The Indian Commerce Clause (Article I, Section 8, Clause 3) is the main source of federal power over Native American tribes. Worcester contended that this clause demonstrated that the federal government had exclusive jurisdiction over the establishment and regulation of intercourse with Native Americans. In addition, Worcester pointed to treaties between the United States and the Cherokee nation. No state could interfere with these agreements, which were the supreme law of the land.
Chief Justice Marshall, writing for the majority, agreed with Worcester's legal position and found that the relationship between the existing treaties and the constitutionality of the state law were the paramount issues. Marshall reviewed the colonizing of the continent and noted that the colonists' legal basis for claiming the land as their own was questionable:
It is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered, which annulled the pre-existing rights of its ancient possessors.
Marshall analyzed two treaties negotiated between the United States and the Cherokee. He found that these agreements recognized the national character of the Cherokee and their right of self-government. In addition, the treaties guaranteed their lands, and the federal government assumed the duty of protecting the integrity of the agreement.
Marshall then pointed out that from the beginning of the Republic, Congress had enacted a series of laws to regulate trade and intercourse with Native American tribes. These laws treated the tribes as nations, respected their rights, and sought to give the tribes the protection that the treaties stipulated. He concluded that "Indian nations are 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."
In light of Cherokee Nation, a key question was whether a treaty negotiated with Native Americans should be treated differently than one negotiated with a foreign nation. Marshall concluded that it should not:
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.
Therefore, Marshall ruled that the Cherokee nation was a "distinct community occupying its own territory," where the laws of Georgia had no force. The Cherokee were vested with the power to determine whether the citizens of Georgia could enter their territory, subject to treaty provisions and acts of Congress. He concluded that "the whole intercourse between the United States and this nation, is, by our constitution and laws, vested in the government of the United States."
The decisions involving the Cherokee nation established the basic principles of Native American sovereignty. Native American tribes, by occupying North America, possessed some elements of preexisting sovereignty. This sovereignty could be diminished or eliminated by the United States, but not by the individual states. Finally, because the tribes had limited sovereignty and were dependent on the United States for protection, the United States had a trust responsibility. This meant that the U.S. government was a trustee with the duty of looking after the best interests of Native Americans, who were wards of the government.
The legal victory proved of little benefit to the Cherokee nation, however. The demand for land in Georgia grew more intense after gold was discovered on Cherokee land. More ominously, President andrew jackson, who favored the removal of the Cherokee nation and other Native American tribes, refused to enforce the Court's decision. His refusal illustrated the problem that occurs when one branch of government refuses to honor the decision of another branch. During Jackson's term of office (1829–37), 94 removal treaties were negotiated, demonstrating his resolve to move Native American tribes westward.
In December 1835, the Treaty of New Echota, signed by a small minority of the Cherokee, ceded to the United States all their land east of the Mississippi River for $5 million. Though the tribe sought to repudiate the treaty, they were unsuccessful. Under the Indian Removal Act, the Cherokee were forced to leave Georgia beginning in 1838. Nearly a quarter of the 15,000 Cherokee died during the relocation. The Cherokee called the western trek to Oklahoma and Indian Territory the Trail of Tears.
Berutti, Ronald A. 1992. "The Cherokee Cases: the Fight to Save the Supreme Court and the Cherokee Indians." American Indian Law Review 17 (spring).
Norgren, Jill. 1994. "The Cherokee Nation Cases of the 1830s." Journal of Supreme Court History Annal 1994.
Cherokee Nation v. Georgia: 1831
Cherokee Nation v. Georgia: 1831
Plaintiffs: Cherokee Indian Nation
Defendant: State of Georgia
Plaintiffs Claim: That under the Supreme Court's power to resolve disputes between states and foreign nations, the Court could forbid Georgia from unlawfully attempting to move the Cherokees from their lands
Chief Defense Lawyer: None
Chief Lawyer for Plaintiffs: William Wirt
Justices: Henry Baldwin, Gabriel Duvalt, William Johnson, John Marshall, John McLean, Joseph Story, and Smith Thompson
Place: Washington, D.C.
Date of Decision: March 5, 1831
Decision: That the Court had no powerto hear the dispute, because Indian tribes are not foreign nations
SIGNIFICANCE: By refusing to help the Cherokees, the U.S. Supreme Court left the Indians at the mercy of land-hungry settlers. The Cherokees ultimately were forced to move to Oklahoma along the famous "Trail of Tears."
The Cherokee Indians originally inhabited much of America's southeastern seaboard. In the 17th and 18th centuries, European settlers pushed the Cherokees from many of their lands. Unlike most Indians, however, the Cherokees were able to resist white encroachment by adapting to white ways. After the American Revolution, the Cherokees copied white farming methods and other aspects of the white economy. The Cherokees sent some of their children to American schools and permitted mixed marriages. Further, they signed a series of treaties with the federal government that seemed to protect what remained of their lands.
The Cherokee presence was particularly strong in Georgia, where they prospered under the new ways. Cherokee plantations even had Negro slaves. However, in 1828, prospectors discovered gold in Cherokee territory. Georgia wanted to give the land to whites, and enacted laws to force the Cherokees to leave. The Cherokees fought back, hiring white lawyers to represent them.
The Cherokees' chief lawyer was William Wirt. He went directly to the Supreme Court and asked for an injunction forbidding Georgia from removing the Cherokees. Because Article III, Section 2 of the U.S. Constitution gives the Court original jurisdiction in cases to which a state is a party, Wirt didn't have to go through the Georgia state courts and couldn't go through the lower federal courts. Unfortunately, Article III, Section 2 generally limits the Court's jurisdiction to cases involving American citizens, and Indians were not yet recognized as citizens. The only arguable basis for jurisdiction was the Court's power to hear disputes "between a State, or the Citizens thereof, and foreign States, Citizens or Subjects."
Therefore, Wirt had to convince the Court that the Cherokees were a foreign nation or the Court would refuse to act. On March 5, 1831, in Washington, D.C., he pleaded the Cherokees' case before Supreme Court Justices Henry Baldwin, Gabriel Duvalt, William Johnson, John Marshall, John McLean, Joseph Story, and Smith Thompson. Georgia, an ardent supporter of states' rights, denied that the federal courts had jurisdiction and refused to send a defense lawyer.
Wirt reminded the Court that the Cherokees had uncontestable rights to the lands in Georgia:
The boundaries were fixed by treaty, and what was within them was acknowledged to be the land of the Cherokees. This was the scope of all the treaties.
Next, Wirt begged the Court to prevent what was about to happen to the Cherokees:
The legislation of Georgia proposes to annihilate them, as its very end and aim.… If those laws be fully executed, there will be no Cherokee boundary, no Cherokee nation, no Cherokee lands, no Cherokee treaties.… They will all be swept out of existence together, leaving nothing but the monuments in our history of the enormous injustice that has been practised towards a friendly nation.
That same day, the Supreme Court denied Wirt's petition, holding that the Cherokees and other Indian tribes were only "domestic dependent nations," not foreign nations, and thus the Court had no authority to help them. A year later, in the 1832 case of Worcester v. Georgia, the Court freed some missionaries who were sympathetic to the Cherokee cause and had been arrested by Georgia authorities, but only because the missionaries were white citizens.
Powerless to resist, the Cherokees were stripped of all their lands by 1838. In that year, over 7,000 soldiers forced the Cherokees to leave what was left of their territory for relocation in Oklahoma. Over 4,000 Cherokees died during the journey of thousands of miles to the west, which became known as the Trail of Tears.
—Stephen G. Christianson
Suggestions for Further Reading
Guttmann, Allen. States' Rights and Indian Removal: the Cherokee Nation v. the State of Georgia. Boston:D.C. Heath, 1965.
Lumpkin, Wilson. The Removal of the Cherokee Indians from Georgia. New York: Arno Press, 1969.
Peck, Ira. "Worcester v. Georgia: the Campaign to Move the Cherokee Nation." Senior Scholastic (November 1982): 17-20.
Warren, Mary Bondurant. Whites Among the Cherokees. Danielsville, Ga.: Heritage Papers, 1987.
Wilkins, Thurman. Cherokee Tragedy. Norman: University of Oklahoma Press, 1986.
Cherokee Nation Cases
CHEROKEE NATION CASES
CHEROKEE NATION CASES. Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832) arrived at the Supreme Court in a political setting of uncertainty and potential crisis. Andrew Jackson was reelected president in 1832, southern states were uneasy with the union, and Georgia, in particular, was unhappy with the Supreme Court. Within the Court, divisiveness marked relations among the justices. John Marshall, the aging chief justice, suffered the strains of his wife's death, his own illness, and tests of his leadership. At the same time, Americans craved the lands of resistant Native Americans, and armed conflict was always possible.
Cherokee Nation v. Georgia was the first controversy Native Americans brought to the Supreme Court. Until the late 1820s, the Cherokees were at peace with the United States. They had no desire and no apparent need for war. They were remaking their nation on the New comers' model. They had a sound, agricultural economy. They adopted a constitution and writing as well as Western dress and religion. Treaties with the United States guaranteed protection of their territory. The Cherokees in north Georgia planned to remain in place and prosper, but the state and the United States had other plans. When Georgia ceded its claims to western territory in 1802, the federal government agreed to persuade southeastern tribes to move west of the Mississippi. Peaceful campaigns convinced most Cherokees in Tennessee to leave but had no effect on the majority in Georgia.
Cherokee territory proved vulnerable to illegal entry by Georgians. Violations escalated with the discovery of gold there in 1829. Federal defense of the borders was unavailing. The state grew aggressive and enacted legislation for Cherokee country as though it were Georgia. The president removed the troops. Congress voted to remove the tribes. The Cherokees hired a famous lawyer, William Wirt, to represent them. Wirt filed suit in the Supreme Court. Cherokee Nation v. Georgia asked the Court to forbid enforcement of state law in the nation's territory. Law and morality favored the Cherokees; Congress and the president sided with Georgia. A Court order against the state could produce a major constitutional crisis if the president refused to enforce it. The court avoided the political risk without abandoning the law. Although the Cherokees had a right to their land, the chief justice said, the court had no authority to act because the Constitution allowed the Cherokee nation to sue Georgia only if it were a "foreign nation." Because it was instead what he termed a "domestic, dependent nation," the court lacked jurisdiction.
The crisis passed, but not for long. Wirt returned to the Court the following year, representing Samuel A. Worcester, a missionary to the Cherokees. Georgia had convicted Worcester and sentenced him to hard labor for his conscientious refusal to obey Georgia law within the Cherokee nation. Because Worcester was a U.S. citizen, the Court had jurisdiction over his appeal and could not escape a difficult judgment. The Cherokees had another chance.
Writing resolutely for a unanimous court, Marshall found that Georgia had acted unlawfully. The Cherokees, he said, were an independent people and a treaty-making nation. The decision was a triumph for the Cherokees and the chief justice. It would amount to little, however, without the president's support. According to popular story, Jackson responded: "John Marshall has made his decision, now let him enforce it."
A showdown never took place. Procedural delays intervened. In the interim, southern secessionists pressed toward a different crisis. Supporters of Worcester's mission feared for the union. They urged him to relieve pressure on Georgia by halting the legal proceedings. He did so and was released. The tribe's white allies also advised the Cherokees to strike a bargain. A minority of the tribe's leadership agreed to a sale, and the tribe was brutally herded west along the Trail of Tears. Georgia was ethnically cleansed of Native Americans.
Worcester v. Georgia continues to be important in American law and in Native American self-understanding because of its robust affirmation of tribal sovereignty, a familiar concern of modern Court cases. Cherokee Nation v. Georgia has currency because of Marshall's passing comment that tribes' relation to the United States resembles that of a ward to a guardian. Some judges and scholars find in this analogy a source for the modern legal doctrine that the United States has a trust obligation to tribes. Worcester himself reentered the News in 1992 when Georgia posthumously pardoned him.
Ball, Milner S. "Constitution, Court, Indian Tribes." American Bar Foundation Research Journal 1 (1987): 23–46.
Breyer, Stephen. "'For Their Own Good.'" The New Republic, 7 August 2000: 32–39.
McLoughlin, William. Cherokee Renascence in the New Republic. Princeton, N.J.: Princeton University Press, 1986.