Worcester v. Georgia

Samuel Austin Worcester was a missionary to the Cherokee, translator of the Bible, printer, and defender of the Cherokee's sovereignty. He collaborated with Elias Boudinot in the American Southeast to establish the Cherokee Phoenix, the first Native American newspaper.

During this period, the westward push of European-American settlers from coastal areas was continually encroaching on Cherokee territory, even after they had made some land cessions to the US government. With the help of Worcester and his sponsor, the American Board, they made a plan to fight the encroachment by using the courts. They wanted to take a case to the US Supreme Court to define the relationship between the federal and state governments, and establish the sovereignty of the Cherokee nation. Hiring William Wirt, a former U.S. Attorney General, the Cherokee argued their position before the US Supreme Court in Georgia v. Tassel (the court granted a writ of error for a Cherokee convicted in a Georgia court for a murder occurring in Cherokee territory, though the state refused to accept the writ) and Cherokee Nation v. Georgia (1831) (the court dismissed this on technical grounds for lack of jurisdiction).[1] In writing the majority opinion, Chief Justice Marshall described the Cherokee Nation as a "domestic dependent nation" with no rights binding on a state.[2]

Worcester and eleven other missionaries met and published a resolution in protest of an 1830 Georgia law prohibiting all white men from living on Native American land without a state license.[2] While the state law was an effort to restrict white settlement on Cherokee territory, Worcester reasoned that obeying the law would, in effect, be surrendering the sovereignty of the Cherokee Nation to manage their own territory. Once the law had taken effect, Governor George Rockingham Gilmer ordered the militia to arrest Worcester and the others who signed the document and refused to get a license.[1]

After two series of trials, all eleven men were convicted and sentenced to four years of hard labor at the state penitentiary in Milledgeville. Nine accepted pardons, but Worcester and Elizur Butler declined their pardons, so the Cherokee could take the case to the Supreme Court. William Wirt argued the case, but Georgia refused to have a legal counsel represent it.

Chief Justice John Marshall laid out in this opinion that the relationship between the Indian Nations and the United States is that of nations. He reasoned that the United States, in the character of the federal government, inherited the rights of Great Britain as they were held by that nation. Those rights, he stated, include the sole right to deal with the Indian nations in North America, to the exclusion of any other European power. This did not include the rights of possession to their land or political dominion over their laws. He acknowledged that the exercise of conquest and purchase can give political dominion, but those are in the hands of the federal government, and individual states had no authority in American Indian affairs. Georgia's statute was therefore invalid.

Marshall's language in Worcester may have been motivated by his regret that his earlier opinions in Fletcher v. Peck and Johnson v. M'Intosh had been used as a justification for Georgia's actions. Joseph Story considered it similarly, writing in a letter to his wife dated March 4, 1832: "Thanks be to God, the Court can wash their hands clean of the iniquity of oppressing the Indians and disregarding their rights."[3]

Samuel Worcester

In a popular quotation that is believed to be apocryphal, President Andrew Jackson reportedly responded: "John Marshall has made his decision; now let him enforce it!" This derives from Jackson's comments on the case in a letter to John Coffee, ". . . the decision of the Supreme Court has fell still born, and they find that they cannot coerce Georgia to yield to its mandate."[4]

The Court did not ask federal marshals to carry out the decision, as had become standard.[5] Worcester thus imposed no obligations on Jackson; there was nothing for him to enforce.[6][7] This may be seen as a prudential decision, for avoiding the possibility of political conflict between the Court and the Executive, while still delivering what appeared to be a pro-Indian decision.[8]

However, the ruling did order that Worcester be freed, and Georgia complied after several months. In 1833, the newly elected governor, Wilson Lumpkin, offered to pardon Worcester and Butler if they ceased their activities among the Cherokee. The two complied and were freed (under the authority of a January 14, 1833 general proclamation by Georgia Governor Wilson Lumpkin,[9] not a formal pardon).[10]

Worcester moved to Indian Territory in 1836 in the period of Cherokee removal on the Trail of Tears. Worcester resumed his ministry, continued translating the Bible into Cherokee, and established the first printing press in that part of the United States, working with the Cherokee to publish their newspaper.

Because Jackson proceeded with Cherokee removal, Worcester did not aid indigenous rights at the time. Forced migration of Indians via the Trail of Tears was one result.

Although it was blatantly ignored at the time, Worcester has been cited in several later opinions on the subject of tribal sovereignty in the United States.

The play Sovereignty by Mary Katherine Nagle portrays the historic circumstances surrounding the case.[11]

• Stuart Banner, How the Indians Lost Their Land: Law and Power on the Frontier, Cambridge, MA: Harvard University Press, 2005.
• Berutti, Ronald A. (1992). "The Cherokee Cases: The Fight to Save the Supreme Court and the Cherokee Indians". American Indian Law Review. 17 (1): 291–308. doi:10.2307/20068726. JSTOR 20068726.
• Burke, Joseph C. (1969). "The Cherokee Cases: A Study in Law, Politics, and Morality". Stanford Law Review. Stanford Law Review, Vol. 21, No. 3. 21 (3): 500–531. doi:10.2307/1227621. JSTOR 1227621.
• Chused, Richard (1999). Cases, Materials, and Problems in Property (2nd ed.). New York: M. Bender. ISBN 0-8205-4135-4.
• Lytle, Clifford M. (1980). "The Supreme Court, Tribal Sovereignty, and Continuing Problems of State Encroachment into Indian Country". American Indian Law Review. 8 (1): 65–77. doi:10.2307/20068139. JSTOR 20068139.
• Jill Norgren, The Cherokee Cases: Two Landmark Federal Decisions in the Fight for Sovereignty (2004).
• Prucha, Francis Paul (1984). The Great Father: The United States Government and the American Indians. I. Lincoln: University of Nebraska Press. ISBN 0-8032-3668-9.
• Lindsay G. Robertson, Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands (2005).
• Smith, Jean Edward (1996). John Marshall: Definer Of A Nation. New York: Henry Holt & Company. ISBN 0-8050-1389-X.
• Charles Warren. The Supreme Court in United States History, (2d. ed., 1926). 2 vols.

• Works related to Worcester v. Georgia at Wikisource
• Text of Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) is available from:  Findlaw  Justia  Library of Congress  OpenJurist 
• Worcester v. Georgia in the New Georgia Encyclopedia
• Worcester, Samuel A. "Account of S[amuel] A. Worcester's second arrest, 1831 July 18 / S[amuel] A. Worcester". Southeastern Native American Documents, 1730-1842. Tennessee State Library and Archives. Retrieved 21 February 2018.