During its first decades, the United States Supreme Court struggled mightily to define the legal status of Indian tribes and their land claims. “Their story is that of courts caught in a collision between law and morality on the one hand, desire and force on the other,” retired Justice Stephen Breyer wrote in a treatise on those cases. “That story forces us to examine the relation between law and politics.”
The litigation reached its apex in 1832 in Worcester v. Georgia; the Justices made clear that dealing with the Indians was the sole province of the federal government. The ruling in Worcester not only marked a major legal victory for the Indians—although one giving tribes no immediate help—but also was a decision that brought the reputation of the Supreme Court to its nadir. Miraculously, the court quickly bounced back.
In the earlier series of related cases the Justices suggested—incorrectly—that the Indians did not cultivate or settle on their lands, rendering their title to the property more a permission to hunt than the notion of real estate ownership as historically understood under Anglo-Saxon law.
Those cases all involved competing claims by American citizens who had purchased Indian land, not the tribes themselves. Finally in 1831 the Cherokee Nation got the high court to consider a case to which that tribe was a party—a challenge to a land grab by the state of Georgia.
After gold was discovered on Cherokee land in 1828, Georgia intensified an existing campaign to get the Indians to move west. Legislators passed a series of laws confiscating Indian land, nullifying Cherokee law within those parcels, and forbidding meetings of the Cherokee legislative council. The Supreme Court took the tribe’s case contesting the Georgia laws as having no constitutional basis. The high court’s opinion, authored by Chief Justice John Marshall, acknowledged that the Cherokee had a strong case, but gave the Indians no solace. The holding: the Supreme Court had no jurisdiction to settle the dispute. The Cherokee had invoked the Court’s authority over suits involving foreign nations, but Marshall insisted Indians constituted not a foreign nation but a “domestic dependent nation,” akin to wards, with the federal government as their guardian.
The Cherokees’ lawyer was William Wirt, a former U.S. Attorney General. Wirt wasn’t ready to give up and searched for a case the Justices would have to give full consideration. He found one among the Georgia laws meant to so squeeze the Cherokees that they would leave the state; the legislation denied non-Indians the right to live on reservations unless they swore to support all the state’s laws. Eleven missionaries who were working among the Cherokee refused to take the oath, and were prosecuted, convicted, and sentenced to prison at hard labor. Nine accepted an offer from the governor of a pardon in return for taking the oath. The other two—Samuel Worcester and Elizer Butler—were encouraged to stand firm as a way to set up a legal challenge to the Georgia laws. The missionary group for which the pair worked assured them that “the most intelligent members of Congress are of the opinion that the Supreme Court will sustain the Indians and that the people of the U.S. will yield and a settlement will be made….This is of immense importance to this country and to the civilized world.”
By going to prison, Worcester and Butler set the stage for Wirt to mount a case the Justices could not sidestep. Georgia insisted that the Supreme Court’s involvement amounted to “an unconstitutional and arbitrary interference” in state authority and refused to appear to defend the laws, but in February 1832 the Justices heard three days of arguments. The case riveted Washington; so many members of Congress came to the courtroom to hear the oral arguments that the House had to postpone its session. Wirt noted that the Cherokee held their lands under treaties with the federal government—in effect a contract—and that prior cases had established that a state cannot ignore or amend a valid contract.
Six of the seven Justices accepted Wirt’s argument. Just ten days after the arguments, Chief Justice John Marshall spent 75 minutes reading the opinion aloud in open court.
Marshall made three basic points: the statute under which Georgia imprisoned Worcester and Butler was invalid and “repugnant to the constitution, laws, and treaties of the United States;” the defendants were therefore cleared of all criminal charges and lower court decisions upholding those convictions were overturned; and the Cherokee Nation occupied its own territory “in which the laws of Georgia have no force.”
The Justices well understood that they had taken a legal and moral stance but had no power to enforce what would be in some quarters a very unpopular decision. “Thanks be to God, the Court can wash their hands clean of the inequity of oppressing the Indians and disregarding their rights,” Justice Joseph Story wrote his wife shortly after the decision was announced. “The Court has done its duty. Let the Nation now do theirs.”
this article first appeared in American history magazine
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The nation, personified by the administration of President Andrew Jackson, had no such intention. Jackson, a committed advocate of moving the Cherokee westward, was disinclined to face down Georgia, which threatened to quit the Union rather than accede to the Court’s ruling. Jackson flatly refused to obey a Supreme Court order to effect the release of Worcester and Butler, shaming the judiciary as a toothless, politically flaccid branch of government. The court’s image plunged.
And the Cherokee, despite winning their legal battle, lost the political war. In a phony conclave in late 1835, a few hundred Cherokee (none in any way officially chosen to represent the tribe’s Georgia population of 17,000) signed a treaty agreeing to move west. The Senate endorsed that instrument, and Jackson authorized the Army to enforce the deal. Some 3,500 Indians died on the 5,000-mile trek to what is now Oklahoma along what became known as the “Trail of Tears.”
The outcome turned out to be better for the Supreme Court. Its image—and power—decisively rebounded the year after the Justices issued their Worcester decision. That turnaround had a totally unexpected source. Congress had, starting in 1816, been incrementally raising tariff rates, and finally in 1832 South Carolina passed an Ordinance of Nullification saying that that state considered the tariffs inoperative within its borders, and if the federal government tried to collect those fees the state would secede. Jackson could not let an individual state dictate national policy, and quickly requested—and got—legislation giving him the clear power to stop South Carolina from interfering with federal customs officials.
To persuade Congress to act, Jackson promised to enforce any Supreme Court decision finding a state action unconstitutional. That meant he could not continue to ignore the Worcester decision, and so he pressured Georgia to pardon the prisoners and persuaded Worcester and Butler to accept, thereby writing an end to the case. The ensuing congressional action not only strengthened the Jackson administration’s hand but also expanded courts’ jurisdiction to hear cases involving tax collecting and smoothed the way for appealing state court decisions to federal courts. South Carolina’s threat had made the American public see the need for a strong national government comprising three powerful branches. As Charles Warren wrote in his Pulitzer Prize-winning 1922 book, The Supreme Court in United States History, “The Court, which had done so much to establish such supremacy, now found itself in a stronger position than it had been for the past fifteen years.”
This article appeared in the Autumn 2022 issue of American History magazine.
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