fieldston american reader volume i – fall 2007 - Ethical Culture ...

Nations of Indians.” Other Georgia laws authorized thesurvey and distribution by lottery of Cherokee lands to peoplein Georgia and prevented white persons from residing withinCherokee territory without a license from the governor. TheGeorgia governor was also authorized to take over gold, silver,and other mines in Cherokee country, to state citizen armedforces at the gold mines, and to punish anyone “found trespassingupon the mines.”The Cherokee National declared these laws “null and void”owing to its status as “a foreign stare, not owing allegianceto the United States, nor to any State of this Union, norto any prince, potentate or States, other than their own.”The Cherokees, who believed themselves to be sovereign,independent, and self‐governing, stated that Georgia, in itsefforts to force the Cherokees from their homeland, violatedat least a dozen treaties the Cherokees made with the U.S.government. “All of which treaties and conventions were dulyratified and confirmed by the Senate of the United States, and. . . a part of the supreme law of the land” and violated variousacts of Congress that consecrated the Indian boundaries andrecognized the exclusive Cherokee “right to give and to executethe law within that boundary.”The Cherokees, determined to resist Georgia efforts to forcethem from their homeland, filed suit in the Supreme Courtfor an injunction to prevent the enforcement of Georgia statestatutes. The Cherokees believed the Supreme Court hadoriginal jurisdiction for their case because the third articleof the Constitution gave the Supreme Court jurisdiction incontroversies “between the State or the citizens thereof, andforeign stares, citizens, or subjects.”In a brief opinion by Chief Justice John Marshall, the majorityof the Court held that the Cherokee Nation lacked originaljurisdiction because an Indian tribe or nation within theUnited States was not a “foreign state” in the sense of theConstitution because their lands “compose a part of the UnitedStates.” It was, rather, a “domestic, dependent nation” that“cannot maintain an action in the courts of the United States.”The Chief Justice described the federal‐Indian relationship as“perhaps unlike that of any other two people in existence” and“marked by peculiar and cardinal distinctions which exist nowhereelse.” Marshall agreed with the Cherokees that they werea state, “a distinct political society . . . capable of managing itsown affairs and governing itself but that owing to the treatiesthey made, the Cherokees were considered by foreign nationsand by the U.S. government “as being . . . completely under thesovereignty and dominion of the United States.” Regardingthe actions of the Georgia legislature, however, the Courtstated “the point respecting parties makes it unnecessary todecide the question.”WORCESTER v. GEORGIA (1832)In 1829 and 1830, the Georgia legislature passed acts tryingto seize Cherokee country, parcel it out among neighboringcounties of the seat, extend its code over the Cherokees, abolishits institutions and laws, and annihilate its political existence.One act stated that “all white persons residing within thelimits of the Cherokee Nation . . . without a license or permitfrom his excellency the governor . . . shall be guilty of a highmisdemeanor.”In July 1831, Samuel Worcester, a missionary to the CherokeeNation, was indicted in a county court for residing in theCherokee Nation without a license or permit from thegovernor and for not taking the oath of support and defendthe constitution and laws of Georgia. Despite Worcester’scontention that he, a Vermont citizen and a missionaryauthorized by the President of the United States and theCherokees to preach the gospel, was in the sovereign CherokeeNation completely separated from the other states by U.S.treaties and laws and therefore outside the jurisdiction of thecounty court, the state prosecuted him. Convicted, Worcesterwas sentenced to “hard labor in the penitentiary for four years”for violating some of the same statutes challenged in CherokeeNation the year before.Worcester took his case to the Supreme Court which firstdecided that it had jurisdiction, under the 1789 Judicial Actto decide the controversy because the missionary’s indictmentand plea in this case drew into question the validity of U.S.treaties and Georgia statutes which tried to regulate andcontrol the “intercourse with the Cherokee Nation whichbelongs exclusively to Congress.”Speaking for the court in one of its more lasting statements(since 1970, Worcester has been cited by state and federalcourts more than virtually any other case handed down by theCourt between 1789 and1865), Justice John Marshall held that Georgia’s statutes wereunlawful because they were “repugnant to the Constitution,treaties, and laws of the United States.” In reaching thisdecision, the Court announced virtually every basic doctrinein Indian law.( Federal plenary power: “The whole intercourse between theUnited States and this nation is, by our Constitution and laws,vested in the government of the United States;”( Trust relationship. “From the commencement of ourgovernment Congress has passed acts to regulate trade andintercourse with the Indians; which created them as nations,respect their rights, and manifest a firm purpose to afford thatprotection which treaties stipulate.”( Reserved rights: “The Indian nations possessed a full rightto The lands they occupied, until that right should be extinguishedby the United States, with their consent;” and thegeneral exclusion of state law from Indian country.”( The Cherokee nation: “… is a distinct community, occupying276 fieldston american reader volume i – fall 2007