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Delayed Victory: Indian Removal and Worcester v. Georgia

2012/05/19

The assignment here was to write about one of the Indian removal court cases.

The last of the Marshall Trilogy of Supreme Court decisions, Worcester v. Georgia, was an unequivocal win for Natives, but was never enforced and thus had little impact at the time it was made. While Indian removal happened regardless, as legal precedent, it has proven invaluable in supporting broad legal rights and powers for the tribal governments.

In President Andrew Jackson’s first address to Congress after assuming office in 1829, he endorsed moving all Indians to the west of the Mississippi River, allegedly in order to protect them from the influences of white society.[1] In 1830, the U.S. Congress passed the Indian Removal Act, authorizing the president to negotiate exchanges of Indian lands for other lands to the west of the Mississippi in order to use their then-current territories for white settlement. This was specified to be voluntary on the part of the Indians.[2] Jackson’s supporters emphasized this in their public statements and even said that if a tribe signed a removal treaty but some individual members did not wish to go, they could be given a personal land grant and stay under the protection of the United States.[3]

The removal rhetoric was quite different in Georgia, which stood to have thousands of Indians removed. To facilitate removal, they passed a law in 1829 politically incorporating all Cherokee territory within the boundaries of Georgia into nearby counties while voiding all laws passed by the tribal council. In 1830, Georgia passed a law requiring all whites who wished to live on Cherokee land or have dealings with them to obtain a license from the state government, which required an oath to uphold Georgia’s laws, and empowered the governor to enforce Georgia laws within Cherokee territory. The explicit purpose was to “Prevent the exercise of assumed and arbitrary power, by all persons, under pretext of authority from the Cherokee Indians and their laws.”[4] In other words, the combined purpose was to remove Cherokee legal authority and prevent them from forming alliances with whites such as missionary Samuel Worcester who were sympathetic to their cause. Worcester was arrested and charged with living unlicensed on Cherokee land after the legal deadline.

Worcester argued the law under which he was charged was unconstitutional. He said he could not be prosecuted under Georgia law because he was not in their jurisdiction. The Hopewell and Holston treaties between the federal government and the Cherokees specified that state governments had no legal authority on Cherokee land and treated the Cherokee as an independent nation with political control of their territory. As according to the U.S. Constitution, treaties are the supreme law of the land, the acts in question were legally void.[5] The Jackson administration, who held that treaties were not permanent or binding, disavowed this line of reasoning on the grounds that the federal government did not have the power to override the sovereignty of the states.[6] The Georgia court overruled the plea and convicted Worcester, who then appealed the case to the U.S. Supreme Court.[7]

Worcester v. Georgia was thus not directly about removal policy, though was about closely related laws and hinged on many of the same legal issues about the degree of sovereignty of the Indian Nations. In 1832, the Supreme Court ruled in Worcester’s favor. Chief Justice John Marshall’s majority opinion held the Cherokee were indeed a separate nation and thus a “distinct community” outside the jurisdiction of any individual state and no state action could override a federal treaty. Unusually, though, the decision carried no order for enforcement. This was not issued until the following year, by which time the case was moot as Worcester had been pardoned by Georgia’s governor. This is believed to be the result of an ill-fated attempt by Marshall to force the issue into the election. Jackson was reelected anyway and while he is reputed to have said “John Marshall has made his decision, now let him enforce it,” this is probably apocryphal and it would be more accurate to say the State of Georgia defied the court order, though with Jackson’s ascent.[8]

While under the reasoning of the decision, it would clearly be illegal to remove Indian tribes from their land without a treaty and their consent, in practice, this was done anyway. The controversial Indian Removal Act had been promoted as a benevolent policy to protect Indians who felt they needed it in order to mollify opponents, but barely passed the House even after the addition of language assuring that the act would not be used to justify breaking any treaty. The initial suspicions by many members of congress proved correct.[9] Once it passed, Jackson reneged on earlier promises to protect Indians who wished to incorporate into the state where they resided rather than go west with their tribe and attempted to pressure the Cherokee and Creek,who were reluctant to sign treaties, by claiming he could no longer protect their borders and allowing violent encroachment by white settlers. Ultimately a group that was not authorized to act on behalf of the tribe signed a removal treaty, which was ratified by a single vote in the Senate amid much controversy as to its validity.[10] Jackson’s successor, Martin Van Buren, had the military force the Cherokee off their land and into a cross-country march where thousands died en route.[11]

Jackson’s appeals to remove the Indians for their own safety represented actual social concerns at the time and the violence against the Natives reluctant to leave shows there was a real danger, but it does not follow that removal was the only possible resolution. Perhaps if the federal government had upheld their treaty obligations to defend Indian territory, they could have been left on their sovereign land and integrated into the surrounding economy while dealing with whites on an equal basis as Worcester advocated. However, there were widespread concerns that such an approach would cause a civil war.[12] Upon joining the U.S., Georgia had received a guarantee from the federal government that it would attempt to cede Indian lands to them. In Justice M’Lean’s concurring opinion to the Worcester decision, he mentioned that the attempts to get Indians to adopt white culture, which were also government policy, had made them better able to live among whites and thus less likely to sell their land and feel they needed to move to maintain their lifestyles. He said the federal obligation couldn’t reasonably be interpreted to mean the use of military force.[13] Thus had the terms of the Indian Removal Act been followed, the government’s obligations would not have conflicted. Perhaps if they had spent more effort persuading potential settlers of reasons to recognize Indian sovereignty and how these could compete with the economic benefits of settlement, things could have been settled more amicably, but ultimately settler forces prevailed in spite of the law.

While removal happened, partially illegally, the Cherokee and other tribes still benefited from the legal precedent of the Worcester decision. Resulting cases held they had the power to expel and tax non-members as well as include them and create their own court systems and even that the restrictions of governmental powers in the Constitution were not binding of the tribal governments, giving wide protections to the principles of legal autonomy.[14]

The decision to use the legal system to fight removal, while largely successful in court, did not prevent the Cherokee from being forced west due to the political situation of the time. Ultimately, however, these victories were instrumental in ensuring their legal rights were protected in their new homeland and that they would be safe from state incursion and deal with the Federal Government on favorable terms, a situation which continues to this day.


[1]    James L. Roark et al., The American Promise: A History of the United States Fourth Edition (Bedford/St. Martin’s, 2009) 370.

[2]    Indian Removal Act of 1830; 1997, Vol. 1 Issue 1, p1, 2p

[3]    Alfred A. Cave, “Abuse of Power: Andrew Jackson and the Indian Removal Act of 1830,” Historian 65, no. 6 (2003) 1334

[4]    “United States Supreme Court: Worcester v. Georgia,” AltLaw, <http://altlaw.org/v1/cases/407247&gt;

[5]    Ibid.

[6]    Cave, “Abuse of Power: Andrew Jackson and the Indian Removal Act of 1830,” 1332-1333.

[7]    “United States Supreme Court: Worcester v. Georgia,” AltLaw, <http://altlaw.org/v1/cases/407247&gt;

[8]    Stephen G. Bragaw, “Thomas Jefferson and the American Indian Nations: Native American Sovereignty and the Marshall Court,” Journal of Supreme Court History 31, no. 2 (2006): 156-159. & Cave, “Abuse of Power: Andrew Jackson and the Indian Removal Act of 1830,” 1349-1350.

[9]    Cave, “Abuse of Power: Andrew Jackson and the Indian Removal Act of 1830,” 1335.

[10]  Ibid., 1339-1352.

[11]  Roark et al., The American Promise: A History of the United States Fourth Edition, 371.

[12]  Bragaw, “Thomas Jefferson and the American Indian Nations: Native American Sovereignty and the Marshall Court,” 159.

[13]  “United States Supreme Court: Worcester v. Georgia,” AltLaw, <http://altlaw.org/v1/cases/407247&gt;

[14]  “Merrion v. Jicarilla Apache Tribe,” AltLaw, <http://www.altlaw.org/v1/cases/432787> & “IronCrow v. Oglala Sioux Tribe of Pine Ridge Res.,” <http://www.altlaw.org/v1/cases/1161057> & “Native American Church v. Navajo Tribal Council.,” AltLaw, <http://www.altlaw.org/v1/cases/809473>, respectively

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