Ch. 1.3. Primary Source: Worcester v. Georgia, SCOTUS, 1832

In their second attempt to protect their rights before the Supreme Court (after Cherokee Nation v. Georgia, 1831), the Cherokee argued against an 1830 Georgia law that prohibited whites from living on Indian territory after March 31, 1831, without a license from the state. The state legislature had written this law to justify removing white missionaries who were helping the Native Americans resist removal. Samuel Worcester was one such missionary, who was convicted to four years of hard labor for violating this Georgia law.

This time the Supreme Court reversed course in a 5-1 decision in favor of Worcester and the Cherokee. Writing for the majority, John Marshall held that the Cherokee had the right to self-government based on federal treaties, and therefore that Georgia’s extension of state law over them was unconstitutional.

31 U.S. 515. SCOTUS, March 3, 1832. Chief Justice John Marshall delivered the opinion of the Court.

…The defendant is a State, a member of the Union, which has exercised the powers of government over a people who deny its jurisdiction, and are under the protection of the United States. The plaintiff is a citizen of the State of Vermont, condemned to hard labor for four years in the penitentiary of Georgia under color of an act which he alleges to be repugnant to the Constitution, laws, and treaties of the United States…

The indictment charges the plaintiff in error and others, being white persons, with the offense of

residing within the limits of the Cherokee Nation without a license [and] without having taken the oath to support and defend the Constitution and laws of the State of Georgia…

The defendant… filed the following plea:

This [Georgia] court ought not to take further cognizance of the action and prosecution aforesaid, because… he was, and still is, a resident in the Cherokee nation…;  and… several treaties have… been entered into between the United States and the Cherokee nation of Indians, to wit, at Hopewell, on the 28th day of November 1785; at Holston, on the 2d day of July 1791…, etc.; … by which treaties the United States of America acknowledge the said Cherokee nation to be a sovereign nation…, and… the aforesaid territory is acknowledged to lie without the jurisdiction of the several states composing the union of the United States… Also, that the said laws of Georgia… interfere with and… are repugnant to the statute of the United States, passed on the [30th] day of March 1802, entitled “An act to regulate trade and intercourse with the Indian tribes, and to preserve peace on the frontiers” [Note: the law of 1802 was the fifth of six “Nonintercourse Laws” that between 1790 and 1834 established the boundaries of the lands reserved to Native Americans and prohibited land sales by Native Americans to white settlers without federal authorization].

The indictment and plea in this case draw in question, we think, the validity of the treaties made by the United States with the Cherokee Indians… They also draw into question the validity of a statute of the State of Georgia, “on the ground of its being repugnant to the Constitution, treaties and laws of the United States” …

[The Georgia Law]

It has been said at the bar that the acts of the Legislature of Georgia seize on the whole Cherokee country, parcel it out among the neighboring counties of the State, extend her code over the whole country, abolish its institutions and its laws, and annihilate its political existence… The particular statute and section on which the indictment is founded… enacts that,

all white persons, residing within the limits of the Cherokee Nation on the 1st day of March next, or at any time thereafter, without a license or permit from his Excellency the Governor, or from such agent as his Excellency the Governor shall authorise to grant such permit or license, and who shall not have taken the oath hereinafter required, shall be guilty of a high misdemeanour, and, upon conviction thereof, shall be punished by confinement to the penitentiary, at hard labour, for a term not less than four years.

…The extraterritorial power of every legislature being limited in its action to its own citizens or subjects, the very passage of this act is an assertion of jurisdiction over the Cherokee Nation… The first step, then, … is an examination of the rightfulness of this claim.

[The Discovery Doctrine]

America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws. 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 preexisting rights of its ancient possessors…

But power, war, conquest, give rights, which, after possession, are conceded by the world, and which can never be controverted by those on whom they descend. We proceed, then, to the actual state of things…

To avoid bloody conflicts which might terminate disastrously to all, it was necessary for the nations of Europe to establish some principle which all would acknowledge, and which should decide their respective rights as between themselves. This principle, suggested by the actual state of things, was

that discovery gave title to the government by whose subjects or by whose authority it was made against all other European governments which title might be consummated by possession [Johnson v. M’Intosh, 1823].

This principle… regulated the right given by discovery among the European discoverers, but could not affect the rights of those already in possession…

The King granted charters to companies of his subjects who associated for the purpose of carrying the views of the Crown into effect, and of enriching themselves… These grants asserted a title against Europeans only, and were considered as blank paper so far as the rights of the natives were concerned…

The charters contain passages showing one of their objects to be the civilization of the Indians, and their conversion to Christianity — objects to be accomplished by conciliatory conduct and good example, not by extermination…

[U.S. Treaties]

When the war of our Revolution commenced…, Congress exhibit[ed] the most anxious desire to conciliate the Indian nations… The first treaty was made with the Delawares, in September 1778. The language of equality in which it is drawn, evinces the temper with which the negotiation was undertaken…

After [the Revolution]…, the United States’ …political situation being changed…, may account for the language of the Treaty of Hopewell [Nov. 28, 1785]… The treaty is introduced with the declaration that, “the United States give peace to all the Cherokees…”

The third article acknowledges the Cherokees to be under the protection of the United States of America, and of no other power. This stipulation is found in Indian treaties, generally… This protection… involved, practically, no claim to their lands, no dominion over their persons…

To accommodate the differences still existing between the State of Georgia and the Cherokee Nation, the Treaty of Holston was negotiated [July 2nd], 1791… The first article declares that there shall be perpetual peace and friendship between all the citizens of the United States of America and all the individuals composing the Cherokee Nation…

The second article repeats the important acknowledgement that the Cherokee Nation is under the protection of the United States of America… This relation was that of a nation claiming and receiving the protection of one more powerful, not that of individuals abandoning their national character and submitting as subjects to the laws of a master… By the seventh article, the United States solemnly guaranty to the Cherokee Nation all their lands not hereby ceded…

This treaty, thus explicitly recognizing the national character of the Cherokees and their right of self-government, thus guarantying their lands, assuming the duty of protection, and of course pledging the faith of the United States for that protection, has been frequently renewed, and is now in full force…

[U.S. Laws]

From the commencement of our government, congress has passed acts to regulate trade and intercourse with the Indians [i.e. the above-mentioned Nonintercourse Acts], which treat them as nations [and] respect their rights… All these acts, and especially that of 1802, which is still in force, manifestly consider the several Indian nations as 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 guarantied, by the United States.

In 1819 [on March 3], Congress passed [the Civilization Fund Act, which provided federal support for mission schools for Native Americans], for promoting those humane designs of civilizing the neighboring Indians which had long been cherished by the Executive…This act avowedly contemplates the preservation of the Indian nations as an object sought by the United States, and proposes to effect this object by civilizing and converting them from hunters into agriculturists. Though the Cherokees had already made considerable progress in this improvement, it cannot be doubted that the general words of the act comprehend them. Their advance in the “habits and arts of civilization,” rather encouraged perseverance in the laudable exertions still farther to meliorate their condition. This act furnishes strong additional evidence of a settled purpose to fix the Indians in their country by giving them security at home…

The Indian nations had always been considered as distinct, independent political communities, retaining their original natural rights as the undisputed possessors of the soil from time immemorial…

[The Decision]

The Constitution, by declaring treaties already made, as well as those to be made, to be the supreme law of the land [C6.2], has adopted and sanctioned the previous treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties…

The Cherokee Nation, then, is a distinct community occupying its own territory, with boundaries accurately described, in which the laws of Georgia can have no force, and which the citizens of Georgia have no right to enter but with the assent of the Cherokees themselves, or in conformity with treaties and with the acts of Congress. 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 act of the State of Georgia, under which the plaintiff in error was prosecuted, is consequently void, and the judgment a nullity… The acts of Georgia are repugnant to the Constitution, laws, and treaties of the United States…

Sources: for this decision, see the pages in: Teaching American History (a substantial excerpt); Oyez (a short summary); and Google Scholar (the full text). For the early Nonintercourse Acts, including that of  March 30, 1802 (Pub. L. No. 7-13, § 12, 2 Stat. 139), see the Yale Law School’s Avalon Project, on its page for Statutes Concerning Native Americans, or click here for the act of March 30, 1802. For the above U.S. treaties, see the seven-volume collection begun by Charles J. Kappler, and now available online from Oklahoma State University: Indian Affairs: Laws and Treaties., vol. 2, Treaties, pp. 8-11 (Hopewell, 1785) and 29-32 (Holston, 1791).