Crim/INDG 429: Indigenous Peoples and International Law The Marshall Decisions: Worcester v Georgia (1832)

Background: • Samuel Worcester and Elizur Butler are two missionaries living and working on land at the Cherokee’s behest • They are arrested for breaking a Georgia law that prohibits “white persons” from residing on Cherokee territory without a license • Worcester argues that the State of Georgia had no jurisdiction over the Cherokee because they were a foreign nation with jurisdiction over their own territory

The Court says: • Once again the notion of title is re-visited • The doctrine of discovery is re-visited as well. Once again it is described as an agreement between nations to avoid conflict, and 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." Discovery, in other words, gave a right to negotiate with those who held title, i.e., the Indians. • The Cherokee had signed treaties with the United States; the State of Georgia had no right to make laws that over-ride the agreement between the US and the Cherokee • The Cherokee by treaty had rights of “possession” and “use” and “occupancy” but no . They had agreed to be under the “protection” of the United States. Only the United States could create new laws with respect to the Cherokee; Georgia could not. • The Cherokee were thrilled; their title had been recognized through the back door, and it was clear that their relation was nation-to-nation with the US.

But President says: • “ has made his decision; now let him enforce it.”