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

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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 Cherokee 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 sovereignty. 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 Andrew Jackson says: • “John Marshall has made his decision; now let him enforce it.” .

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Cherokeeremoval-2Fft29v
Name ____________________________________ The Cherokee lived in the mountains of North Georgia long before Spanish exploration. After the English settled South Carolina and Georgia, they became an important trading partner with England. While the Creek traded with both the French and the English, the Cherokee were exclusively loyal to the English; this loyalty caused much conflict between themselves and the Creek. During the Revolution, the Cherokee continued to support the British and fought the Americans even after the war officially ended. The hostilities continued until 1793. Once peace was established, the Cherokee made several treaties with the United States government, including one that led to the Federal Road being built through their land. During this time period, the Cherokee began to believe that their best hope for maintaining their land would be to transform their society to resemble that of the United States. In the 1820s, the Cherokee developed a written language, a written constitution, and a newspaper. They invited Moravian missionaries to set up schools and adopted an agricultural system that included the use of slavery. However, none of these changes stopped the White settlers in Georgia from demanding their removal. Once gold was discovered in 1828, the push for Cherokee removal to west of the Mississippi River became greater. In 1832, the Cherokee won the Supreme Court case Worcester v. Georgia. This decision should have protected the tribe from removal as it maintained that the Cherokee were an independent nation and were not subject to Georgia law. However, in 1835, a small group of Cherokees signed the Treaty of New Echota without permission from the Cherokee government.
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