worcester v georgia dissenting opinion worcester v georgia dissenting opinion

By the first section of this act, it is made a penitentiary offence, after the 1st day of February 1831, for any person or persons, under colour or pretence of authority from the said Cherokee tribe, or as headmen, chiefs or warriors of said tribe, to cause or procure by any means the assembling of any council or other pretended legislative body of the said Indians for the purpose of legislating, &c. They are prohibited from making laws, holding courts of justice or executing process. Its origin may be traced to the nature of their connexion with those powers, and its true meaning is discerned in their relative situation. The first step, then, in the inquiry which the Constitution and laws impose on this Court is an examination of the rightfulness of this claim. It is enumerated in the same section, and belongs to the same class of powers. This repugnance is made so clear by an exhibition of the respective acts that no force of demonstration can make it more palpable. In this act, it is provided that any citizen or resident in the United States who shall enter into the Indian lands to hunt, or for any other purpose, without a license shall be subject to a fine and imprisonment. It is equally inconceivable t hat they could have supposed themselves, by a phrase thus slipped into an article on another and mere interesting subject, to have divested themselves of the right of self-government on subjects not connected with trade. [2], The Superior Court for the County of Gwinett in the State of Georgia convicted Worcester and his fellow missionaries for violating the 1830 act passed by the Georgia legislature. Although Pres. After its termination, the United States, though desirous of peace, did not feel its necessity so strongly as while the war continued. The power of making war is conferred by these charters on the colonies, but defensive war alone seems to have been contemplated. Can this Court revise, and reverse it? As to the merits, he said his opinion remained the same as was expressed by him in the case of the Cherokee Nation v. The State of Georgia at the last term. The proclamation orders such persons to quit those countries without delay. ", "2. Why then should one tribunal more than the other be deemed hostile to the interests of the people? But even the State of New York has never asserted the power, it is believed, to regulate their concerns beyond the suppression of crime. It occurred during the event known as the Trail of Tears, in which 15,000 Cherokee were marched westward on a terrible journey, resulting in the deaths of about 4,000 Cherokee. Get free summaries of new US Supreme Court opinions delivered to your inbox! They were well understood to convey the title which, according to the common law of European sovereigns respecting America, they might rightfully convey, and no more. 2. Worcester v. Georgia involved a group of white Christian missionaries, including Samuel A. Worcester, who were living in Cherokee territory in Georgia. Congress, therefore, was considered as invested with all the powers of war and peace, and Congress dissolved our connexion with the mother country, and declared these United Colonies to be independent states. It was an exclusive principle which shut out the right of competition among those who had agreed to it, not one which could annul the previous rights of those who had not agreed to it. I A Omissions? The actual state of things at the time, and all history since, explain these charters; and the King of Great Britain, at the treaty of peace, could cede only what belonged to his Crown. ", The early journals of Congress exhibit the most anxious desire to conciliate the Indian nations. The great subject of the article is the Indian trade. Can the State of Georgia regulate by state law the interaction between citizens of the state and members of the Cherokee nation? Several acts having the same object in view were passed prior to this one, but, as they were repealed either before or by the Act of 1802, their provisions need not be specially noticed. [29] Worcester and Butler were freed from prison. 6. The extravagant and absurd idea that the feeble settlements made on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern the people, or occupy the lands from. And be it further enacted that, should any of the foregoing offences be committed under colour of any pretended rules, ordinances, custom or law of said nation, all persons acting therein, either as individuals or as pretended executive, ministerial or judicial officers, shall be deemed and considered as principals, and subject to the pains and penalties hereinbefore described. The commissioners brought forward the claim with the profession that their motive was "the benefit and comfort of the Indians, and the prevention of injuries or oppressions." The Supreme Court, on a writ of error, reversed the convictions. May they violate this compact, at discretion? It annuls the laws, ordinances, orders and regulations of any kind made by the Cherokees, either in council or in any other way, and they are not permitted to be given in evidence in the Courts of the State. ", To this indictment he pleaded that he was, on the 15th July, 1831, in the Cherokee Nation, out of the jurisdiction of the Court of Gwinnett County; that he was a citizen of Vermont, and entered the Cherokee Nation as a missionary under the authority of the President of the United States, and has not been required by him to leave it, and that, with the permission and approval of the Cherokee Nation, he was engaged in preaching the gospel; that the State of Georgia ought not to maintain the prosecution, as several treaties had been entered into by the United States with the Cherokee Nation by which that Nation was acknowledged to be a sovereign nation, and by which the territory occupied by them was guaranteed to them by the United States; and that the laws of Georgia under which the plaintiff in error was indicted are repugnant to the treaties, and unconstitutional and void, and also that they are repugnant to the treaties, and unconstitutional and void, and also that they are repugnant to the Act of Congress of March, 1802, entitled "An act to regulate trade and intercourse with the Indian Tribes." Nine accepted pardons, but Worcester and Elizur Butler declined their pardons, so the Cherokee could take the case to the Supreme Court. It is in these words: "Whereas the enemies of the United States have endeavoured by every artifice in their power to possess the Indians in general with an opinion that it is the design of the states aforesaid to extirpate the Indians and take possession of their country, to obviate such false suggestion, the United States do engage to guaranty to the aforesaid Nation of Delawares, and their heirs, all their territorial rights, in the fullest and most ample manner, as it hath been bounded by former treaties, as long as the said Delaware Nation shall abide by, and hold fast the chain of friendship now entered into.". 6. We and our partners use cookies to Store and/or access information on a device. The Indian nations had always been considered as distinct, independent political communities retaining their original natural rights as undisputed possessors of the soil, from time immemorial, with the single exception of that imposed by irresistible power, which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region claimed, and this was a restriction which those European potentates imposed on themselves, as well as on the Indians. Secretary of War Lewis Cass, U.S. A State claims the right of sovereignty commensurate with her territory, as the United States claim it, in their proper sphere, to the extent of the federal limits. ", "Sec. "[5], In a popular quotation that is believed to be apocryphal, President Andrew Jackson reportedly responded: "John Marshall has made his decision; now let him enforce it! Interns wanted: Get paid to help ensure that every voter has unbiased election information. He was seized and forcibly carried away while under guardianship of treaties guarantying the country in which he resided and taking it under the protection of the United States. In September 1831, the grand jurors for the county of Gwinnett in the State of Georgia, presented to the superior court of the county the following indictment: "Georgia, Gwinnett county: The grand jurors, sworn, chosen and selected for the county of Gwinnett, in the name and behalf of the citizens of Georgia, charge and accuse Elizur Butler, Samuel A. Worcester, James Trott, Samuel Mays, Surry Eaton, Austin Copeland, and Edward D. Losure, white persons of said county, with the offence of 'residing within the limits of the Cherokee Nation without a license:' For that the said Elizur Butler, Samuel A. Worcester, James Trott, Samuel Mays, Surry Eaton, Austin Copeland and Edward D. Losure, white persons, as aforesaid, on the 15th day of July 1831, did reside in that part of the Cherokee Nation attached by the laws of said State to the said county, and in the county aforesaid, without a license or permit from his Excellency the Governor of said State, or from any agent authorised by his Excellency the Governor aforesaid to grant such permit or license, and without having taken the oath to support and defend the Constitution and laws of the State of Georgia, and uprightly to demean themselves as citizens thereof, contrary to the laws of said State, the good order, peace and dignity thereof.". And this defendant saith, that he is a citizen of the State of Vermont, one of the United States of America, and that he entered the aforesaid Cherokee Nation in the capacity of a duly authorised missionary of the American Board of Commissioners for Foreign Missions, under the authority of the President of the United States, and has not since been required by him to leave it; that he was, at the time of his arrest, engaged in preaching the gospel to the Cherokee Indians, and in translating the sacred Scriptures into their language, with the permission and approval of the said Cherokee Nation, and in accordance with the humane policy of the Government of the United States, for the civilization and improvement of the Indians, and that his residence there, for this purpose, is the residence charged in the aforesaid indictment, and this defendant further saith that this prosecution the State of Georgia ought not to have or maintain, because he saith that several treaties have, from time to time, 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; at Philadelphia on the 26th day of June, 1794; at Tellico on the 2d day of October, 1798; at Tellico on the 24th day of October, 1804; at Tellico on the 25th day of October, 1805; at Tellico on the 27th day of October, 1805; at Washington City on the 7th day of January, 1805; at Washington City on the 22d day of March, 1816; at the Chickasaw Council House on the 14th day of September, 1816; at the Cherokee Agency on the 8th day of July, 1817, and at Washington City on the 27th day of February, 1819, all which treaties have been duly ratified by the Senate of the United States of America, and by which treaties the United States of America acknowledge the said Cherokee Nation to be a sovereign nation, authorised to govern themselves, and all persons who have settled within their territory, free from any right of legislative interference by the several states composing the United States of America in reference to acts done within their own territory, and by which treaties the whole of the territory now occupied by the Cherokee Nation on the east of the Mississippi has been solemnly guarantied to them, all of which treaties are existing treaties at this day, and in full force. This repugnancy has been shown, and it remains only to say what has before been often said by this tribunal of the local laws of many of the States in this Union -- that, being repugnant to the Constitution of the United States and to the laws made under it, they can have no force to divest the plaintiff in error of his property or liberty. In this view, perhaps, our ancestors, when they first migrated to this country, might have taken possession of a limited extent of the domain, had they been sufficiently powerful, without negotiation or purchase from the native Indians. By these treaties, and particularly by the treaties of Hopewell and Holston, the aforesaid territory is acknowledged to lie without the jurisdiction of the several states composing the Union of the United States; and, it is thereby specially stipulated that the citizens of the United States shall not enter the aforesaid territory, even on a visit, without a passport from the Governor of a State, or from some one duly authorised thereto by the President of the United States, all of which will more fully and at large appear by reference to the aforesaid treaties. . 8. It is the same power, and is conferred in the same words, that has often been exercised in regulating trade with foreign countries. For this additional consideration, the Cherokees release all right to the ceded land forever. Worcester was indicted, arrested, and con-victed by a jury of the Superior Court of Gwinnett County. But, with the exception of these limitations, the States are supreme, and their sovereignty can be no more invaded by the action of the General Government than the action of the State governments in arrest or obstruct the course of the national power. But if it shall be the policy of the government to withdraw its protection from the Indians who reside within the limits of the respective States, and who not only claim the right of self-government but have uniformly exercised it, the laws and treaties which impose duties and obligations on the General Government should be abrogated by the powers competent to do so. Certain it is that our history furnishes no example, from the first settlement of our country, of any attempt on the part of the Crown to interfere with the internal affairs of the Indians farther than to keep out the agents of foreign powers, who, as traders or otherwise, might seduce them into foreign alliances. In the case of Martin v. Hunter's Lessee, which was a writ of error to the Court of appeals of Virginia, it was objected that the return to the writ of error was defective because the record was not so certified, but the Court in that case said, "the forms of process, and the modes of proceeding in the exercise of jurisdiction are, with few exceptions, left by the legislature to be regulated and changed as this Court may, in its discretion, deem expedient. worcester v georgia dissenting opinion. the Cherokee country from Georgia, guaranty to them all the land within their boundary, solemnly pledge the faith of the United States to restrain their citizens from trespassing on it, and recognize the preexisting power of the nation to govern itself. It was agreed that the United States should have the exclusive right of regulating their trade, and a solemn guarantee of their land not ceded was made. The United States had previously entered into a treaty with the Cherokee Nation, distinguishing it as a separate entity from the states that could only engage in dealings with the federal government. It is sometimes objected, if the federal judiciary may declare an act of a State legislature void because it is repugnant to the Constitution of the United States, it places the legislation of a State within the power of this Court. [2], Worcester v. Georgia established the precedent that the federal government's constitutional authority preempts, or overrides, state laws, and affirmed the federal governments exclusive power to enter into treaties with other nations.[1][2]. Georgians of all stripes knew little of the legal issues and cared . Embargoes have been imposed, laws of nonintercourse have been passed, and numerous acts, restrictive of trade, under the power to regulate commerce with foreign nations. It must be admitted that the Indians sustain a peculiar relation to the United States. "[6][7] This quotation first appeared twenty years after Jackson had died, in newspaper publisher Horace Greeley's 1865 history of the U.S. Civil War, The American Conflict. The Confederation found Congress in the exercise of the same powers of peace and war, in our relations with Indian nations, as with those of Europe. Early attempts were made at negotiation, and to regulate trade with them. ", "Sec. 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 neighbouring counties of the State, extend her code over the whole country, abolish its institutions and its laws, and annihilate its political existence. And be it further enacted that it shall not be lawful for any person or body of persons, by arbitrary power, or under colour of any pretended rule, ordinance, law or custom of said nation, to prevent or offer to prevent, or deter any Indian headman, chief or warrior of said nation, residing within the chartered limits of this State, from selling or ceding to the United States, for the use of Georgia, the whole or any part of said territory, or to prevent or offer to prevent, any Indian, headman, chief or warrior of said nation, residing as aforesaid, from meeting in council or treaty any commissioner or commissioners on the part of the United States, for any purpose whatever. Worcester and others never obtained the license or gave an oath. History has shown that intercourse between the Indian tribes has, since the Constitution was ratified, been between the federal government and those tribes. -- The President of the United States to the honourable the judges of the Superior Court for the County of Gwinnett, in the State of Georgia, greeting:", "Because in the record and proceedings, as also in the rendition of the judgment of a plea which is in the said superior court, for the county of Gwinnett, before you, or some of you, between the State of Georgia, plaintiff, and Samuel A. Worcester, defendant, on an indictment, being the highest court of law in said State in which a decision could be had in said suit, a manifest error hath happened, to the great damage of the said Samuel A. Worcester, as by his complaint appears. The forcible seizure and abduction of the plaintiff in error, who was residing in the nation with its permission and by authority of the President of the United States, is also a violation of the acts which authorise the chief magistrate to exercise this authority. This policy has obtained from the earliest white settlements in this country down to the present time. They are not limited by any restrictions on their free actions. The acts of the State of Georgia which the plaintiff in error complains of as being repugnant to the Constitution, treaties, and laws of the United States are found in two statutes. What was of still more importance, the strong hand of government was interposed to restrain the disorderly and licentious from intrusion into their country, from encroachments on their lands, and from the acts of violence which were often attended by reciprocal murder. It is too clear for controversy that the Act of Congress by which this Court is constituted has given it the power, and of course imposed on it the duty, of exercising jurisdiction in this case. Such a question does not seem to arise in this case. Indian territories, such as the Cherokee nation, are separate from the states, and the intercourse between the Indian territories and the states shall be conducted exclusively by the United States government. But there has been no instance where the State laws have been generally extended over a numerous tribe of Indians, living within the State, and exercising the right of self-government, until recently. Worcester v. Georgia (1832) Opinion Dissent (Baldwin) Summary All Pages Page 1 of 4. The plaintiff in error is not less interested in the operation of this unconstitutional law than if it affected his property. [36] Removal of the Cherokee nation would begin just three years after Samuel Worcester and Elizur Butler were released from Georgia prison, and forced migration would commence via the Trail of Tears in 1838. On the 7th day of August, 1786, an ordinance for the regulation of Indian affairs was adopted which repealed the former system. By the twenty-fifth section of the Judiciary Act of 1789, it is provided, "that a final judgment or decree in any suit in the highest Court of law or equity of a State in which a decision in the suit could be had, where is drawn in question the, validity of a treaty or statute of, or an authority exercised under, the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under, any State, on the ground of their being repugnant to the Constitution, treaties, or laws, of the United States, and the decision is in favour of such their validity; or where is drawn in question the construction of any clause of the Constitution, or of a treaty or statute of, or commission held under, the United States, and the decision is against the title, right, privilege, or exemption, specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute, or commission, may be reexamined, and reversed or affirmed, in the Supreme Court of the United States.".