The United States Constitution: The Judicial Branch

[John Marshall], c. 1904. Courtesy of the Library of Congress.

In 1832, the Supreme Court, led by Chief Justice John Marshall, ruled against the state of Georgia in favor of the Cherokee Nation in the Supreme Court case Worcester v. Georgia. At the time, Indian Removal had become an increasingly popular idea among many Americans, including numerous Georgians, a majority in Congress, and the executive branch under President Andrew Jackson’s leadership. The decision acknowledged the Cherokee Nation’s “tribal sovereignty” as a sovereign, foreign nation and declared that the Cherokee could remain on tribal lands in Georgia. Georgia ignored the Supreme Court, and the Worcester v. Georgia ruling was one in a series of events that ultimately led to the forced removal of the Cherokee and other Native American groups from their traditional, ancestral lands. Despite the Supreme Court ruling in favor of the Cherokee Nation, “tribal sovereignty” was not readily applied to American Indians until the 20^th century.

Leading up to the 1832 case, gold was discovered in northern Georgia on lands belonging to the Cherokee Nation. Starting in 1828, prospectors and miners rushed into Cherokee territory, predating the famous California Gold Rush in 1849 by over twenty years to become the first American gold rush. The Georgia State Assembly passed acts attempting to eliminate Cherokee rights to the land, and the state utilized a land lottery to systematically confiscate Cherokee lands to give them to white Georgians. Samuel Worcester and Elizur Butler, two white Americans peacefully living on Cherokee lands, often advised the Cherokee about their rights as a nation. To stop this, the Georgia legislature passed a law prohibiting whites from living on Cherokee lands without permission from the state. Worcester and Butler were arrested,

Map of the former territorial limits of the Cherokee “Nation of” Indians: exhibiting the boundaries of the various cessions of land made by them to the Colonies and to the United States by treaty stipulations, from the beginning of their relations with the whites to the date of their removal west of the Mississippi River. Courtesy of University of North Carolina at Chapel Hill via North Carolina Digital Heritage Center.

and their trial in Worcester v. Georgia challenged the arrest by questioning the constitutionality of the state imposing laws on a foreign nation. Marshall’s ruling in the case legitimized the Cherokee Nation’s sovereignty, meaning that a state, like Georgia, could not impose laws on a foreign nation. The federal government (a sovereign state) held the sole power to enter into treaties or other agreements with foreign, sovereign nations under the Constitution. President Jackson strongly disagreed with Marshall and expressed in a letter to a friend: “The decision of the Supreme Court has fell still born, and they find that it cannot coerce Georgia to yield to its mandate.”

Jackson’s message about the Supreme Court’s decision highlights a limit to the power of the judicial branch: it cannot enforce its rulings alone. Marshall’s ruling had no effect and could not protect the Cherokee Nation. The executive is the commander in chief of the military, who held the power to forcibly remove the Cherokee from their lands. In addition, Congress passed the Indian Removal Act that forced eastern American Indian tribes to move west of the Mississippi River, and Jackson signed it in 1830. The state of Georgia took possession of Cherokee lands in 1835. Significant portions of the Cherokee were forcibly removed in 1838. That journey westward became known as the “trail where they cried,” or the “Trail of Tears.”

Explore the resources below to learn more about the Judicial Branch and Indian Removal.

The Georgia Historical Society Archives houses these materials related to Cherokee Indian Removal: