worcester v georgia dissenting opinion

", "the return of a copy of a record of the proper Court, annexed to the writ of error, is declared to be a sufficient compliance with the mandate of the writ. Cha c sn phm trong gi hng. But such engagements do not divest. Georgia | Teaching American History. And be it further enacted by the authority aforesaid that, after the time aforesaid, it shall not be lawful for any person or persons to confiscate, or attempt to confiscate, or otherwise to cause a forfeiture of the property or estate of any Indian of said tribe in consequence of his enrolling himself and family for emigration, or offering to enroll for emigration, or any other act of said Indian in furtherance of his intention to emigrate. The only requisite is that each of the contracting parties shall possess the right of self-government and the power to perform the stipulations of the treaty. 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. All the rights which belong to self-government have been recognized as vested in them. It is apparent that these laws are repugnant to the treaties with the Cherokee Indians which have been referred to, and to the law of 1802. So far as they have been practically exerted, they exist in fact, are understood by both parties, are asserted by the one, and admitted by the other. Worcester and the other missionaries had been invited by the Cherokee and were serving as missionaries under the authority of the U.S. federal government. We must examine the defence set up in this plea. 316, was a qui tam action brought to recover a penalty, and the record was authenticated by the seal of the Court and the signature of the clerk, without that of a judge. In the present case, the decision was against the right expressly set up by the defendant, and it was made by the highest judicial tribunal of Georgia. without a license from one or more of the commissioners of the respective departments. 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. These provisions, as has been remarked, apply, indiscriminately to criminal and civil cases wherever a right is claimed under the Constitution, treaties, or laws of the United States, and the decision by the State court is against such right. And be it further enacted that all that part of the said territory lying north of said last mentioned line and south, of a line to commence on the Chestatee River, at the mouth of Yoholo Creek; thence up said creek to the top of the Blue ridge; thence to the head waters of Notley River; thence down said river to the boundary line of Georgia, be, and the same is hereby added to, and shall become a part of, the County of Hall. And the judicial power of the United States acts in the same manner on the people. These tribes were few in number, and were surrounded by a white population. 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 seduct them into foreign alliances. Jurisdiction is taken in the case under consideration exclusively by the provisions of the twenty-fifth section of the law which has been quoted. Mr Justice Washington, after consultation with the judges, Stated that, according to the rules and practice of the Court, a return made by the clerk was a sufficient return. This policy has obtained from the earliest white settlements in this country down to the present time. 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. . In February, 1797, a rule (6 Wheat.Rules) was made on this subject in the following words: "It is ordered by the Court that the clerk of the Court to which any writ of error shall be directed may make return of the same by transmitting a true, copy of the record, and of all proceedings in the same, under his hand and the seal of the Court.". By overruling this plea, the Court decided that the matter it contained was not a bar to the action. Without any written definition of powers, they employed diplomatic agents to represent the United States at the several Courts of Europe; offered to negotiate treaties with them, and did actually negotiate treaties with France. And be it further enacted that all that part of said territory lying and being north of the last mentioned line and south of the road running from Charles Gait's ferry, on the Chattahoochee River, to Dick Roe's, to where it intersects with the path aforesaid, be, and the same is hereby added to, and shall become a part of, the County of De Kalb. If any person, not being an Indian, intrude upon the land 'allotted' to the Indians, or, being settled on it, shall refuse to remove within six months after the ratification of the treaty, he forfeits the protection of the United States, and the Indians were at liberty to punish him as they might think proper. Such has been the uniform construction of this power by the Federal Government, and of every State government, until the question was raised by the State of Georgia. I do not mean to say that the same moral rule which should regulate the affairs of private life should not be regarded by communities or nations. But can the treaties which have been referred to, and the law of 1802, be considered in force within the limits of the State of Georgia? . No exception was taken to it. 4. [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. By an act of 1787, severe corporeal punishment was inflicted on those who made or attempted to make surveys "beyond the temporary line designating the Indian hunting ground.". ", This instrument also gave the United States in Congress assembled the sole and exclusive right of, "regulating the trade and managing all the affairs with the Indians, not, members of any of the States, provided that the legislative power of any State within its own limits be not infringed or violated.". The two missionaries at first refused, because the Supreme Court decision had ruled they had not broken any law. Senator John Forsyth of Georgia, incoming Vice President Martin Van Buren, and Van Buren's political allies of the Albany Regency began to lobby Lumpkin to offer a pardon, citing the probability that a removal treaty with the Cherokees could be achieved once Worcester and Butler were released from prison. 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. The restrictions imposed by the law of 1802 come strictly within the power to regulate trade, not as an incident, but as a part of the principal power. On this Wikipedia the language links are at the top of the page across from the article title. Worcester argued that Georgia had no right to extend its laws to Cherokee territory. The same return is required in both. The power to tax is also an attribute of sovereignty, but can the new States tax the lands of the United States? So with respect to the words "hunting grounds." The record in this case, too, was authenticated by the seal of the Court and the certificate of the clerk. And be it further enacted by the authority aforesaid, that no person shall collect or claim any toll from any person for passing any turnpike gate or toll bridge by authority of any act or law of the Cherokee tribe, or any chief or headman or men of the same. If this be the general effect of the system, let us inquire into the effect of the particular statute and section on which the indictment is founded. 3. It is considered to have built the foundations of the doctrine of tribal sovereignty in the United States. And if the judicial power fall short of giving effect to the laws of the Union, the existence of the Federal Government is at an end. [21] To sustain his states' rights position, Lumpkin stipulated that Worcester and Butler had to petition for the pardon with an admission they had violated state law. These were civil cases. This plea was overruled by the court; and the jurisdiction of the Superior Court of the County of Gwinnett was sustained by the judgment of the court. Is this the rightful exercise of power, or is it usurpation? Worcester was convicted and sentenced. It is one of the powers parted with by the States and vested in the Federal Government. Worcester v. Georgia, Template:Ussc, was a case in which the United States Supreme Court held that Cherokee Indians were entitled to federal protection from the actions of state governments. The answer is because they have parted with them, expressly for the general good. 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.". By numerous treaties with the Indian tribes, we have acquired accessions of territory of incalculable value to the Union. 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. Persons who have obtained license are required to take the following oath: "I, A.B., do solemnly swear that I will support and defend the Constitution and laws of the State of Georgia and uprightly demean myself as a citizen thereof. To preclude forever all disputes, it is agreed. 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 Cherokee Nation, and in accordance with the humane policy of the Government of the United States, for the improvement of the Indians. Because the U.S. government has the exclusive authority to regulate intercourse with the Cherokee nation, Georgias law was unconstitutional and, therefore, void. Georgia 31 U.S. 515 (1832) MCLEAN, J., Concurring Opinion Proprietors of Charles River Bridge v. Proprietors of Warren Bridge 36 U.S. 420 (1837) MCLEAN, J., Separate Opinion Worcester v. Georgia. [7] It was, however, reported in the press in March 1832 that Jackson was unlikely to aid in carrying out the court's decision if his assistance were to be requested. This Court adopted the following rule on this subject in 1797: "It is ordered by the Court that the clerk of the court to which any writ of error shall be directed may make the return of the same by transmitting a true copy of the record, and of all proceedings in the cause, under his hand, and the seal of the Court.". We hear no more of giving peace to the Cherokees. And be it further enacted, that any person or body of persons offending against the provisions of the foregoing sections, shall be guilty of a high misdemeanour, subject to indictment, and on conviction shall be confined at hard labour in the penitentiary for not less than four nor longer than six years, at the discretion of the court. into a surrender of self-government would be, we think, a perversion of their necessary meaning, and a departure from the construction which has been uniformly put on them. I, John G. Park, clerk of the Superior Court of the County of Gwinnett and State aforesaid, do certify that the annexed and foregoing is a full and complete exemplification of the proceedings and judgments had in said court against Samuel A. Worcester, one of the defendants in the case therein mentioned as they remain of record in the said Superior Court. They have, no doubt, been enacted under a conviction of right by a sovereign and independent State, and their policy may have been recommended by a sense of wrong under the compact. Can the State of Georgia regulate by state law the interaction between citizens of the state and members of the Cherokee nation? words, nor supposing it to be material whether they were called the subjects or the children of their father in Europe; lavish in professions of duty and affection, in return for the rich presents they received; so long as their actual independence was untouched and their right to self-government acknowledged, they were willing to profess dependence on the power which furnished supplies of which they were in absolute need, and restrained dangerous intruders from entering their country. This has been done. Such was the state of things when the Confederation was adopted. The correct exposition of this article is rendered unnecessary by the adoption of our existing Constitution. And the prisoner, being arraigned, plead not guilty. . In 1827 the board sent Worcester to join its Cherokee mission in Georgia. They guarantied to them their rights of occupancy, of self-government, and the full enjoyment of those blessings which might be attained in their humble condition. Three Indian departments were established; and commissioners appointed in each, "to treat with the Indians in their respective departments in the name and on the behalf of the United Colonies in order to preserve peace and friendship with the said Indians and to prevent their taking any part in the present commotions.". [1][2], Worcester argued that the state could not prosecute him and his fellow missionaries because the Georgia statute violated the U.S. Constitution, which granted the federal government exclusive authority to enter into treaties with other nations. The great subject of the article is the Indian trade. He contended that the act under which he had been convicted violated the U.S. Constitution, which gives to the U.S. Congress the authority to regulate commerce with Native Americans. The defendant is a state, a member of the Union, which has exercised the powers of government over a people who deny its jurisdiction . Accordingly, the laws of Georgia regarding the Cherokee nation interfered with the federal governments authority, and with the relations between the Cherokee and the United States. May they violate this compact, at discretion? A weak State, in order to provide for its safety, may place itself under the protection of one more powerful without stripping itself of the right of government and ceasing to be a State. Protection does not imply the destruction of the protected. The Crown could not be understood to grant what the Crown did not affect to claim; nor was it so understood. The opinion of Mr Justice Baldwin was not delivered to the reporter. They demonstrate the truth that 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 indictment and plea in this case draw in question the validity of the treaties made by the United States with the Cherokee Indians; if not so, their construction is certainly drawn in question, and the decision has been, if not against their validity, "against the right, privilege, or exemption specifically set up and claimed under them." For this object, it might not be improper to notice how they were considered by the European inhabitants who first formed settlements in this part of the continent of America. Worcester v. Georgia (1832) Opinion Dissent (Baldwin) Summary All Pages Page 1 of 4. 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. WM. The group was not only doing religious missionary work but was also giving the Cherokee advice on how to resist Georgia state laws. The record of the Court of Gwinnett was returned, certified by the clerk of the Court, and was also authenticated by the seal of the Court. They wanted to take a case to the U.S. Supreme Court to define the relationship between the federal and state governments, and establish the sovereignty of the Cherokee nation. Indictment for residing in the Cherokee Nation without license. And be it further enacted that no Indian or descendant of any Indian residing within the Creek or Cherokee Nations of Indians shall be deemed a competent witness in any court of this State to which a white person may be a party, except such white person resides within the said nation.". POTTER. In some of the old States, Massachusetts, Connecticut, Rhode Island and others, where small remnants of tribes remain, surrounded by white population, and who, by their reduced numbers, had lost the power of self-government, the laws of the State have been extended over them for the protection of their persons and property. ", "2. The law does not require it. Early attempts were made at negotiation, and to regulate trade with them. 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. ", "The State v. Elizur Butler, Samuel A. Worcester and others. Is it incompatible with State sovereignty to grant exclusive jurisdiction to the Federal Government over a number of acres of land for military purposes? The practice is both ways. ", "Sec. They do not constitute, as was decided at the last term, a foreign State so as to claim the right to sue in the Supreme Court of the United States; and yet, having the right of self-government, they, in some sense, form a State. . ", "Sec. or to compel their submission to the violence of disorderly and licentious intruders? Let the averments of this plea be compared with the twenty-fifth section of the Judicial Act. 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. McLean was a . [32] In February, they sent a letter to the Missionary Herald, explaining that their abandonment of the Supreme Court case was "not . ", "Sec. President Andrew Jackson ignored the Court's decision in Worcester v. Georgia, but later issued a proclamation of the Supreme Court's ultimate power to decide constitutional questions and . 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. This power to repel invasion, and, upon just cause, to invade and destroy the natives, authorizes offensive as well as defensive war, but only "on just cause." He also alleges that this subject, by the Constitution of the United States, is exclusively vested in Congress, and that the law of Georgia, being repugnant to the Constitution of the United States, to the treaties referred to, and to the act of Congress specified, is void, and cannot be enforced against him. Manage Settings Might not the same objection to this interior independent power, by Georgia, have been urged with as much force as at present ever since the adoption of the Constitution? It is the opinion of this Court that the judgment of the Superior Court for the County of Gwinnett, in the State of Georgia, condemning Samuel A. Worcester to hard labour in the penitentiary of the State of Georgia for four years was pronounced by that Court under colour of a law which is void, as being repugnant to the Constitution, treaties, and laws of the. Georgians of all stripes knew little of the legal issues and cared . The Constitution also bars the states from passing laws that alter the obligations of contractsin this case, treaties. The Supreme Court, on a writ of error, reversed the convictions. Have they not bound themselves, by compact, not to tax the public lands, nor until five years after they shall have been sold? ", "Sec. To give jurisdiction in such a case, this Court need look no further than to ascertain whether the right, thus asserted, was decided against by the State court. ", "Clerk of the Supreme Court of the United States", "United States of America to the State of Georgia, greeting:", "You are hereby cited and admonished to be, and appear at a Supreme Court of the United States, to be holden at Washington, on the second Monday of January next, pursuant to a writ of error filed in the clerk's office of the superior court for the county of Gwinnett, in the State of Georgia, wherein Samuel A. Worcester is plaintiff in error, and the State of Georgia is defendant in error, to show cause, if any there be, why judgment rendered against the said Samuel A. Worcester, as in the said writ of error mentioned, should not be corrected, and why speedy justice should not be done to the parties in that behalf. It is, then, we think, 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. [22], The national situation began to deteriorate in December. We have made treaties with them; and are those treaties to be disregarded on our part because they were entered into with an uncivilized people? . ", "Sworn to and subscribed before me the day and year above written. Those Georgia laws, then, are unconstitutional. Her chartered limits, to the extent claimed, embraced a great number of different nations of Indians, all of whom were governed by their own laws and were amenable only to them. 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.". But the inquiry may be made, is there no end to the exercise of this power over Indians within the limits of a State by the General Government? Through the agency of the government, they have been partially induced, in some parts of the Union, to change the hunter state for that of the agriculturist and herdsman. So with respect to the words "hunting grounds." Encyclopaedia Britannica's editors oversee subject areas in which they have extensive knowledge, whether from years of experience gained by working on that content or via study for an advanced degree. ", "Sec. 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.