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Documents of United States Indian Policy (Third Edition) Francis Paul Prucha

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Prucha, Paul. Documents of United States Indian Policy (Third Edition). Lincoln: University of Nebraska Press, 2000. Project MUSE., https://muse.jhu.edu/.

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45. Worcester v. Georgia 1832

Samuel A. Worcester, a missionary among the Cherokees, was imprisoned because he refused to obey a Georgia law forbidding whites to reside in the Cherokee country without taking an oath of allegiance to the state and obtaining a permit. The Supreme Court decided in favor of Worcester, maintaining that the Cherokees were a nation free from the jurisdiction of the state.

. . . . Mr. Chief Justice Marshall deliv- ered the opinion of the Court.

This cause, in every point of view in which it can be placed, is of the deepest interest.

The defendant is a state, a member of the Union, which has exercised the powers of government over a people who deny its jurisdiction, and are under the protection of the United States.

The plaintiff is a citizen of the state of Vermont, condemned to hard labour for four years in the penitentiary of Georgia; under colour of an act which he alleges to be repugnant to the Constitution, laws, and treaties of the United States.

The legislative power of a state, the con- trolling power of the Constitution and laws of the United States, the rights, if they have any, the political existence of a once numerous and powerful people, the personal liberty of a citizen, are all involved in the subject now to be considered. . . .

The Indian nations had always been considered as distinct, independent political communities, retaining their original natu- ral rights, as the undisputed possessors of the soil, from time immemorial, with the single exception of that imposed by irre- sistible power, which excluded them from intercourse with any other European poten- tate 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 very term “nation,” so generally applied to them, means “a people distinct from others.” The Constitution, by declar- ing treaties already made, as well as those to be made, to be the supreme law of the land, has adopted and sanctioned the pre- vious treaties with the Indian nations, and consequently admits their rank among those powers who are capable of making treaties. The words “treaty” and “nation” are words

of our own language, selected in our diplo- matic and legislative proceedings, by our- selves, having each a definite and well un- derstood meaning. We have applied them to Indians, as we have applied them to the other nations of the earth. They are applied to all in the same sense.

Georgia, herself, has furnished conclusive evidence that her former opinions on this subject concurred with those entertained by her sister states, and by the government of the United States. Various acts of her legislature have been cited in the argument, including the contract of cession made in the year 1802, all tending to prove her acquiescence in the universal conviction that the Indian nations possessed a full right to the lands they occupied, until that right should be ex- tinguished by the United States, with their consent: that their territory was separated from that of any state within whose char- tered limits they might reside, by a bound- ary line, established by treaties: that, within their boundary, they possessed rights with which no state could interfere; and that the whole power of regulating the inter- course with them was vested in the United States. A review of these acts, on the part of Georgia, would occupy too much time, and is the less necessary, because they have been accurately detailed in the argument at the bar. Her new series of laws, mani- festing her abandonment of these opinions, appears to have commenced in December, 1828.

In opposition to this original right, pos- sessed by the undisputed occupants of every country; to this recognition of that right, which is evidenced by our history, in every change through which we have passed; is placed the charters granted by the monarch of a distant and distinct region, parcelling out a territory in possession of others whom he could not remove and did not attempt to

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remove, and the cession made of his claims by the treaty of peace.

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. These newly asserted titles can derive no aid from the articles so often repeated in Indian treaties; extending to them, first, the protection of Great Britain, and afterwards that of the United States. These articles are associated with others, recognising their ti- tle to self-government. The very fact of re- peated treaties with them recognises it; and the settled doctrine of the law of nations is, that a weaker power does not surrender its independence—its right to self-government, by associating with a stronger, and taking its protection. A weak state, in order to provide for its safety, may place itself under the pro- tection of one more powerful, without strip- ping itself of the right of government, and ceasing to be a state. Examples of this kind are not wanting in Europe. “Tributary and feudatory states,” says Vattel, “do not thereby cease to be sovereign and independent states, so long as self-government and sovereign and independent authority are left in the adminis- tration of the state.” At the present day, more than one state may be considered as holding its right of self-government under the guar- antee and protection of one or more allies.

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 them- selves, or in conformity with treaties, and with the acts of Congress. The whole inter- course between the United States and this na- tion, is, by our Constitution and laws, vested in the government of the United States.

The act of the state of Georgia, under which the plaintiff in error was prosecuted, is consequently void, and the judgment a nullity. Can this Court revise and reverse it?

If the objection to the system of legis- lation, lately adopted by the legislature of Georgia, in relation to the Cherokee nation, was confined to its extra-territorial opera- tion, the objection, though complete, so far as respected mere right, would give this Court no power over the subject. But it goes much

further. If the review which has been taken be correct, and we think it is, the acts of Georgia are repugnant to the Constitution, laws, and treaties of the United States.

They interfere forcibly with the rela- tions established between the United States and the Cherokee nation, the regulation of which, according to the settled principles of our Constitution, are committed exclusively to the government of the Union.

They are in direct hostility with treaties, repeated in a succession of years, which mark out the boundary that separates 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 recognise the pre-existing power of the nation to govern itself.

They are in equal hostility with the acts of Congress for regulating this intercourse, and giving effect to the treaties.

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 authorize the chief magistrate to exercise this authority.

Will these powerful considerations avail the plaintiff in error? We think they will. He was seized, and forcibly carried away, while under guardianship of treaties guarantying the country in which he resided, and tak- ing it under the protection of the United States. He was seized while performing, un- der the sanction of the chief magistrate of the Union, those duties which the humane policy adopted by Congress had recommended. He was apprehended, tried, and condemned, un- der colour of a law which has been shown to be repugnant to the Constitution, laws, and treaties of the United States. Had a judg- ment, liable to the same objections, been rendered for property, none would question the jurisdiction of this Court. It cannot be less clear when the judgment affects personal liberty, and inflicts disgraceful punishment, if punishment could disgrace when inflicted on innocence. The plaintiff in error is not less interested in the operation of this unconsti- tutional law than if it affected his property. He is not less entitled to the protection of the Constitution, laws, and treaties of his country. . . .

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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 Constitu- tion, treaties, and laws of the United States, and ought, therefore, to be reversed and an- nulled. . . .

[6 Peters, 534–36, 558–63.]

46. Authorization of a Commissioner of Indian Affairs July 9, 1832

In 1832 Congress at last provided for an official specifically charged with the direction and management of Indian affairs. The commissioner succeeded the head of the Indian Office that had been established by the secretary of war in 1824. The same act absolutely prohibited the introduction of ardent spirits into the Indian country.

An Act to provide for the appointment of a commissioner of Indian Affairs, and for other purposes.

Be it enacted . . . , That the President shall appoint, by and with the advice and consent of the Senate, a commissioner of Indian affairs, who shall, under the direction of the Secretary of War, and agreeably to such regulations as the President may, from time to time, prescribe, have the direction and management of all Indian affairs, and of all matters arising out of Indian relations, and shall receive a salary of three thousand dollars per annum.

Sec. 2. And be it further enacted, That the Secretary of War shall arrange or appoint to the said office the number of clerks necessary therefor, so as not to increase the number now employed; and such sum as is necessary to pay the salary of said commissioner for the year one thousand eight hundred and thirty-two, shall be, and the same hereby

is, appropriated out of any money in the treasury.

Sec. 3. And be it further enacted, That all accounts and vouchers for claims and disbursements connected with Indian affairs, shall be transmitted to the said commissioner for administrative examination, and by him passed to the proper accounting officer of the Treasury Department for settlement; and all letters and packages to and from the said commissioner, touching the business of his office, shall be free of postage.

Sec. 4. And be it further enacted, That no ardent spirits shall be hereafter introduced, under any pretence, into the Indian country.

Sec. 5. And be it further enacted, That the Secretary of War shall, under the direction of the President, cause to be discontinued the services of such agents, sub-agents, in- terpreters, and mechanics, as may, from time to time, become unnecessary, in consequence of the emigration of the Indians, or other causes.

[U.S. Statutes at Large, 4:564.]

47. Indian Commissioner Herring on the Indian Race Extract from the Annual Report of the Commissioner of Indian Affairs.

November 22, 1832 The first man to hold the office of commissioner of Indian affairs authorized by Congress in 1832 was Elbert Herring. In his first report to the secretary of war he urged that the Indians be brought within the social system of the whites, especially in regard to private ownership of property.

. . . Some of the Indian tribes have pro- ceeded to hostile acts, in the course of the year past, against each other, and conflicts

have ensued, in which blood has been spilt in defiance of the obligation imposed by the guarantee of the United States, for the