>>Dr. Nelson: We left off last time talking about the Supreme Court wanting to maybe hear
from the Cherokees again, or somebody maybe related to them. So that gets us up to Worcester
v. Georgia. Tell us what happened with this, and and who is Samuel Worcester and what business
is it of his?
>>Lindsay Robertson: Yeah, Samuel Worcester and a guy we forget called Elizur Butler were
New England missionaries working in Cherokee Nation. Worcester was actually the postmaster,
so he was there as a federal employee.
>>Dr. Nelson: He's a federal guy?
>>Lindsay Robertson: Yeah.
>>Dr. Nelson: This is significant?
>>Lindsey Robertson: Well, it should've been, but it doesn't seem to have been. [Dr. Nelson
laughs] It wasn't necessary for the resolution of the the lawsuit that he got involved in.
Worcester failed to obtain a license from Georgia as required by Georgia law to be in
the Cherokee Nation. He and Butler were apprehended.
>>Dr. Nelson: And they're asking for an oath of allegiance to Georgia's government--
>>Lindsay Robertson: Yeah.
>>Dr. Nelson: --and Worcester says, "I don't want to do that."
>>Lindsay Robertson: Yeah, they're not interested in supporting the governor of Georgia. So
they get hauled away, sentenced to a term of years in Georgia prison at hard labor.
They request judicial relief from the Supreme Court of the United States, Worcester and
Butler versus Georgia, shortened to Worcester versus Georgia. In 1832 John Marshall takes
the case and basically will conclude by saying, "Let those people go." Now, that's interesting.
What's more interesting is the reason that that Georgia has to let them go in the view
of the Supreme Court of the United States.
>>Dr. Nelson: Right. What's that reason?
>>Lindsay Robertson: Well, there are two parts to it. One of them, the one that we remember
best, and it's the easiest to apprehend, is there's a long section at the end of the opinion
in which Marshall says for the majority of the court, "Georgia can't impose, can't enforce
its laws because it has no jurisdiction to impose its laws over the Cherokee Nation,
including those under which Worcester was prosecuted. And they have no jurisdiction
because," and as I say this, this is part of the holding, "we've got a treaty with the
Cherokee Nation, and the treaty add—contemplates continuing Cherokee self-governance. And Georgia's
abolition of Cherokee laws and imposition of Georgia laws conflicts with the promise
in that treaty."
>>Dr. Nelson: Mmhmm.
>>Lindsay Robertson: So, under the U.S. Constitution under the Supremacy Clause, if you've got
a conflict between a state statue and a federal treaty, the federal treaty wins.
>>Dr. Nelson: Mmhmm, right.
>>Lindsay Robertson: And so that's fairly straightforward. So that's the Supremacy Clause
portion of the holding. And as I say, that's what's best remembered. Less well remembered,
but I think far more interesting, is the re-writing of Johnson versus McIntosh that the court
does--
>>Dr. Nelson: Okay. What--
>>Lindsay Robertson: --in Worcester v. Georgia.
>>Dr. Nelson: --what's he doing there?
>>Lindsay Robertson: Well, you'll remember that that Georgia's grounds for believing
that it had jurisdiction to impose its laws over Cherokee Nation was its position that
under the Discovery Doctrine, it owned the land. Georgia was the landlord, so it could
change the lease terms. That was a problem that Marshall had created, and now it was
time for Marshall to fix it. So in Johnson, the the historical predicate, right, the basis
for that, was this history that had sort of been cut and pasted from Marshall's Volume
I and John Marshall's Life of George Washington. That led, he said, in Johnson, inexorably
to the conclusion that the British had had considered that they, or understood that they
owned the title to the land. In Worcester versus Georgia there's not a single citation
to Johnson versus McIntosh. There's no overruling of that portion of Johnson versus McIntosh.
>>Dr. Nelson: Uh huh.
>>Lindsay Robertson: What there is is a complete re-write of that historical section. And and
it begins something like: "On the discovery of North America, there were folks living
here. And so charters were granted, what was the legal effect of those charters? And the
answer to that question, Marshall says in Worcester, is the charters and international
law by implication at the time gave the British crown the exclusive right to purchase "and
no more." And that's a quote.
>>Dr. Nelson: And no more?
>>Lindsay Robertson: "And no more." It's, it's an erasure of that vesting of ownership,
vesting of fee title portion. It's a, it's a retention of that title of restriction on
alienation--
>>Dr. Nelson: Right.
>>Lindsay Robertson: --that you can only sell whatever you've got to the U.S. But no longer
does—did the British own under this new formulation, The Discovery Doctrine, title
to indigenous lands, which means no longer did Georgia have any claim to own the title
to the lands of the Cherokee Nation--
>>Dr. Nelson: Mmhmm.
>>Lindsay Robertson: --which meant that they had no basis at all under Supreme Court or
any other law for asserting their jurisdiction over the Cherokee Nation. So the the treaty,
the Supremacy Clause business was helpful, but but this rewriting the Discovery Doctrine
was a message to all those other states out there. And Tennessee had passed this law,
and Alabam—or Mississippi had passed this law.
>>Dr. Nelson: Mmhmm.
>>Lindsay Robertson: And the message to them was: it doesn't matter if there's a federal
treaty with the tribes that you're attempting to assert jurisdiction over. You have no power
to assert your jurisdiction over these tribes because you don't own their land.
>>Dr. Nelson: Uh huh. And he also claimed at the same time that the indigenous nations
were nations and retained some rights.
>>Lindsay Robertson: Well, yes. And that's a part, that's language in Cherokee Nation
versus Georgia. It's, it's understood in Worcester versus Georgia. The effect of Worcester versus
Georgia, I think was meant to be, it's a re-write of Johnson, so it's a it's a new sort of way
of looking at indigenous rights. Indigenous peoples are self-governing, they're immune
from jurisdiction exercised by the states within whose territorial limits they may happen
to find themselves. Their relationships are meant to be exclusively with the federal government.
It's a very clear, sort of what we call "black letter" way of looking at indigenous rights.
They're comprehensive, they're expansive, and they're immune from state from state interference.
>>Dr. Nelson: But is it still the case that the Discovery Doctrine pertains in, in many
cases? So...?
>>Lindsay Robertson: Well, two things happened after the Worcester decision was handed down.
Because that's sort of, that vision didn't turn out to have staying power.
>>Dr. Nelson: [laughs] Okay.
>>Lindsay Robertson: And it's partly due to demographics and partly due to politics. Demographics
were the most important element, you know, Supreme Court justices don't live forever.
Marshall himself was soon to die. Members of his court started leaving. And their places
were filled by the incumbent president, who of course was Andrew Jackson.
>>Dr. Nelson: Mmhmm.
>>Lindsay Robertson: These new justices by the late 1830s occupied a majority of the
seats on the Supreme Court. Jacksonian justices when one appointed by Martin Van Buren, who
was Jackson's chosen successor. And these guys took the opportunity in half a dozen
cases decided between 1835 and 1842 to reintroduce that original formulation of the Johnson discovery
rule.
>>Dr. Nelson: Okay.
>>Lindsay Robertson: And--
>>Dr. Nelson: So you can kind of pick and choose among your precedents, is that right?
>>Lindsay Robertson: Well, you can, yeah. And this again wasn't done overtly. This is,
you know, couple—one was a case dealing with a New Jersey riverbed, a couple were
Florida land claims, and so. But they all provided opportunity for the court to say,
"Oh, and by the way, as everyone knows, [Dr. Nelson laughs] when Europeans arrived they
acquired ownership of the underlying title to Indian lands."
>>Dr. Nelson: Okay.
>>Lindsay Robertson: And so completely rewritten. And so, sort of, and this was also the problem
with Worcester, because Marshall never expressly overrules Johnson versus McIntosh for political
reasons, it's very subtle what's happened. And so subtle in fact, that with the overwriting
of the subsequent cases, I think we just forgot for years this political battle that went
on, which is really the story of the book. This this brief shining moment, in which,
in which there was a different world for Indian peoples.
>>Dr. Nelson: Right.
>>Lindsay Robertson: And and that it was a reversal of that earlier that—lawyers and
legal historians, I think, have tended to try and reconcile them. Well, they aren't
reconcilable, the Worcester and Johnson rules, because one overrules the other.
>>Dr. Nelson: Mmhmm.
>>Lindsay Robertson: And that was, I think, the intent.
>>Dr. Nelson: Hmmm. That sounds like a good intent.
>>Lindsay Robertson: Well, yeah. And so so, but the politics. The Cherokees did remove,
right? As did the Choctaws and Chickasaws, etcetera.
>>Dr. Nelson: Even though Marshall decided that Georgia's imposition of its laws was
unconstitutional.
>>Lindsay Robertson: Right.
>>Dr. Nelson: What, what happened there?
>>Lindsay Robertson: Well, Jackson declined to accept the opinion, and Worcester, this
is the point at which Andrew Jackson supposedly, maybe said something like: "John Marshall
has made his decision. Now let him enforce it."
>>Dr. Nelson: Mmhmm.
>>Lindsay Robertson: The Supreme Court doesn't have much in the way of enforcement power.
They don't have an army, they don't have a—you know, so. And Georgia had said, you know,
"We're not going to, we're not going to let those missionaries go." Jackson started sending
agents out to meet with the five Southeastern tribes to reassure them that Johnson was good
law, that Worcester was bad law and that they were going to have to go, or they were going
to be subject to state law. And then the demography on the court, the retirement and death of
the justices started to make this likelier and likelier.
>>Dr. Nelson: Let me return to that key point, that the executive branch just declines to
enforce a ruling of the judicial branch.
>>Lindsay Jackson: Here's what happened over the summer. The opinion's issued in the spring,
in Worcester v. Georgia. But the Supreme Court doesn't issue what's called a "mandate," which
is a direct order to the state to let the missionaries go. That won't happen until,
because the court goes on recess, until the court reconvenes in the fall.
>>Dr. Nelson: Mmhmm.
>>Lindsay Jackson: And so there's a little time, right? Georgia can let these guys go
and then there won't be a constitutional showdown, right, which might require the Supreme Court
to call in the president for assistance to make Georgia obey. There's a little breathing
space. South Carolina decides to go crazy that summer, and fill the breathing space
with a convention called, either the idea is Jackson supporting states' rights, now
is the time to take a stand against the federal tariff, which is a different story outside
the scope of this course.
>>Dr. Nelson: Mmhmm.
>>Lindsay Jackson: South Carolina had been mad for years about Congress taxing imports
because they import practically everything.
>>Dr. Nelson: Right.
>>Lindsay Jackson: So South Carolina says, and they didn't think the federal tariff was
constitutional. So in that summer after the Worcester decision was handed down, South
Carolina meets in convention, and they pass something called "the Nullification Ordinance,"
that says that if a state believes that a federal statue like the tariff is unconstitutional,
they don't have to enforce it.
>>Dr. Nelson: Mmhmm.
>>Lindsay Jackson: Now this is too much for Jackson, who recognizes that this is the end
of the Union.
>>Dr. Nelson: And he's willing to go to bat over the South Carolina case, but not over
the Cherokee case?
>>Lindsay Jackson: Well, South Carolina changes his thinking about the Cherokee case, and
Jackson recognizes that if states can decline to enforce federal law, then there is no Union
anymore.
>>Dr. Nelson: Right.
>>Lindsay Jackson: So Jackson sends a note to the Governor of Georgia and says, "You
let those missionaries go. This is a bigger problem than just the Cherokees now."
>>Dr. Nelson: Mmhmm.
>>Lindsay Jackson: And then he gets Congress to pass something called the Force Bill, which
would've authorized him to send the Army into South Carolina. South Carolina repeals the
Nullification Ordinance--
>>Dr. Nelson: Mmhmm.
>>Lindsay Jackson: --and the Governor of Georgia, the day before the Supreme Court reconvenes
when they would've had to issue this mandate, lets these two missionaries go, and the crisis
is diffused.
>>Dr. Nelson: Okay. Well, let me ask you about a hypothetical. Let's say for instance that
Georgia had not decided to release the two missionaries. What sort of enforcement mechanism
is in place? What does Worcester v. Georgia reveal about the system of checks and balances
and the lack of enforcement with the Supreme Court? Should this case come up again, what
prevents the executive branch from ignoring a ruling of this judicial branch?
>>Lindsay Jackson: Well, those are two different questions. You know, the court has, is, has
much more institutional gravitas now. It's hard to imagine the executive ignoring a Supreme
Court decision anymore, so that's almost too hypothetical to question. But it, you know,
even assuming that it, it did happen there are there is more available to the court now
in terms of enforcement opportunities now than then.
>>Dr. Nelson: I see.
>>Lindsay Jackson: But but back then, you know, the status the Supreme Court was a real
vulnerable institution. They really, they weren't, they were they were out to a certain
extent in uncharted territory. They they didn't—it wasn't until 1803 that the Supreme Court claimed
the power to invalidate federal statutes as being unconstitutional in Marbury versus Madison.
And the government's, the executive's response was to impeach one of the Supreme Court justices,
right? [Dr. Nelson laughs] For a different, for a different cause but it so shook the
court that John Marshall, who had had done this sort of tentatively in Marbury versus
Madison, never again invalidated a federal statute.
>>Dr. Nelson: Really?
>>Lindsay Robertson: And it didn't happen again for 50 years, that's how shaken the
court was and how nervous about exercising this power. Now we take it for granted.
>>Dr. Nelson: Mmhmm. Right.
>>Lindsay Jackson: I don't know what mechanisms would've been available to the court in 1832.
There's been a lot of legal historical, or some legal historical literature on that,
what would the court have done? And it's not clear that the court was sure what it would
do. There's correspondence from the justices, Justice Story to Justice Marshall saying,
you know, "If they're going to abolish the court or take away our jurisdiction," and
there was legislation proposing maybe the Senate should sit in review of Supreme Court
constitutional law decisions and that sort of thing. But Justice Story writes, you know,
"I wish they'd go ahead and abolish it now while I can still go home to Massachusetts
and practice law. You know, I'm young enough to get some clients." I don't think they had
a Plan B. I think they just stuck their necks out and said, "Let's see what happens."