Worcester v. Georgia: The Case That Cemented Native American Sovereignty But Failed to Save the Cherokee

In 1830, afraid that white missionaries were aiding the Cherokee in their effort to resist giving up their lands, the Georgia state government made it illegal for white people to live within Cherokee Nation territory without a license from the government. Samuel Austin Worcester – raised in Vermont and trained as a Congregationalist minister – had lived for years with the Cherokee and became close with the Cherokee leadership. In March 1831, the Georgia Guard arrested Worcester and fellow missionaries under the new residency law. Most of the arrested missionaries agreed to leave the state in exchange for having their charges dropped – but not Samuel Worcester. With the Cherokee leadership, Worcester instead decided to use the charges against him as an opportunity to appeal to the United States Supreme Court. The resulting case, Worcester v. Georgia, was a critical win for the Cherokee Nation, and to this day, remains one of the most important cases in establishing our modern understanding of tribal sovereignty. And yet, despite the legal win, the actual aftermath of the case was the theft of Cherokee land and the forcible removal of the Cherokee from Georgia, resulting in the death of thousands of people.

Written and Researched by Sarah Handley-Cousins, PhD

Recorded by Sarah Handley-Cousins, PhD and Elizabeth Garner Masarik, PhD

Sarah: In 1830, afraid that white missionaries were aiding the Cherokee in their effort to resist giving up their lands, the Georgia state government passed a law that made it illegal for white people to live within the territory of the Cherokee Nation without a special license from the government. Samuel Austin Worcester – raised in Vermont and trained as a Congregationalist minister – had lived for years with the Cherokee and became close with the Cherokee leadership. On March 12, 1831, the Georgia Guard arrested Worcester and several other fellow missionaries under the new residency law. Most of the arrested missionaries agreed to leave the state in exchange for having their charges dropped – but not Samuel Worcester.

Elizabeth: With the Cherokee leadership, Worcester instead decided to use the charges against him as an opportunity to appeal the case to the United States Supreme Court. The resulting case, Worcester v. Georgia, was a critical win for the Cherokee Nation, and to this day, remains one of the most important cases in the history of the quest for tribal sovereignty. And yet, despite the legal win, the actual aftermath of the case was the theft of Cherokee land and the forcible removal of the Cherokee from Georgia, resulting in the death of thousands of people.

Sarah: This series has been focused on Supreme Court cases that sucked – cases like Korematsu v. United States or United States v. Wong Kim Ark. But Worcester v. Georgia is, paradoxically, a Supreme Court case that did not suck; and in fact, a case that has created powerful precedent that would, according to legal historian Tim Alan Garrison, “eventually be regarded as the most important decision in the history of American Indian law.”^[1] At the same time, it was a case that was, in the moment, entirely meaningless without enforcement. In violation of the court’s ruling, President Andrew Jackson and later President Martin van Buren moved forward with their plans to force the Cherokee from their valuable lands. Today, we’re talking about the 1831 Supreme Court case Worcester v. Georgia.

I’m Sarah

And I’m Elizabeth

And we are your historians for this episode of Dig

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Sarah: In April 2026, the modern United States Supreme Court heard oral arguments in Trump v. Barbara, the case that the Trump administration hoped would overturn the Fourteenth Amendment’s clause that grants US citizenship to everyone born on US soil. (The court, for the record, did not upend birthright citizenship, but only by a terrifyingly narrow margin.) During the oral arguments, the administration’s attorney, John Sauer, was grilled by Supreme Court Justice Neil Gorsuch – known as an archconservative – over how Native Americans fit into the administration’s view of citizenship. Gorsuch asked, “Do you think that Native Americans today are birthright citizens under your test and under your friend’s test?” Sauer responded, “I think so. I mean, obviously, they’ve been granted citizenship by statute,” referring to the Indian Citizenship Act of 1924.

Elizabeth: Gorsuch wasn’t asking about the law, though – he was asking about Native American’s citizenship status as birthright citizens under the Fourteenth Amendment. Gorsuch asked, “Do you think they’re birthright citizens?” Sauer responded, “No – I think the – the clear understanding that everybody agrees in the congressional debates is that the children of tribal Indians are not birthright citizens.” Gorsuch kept pushing, pointing out that Sauer’s argument had to do with the concept of ‘domicile,’ essentially where the parents lived at the time of their child’s birth. He asked if tribal members were domiciled in the United States – Sauer concurred, but then seemed to suggest that they might have to give up their sovereign status in order to take advantage of US citizenship. Finally, Sauer gave up, realizing that his argument was entirely paradoxical, and admitted to the Supreme Court justice, “I’ll have to think that through.”

Sarah: This very recent interaction at the Supreme Court in some ways captures the paradoxical nature of Native American sovereignty in the United States. Native Americans are citizens of the United States, but also claim tribal sovereignty – or the right of tribal self-government. Today, our legal understanding of tribal sovereignty – the principle that Neil Gorsuch famously takes very seriously despite his overall conservatism and which underpinned his questions to Soliciter General John Sauer – stems directly from the “Marshall Trilogy,” the three cases Supreme Court Chief Justice John Marshall’s heard on the Cherokee Nation’s claims of sovereignty, culminating in his opinion in Worcester v. Georgia. So, too, then, is our discussion of Worcester v Georgia today paradoxical: we’re talking about this case within the context of a series on SCOTUS cases that sucked; yet, Worcester is the bedrock of tribal sovereignty.

But before we go any further, I do want to recognize the scholars who did the work that I relied on to write this episode. First, I was very lucky that I had access to a brand new book by historian Tim Alan Garrison, Sovereignty on Trial: The Cherokee Nation and the Fight for Native Rights, which was published by the University of Kansas Press just this year. I highly recommend this book as a very accessible but very detailed accounting of the trial and its aftermath. I also consulted two older texts that are important to the historiography of the Cherokee cases: Thurman Wilkins’ classic Cherokee Tragedy: The Ridge Family and the Decimation of a People and Jill Norgren’s The Cherokee Cases: Two Landmark Federal Decisions in the Fight for Sovereignty. I will also say that there’s a very good episode of the documentary from PBS and The American Experience We Shall Remain that focuses on the history of the Cherokee Removal called The Trail of Tears. I use this documentary with students and have since I taught 7th graders, so I highly recommend it.

Also, a couple of editorial notes. There is a lot of conversation among indigenous communities about terminology, and different groups in the United States and around the world use different language to refer to indigenous peoples. In this particular episode, I am mostly going to use the term “Native” and “Native American,” partly because that’s what the sources I consulted used. Finally, I want to acknowledge that several tribes were affected by the push for removal from southern states in the 1820s and 1830s – the Cherokee, Muskogee Creek, Choctaw, Chickasaw and Seminole were all targeted and relocated into the so-called “Indian Territory.” But in this episode, I’m only focusing on the Cherokee for the sake of time and space.

Elizabeth: The colony of Georgia was founded in 1732, led by James Oglethorpe, a British politician and army officer, who hoped to use this land in British North America as a refuge for criminals and debtors trapped in British jails. This plan never actually came to fruition, but nevertheless, Oglethorpe received a charter from King George II to a chunk of land that settlers named Georgia. The colony was open to a diverse group of settlers and was initially closed to slavery, which Oglethorpe morally opposed. But in short order, colonists began to complain that the prohibition of slavery limited the economic possibilities of the colony – instead of cultivating cash crops like rice, wheat, and tobacco, Georgia’s economy was limited to timber, raising livestock, and clay production. But in 1743, Oglethorpe left Georgia to return to England never to return. Within just a few years, the remaining trustees of the colony repealed its bar on slavery and King George placed a governor in charge.

Sarah: Without the prohibition on slavery, Georgia’s enslaved population grew very quickly – from just 3500 in 1752 to 30,000 by 1776. With the growth of slavery came an insatiable desire for more land to cultivate those cash crops. In treaties signed in 1763 and 1773, Georgia took land along their existing western borders from the Cherokee and the Muskogee Creek tribes. This marked the beginning of a continuing cycle: as Garrison writes, “settlers moved into Native territory and squatted on their lands. Native communities resisted encroachments and complained to colonial authorities, and the colonial government resolved the problem temporarily by acquiring the troubled parcels from Native councils.”^[2]

Elizabeth: The pressure on the Cherokee and other tribes only increased after the American Revolution. For many Southerners, a more compelling reason to go to the war with the King than any tax on tea was the Proclamation Line of 1763, the border that the Crown placed on the colonists’ ability to move westward, protecting Native Americans’ sovereign claims to their lands. For many in Georgia, the desire to join with the rebellion against the King was linked to their desire for the Native lands west of this border. The Crown claimed the right to negotiate with Native nations and denied colonies the right to do so themselves. Once the colonies won their independence, many Georgia politicians learned that they could exploit the colonists’ fears and frustrations to justify westward expansion. The fear of concentrated power diametrically opposed to liberty (a concept known as ‘republicanism’ or ‘republican ideology’) was easily used to garner political power. Garrison explains this by saying, “political leaders emphasized the state’s security concerns – the proximity of Spanish, British, and French outposts, the fear of slave rebellions, and concerns about the nearby Cherokee and Creek military presence – to justify the acquisition of Native land and the expansion of settlements into the West.”^[3]

Sarah: The desire for Cherokee lands intensified in the first decades of the nineteenth century for one reason: cotton. The patenting of the cotton gin in 1793 made it cheaper and easier to process short-staple cotton, which in turn led to cotton becoming the preferred product in the booming textile industry. Suddenly, cotton was the way to become wealthy in the United States. Georgia, as it turned out, was home to a geological phenomenon that runs through the South from the Carolinas to Missisppi called the “Black Belt,” rich black soil. As the original inhabitants of the region, Native Americans were very aware that the region had incredible agricultural potential and used it for themselves – but now, it was the perfect place to grow cotton. Starting in about 1820, cotton began to boom as the cash crop in the United States and Georgians were increasingly desperate for land. As Garrison writes, “The fact that the Cherokees, Creeks, Choctaws, and Chickasaws owned most of the chartered territory was a sore that would not heal among Georgia’s citizenry.”^[4]

Elizabeth: The birth of the United States also meant that the Native Americans had new political entities that they needed to interact with. The Cherokee and other tribes had established relationships with the British Crown, but now had to primarily interact with the fledgling United States as well as the newly created states. The US Constitution, ratified in 1789, was pretty vague on the nation’s relationship with Native American tribes. Apparently, there was a plan to include an explicit statement in Article I of the Constitution that would give the federal government “exclusive power of regulating Indian Affairs.” But in the process of arranging the final document in the Committee of Detail, when James Madison suggested that he didn’t like that strict wording, the committee ended up writing that Congress had “power to regulate commerce with foreign nations, and among the several States with the Indian tribes.”^[5] Madison still believed that the rest of the document was clear that the federal government should have exclusive control to negotiate with tribes, but this clause was vague enough that it allowed states like Georgia to “exert concurrent authority over the Native peoples and lands within their borders.”

Sarah: Americans developed different perspectives on the relationship between tribes and the United States. Some believed that tribes were not actually ‘foreign governments’ that rose to the level of negotiation with the federal government. Others continued to believe that the states had the right to seize Native American lands in territory they claimed as their own, or that the states at least shared authority with the federal government over tribes. And the idea of removing Native Americans to a vast and nebulous ‘west’ was also widespread. Indeed, Thomas Jefferson wrote more than once about driving Native Americans out of the states. In 1776, Jefferson, angry about a Cherokee attack on colonists, wrote to his cousin Edmund Pendleton, “I hope the Cherokees will now be driven beyond the Mississippi and that this in future will be declared to the Indians the invariable consequence of their beginning a war.” Later, as president, he wrote to William Henry Harrison, then serving as territorial governor of the newly acquired Louisiana Purchase, about a scheme the Americans could use to trap Natives in debt that could be used as a tool to get them to cede land to the US. He also told Harrison to make sure that Native leaders understood that if they angered the United States they would be driven from their lands and across the Mississippi.

Elizabeth: Indeed, one of the last remaining fears that Americans had about dealing with Native Americans was their military might – but during the 1810s, the United States military had repeated successes over Native American fighters. In 1813, future president William Henry Harrison defeated the Shawnee military leader Tecumseh and the British during the Battle of Thames during the War of 1812. Around the same time, Andrew Jackson crushed the Muscogee Creek in the Creek War. No longer did the United States have to worry about the threat of war from the Native populations east of the Mississippi.

Sarah: Let’s turn now to the Cherokee. The Cherokee had lived in the region of the southern Appalachians, spread throughout an area that we would now call Kentucky, West Virginia, Georgia, North Carolina, South Carolina, and Alabama. Before European contact, the Cherokee were not a united nation, but rather a collection of interrelated towns united by their shared belief system, culture, and language and interconnected through the clan system. They had lived in the region for centuries, likely descended from Iroquoian peoples who had migrated southward. The Cherokee believed, like many other Native American groups, in the sacredness and necessity of balance in all things, a central worldview that was intertwined with their understanding of their regional home. The Cherokee believed the world was divided into three – the Upper World, which was harmonious and happy and populated by powerful spirits; This World, the physical world that the Cherokee themselves occupied; and The Lower World, a dark and potentially dangerous place of change but also fertility. The Cherokee saw themselves as “Ani’Yun Wiya,” which means “The Principal People,” who were tasked with keeping these worlds in their careful balance.

The traditional lands of the Cherokee that were ultimately ceded to the United States. Charles C. Royce (cartographer), Bureau of Ethnology, Library of Congress.

Elizabeth: Balance also dictated the way that the Cherokee organized their daily lives: Men hunted, and women tended the traditional crops of corn, beans, and squash. The tribe was matrilineal and organized into clans that set one’s place in society, including marriage and property ownership. Clans also regulated themselves and others through a system of blood vengeance, where the violent death of a member was resolved through retaliation on the murderer’s clan. Without this revenge, the ghost of the murdered person would haunt the clan or town until it was avenged, when it would finally move into the Darkening Land located in the mysterious west. Garrison writes, “It likely did not pass as merely ironic to Cherokee people that white southerners wanted to relocate them to the west.”^[6]

Sarah: The tribe had a political system based on clan and town organization. Towns were governed by a council that included every adult in the town, which decided anything that rose above the clan level. In some cases, women had their own council in addition to this town-wide council. Council meetings were held in a central government building and meetings lasted as long as was necessary to find a consensus. All adults could participate in such discussions, though certain members – such as spiritual leaders, clan leaders, or other elders – might garner more respect. In times of war, a town council called up a war council of those who were willing to fight who took over governance in times of war.

Elizabeth: The American Revolution in turn revolutionized the Cherokee. The tribe – like many others – had split over those who supported the British and those who supported the Americans, and therefore there was serious healing that was required after the American victory. During this period of change, the tribe determined that this new reality required a stronger centralized organization. They created a National Council that made decisions and conducted diplomacy on the behalf of the entire Cherokee people. This is when they began to refer to themselves as the Cherokee Nation.

Sarah: In the early 19th century, the Cherokee continued to revolutionize. They created a judicial system organized into districts and a network of sheriffs and deputies that enforced the rulings of the justice system. They also created a bicameral legislature of a National Committee, which consisted of thirteen men, and a National Council of thirty-two people. An executive branch initially consisted of two chiefs, then later was revised into one chief. As it centralized, it also began to change and evolve culturally. They made blood vengeance illegal, instead resolving conflicts through the new judicial system. They also began to turn tribal practices into a system of codified and written laws. Garrison writes, “Along with expanding its control over antisocial conduct, the Cherokee government had also passed laws regulating alcohol and gambling; issued bonds, levied taxes, and regulated interest rates; approved roads and ferries; set up requirements for business licenses, and regulated the rights and responsibility of slave owners.”^[7]

Sequoyah and the Cherokee Syllabary | by Henry Inman, 1830 / National Portrait Gallery

Elizabeth: The tribe began to change culturally, too. Since European contact, the Cherokee had had a thriving trade with settlers, trading animal pelts for goods like metal, cloth, and firearms. This then led to overhunting and scarcity and the spiritual important of hunting began to diminish. This also meant that Cherokee families started to turn to agriculture for their main form of subsistence. This was a shift in gender roles, social organization, and culture driven by necessity, but it also came alongside a general move by the Cherokee to assimilate to American styles of living. By 1826 when the Cherokee leader Elias Boudinot gave a talk on Cherokee culture in Philadelphia, he could say that Cherokee men had almost “universally forsaken their ancient employment” of hunting. Instead, they were farmers. He said, “there is not a single family in the nation that can be said to subsist on the slender support which wilderness would support.”^[8] They sought educations, and without funding from the state or federal government for books and schools, they welcomed Christian missionaries from the North to bring both Christianity and education. If you know anything about the Cherokee during this period, it’s probably that all of this went along with the development of a written Cherokee language by Sequoyah in 1821. With this written language, Boudinot said in Philadelphia in 1826, they could translate the New Testament of the Bible into Cherokee. In short, the Cherokee were doing what they believed Americans wanted them to do: to ‘civilize’ themselves to better fit into life in America.

Sarah: They weren’t just guessing that this was what Americans wanted – American Secretary of War Henry Knox had written a report to President George Washington on the state of American Indian policy in 1789. In his report, Knox explicitly wrote that he believed tribes were sovereign and criticized the treaty violations. He also made the formal recommendation that Native Americans should be encouraged to assimilate, especially the “Southern Indians,” such as the Cherokees, Creeks, Seminole, Choctaw, and Chickasaw. He wrote that the government should choose Indian agents who would live in peace and generosity with the tribes, and that missionaries should be encouraged to live with them to effect their assimilation. Knox wrote, “Such a plan although it might not fully effect the civilization of the Indians would most probably be attended with the salutary effect of attaching them to the Interest of the United States. It is particularly important that something of this nature should be attempted with the southern nations of indians, whose confined situation might render them proper subjects for the experiment.” So the Cherokee were fulfilling the stated desires of the United States government as they reformed their culture and took on American ways of life.

Elias Boudinot, also named Gallegina Uwatie/ Buck Watie / Public Domain | Wikimedia Commons

Elizabeth: Because they were embracing new ways of life and American education, they had a number of proficient leaders in the 1820s and 1830s who could use their cross-cultural skills effectively to aid the nation. Elias Boudinot, whose Chrokee name was Gallegina (“The Buck”), was born into a powerful family of mixed Cherokee and European heritage that included The Ridge (Major Ridge), a famous and well-respected military leader, and cousin John Ridge. (Fun fact, Elias Boudinot’s name at birth was Gallegina Watie, or nicknamed “Buck Watie.” When he was a young man and earning an Americanized education under the direction of missionaries in the North, he met Elias Boudinot, an elder statesmen from New Jersey who was the president of the American Bible Society. Buck Watie was so inspired by the older man that he asked for permission to use the name Elias Boudinot as his own, which he did for the rest of his life.) Boudinot – the Cherokee one – converted to Christianity and after getting an education at a Northern missionary school, went back to Georgia to settle in the Cherokee capital of New Echota. There, he was tasked by the National Council to start a newspaper – the Cherokee Phoenix – where he worked alongside a white missionary named Samuel Worcester. Because of his role with the newspaper, Boudinot quickly became a trusted voice in the nation who would help to shape public opinion on the issue of removal.

Sarah: The other major voice in the nation was John Ross, who was only a little older than Boudinot. Ross was ⅛ Cherokee – like many in the tribe, his ancestry was blended Cherokee and European. Under the matrilineal tradition of the Cherokee, Ross inherited his role in the nation through his great-grandmother’s respected place within the Bird Clan. Ross was educated by his family and then went to study at missionary boarding schools. Ross quickly became a prominent member of the nation. He collaborated with the US military to control potential rebellions, even meeting with Andrew Jackson. He started numerous business ventures that made him very wealthy. His prominence made him a natural choice for leadership, and having lived with a foot in both the Cherokee and Anglo-American worlds, Garrison writes, “he was able to serve as the conduit between the American and Cherokee political and diplomatic worlds.”^[9] By 1818, he was the president of the National Committee, and in 1827, Ross was named the principal chief of the Cherokee.

Chief John Ross | Public Domain / Wikimedia Commons

Elizabeth: Ross and Boudinot became leaders at the same time that the state of Georgia was ramping up its pressure campaign to seize Cherokee land. The population of the state was growing significantly, more than tripling between 1810 and 1820, settlers driven into the state to seek out fertile land on which to grow cotton. Americans who advocated for the removal of the tribes (“removers”) did not care that the Cherokee were following the decades-long policy of sovereignty and assimilation. Instead, most removers thought that assimilation was fine – but that it should be done further in the west, not in the valuable land of Georgia. Complicating this further was major shifts in how Americans thought about race. While the founding generation – like Henry Knox – were Enlightenment thinkers who believed in natural rights and even saw intermarriage between Natives and whites as a way of encouraging assimilation, by the 1820s, Americans came to see race as concrete and biological that came with immutable characteristics. Georgia Governor George Gilmer, after his retirement, wrote a history of Georgia in which he argued that the advancement of the Cherokees during the early 19th century only came about because of intermarriage with whites, and that full-blooded Cherokees “have remained what they ever were, and and will ever be, until they finally pass away – the most thoughtless, do-less, least loving and least lovely, of human beings.”^[10] As Garrison writes, “with the new putative scientific evidence at hand, removal proponents could now claim that the cultural, physical, and intellectual distinctions between white Americans and the Native peoples were so great that they could never be broken down by acculturation, as many of the enlightenment founders had believed.”^[11] White people and Native people were distinct, and Native people were because of their nature never going to be capable of true assimilation. It would be best for the races to live separately.

Sarah: The removal campaign was further accelerated by the election of Andrew Jackson in 1828. Jackson was born in the Carolinas and lived most of his adult life in Tennessee, where he read the law and became involved in politics. During the War of 1812, Jackson led troops at the Battle of New Orleans, an American victory that came after the war was already over. The battle cemented his reputation as a military hero. That tough-guy persona only grew as Jackson turned the military against Native Americans. During the War of 1812, he was dispatched to put down a rebellion among a group of Creeks called the Red Sticks. Later, he was sent by Secretary of War John C. Calhoun against the Seminole in Florida. Jackson wasted no time in using the power of the presidency against the remaining tribes in the south. In his first annual message to Congress in December 1829, Jackson asked Congress to set aside land west of the Mississippi that would be designated territory for Native American tribes. He devotes a significant amount of his address to making the case for the necessity of removal, claiming that the policy of both encouraging assimilation and acquiring Native lands and pushing Native Americans to the west was contradictory and ineffective. Further, it was illegal (he claimed) to establish a “state within a state,” by which he meant sovereign tribes within the borders of a state. He also made a state’s rights argument, saying that states such as Georgia claimed the same power over tribes that the federal government claimed it exclusively held. Thus, he stated, “I informed the Indians inhabiting parts of Georgia and Alabama that their attempt to establish an independent government would not be countenanced by the Executive of the United States, and advised them to emigrate beyond the Mississippi or submit to the laws of those States.”

President Andrew Jackson | by Thomas Sully, 1845 / National Gallery of Art

Elizabeth: The tribes, he said, would have complete independence to establish their own cultures and governments – but only in this new land in the west, as long as they occupied it and as long as they remained peaceful. We’re going to quote here from the address because it really sums up how Jackson and other removers understood Native Americans and their claims to their ancestral lands:

“This emigration should be voluntary, for it would be as cruel as unjust to compel the aborigines to abandon the graves of their fathers and seek a home in a distant land. But they should be distinctly informed that if they remain within the limits of the States they must be subject to their laws. In return for their obedience as individuals they will without doubt be protected in the enjoyment of those possessions which they have improved by their industry. But it seems to me visionary to suppose that in this state of things claims can be allowed on tracts of country on which they have neither dwelt nor made improvements, merely because they have seen them from the mountain or passed them in the chase. Submitting to the laws of the States, and receiving, like other citizens, protection in their persons and property, they will ere long become merged in the mass of our population.”

Sarah: This statement fully emboldened the state of Georgia in its efforts to expel the Cherokee. In 1830, just months after Jackson’s speech, the Georgia State Assembly passed a law that sought to nullify Cherokee sovereignty, declaring that “all laws, usages, customs made, established and enforced in the said territory by the said Cherokee Indians” void. The Georgia Guard paramilitary police force was given the power to arrest Cherokees on Cherokee territory. Cherokees were barred from bearing witness in court – indeed, courts were further instructed to act as though sovereign Cherokee law never existed. At nearly the same time these state-level laws were passed, Andrew Jackson signed the Indian Removal Act into law. The law allowed Jackson to set aside land west of the Mississippi for Native Americans in exchange for the lands tribes held “within the limits of any of the states or territories.” The act allowed the US to reimburse tribes for their land, provide for their journey westward, then provide them with funds to survive until the tribes were established in their new home, but was always (purposefully) underfunded. Also around the same time, there were reports of gold discovered along the Chestatee River in Cherokee territory. To be clear – although it gets a lot of attention, the gold rush did not spark Indian Removal. Removers were calling for Cherokee land for many decades before this. But it did increase the pressure in an already incredibly tense situation. Conflicts between trespassing gold-rushers and Cherokees grew into general unrest, which gave the United States the excuse to send in troops to ‘restore order.’

Elizabeth: How would the Cherokee fight back against this relentless push for their land? Decades earlier, perhaps the Cherokee would have prepared for war. But now, the tribe had spent the preceding years revolutionizing their culture to ‘civilize,’ establishing a written language, adopting Christianity, and creating a complex governmental and judicial system. Chief John Ross, Elias Boudinot, the Ridges, and other Cherokee leaders had been well educated out of state and had networks of allies and sympathizers around the US. Rather than turn to war, the Cherokee instead turned to the courts. The result were several major court cases that were eventually heard by the United States Supreme Court under the direction of Chief Justice John Marshall. This was not necessarily a slam-dunk strategy. In 1823, the Marshall court had issued a landmark ruling in Johnson v McIntosh, a case that dealt with the issue of who held the legal title to territory in the midwest. The Johnson attorneys argued that Johnson held legal title because the Piankashaw tribe had the sovereign right to the land that they had signed over to Johnson; the McIntosh attorneys disagreed, saying that the Piankashaw had no legal right to their ancestral lands because they had been claimed by the European (then Americans) who ‘discovered’ it.

Sarah: Chief Justice John Marshall issued a middle-of-the-road ruling, declaring that the United States held “ultimate title” to Native American lands within its borders, but that Native people did still have the right to use those lands. They could sign over their lands, but only to the United States – not to individuals or states. This was a hugely significant ruling because in it, Marshall cites the doctrine of discovery to justify the United States’ ultimate title. This old legal theory stemmed from Catholic law that declared that gave ‘discoverers’ the title to ‘new’ lands if the occupants of that land were not Christians. This ‘doctrine of discovery’ was further embedded by the English, who made their own Protestant claims to discovery that had to do with the ‘improvement’ of the land. If a people were not adequately ‘improving’ the land (by which they meant using agriculture), they did not have title to their lands. This version of the doctrine of discovery, stemming from a religious tradition, was treated as legal precedent by colonial courts. Now, John Marshall introduced it into the legal precedent of the US Supreme Court.

Chief Justice John Marshall | by Asher Brown Durand / The Metropolitan Museum of Art, New York

Elizabeth: The question that underlie Johnson v McIntosh (“is the Cherokee Nation a sovereign nation that has legal title to their land?”) came to be the central question in all the Cherokee cases that came before the Supreme Court. There were three major cases. The first was Georgia v. Tassels (1830). Through a contact, Chief John Ross connected with former US attorney general William Wirt to serve as their advocate, and they were in the process of developing a strategy to get the Court to review the situation in Georgia when an ideal test case fell into their laps. A Cherokee man named George Tassel had been arrested by Georgian authorities on suspicion of killing another Cherokee man on Cherokee territory. This, according to the Cherokee, was a violation of their sovereignty. The case went through the Georgia state courts, which rejected all claims to Cherokee sovereignty, and Tassel was sentenced for execution. Wirt filed an additional appeal to the US Supreme Court, asking them to halt the execution and agreeing to hear the case. Georgians, however, didn’t care what John Marshall had to say. (This also set its own precedent.) Eager to keep SCOTUS from ruling on the case, the Georgia state legislature swung into action. Under a request from Georgia governor George Gilmer, the legislature met late one night and quickly authorized Gilmer to use “all the force and means placed at his command to resist and repel any and every invasion, from whatever quarter, upon the criminal laws of the state.” Further, they nullified any existing contracts between whites and Cherokees, required any white residents of Cherokee territory to take loyalty pledges to the state of Georgia, and further required that whites who worked for Cherokees on Cherokee territory receive permits from the Georgia government. Finally, the legislature authorized Gilmer to order for Tassel’s immediate execution. Two days later, George Tassel was taken out of his jail cell and hung from a tree by a county sheriff – effectively lynched by the state of Georgia.

Sarah: So Georgia v Tassels did not have the outcome that the Cherokee wanted, and in fact, led to yet more injustice. But it also set the precedent that the Supreme Court believed that the Cherokee had standing to bring a case before the court, and became the first document to support the legal case for Cherokee sovereignty. In some ways, the case was encouraging for John Ross in the nation’s strategy to appeal to the Supreme Court. The next attempt was Cherokee Nation v. Georgia (1831). In this case, the Cherokee Nation, with Wirt as its attorney, petitioned the court directly to intervene to stop Georgia’s violation of Cherokee sovereignty in the laws passed in the wake of the Tassels case. The Court agreed to hear the case, and it went to oral arguments in March 1831. The state of Georgia didn’t even bother to send a representative. Wirt and his assistant, a former congressman John Sergeant, made their case before the Court over the course of three days in front of an audience that included most of Congress, who had gone into recess so they could watch the case. Sergeant began by arguing that decades of precedent showed that the United States had treated the Cherokee Nation as a sovereign entity, and that if they did nothing to intervene now, “there will be no Cherokee boundary, no Cherokee nation, no Cherokee lands, no Cherokee treaties, no laws of the United States … They will all be swept out of existence together, leaving nothing but the monuments in our history of the enormous injustice that has been practiced towards a friendly nation.”^[12]

Elizabeth: Wirt then laid out the history of how the Cherokee Nation had been understood legally by the United States and the state of Georgia, asking the justices to determine whether the Cherokee did not meet the definition of ‘state’ and ‘foreign state’ under the Constitution. Wirt argued that the Cherokee were indeed a foreign state, saying: “They owe no allegiance to your constitution; have no voice in your laws …. They pay you no taxes … They take no part in your foreign wars, unless they choose to do so. They can make war upon you themselves, without committing treason … And if they are not citizens of the United States ,what are they; what can they be but aliens? …And if they be a nation of aliens, what can they be but a foreign nation, a foreign state, in the sense of the Constitution.”^[13] They demonstrated that the Cherokee had occupied the land for centuries before Georgia was granted a charter from King George II, and patiently explained that the argument that the doctrine of discovery applied to the Cherokee was wrong – the Cherokee, Wirt explained, used agriculture and lived in towns that clearly showed settlement and ‘use’ of the land. Wirt finished with an appeal to the emotions of the court, begging them to refrain from giving in to prejudice or betraying the concepts of liberty and humanity. Further, Wirt asked the judges to ignore the pressures of politics, knowing that the court (and those in the audience) were worried about how Andrew Jackson might respond if the court ruled in favor of the Cherokee. If Jackson took this step, Wirt assured the anxious justices, the remedy was already available in the Constitution, referring to impeachment, stating, “Let us do our duty, and the people of the United States will do theirs.”^[14]

Sarah: In short order, the court released its decision in three different opinions, revealing the lack of consensus. Two justices argued that the Cherokee was not a state or foreign state, thus lacking the standing to bring a case before the court. Two other justices argued that the Cherokee were a foreign state and that the court should rule the state of Georgia’s actions as unconstitutional and grant an injunction against their actions. Finally, two more justices – including chief justice Marshall – argued that the Cherokee (and other Native American tribes) have “significant powers of sovereignty” but that they were not foreign states. As Garrison points out, what this meant was that four out of six justices agreed that the Cherokee Nation was sovereign. Ultimately, Marshall made the argument, though, that the Cherokee Nation (and by extension other tribes) were “domestic dependent nations,” which were not entirely sovereign but rather wards of the federal government. While Marshall was likely trying to find a solution that wouldn’t create a Constitutional crisis with the antagonistic Jackson administration and also wouldn’t lead to further risk for the Cherokee, the result was negative: the idea that Native Americans were ‘wards’ became incredibly useful in federal policy towards Native Americans throughout the rest of the 19th century. Further, Garrison suggests that the final opinion also made Marshall sort of uncomfortable, and that he wasn’t entirely happy with his solution to the Cherokee problem.

Elizabeth: Chief John Ross and his allies recognized that discomfort in Marshall’s opinion and felt that the Marshall court remained their best chance at pushing back on Georgia and the Indian Removal Act. When proremoval newspapers started to crow about the ruling, saying that it entirely vindicated the state of Georgia, Elias Boudinot used the Cherokee Phoenix to rebut those claims, carefully explaining that the Court had actually stated that the Cherokee’s claims were still viable. But the case also began to reveal the growing cracks within the Cherokee Nation. John Ross may have continued to be confident, but Elias Boudinot was less sure – especially in Ross’s belief that the solution to their problem would come from the United States, which he wrote was “a broken reed which has been piercing us to our very vitals.”

Sarah: Ross’s next opportunity to plead the Cherokee’s case to the Supreme Court came very quickly after Cherokee Nation v. Georgia. In the tensions around the Tassel case, the state of Georgia passed a law that required that all ‘white persons’ had to have a state-issued permit to live on Cherokee territory. This meant that those already living with the Cherokee had to apply to the state for a permit, leave the state by March 31, 1831 or risk arrest. Of course the state wasn’t going to indiscriminately hand out permits – in fact, Governor Gilmer was very clear that no one who was anti-removal would be issued a permit.

Elizabeth: This policy was targeted at the white missionaries who lived with the Cherokee, not only sharing Christianity but acting as teachers, advocates, and friends. One such missionary was Samuel Austin Worcester. Worcester was from Vermont and a graduate of the University of Vermont (!) and the Andover Seminary. In 1825, Worcester was sent by the American Board of Commissioners for Foreign Missions (ABCFM) to live with the Cherokee, first at the Cherokee town of Brainerd then in the Cherokee capital of New Echota. Worcester’s respect for the Cherokee helped him become an important friend within the community. He helped Elias Boudinot to translate the Bible into the new Cherokee written language, helped him secure a printing press, and helped with the printing of the Cherokee Phoenix. Soon, in Tim Garrison’s words, Worcester became “the most important non-Native advocate for Cherokee sovereignty in the Nation.”^[15] (Side note: Worcester’s wife, Ann, and the wives of the other missionaries, were also really important advocates, and Garrison calls them “the unsung heroes of the Cherokee resistance.”) Worcester took to the pages of the Phoenix to state that the missionaries would resist the law and refuse to register for the permits.

Sarah: In an interesting twist, on the very same day that the Supreme Court was hearing oral arguments in Cherokee Nation v. Georgia, Samuel Worcester and a group of other missionaries were arrested by the Georgia Guard. Immediately, two of the attorneys working with the Cherokee (in fact, the lawyers from the Tassel case) filed for a writ of habeas corpus, arguing that the state did not have the appropriate jurisdiction to arrest people on Cherokee territory. The judge who heard the case, Augustin Clayton – also the same judge that had heard the Tassel case – recognized that the case was going to give the Cherokee exactly what they wanted: another opportunity to present their case before the Supreme Court. Clayton released the missionaries – hoping this would resolve the issue – but then recommended that they leave the state. Governor Gilmer responded by mandating that they leave, giving them 10 days to leave or risk being arrested again. Gilmer was not messing around – he instructed the Georgia Guard to “spare no exertions to arrest them.” Even if they posted bail or the court released them from jail, Gilmer instructed them to arrest them again. If necessary, Gilmer said, he would call in the state militia.

Elizabeth: The ABCFM decried the state’s actions but advised their missionaries to make their own decisions according to their own conscience. Several of the missionaries chose to leave, but Worcester and a small number chose to stay and pursue a strategy that we would call today civil disobedience. He asked the ABCFM to help them publicize the situation, and hoped that if they were arrested again, the resulting case might even help to bring down the downfall of Andrew Jackson’s administration. On July 7, Worcester and several other missionaries were arrested again. This time, they were force marched to the jail – Worcester was chained to a horse’s neck the entire time. They were beaten and verbally abused, and when they asked at the jail if they could hold a simple church service for each other, the guards refused. Again, the missionaries were released by the judge. This time, Worcester took refuge across the state border in Tennessee, but soon learned that his baby daughter died. When he returned to New Echota to mourn with his family, the Georgia Guard arrested him again. He was released on bail yet again. In September, the case against the missionaries went to court, and all the missionaries were found guilty and sentenced to 4 years of hard labor at the state penitentiary. Governor Gilmer wanted to punish the Cherokee, but he was less interested in getting criticism for making good Christian missionaries labor in the state pen. So again, he tried to strike a deal: he would commute their sentences if they agreed to leave the state or promise to give up their advocacy for the Cherokee. Again, Worcester refused, accompanied by fellow missionary Elizur Butler. Instead, they would accept their imprisonment while the lawyers for the Cherokee Nation worked on the appeal that they hoped would again be heard by the Supreme Court.

Sarah: In an interesting twist, in January, Supreme Court justice Joseph Story met with two Cherokee men in Philadelphia while he was on the way back to Washington DC for the new court session. It’s most likely that these two men were Elias Boudinot and his cousin, John Ridge. Story was deeply affected by this encounter. (I am not sure if this was like, an ethical violation; maybe it was. My sources were silent on this.) Story wrote to his wife, “I never in my whole life was more affected by the consideration that they and all their race are destinated to destruction, and I feel as an American, disgraced by our gross violation of the public faith towards them. I fear, that in the course of Providence there will be dealt to us a heavy retributive justice.”^[16]

Elizabeth: Oral arguments in the appeal to the Supreme Court began on February 20, argued again by the Cherokees Nation’s legal team led by Wirt and Sergeant. Again, the state of Georgia refused to participate and did not send anyone to appear on their behalf. This time, Wirt and Sergeant repeated many of their arguments first presented in Cherokee Nation v. Georgia, stating that the Cherokee Nation was sovereign and that the actions of the state of Georgia in arresting missionaries were unconstitutional. Further, they argued, the state of Georgia was usurping the United States’ right to deal with Native American tribes. The oral arguments took three days. According to some accounts, at some points, Chief Justice John Marshall was moved to tears by their descriptions of the dire situation facing the Cherokee.

Sarah: It took the court longer to rule this time, but when it did in early March, their response was decisive: the court found 5-1, with the major opinion by Marshall, in favor of Worcester and the Cherokee. This time, Marshall was not uncertain or centrist, but clear and forceful: the Cherokee Nation and all Native American nations were sovereign and only the United States federal government had the power to negotiate treaties or other relationships with them. In short, it declared the actions of the state of Georgia unconstitutional and therefore, invalid. In his opinion, Marshall traced the Native American peoples and their history with the United States. In Johnson v McIntosh, Marshall had accepted the perception of European-Americans when they first encountered Native Americans, which was that they were inferior hunter-gatherers and therefore naturally fell under the control over more advanced and civilized Christians. But in Worcester v Georgia, though, Marshall declared that Native Americans had always had individualized, complex societies that were self-governing, with “institutions of their own and governed …by their own laws.” They were not inherently inferior, but rather were intelligent people with their own equally meaningful institutions, politics, laws, and customs. While the original colonists of Georgia may have had charters granted by the King, those charters were nothing more than “blank papers” for Native Americans, who were not subject to the King.

Elizabeth: Marshall also went back on other aspects of his and the other justices’ previous rulings. While he had agreed in Johnson v. McIntosh that the British Empire had control over its territorial holdings in North America, including Native American lands – they could continue to live there, but they had no real right to the land. Now, though, Marshall wrote that the British had negotiated with tribes as sovereign powers, treating them as “nations capable of maintaining the relations of peace and war [and]governing themselves, under her protection.” White Georgia claimed that previous treaties between the United States and Cherokee showed that the tribe acknowledged that they were subjects of the United States – but Marshall saw this as a misreading of those documents. Within its full context, Marshall argued that the treaties only referred to the United States regulating trade – the Cherokee never intended, nor did the text of the treaties support the idea that they had handed complete authority over the tribe to the United States. Marshall went through numerous examples that demonstrated that the United States always saw Native American nations as no different than any other independent nation. For example, the Constitution made clear in Article 7 that treaties made by the United States were the ‘supreme law of the land.’ Marshall pointed out that when the Constitution was written, the existing government had already negotiated treaties with tribes, no differently than treaties it had with European nations. Therefore, the two were never treated differently.

Sarah: Marshall also dismantled the states’ rights argument that Georgia made. They argued that they had ‘concurrent jurisdiction’ with Congress (in other words, the same powers), basing their argument in the Commerce Clause of the Constitution (Article 1, Section 8, Clause 3), This clause gave Congress “to regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” Georgia argued that that this clause meant that Congress only regulated trade, but that the states retained authority to deal with tribes in matters of law or governance. Marshall, though, refutes this by stating that the Founders intended the word “commerce” to be interpreted broadly. While this might seem like Marshall was playing fast and loose, not only was he basing his argument here on an understanding of the debates and discussions that took place between the delegates to the Constitutional Convention, but it also turns out that newer historical research also vindicates him – modern Constitutional scholars have found definitive evidence that James Wilson, chair of the Constitutional Convention’s Committee of Detail, failed to change the word “commerce” to “affairs” in the final drafting process.

Elizabeth: After the decision came out in early March 1832, the Supreme Court ordered Georgia to reverse the missionaries’ convictions and release Worcester and Butler from jail. The Cherokee were jubilant about this definitive victory, certain that the United States would not only enforce the ruling when it came to the missionaries, but also intervene on their behalf against the state. But the state of Georgia refused to comply with the order. The missionaries remained in prison. The governor of Georgia (now George Troup, who had succeeded George Gilmer) bet that the old Indian fighter and architect of the Indian Removal Act Andrew Jackson would not enforce the court’s decision.Troup wasn’t alone – even Supreme Court justice Joseph Story, who had been so impressed by Elias Boudinot and John Ross when he met them in Philadelphia, wrote to lawyer George Ticknor: “Georgia is full of anger and violence. What she will do, it is difficult to say. Probably she will resist the execution of our judgement, and if she does, I do not believe the President will interfere…I, for one, feel quite easy on this subject, be the event what it may. The Court has done its duty. Let the nation now do theirs. If we have a Government, let its command be obeyed; if we have not, it is as well to know it at once, and to look to consequences.”

Sarah: Story was right. Georgia defied the ruling, and Jackson, of course, was not interested in doing anything that would aid the Cherokee. Though the Court had ruled that the missionaries be released, Georgia refused. They could have taken legal action – requesting a contempt decree from the Supreme Court. If the governor violated that, their only recourse would be to ask the president to intervene; Jackson, of course, would not. Short of petitioning the House of Representatives to impeach the president, there was no real recourse. Their last hope was the upcoming election of 1832 – but in November, Andrew Jackson won a convincing victory against Whig Henry Clay for a second term. With this victory for Jackson and the Democrats, there was little hope for the Cherokee. At this point, Worcester and Butler had been imprisoned for over a year, and were getting demoralized.

Elizabeth: Worried about the unrest brewing in South Carolina over the so-called “Tariff of Abominations,” vice president Martin van Buren asked the governor to release the missionaries to help bring down tensions in the south. The governor of Georgia agreed to a plan concocted by van Buren: release the two missionaries and ask the legislature to repeal the law that had imprisoned them, all while explaining to the missionaries how their acquiescence was in some sense, saving not only Georgia, but the nation. In December, Worcester and Butler agreed and were released, explaining in their own statement that they believed there was “no longer any hope” that their protest would save the Cherokee. Despite a ruling from the highest court in the land that Native American nations were sovereign, Worcester v Georgia did nothing to stop the impending removal of the Cherokee.

Sarah: In the next years, the Cherokee debated their next steps, but the Nation was divided over the best strategy. Chief Ross continued to appeal to the federal government, hoping Congress might intervene, but others, including Elias Boudinot and John Ridge, believed that further resistance was pointless. Eventually two parties emerged, a National Party that wanted to continue to resist, and the Treaty Party, who wanted to cooperate in hopes of getting the best possible deal from Georgia and the US. Finally, in December 1835, the Treaty Party signed a treaty at the capital of New Echota with the United States agreeing to move to the western “Indian Territory.” In exchange they would receive $5 million dollars and permanent title to their new lands. There was a clause that allowed Cherokee who wanted to stay in Georgia to remain behind, but Andrew Jackson struck out the clause – after it was signed. The National Party, led by Chief John Ross, tried to appeal to Congress to invalidate the treaty, saying that it did not represent the majority of the tribe, but there was no hope. The actions of the Treaty Party threw the Nation into a civil war that raged for decades and resulted in the assassinations of Elias Boudinot, John Ridge, and John Ridge’s father, Major Ridge (often called The Ridge). Some Cherokee began to leave in 1835 willingly under the treaty terms, but others resisted until 1838, when the United States army under General Winfield Scott forced the removal of the remaining Cherokees, who were force-marched to the Indian territory. The story of that forced migration is long and important, but one that we don’t have the ability to give justice to here. In the end, an estimated 4000-6000 Cherokee died on the march that they came to call “the Trail of Tears.”

So in a vacuum, Worcester v Georgia was a Supreme Court case that did not suck; in fact, it has become the bedrock of Native American law in the United States and the case that established Native American sovereignty. But for the Cherokee, it simply wasn’t enough.

Elizabeth: Thank you for joining us today. As always, we invite you to follow us on BlueSky and Instagram at dig_history. If you have a comment or question or want to share some kind words with us, you can always email us at hello@digpodcast.org – we love listener mail! If you’re an educator, we’ve got a compendium of episodes you can use in the classroom – and free teaching resources, including full lesson plans! – on our website, digpodcast.org. You’ll also find full bibliographies, the scripts for all of our episodes, resources, and a link to our swag store at digpodcast.org. Thanks for listening.