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Elianna Spitzer is a legal studies writer and a former Schuster Institute for Investigative Journalism research assistant. She has also worked at the Superior Court of San Francisco's ACCESS Center.
Updated on November 04, 2020Cherokee Nation v. Georgia (1831) asked the Supreme Court to determine whether a state may impose its laws on Indigenous peoples and their territory. In the late 1820s, the Georgia legislature passed laws designed to force the Cherokee people off their historic land. The Supreme Court refused to rule on whether the Georgia state laws were applicable to the Cherokee people. Instead, the Court ruled that it did not have jurisdiction over the case because the Cherokee Nation, was a “domestic dependent nation” instead of a “foreign state."
In 1802, the U.S. federal government promised Cherokee lands to Georgian settlers. The Cherokee people had historically occupied the lands in Georgia and been promised ownership through a series of treaties, including the Treaty of Holston in 1791. Between 1802 and 1828, land-hungry settlers and politicians attempted to negotiate with the Cherokee people in order to claim the land for themselves.
In 1828, tired of resistance and emboldened by the election of Andrew Jackson (a president in favor of removal of Indigenous peoples), members of the Georgia state legislature passed a series of laws meant to strip the Cherokee people of their rights to the land. In defense of the Cherokee people, Chief John Ross and attorney William Wirt asked the Court to grant an injunction to prevent the laws from going into effect.
Does the Supreme Court have jurisdiction? Should the Court grant an injunction against laws that would harm the Cherokee people?
William Wirt focused on establishing the Court’s jurisdiction. He explained that Congress recognized the Cherokee Nation as a state in the commerce clause of the third article of the U.S. Constitution, which gives Congress the power to “regulate commerce with foreign nations, and among the several States, and with the Indian tribes." Wirt argued that the Court had jurisdiction over the case because the government had previously recognized the Cherokee Nation as a foreign state in treaties.
Attorneys on behalf of Georgia argued that the state had a right to the land-based on its 1802 agreement with the federal government. Additionally, the Cherokee Nation could not be considered a state because it was not a sovereign nation with a constitution and a distinct governing system.
Article III of the U.S. Constitution gives the Court jurisdiction over cases "between a State or the citizens thereof, and foreign states, citizens, or subjects." Before making a ruling on the merit of the case, the Court needed to establish jurisdiction. In the majority opinion, it answered three questions to address this issue.
1. Is the Cherokee Nation considered a state?
The Court found that the Cherokee Nation was a state in the sense that it was a “political society, separated from others, capable of managing its own affairs and governing itself.” Treaties and laws governing the relationship between the U.S. and the Cherokee Nation supported this conclusion. However, the Court ruled that it was not a state in the same way that Georgia was because it was not part of the Union.
2. Is the Cherokee Nation a foreign state?
According to the majority opinion, the Cherokee Nation's complex relationship with the U.S. meant it did not legally qualify as a foreign state.
Justice Marshall wrote in the majority opinion:
“They look to our government for protection; rely upon its kindness and its power; appeal to it for relief to their wants; and address the President as their Great Father. They and their country are considered by foreign nations, as well as by ourselves, as being so completely under the sovereignty and dominion of the United States that any attempt to acquire their lands, or to form a political connexion with them, would be considered by all as an invasion of our territory and an act of hostility.”
The Court needed to establish that the Cherokee Nation was either a U.S. state or foreign state to have jurisdiction over the case. Instead, the Court ruled that the Cherokee Nation was a "domestic, dependent nation." This term meant that the Court did not have jurisdiction and could not evaluate the Cherokee Nation's case.
3. Regardless of jurisdiction, should the Supreme Court grant an injunction?
No. The Supreme Court ruled that even if it did have jurisdiction, it still should not grant an injunction. According to the majority opinion, the Court would overstep its judicial authority if it prevented the Georgia legislature from enacting its laws.
Justice Marshall wrote:
“The bill requires us to control the Legislature of Georgia, and to restrain the exertion of its physical force. It savours too much of the exercise of political power to be within the proper province of the judicial department.”
Justice Smith Thompson dissented, arguing that the Supreme Court did have jurisdiction over the case. The Cherokee Nation should be considered a foreign state, according to Justice Thompson, because the government had always dealt with the Cherokee Nation as a foreign state when entering into treaties. Justice Thompson did not agree with the Court’s interpretation of the commerce clause as excluding the Indigenous people from foreign statehood. He argued that the way the Cherokee Nation was treated by Congress when signing treaties was more relevant than analyzing word choice in the Constitution. Justice Thompson also wrote that the Supreme Court should grant an injunction. “The laws of the State of Georgia, in this case, go as fully to the total destruction of the complainants' rights…,” Justice Thompson wrote, making judicial remedy the best option. Justice Joseph Story joined him in the dissent.
The Supreme Court’s refusal to acknowledge jurisdiction in Cherokee Nation v. Georgia meant that the Cherokee Nation did not have legal recourse against Georgia laws that sought to force them off their land.
The Cherokee Nation did not give up and attempted to sue again in Worcester v. Georgia (1832). This time, the Court found in favor of the Cherokee people. According to the Supreme Court in Worcester v. Georgia, the Cherokee nation was a foreign state and could not be subject to Georgia laws.
President Andrew Jackson, who had pushed Congress to approve the Indian Removal Act in 1830, ignored the ruling and sent in the National Guard. The Cherokee people were forced to move from their lands to a designated area west of the Mississippi on a brutal journey that would later become known as the Trail of Tears. It is unknown exactly how many Cherokees died on the trail, but estimates place the number at between three and four thousand.
