March 12, 2013: Supreme Contexts: Georgia and Sovereignty

[Later this month, the Supreme Court will hear its next two landmark cases, these related to the issue of same-sex marriage. So this week I’ll be highlighting five significant 19^th century SC decisions, and more exactly analyzing one key contextual frame for each. That’ll lead up to a special weekend post on the upcoming decisions. Add your judicious thoughts and takes in the comments, please!]

On the decision that could not stop a tragedy—but did, eventually, help make history.

In his final few years as Chief Justice, John Marshall’s Supreme Court had two significant chances to weigh in on one of the Early Republic’s most controversial and tragic federal actions: Andrew Jackson’s Indian Removal Act (1830), and its immediate, destructive, and enduring impacts on the Cherokee Nation. Marshall and company whiffed on their first such opportunity: ruling in 1831’s Cherokee Nation v. Georgia that the tribe was more of a federal “ward” than an independent nation, and thus that the Cherokee could not assert their sovereignty apart from the United States. More exactly, that ruling allowed the Court to sidestep deciding the case altogether, and thus perhaps to avoid utilizing Marshall’s concept of judicial review to challenge and overturn Jackson’s discriminatory Act.

If that avoidance was any part of Marshall’s or the Court’s purpose, however, it did not last long. Less than a year later, the Court was offered the chance to, as Justice Joseph Story put it, “wash [our] hands clean of the iniquity of oppressing the Indians and disregarding their rights.” That chance was Worcester v. Georgia (1832), and in the decision Marshall and his Court not only asserted the Cherokee tribe’s specific right to determine what outsiders could visit their tribal lands (the case’s explicit focus was a Georgia law prohibiting certain missionaries from doing so), but also their broader status as a “distinct community occupying its own territory in which the laws of Georgia can have no force.” In so doing, the Court likewise affirmed all prior “treaties and laws of the United States” in dealing with this distinct and sovereign community, and thus, without ever explicitly referencing the Removal Act, supported the tribe’s legal and historical arguments against the Act and in favor of the many prior treaties and agreements it was violating.

In the moment, this latter decision had no effect at all. President Jackson supposedly responded, “John Marshall has made his decision; now let him enforce it!”; whether he uttered those words or not, his actions exemplified such a perspective, as he continue supporting Georgia and enacting the Removal Act. Compared to the power of judicial removal and the heightened role for the Court it had effected, this case thus seems to reveal the limits of the Court’s authority. Yet if immediate power is one kind of legal authority, precedent is another, and of course a more lasting one. And to many scholars of Native American history and culture, the Worcester decision represented one of the first federal acknowledgments of sovereignty—a concept that has come to be increasingly central to a wide range of Native American ideas, arguments, and efforts. Marshall might not have been able to counter his era’s most discriminatory federal law, that is, but he contributed to a far more lasting and progressive American idea.

Next landmark case tomorrow,

Ben

PS. What do you think?