Copyright 2000 The New Republic, Inc.  
The New Republic

AUGUST 7, 2000

SECTION: Pg. 30

HEADLINE: "For Their Own Good": The Cherokees, the Supreme Court, and the early history of American conscience.

BYLINE: Stephen Breyer

BODY:
Stephen Breyer is an associate justice of the Supreme Court of the United States. A version of this essay was delivered as the Supreme Court Historical Society Annual Lecture in June.

In 1836, the United States and the State of Georgia forced the Cherokee Indian tribe to leave its home in Georgia and to move to the West. The Tribe did not want to move. It believed it had a legal right to stay; and in the early 1830s, it brought two actions at law in the Supreme Court designed to enforce that legal right. The story of those lawsuits is a story of courts caught in a collision between law and morality, between desire and force. It is a sad tale that forces us to examine the relation between law and politics, particularly with respect to the Court's ability to enforce its judgments during the early years of the Republic.

The Cherokees, along with their Creek and Choctaw neighbors, hunted, fished, and made their homes upon land that now comprises northern Georgia and eastern Tennessee. Unfortunately, the Cherokees supported the British, the wrong side, during the Revolutionary War; but in May 1777, they signed a peace treaty with the newly independent American states. The treaty permitted them to retain their land in Georgia. In a second treaty, the Treaty of Hopewell, and then in a third treaty, named after the Holston River, the United States promised it would protect Cherokee land and guaranteed its boundaries. Congress ratified the third treaty, which contained that guarantee, in Philadelphia in 1793, well after the United States had adopted its Constitution and the thirteen independent States had become a single nation.

During the next forty years, the Cherokee Tribe dramatically changed its way of life. In 1817, those who wished to lead the hunting and fishing life-- about a third of the tribe--moved to Louisiana, under the auspices of a treaty with the United States which gave the hunters and fisherman land in Louisiana. The Cherokees who remained in northern Georgia turned to agriculture for their livelihood; they lived as farmers, much as did the nearby Georgians. They used an alphabet developed by a tribal leader named Sequoya. They established a printing press. They built a capital, called New Echota. And in 1827, under the leadership of the great Chief John Ross, the Tribe adopted a constitution similar in some respects to that of the United States. At that time the Cherokee population in northern Georgia stood at about 13,500--including, I am sorry to say, 1,277 black slaves.

Since at least the early 1820s, the Cherokees had made it very clear that they were happy on their tribal lands in northern Georgia and did not want to move. President Monroe sent Commissioners to the Cherokees to see if they would sell their lands. The Council of Chiefs replied that "it is the fixed and unalterable determination of this nation never again to cede one foot more of our land." The chiefs then sent a delegation to Washington, which declared to the president that "the Cherokees are not foreigners but the original inhabitants of America," and "they now stand on the soil of their own territory." The delegation added that "they cannot recognize the sovereignty of any State within the limits of their territory."

Why, one might ask, was it necessary to emphasize this last point, that a state could not exercise its "sovereignty" within the limits of the Cherokee territory? The answer is that the state of Georgia seemed determined to exercise that sovereignty, preferably by taking the Cherokees' territory for itself. In 1802, the federal government had promised Georgia that it would try to extinguish Indian title to Indian land in that state. By 1824, Georgia complained that the United States was moving too slowly. Georgia received a reply from President Monroe stating that the federal government would use only peaceful and reasonable methods to remove the Indians. So the state decided to take matters into its own hands. Georgia negotiated a removal treaty, the Treaty of Indian Spring, with representatives of the Creek Tribe, whose land was to the south of the Cherokees.

President John Quincy Adams learned that the treaty was the product of treachery, and he formally denounced it; but the Georgians ignored the denunciation and began to survey the Creek tribe's land, which they claimed as their own. The Indians protested, threatening force. The federal government backed them up. And the Georgians refused to back down. The Georgia legislature passed resolutions claiming that Georgia owned the land. President Adams sent an Army general with a letter ordering that the land survey stop. Governor George Troup replied that he felt it his "duty to resist to the utmost any military attack which the Government of the United States shall ... make upon ... Georgia," and he ordered Georgia's militia to be held "in readiness." He added that the United States had become the " unblushing allies" of "savages," and refused to submit the dispute to the United States Supreme Court because "that court, being of exclusive appointment by the Government of the United States, will make the United States the judge in their own cause." At the last moment, however, the federal government received word that the Creeks might sell their land. The United States negotiated with the tribe; treaties were signed; and in 1828, the Creeks "voluntarily" ceded the last of their territory in Georgia.

The Cherokees, acutely aware of the Creeks' predicament, were determined to avoid that fate. But two further developments spelled disaster. The first was the election of Andrew Jackson in 1828. The second was the discovery of gold on Cherokee lands in 1829. The latter led the Georgians to redouble their efforts to take possession of the land. And the former weakened federal opposition to the takeover.

In 1829, Georgians simply entered the Cherokee lands in order to work the gold mines, despite both federal laws and Cherokee laws that prohibited anyone from settling or trading on Indian territory without a license. The Georgia legislature passed laws confiscating much Cherokee land; nullifying all Cherokee laws within the confiscated territory; prohibiting meetings of the Cherokee legislative council; ordering the arrest of any Cherokee who influenced the tribe to reject emigration west; and even forbidding Cherokees to dig for gold on their own land. And Georgia's governor wrote to President Jackson asking for withdrawal of federal troops from the gold fields. (He was urged on by a Georgia judge who complained of the "deep humiliation" he felt due to the exercise of federal power "within the jurisdiction of Georgia," while adding that he "would disregard" any United States Supreme Court " interference" in "cases" arising before him "from the act of Georgia.")

Andrew Jackson did not resist. Instead he withdrew the federal troops. He negotiated a removal treaty with the neighboring Choctaws, and he urged the Cherokees to come to terms. He announced that, treaties to the contrary notwithstanding, a state had the right to extend its laws to cover Indian land within its boundaries. And he supported enactment of an Indian Removal Bill in Congress. That bill authorized the president to offer an exchange of western lands with any tribe "now residing within the limits of the states or territories."

As a political symbol, however, the measure meant much more. Many Northerners opposed it. Representative Henry Storrs of New York found it senseless to "remove the Indians for their own good from a community where they had pleasant homes, churches, and schools," and send them "to a wilderness." Representative William Ellsworth of Connecticut accused the Southerners of mercenary motives driving an effort to take over the Indians' possessions. Representative Horace Everett of Vermont cried out, "the evil ... is enormous; the violence is extreme; the breach of public faith deplorable; the inevitable suffering incalculable." But the Southerners replied with arguments based on States' rights, adding that the New Englanders had long ago expelled Indian tribes from their own land. The result was a narrow victory for Jackson and the South. The bill passed the House, 102 to 97.

At this point the Cherokees faced a set of Georgia laws that, in effect, took their land away from them; and a Georgian political victory in the federal Congress; and a president whose sympathies seemed to lie with the Georgians and who was asking them to negotiate removal. What could they do? What they did was refuse to negotiate. The Cherokee Legislative Council adopted a resolution stating: "We have no desire to see the President on the business of entering into a treaty for exchange of lands," but "we still ask him to protect us" in accordance with the " federal treaties provided for our protection." They added, " w hen we do move, we shall move not to the West, but by the course of nature to sleep under this ground which the Great Spirit gave our ancestors." Then, after consulting with Daniel Webster and others, the Cherokees hired a lawyer named William Wirt. Wirt was one of the greatest constitutional lawyers of his day, a political enemy of Jackson, and a former Attorney General of the United States. He advised the Cherokees to file a lawsuit.

II.

Wirt had very little doubt about the substantive merits of his clients' legal claim. Article VII of the Treaty of Peace and Friendship of 1791, entered into by the United States and the Cherokees, stated that the "United States shall guarantee to the Cherokee nation ... all their lands not hereby ceded." The Constitution itself made "Treaties" the "Supreme Law of the Land." And the Supreme Court had made clear twenty years before, in the Yazoo lands case, Fletcher v. Peck, that it would strike down state laws that violated constitutional provisions. Of course, Governor Troup had fulminated against Fletcher at that time. ("The foundations of the Republic are shaken," he remarked, "and yet the judges sleep with tranquility at home." And he asked, " Why ... do the judges who passed this decision live and live unpunished?") But by 1830, the Supreme Court's power to announce decisions that upheld the supremacy of federal law seemed well established. How then could Georgia, consistent with federal laws and treaties, extend its legal power to include Cherokee lands, thereby taking from the Cherokees, land that had not been " ceded"? As Wirt pointed out, "many distinguished men" had assured the Cherokees "that the Supreme Court would protect them and that they had only to secure eminent counsel to effect their object."

But Wirt still faced serious obstacles. How could he get his case to the Supreme Court? Should he file a lawsuit in the lower federal courts, say, against the United States, or against President Jackson, or against Secretary of War Edwin Stanton? Such a lawsuit would, in effect, seek a mandatory injunction requiring the United States or its officers to enforce treaty obligations, using force if necessary, to require the state to back down. Such a suit would directly involve the president or his Cabinet. It would dramatically illustrate the questions of political and institutional power at issue. And a request for injunctive relief would invite the Court to consider whether the question raised was a "political question" beyond the Court's power to resolve. Wirt rejected this approach.

What about a civil case, say, for "trespass," against individual Georgians who had entered Cherokee land? The trespassers would point to Georgia laws as a defense, and Wirt could then reply that Georgia's laws violated the terms of treaties and of the federal Indian Non-Intercourse Act of 1802. Hence the state's laws were invalid and provided no defense. But Wirt would then have to deal with the Georgia courts, or perhaps the lower federal courts sitting in Georgia. And Georgians were not likely to prove sympathetic to his claim.

In fact, a criminal case arising in Georgia showed what might happen. The Georgia courts had convicted a Cherokee named Corn Tassel of murdering another Cherokee on Cherokee land. Wirt took control of Corn Tassel's case, and appealed the conviction to the Supreme Court--a legal alternative that the Supreme Court, in Martin v. Hunter's Lessee (1816), and Cohens v. Virginia (1821), had made clear was legitimate. The Supreme Court sent the local judge notice that the appeal had been filed. The judge immediately sent the Supreme Court's writ to Georgia's Governor George Gilmer, who transmitted it to the state legislature, along with the message: "So far as concerns the executive department, orders received from the Supreme Court in any manner interfering with decisions of the courts of the state in the constitutional exercise of their jurisdiction will be disregarded, and any attempt to enforce such orders will be resisted with whatever force the laws have placed at my command." The legislature then " Resolved that the State of Georgia will never so far compromise her sovereignty as an independent state as to become a party to the case sought to be made before the Supreme Court by the writ in question." The legislature authorized Corn Tassel's execution to proceed, and Corn Tassel was hanged two days later.

Understandably, Wirt concluded that he could not rely upon Georgia's courts. Instead he decided to sue the State of Georgia directly. The Constitution itself said that the "Supreme Court shall have original jurisdiction" in all cases "in which a State shall be party." Hence Wirt could avoid the lower courts with their risks of delay or worse. He was aware that the Eleventh Amendment denied that the "judicial power of the United States" extended to lawsuit "commenced ... against one of the ... States by Citizens of another State, or by ... subjects of any Foreign State." But the Cherokee Nation was not a "citizen" or a "subject" of any state. It was a state, and perhaps a " foreign" one. So the Eleventh Amendment posed no obstacle, and in January 1831, on behalf of the Cherokee Nation, Wirt filed a lawsuit, Cherokee Nation v. Georgia, in the Supreme Court of the United States.

Wirt sought an injunction forbidding Georgia and its officers from enforcing "the laws of Georgia ... within the Cherokee territory, ... as designated by treaty between the United States and the Cherokee Nation." Georgia did not file an answer; nor did it make any appearance in the case. At oral argument, Wirt dwelled at some length upon the enforcement problem. " Will you decline a jurisdiction clearly committed to you," he asked, "from the fear that you cannot, by your own powers, give it effect ... ?" It is " part of the sworn duty of the President of the United States to 'take care that the law be faithfully executed.' ... It is your function to say what the laws is." In any event, "is this Court to anticipate that the President will not do his duty or ... that a defendant State will not do her duty in submitting to the decree of this Court?" There is "a moral force in the public sentiment of the American community which will ... constrain obedience. At all events, let us do our duty and the people of the United States will take care that others do theirs."

On March 18, 1831, the Supreme Court handed down its decision. "If courts were permitted to indulge their sympathies," Chief Justice John Marshall wrote, "a case better calculated to excite them can scarcely be imagined. A people once numerous, powerful, and truly independent, found by our ancestors in the quiet and uncontrolled possession of an ample domain ... have yielded their land by successive treaties," and this application is made simply to " preserve" a "remnant" (that is, merely that portion of the Cherokee's former territory that "is necessary to their comfortable existence"). Be that as it may, a Court divided 7 to 2 (with Justices Thompson and Story in dissent) concluded that there was no jurisdiction.

The Court conceded that a State was indeed a "party," and that fact gave the Court "original jurisdiction" under the Second Paragraph of Article III, Section 2. But, it added, the Court could exercise judicial power over such a case only if the "judicial Power of the United States," as defined in the First Paragraph of Article III Section 2, extends to that case. The First Paragraph lists the matters to which the "judicial power of the United States extends." It specifies that the federal judicial power does "extend to ... controversies" between a "State" and "foreign states," but the Court concluded that the Cherokee Nation is not a "foreign state." According to Chief Justice Marshall, its "relation to the United States resembles that of a ward to his guardian." The Indian tribes are "domestic, dependent nations." Marshall also noted that the "bill" would require "us to control the legislature of Georgia and to restrain the exertion of its physical force"-- an "interposition by the court" that might "well be questioned as savour ing too much of the exercise of political power to be within the proper province of the judicial department." But the Court's holding of no Article III jurisdiction "makes it unnecessary to decide this question."

Strangely absent from Marshall's opinion is an explicit discussion of a related (but different) jurisdictional claim that one of the Cherokees' lawyers had made. The First Paragraph of Article III states that the " judicial power of the United States" also shall extend to cases "arising under ... Treaties." The Cherokees had argued that their case "arises under a treaty." Consequently, they contended, paragraph one extends the federal judicial power to the case; paragraph two provides original jurisdiction in the Supreme Court. Marshall did not describe the flaw, if any, in this jurisdictional logic.

In any event, although the Cherokees had lost on the law, the chief justice delivered additional views from the bench. In these remarks, which one observer described as "an extra-judicial opinion," Marshall observed that he thought "so much of the argument of counsel as was intended to prove the character of the Cherokees as a State, as a distinct political society, separated from others, capable of managing their own affairs and governing itself, has, in the opinion of a majority of the Judges, been completely successful." He also suggested that "the mere question of right to their lands might perhaps be decided by the Court in a proper case with proper parties."

Still, as one contemporaneous letter writer put it, a "universal gloom, corresponding to the former elevation of their hopes, prevailed throughout the Cherokee Nation." Many Cherokees seemed ready to negotiate. Encouraging this defeatist mood, Georgia's governor wrote to President Jackson that if " the Cherokees are to continue inhabitants of the State, they must be rendered subject to the ordinary operation of the laws... The State must put an end to even the semblance of a distinct political society among them." Georgia sent additional guards to the gold fields. It passed new, more restrictive laws.

III.

Then, when all seemed lost, a new case gave grounds for hope. One of the new Georgia laws required "all white persons residing within the limits of the Cherokee nation" to have a license from the governor, and to take an " oath" to support the laws of Georgia. Governor George Gilmer decided to apply the law to a group of missionaries from New England, working in Cherokee country, who were encouraging the Cherokees to refuse to emigrate. He wrote to one of them, S. A. Worcester, asking him to take the oath of allegiance. Worcester replied that he understood he was "liable to arrest" were he to remain on Cherokee lands without having taken the oath, but he denied having " excited the Indians to oppose the jurisdiction of the state." He made clear that he thought Georgia's actions were wrong, and he concluded: "I could not conscientiously take the oath which the law requires," for it would amount to "perjury for one who is of the opposite opinion," and, "in the present state of feeling among the Indians, would greatly impair or entirely destroy my usefulness as a minister of the gospel among them." With his letter Worcester sent a copy "of the gospel of Matthew" and a hymnbook that he had translated into the Cherokee language.

In July 1831, Worcester and ten other missionaries were arrested. They were tried in September, and found guilty, and sentenced to several years of hard labor in prison. Governor Gilmer offered pardons if the missionaries would take the oath. Nine of the eleven accepted the offer, but Worcester and a colleague refused. Jeromiah Evarts--a member of the American Board for Foreign Missions, the group that had sent the missionaries to Cherokee territory--wrote to Worcester that " i f you leave, I fear the Cherokees will make no stand whatever... Y our leaving in these circumstances would greatly endanger, if it did not utterly ruin, the cause of the Cherokees ... and the people of the U.S. would say the case is hopeless. But the most intelligent members of Congress are of the opinion that the Supreme Court will sustain the Indians and that the people of the U.S. will yield and a settlement will be made. That this would be done is the only earthly hope of the Cherokees, and it is of immense importance to this country and to the civilized world."

Here was the case that Wirt had been waiting for. Georgia would not treat Worcester as it had treated Corn Tassel, whom it had swiftly executed. Nor would Georgia release him. Wirt, now representing Worcester, filed a notice of appeal in the Supreme Court. Georgia's new governor, Wilson Lumpkin, sent the Court's notice to appear to the state legislature along with a message stating that he would "disregard all unconstitutional requisitions" and would "resist Federal usurpation." The legislature resolved that any "attempt" by the Supreme Court "to reverse the decision of the Superior Court ... will be held by this state as an unconstitutional and arbitrary interference in the administration of her criminal laws and will be treated as such."

Still, for over three days in 1832, between February 20 and February 23, the Supreme Court heard arguments in the case of Worcester v. Georgia. Again, Georgia refused to appear. The argument on the petitioner's side was straightforward, devoted mostly to the substantive legal merits. And on March 3, Chief Justice Marshall delivered the opinion of a unanimous Court.

Jurisdiction, he said, posed no problem. Section 25 of the Judiciary Act " enumerates the cases in which the final judgment . . . of a state court may be revised in the Supreme Court." They include those "where . . . the validity of a treaty" is questioned (and the lower court holds the treaty invalid) or where a statute of any state is challenged "on the ground of its being repugnant to the Constitution, treaties or laws of the United States and the lower court decision is in favor of the validity" of the state statute. This case, Marshall continued, called into question the Cherokee treaties and also the Georgia statute. (He might have added that both were issues "arising under" the federal Constitution, treaties or laws, and therefore within the scope of Article III's grant of judicial power.) " I t is, then, we think too clear for controversy that the act of Congress by which this Court is constituted has given it the power and of course imposed on it the duty of exercising jurisdiction in this case. This duty, however unpleasant, cannot be avoided. Those who fill the judicial department have no discretion in selecting the subject to be brought before them." In sum: the Court could not refuse to hear the case, lest, contrary to Cohens v. Virginia, it deny jurisdiction to hear all criminal cases coming to it from state courts.

The court did not find the merits of the case much more difficult. Marshall recited at some length the history of relations between the European nations, the colonies, and the United States with the Indian tribes. He pointed out that none had ever extinguished tribal independence; that all had treated the Indians "as nations capable of maintaining the relations of peace and war"; that Great Britain as well as the United States had entered into treaties with Indian tribes; and that the United States had entered into specific treaties with the Cherokees in which it promised to stop other American citizens from settling on Cherokee lands, promised to be the sole and exclusive regulator of trade with the Indians for their own "benefit and comfort," and guaranteed to the Cherokees all their lands not ceded under the treaties.

Congress, Marshall pointed out, recognized "the several Indian nations as distinct political communities having territorial boundaries, within which their authority is exclusive and having a right to all the lands within those boundaries, which is not only acknowledged, but guaranteed by the United States." And so Marshall concluded that 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 themselves, or in conformity with treaties, and with the acts of Congress. . . . The act of the State of Georgia, under which the plaintiff in error was prosecuted is consequently void, and the judgment a nullity."

Marshall made the implication of that status for this case perfectly clear. Worcester had been "seized, and forcibly carried away, while under the guardianship of treaties" and while "under the protection of the United States. He was seized while performing, under the sanctions of the chief magistrate of the Union, those duties which the humane policy adopted by Congress had recommended. He was apprehended ... under colour of a law which has been shown to be repugnant to the Constitution, laws, and treaties of the United States." Marshall noted that, had property been so taken, the law would entitle its owner to its return, and "it cannot be less clear when the state's judgment affects personal liberty." Finally, Marshall announced that " i t is the opinion of this Court that the judgment of the Georgia Superior Court" must be "reversed and annulled."

Worcester was to go free. The Cherokees had won. Or had they?

IV.

After the court's decision was announced, Justice Joseph Story wrote to his wife: "Thanks be to God, the Court can wash their hands clean of the iniquity of oppressing the Indians and disregarding their rights." He added that "the Court has done its duty. Let the Nation now do theirs." But he also noted that "Georgia is full of anger and violence. . . . Probably she will resist the execution of our judgment, and if she does, I do not believe the President will interfere." Story was correct. The Supreme Court issued its opinion on March 3, 1832, immediately following it with a mandate that reversed and annulled the Georgia judgment. On March 17, Worcester's lawyers asked the Georgia court to receive the mandate and release the prisoners. The Georgia court simply refused. Indeed, it refused to record anything, including its own decision not to obey the Supreme Court's ruling.

The Georgia court did allow the lawyers to make an affidavit about what had happened; but when those lawyers then asked Governor Lumpkin to release the prisoners, he would put nothing in writing, remarking that "you got around Judge Clayton, but you shall not get 'round me." It seemed that Georgians themselves understood their governor's position, a position that he clarified the following November in his annual message to the state legislature: "The Supreme Court," he proclaimed, has "attempted to overthrow the essential jurisdiction of the State in criminal cases... I have, however, been prepared to meet this usurpation of Federal power with the most prompt and determined resistance."

When Congressman John Quincy Adams of Massachusetts, along with other Northern representatives, complained that "no steps have been taken by the Government of the United States to prevent these manifest violations of its laws," Congressman Augustin Clayton of Georgia replied that they "were meddling with what did not concern them"; that the Supreme Court's judgment " would be resisted with the promptitude and spirit which became Georgians"; and that the judgment "would never be executed till Georgia was made a howling wilderness." That state, he added, would "rather give up your Union," than "submit to be scourged by savages." And Congressman Thomas Foster of Georgia responded to claims that the Union itself was at stake with the following arguments: that the Supreme Court was not "unbiased and impartial"; that the question at issue was "political"; that Cohens v. Virginia (which permitted the Supreme Court to review state criminal decisions) was wrongly decided; that the "powers of the States" were being "swallowed up by the judiciary"; that since "there has been no common umpire designated to determine questions of contested power ... each State as a party has a right to judge for itself ... of the infractions of the Constitution and to resist the exercise of any power by the Federal Government not granted to it"; and that neither Court nor president could "command a posse sufficient to carry" the judgment "into effect."

The words "civil war" began to appear in the congressional debates. And what about the president? He had made clear that, in his view, the state legislatures "had the power to extend their laws over all persons living within their boundaries," and that he possessed "no authority to interfere." When he vetoed the national Bank Bill in July, Jackson remarked that it is " as much the duty" of Congress and the president "to decide upon the constitutionality" of bills as "it is of the supreme judges." Thus, in his view, " t he authority of the Supreme Court must not ... be permitted to control the Congress or the Executive."

The New York Daily Advertiser pointed out that President Jackson "has said . .. that he ha s as good a right, being a co-ordinate branch of the government, to order the Supreme Court as the Court ha s to require him to execute its decisions." And popular wisdom quoted Jackson as having said, " Well, John Marshall has made his decision, now let him enforce it." The two missionary prisoners, of course, remained in jail. It is thus no wonder that John Marshall wrote despondently to Joseph Story: "I yield slowly and reluctantly to the conviction that our Constitution cannot last."

Then, just when all seemed lost, the wheel of fortune began to turn again. Georgia's resistance was overcome. And the missionaries were freed. This change took place because another state--South Carolina--decided that the time was ripe to put Georgia's nullification theory into practice. On November 24, 1832, eighteen days after Georgia's Governor Lumpkin promised the legislature's "determined resistance" to the implementation of the Cherokee decision, South Carolina promulgated its own "Nullification Ordinance." The ordinance essentially nullified a federal tariff law. It announced that "it shall not be lawful . . . to enforce the payment of duties imposed by the federal acts within the limits of this State." The state courts would have to follow "state law" on the matter; nor would any appeal to the Supreme Court be "permitted," or the printing of any record for the purposes of such an appeal, and any person attempting to take such appeal " may be dealt with as for a contempt of court."

President Jackson suddenly began to understand the nature and the magnitude of the problem. On December 10th, he published a reply to South Carolina, saying: "I consider, then, the power to annul a law of the United States assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed." Jackson immediately supported congressional enactment of a Force Bill that would give federal officials adequate powers to enforce the federal laws. As a result of his new concern, Jackson found new friends in Daniel Webster and Chief Justice Marshall, who saw that the president at last had begun to understand the importance of their arguments for national sovereignty.

What, then, about Georgia? The United States Telegraph wrote that "no person but a Jackson or Van Buren man can see any essential difference between the cases of Georgia and South Carolina." Worcester had said from prison that he might bring his case right back to the Supreme Court; and in light of his new position on the limits of states' rights, Jackson began to say that he would carry into effect any decision that the Supreme Court might make. In short order, the newspapers began to predict that a "settlement of the Cherokee case" was at hand.

Before the Supreme Court could meet for its 1833 term, friends of Governor Lumpkin visited Worcester in prison. They said the governor had told them that if the missionaries would withdraw their suit, they would be discharged from prison, immediately and unconditionally. The American Board for Foreign Missions considered the matter and expressed its opinion that they should accept a pardon. After all, the Supreme Court decision had established their right to be free, and also the right of the Cherokees "to protection from the President from the aggressions of Georgia." What more would be gained by maintaining another lawsuit and remaining in prison?

Consequently, on January 8, 1833, Worcester wrote to Wirt and instructed him to halt all legal proceedings. He wrote to Governor Lumpkin in effect requesting a pardon, while adding that "we have not been led to the adoption of this measure by any change of views in regard to the principles on which we have acted." When Worcester heard that the governor considered this latter remark an insult, he quickly wrote a second letter, apologizing and adding that it is "our intention simply to forbear the prosecution of our case and to leave the question of the continuance of our confinement to the magnanimity of the State." On January 14, 1833, Governor Lumpkin signed a proclamation ordering the missionaries' release.

V.

Charles warren, the great historian of the Supreme Court, later observed of this outcome that the prestige and the authority of the Court went from a near-disastrous nadir in late 1832 to its strongest position in fifteen years by the opening of the 1833 term in January. And the Cherokees? Had they not also won the case? What happened to them? On December 29, 1835, at New Echota, the Cherokees supposedly signed a treaty agreeing to their removal from Georgia to the West.

Well, not exactly. Let me put the matter more accurately. Approximately 300 to 500 members of the Cherokee tribe, a tribe with a total population of over 17,000, went to New Echota and agreed to the treaty. Virtually every other member of the Tribe immediately protested the treaty, claiming that it had been obtained through trickery. Despite protests against the treaty by representatives of the remaining Cherokees, the United States Senate ratified the treaty by a majority of one.

General Wool, who was in command of the federal troops in Cherokee territory, communicated the facts of the Cherokees' resistance to President Jackson. The president responded with a letter in which he ordered enforcement of the treaty; and said that he "had ceased to recognize" any Cherokee government; and forbade the Cherokees to assemble to discuss the treaty; and directed that a copy of his letter be shown to Cherokee Chief John Ross, after which "no further communication by mouth or writing should be held with him concerning the treaty." General Wool later reported that the Cherokees were "almost universally opposed to the Treaty." He said that the great majority of the tribe was " s o determined in their opposition" that they had refused to "receive either rations or clothing from the United States lest they might compromise themselves in regard to the treaty"; that they "preferred living upon the roots and sap of trees rather than receive provisions" from the federal government; that "many thousands ... had no other food for weeks," and that many "said they will die before they leave the country."

Wool described the whole scene as "heartrending," adding that, were it up to him, he "would remove every Indian tomorrow beyond the reach of the white men who, like vultures, are watching, ready to pounce upon their prey and strip them of everything they have." "Yes sir," he said, speaking of the Cherokee people, "ninety-nine out of every hundred, will go penniless to the West." So the Cherokees had won their legal battle, but they had lost the war.

Governor Lumpkin later became an Indian commissioner, "commissioned to execute the Treaty of December 1835 with the Cherokee Indians." When he was asked by a few of the Cherokees' lawyers for payment of their bills, he wrote that their efforts had been "arduous, long and often unpleasant"; that they had supported the "weaker of the two contending communities" in a struggle " with a stronger one"; and that the "best interest of the Cherokee people would have been promoted . . . by avoiding the conflicts and controversies" into which the legal representation had plunged them. In his stated view, the lawyers' "labors from first to last have been one unmitigated curse to the Cherokee people." Wirt himself apparently received only $500 on a claim for $20,000.

I shall end the story here. In this extraordinary struggle over American first principles, there was an obvious winner, the Supreme Court of the United States, and an obvious loser, the Cherokee Tribe, and an obvious irony, that the Supreme Court and the Cherokee Tribe had been allies, fighting on the same side of the issues.

The outcome of this sad, premonitory tale may also provide support for those who believe that politics and force, not law, determine the facts of history. But I would draw a different lesson: a lesson about the insufficiency of a judicial decision alone to bring about the rule of law. This lesson helps us to understand John Marshall's comment that the "people made the Constitution and the people can unmake it." For our constitutional system does not consist only of legal writings. It consists of habits, customs, expectations, settled modes of behavior engaged in by lawyers, by judges, and by citizens, all developed gradually over time. It is that system, as actually practiced by millions of Americans, that protects our liberty.

One hundred and twenty-five years after Worcester, the Supreme Court decided another case, Cooper v. Aaron, that involved a different governor who was defying a different Court order, an order demanding that black children enter the door of a white school. This time the president sent in paratroopers; and the children entered that schoolhouse. Perhaps President Jackson's actions helped President Eisenhower to understand both the importance of enforcing a rule of law as well as the importance of protecting fundamental liberties. And perhaps that experience can help us understand our own responsibility to preserve and to transmit the traditions, the habits, and the expectations of behavior that underlie our modern system, creating the freedom that we enjoy not only on paper but also in reality. If so, then an old and dangerous episode in the Court's history, and an old and tragic story in the history of the Cherokee Tribe, may help others whose basic liberties are threatened.

(Copyright 2000, The New Republic)