Dylan Hedden-Nicely on the Continued Vitality of Worcester v. Georgia

Dylan Hedden-Nicely has posted “The Reports of My Death Are Greatly Exaggerated: The Continued Vitality of Worcester v. Georgia,” forthcoming in the Southwestern Law Review, on SSRN.

Here is the abstract:

Rumors abound among the academy, practitioners, and the judiciary about the death of Worcester v. Georgia since the Court’s recent decision in Oklahoma v. Castro-Huerta. The misunderstanding is compounded by those that fail to take the time necessary to appreciate the rich nuance of Chief Justice John Marshall’s decision or in the subtle ways the Court has since modified its holding from Worcester. However, the importance of this case, which is integral to our entire system of federal Indian law, to major components of our constitutional system, as well as to our claim to leader in the human rights arena, mandates we proceed with caution and demand precision in its treatment. We cannot presume the abrogation of such a significant case based on veiled rhetoric that stitches together dicta built upon dicta. Instead, we should proceed by acknowledging the broad scope of Worcester’s original holding and carefully examining where and how the Supreme Court has since circumscribed its breadth.

In furtherance of that call, this paper focusses on the Court’s Indian law jurisprudence around the middle of the twentieth century to provide a clearer picture of how the Court has treated Worcester in the modern era and the ways in which it has been limited. That analysis leads to the inescapable conclusion that although the Court has abandoned Worcester’s categorical prohibition on state jurisdiction in Indian country, “the broad principles of that decision came to be accepted as law.” Accordingly, until such time as the Court “openly avow[s]” its intent to overrule Worcester, we must remain faithful to its narrow authorization of state power in Indian country, as well as its broad recognition of tribal sovereignty and federal primacy over the relationship with tribal nations.

Apparently We Need a NAGPRA for Indian Lawyers, Too

From In Custodia Legis, here is “Would You Be Interested in Getting (Attorney General) William Wirt’s Head Back?” Rebecca Roberts Brings Us a Tale From the Congressional Cemetery.

BTW, William Wirt represented the Cherokee Nation in Cherokee Nation v. Georgia, and Samuel Worcester in Worcester v. Georgia.

A Little History on Andrew Jackson and the Supreme Court (for Mike Huckabee)

Mike Huckabee invoked Andrew Jackson in encouraging the President to not comply with federal court orders striking the Muslim travel ban, saying “Hoping @POTUS tells Hawaii judge what Andrew Jackson told overreaching court-“I’ll ignore it and let the court enforce their order.”, invoking the aftermath of Worcester v. Georgia, in which the Supreme Court held that Georgia could not prosecute a white man (Worcester) for setting foot in Cherokee Indian country without its permission.

Like the President, Mr. Huckabee should look into history to see not only how offensive that statement is to both Indian people and to the integrity of United States, but how President Jackson ultimately and completely capitulated to the Supreme Court.

Here is Justice Breyer’s retelling of the incident:

But then North Carolina . . . said, “We will not give the United States customs duties that we owe them because we prefer to keep them. Andrew Jackson woke up to the problem and he ended up saying to the governor of Georgia, You must release Worcester.” They had a negotiation and Worcester was let out of jail.

Stephen G. Breyer, Reflections of a Junior Justice, 54 Drake L. Rev. 7, 9 (2005). In short, once President Jackson realized that South Carolina heard his comment about the Supreme Court enforcing their own orders and were ready to stop paying federal tariffs, he contacted Georgia Governor Lumpkin privately and asked him to release Worcester. He also got Congress to pass a “Force Act,” authorizing him to use the military against South Carolina to enforce those federal tariffs. He effectively capitulated to the Supreme Court in order to save the Union, leaving that mess for future Presidents.

And, finally, here is Chief Justice Marshall’s private mockery of Andrew Jackson after the President had capitulated:

Imitating the Quaker who said the dog he wished to destroy was mad, they said Andrew Jackson had become a Federalist, even an ultra-Federalist. To have said he was ready to break down and trample on every other department of the government would not have injured him, but to say that he was a Federalist–a convert to the opinions of Washington, was a mortal blow under which he is yet staggering.

David Loth, Chief Justice: John Marshall and the Growth of the Republic 368 (1949) (quoting a letter from Chief Justice Marshall to Justice Story). The Chief Justice was near death when he wrote this letter, and months earlier had believed that President Jackson’s refusal to enforce the Court’s order in Worcester was going to be the end of the Court, and perhaps the Constitution, and perhaps the Union. This letter expressed his relief that the Worcester order would be enforced, and his mockery of President Jackson for seemingly turning on his states’ rights ideology.



Blast from the Past: 1939 Oberlin College Master’s Thesis: “Decline of Indian Tribal Sovereignty in the Nineteenth Century”

Interesting read, in that it comes right as World War II began and reads like it could have been written in the modern era. Also includes the text of the letter from President Jackson to Georgia Gov. Lampkin strongly implying he ought to let Samuel Worcester et al. go home:

Decline of Indian Tribal Sovereignty in the Nineteenth Century

Turtle Talk Voters Confirm Worcester v. Georgia as Greatest Case (Again) in the Supreme Court Tournament

Sorry for the delay. Lots been happening. But as expected you all voted Worcester v. Georgia as the Greatest Case in the Turtle Talk poll, beating out Williams v. Lee badly — 70 percent to 30 percent (83 out of 109 votes).

I recall we did a short poll a few years back, and Worcester beat out a few other cases for the same title….


Turtle Talk Greatest Cases Poll Concludes with Final Round

Today, I will reluctantly present the final round of the Turtle Talk Greatest Cases Tournament. I am reluctant because it mostly was fun to do this, and I don’t really want it to end. So I’ll keep doing them. They’re fun, and most everyone likes them.

Final Round Match-up

(1) Worcester v. Georgia versus (7) Williams v. Lee

I’ve been characterizing these two cases lately as old-timey sovereignty versus somewhat younger old-timey sovereignty. Here’s part of what I wrote about Worcester when I wrote about what I do when I teach the case:

[I]n the 1832 Term, the Marshall Court voted 5-1 to declare unconstitutional the laws of Georgia purporting to invalidate the entire Cherokee Nation in Worcester v. Georgia. Though Chief Justice Marshall’s wife Polly had passed during the previous recess and his health wavered, he delivered an opinion one commentator declared as “one of the most powerful he ever delivered.” Justice 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.”

Here’s what I wrote about Williams recently in an unpublished paper:

In 1959, however, the Supreme Court decided Williams v. Lee, a fairly dramatic decision roundly affirming inherent, and exclusive, tribal authority to adjudicate civil disputes arising in Indian country involving reservation Indians (as defendants). Williams recognized that Congress intended the IRA to be a vehicle for the development of tribal justice systems. The Court also noted that the tribal justice system at issue, the Navajo judiciary, was exemplary: “The Tribe itself has in recent years greatly improved its legal system through increased expenditures and better-trained personnel. Today the Navajo Courts of Indian Offenses exercise broad criminal and civil jurisdiction which covers suits by outsiders against Indian defendants.”

Enough about me. Here’s the poll. We’ll go two days instead of one.

Justice Breyer and “The Yale Lectures”

Available here, drawing from his book Making Democracy Work.

Here is an excerpt:

After the decision [in Worcester], 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.” A few days later, he wrote to another
correspondent: “The Court has done its duty. Let the Nation now do theirs.” Story added: “Georgia is full of anger and violence. . . . Probably she will resist . . . , and if she does, I do not believe the President will interfere . . . .”

And that is just what happened. Georgia said it would resist the decision as a “usurpation” of power. And this is the case about which President Andrew Jackson supposedly said, “John Marshall has made his decision, now let him enforce it.”
The President considered he had as good a right as the Court to decide what the Constitution meant and how it should be enforced. Worcester stayed in jail. John Marshall wrote to Story: “I yield slowly and reluctantly to the conviction that our Constitution cannot last.”

What was wrong with Jackson’s position? The President soon found out. South Carolina, noticing what Georgia could do, decided it would follow suit— but in respect to federal taxes. It passed a law prohibiting the payment of federal customs duties. And Jackson then began to realize the threat to the Union inherent in the principle. He quickly obtained a “force bill” from Congress, authorizing him to send troops to South Carolina. And South Carolina withdrew its law. The press began to write about Georgia and the Cherokees: how did Georgia and Worcester differ from South Carolina and taxes? And Georgia began to back down. It reached an agreement with Worcester, releasing him from jail. And so the Court’s order was ultimately enforced. Or was it?

There is no happy ending here. Jackson sent troops to Georgia, but not to enforce the Court’s decision or to secure the Indians their lands. To the contrary, he sent federal troops to evict the Indians. He found a handful of Cherokees willing to sign a treaty requiring departure; he ignored 17,000 other Cherokees who protested that they would die rather than agree to go; and he forced the tribe to move to Oklahoma, walking there along the Trail of Tears, so-called because so many Cherokees died along the way. Their descendants live in Oklahoma to this day.

This episode suggests a negative answer to Hotspur’s question. The Court may follow the law—even in an unpopular matter. But that does not matter very much. Force, not law, will prevail. The summoned “spirits” will not come.

Results of Second Turtle Talk Poll: Worcester v. Georgia Most Important Indian Law Precedent

Here are the results of our second poll — what is the most important Federal Indian Law Supreme Court opinion?

  1. Worcester v. Georgia — 32 percent
  2. Montana v. United States — 18 percent
  3. Oliphant v. Suquamish Indian Tribe — 11 percent
  4. Johnson v. M’Intosh — 8 percent
  5. Carcieri v. Salazar — 7 percent
  6. Santa Clara Pueblo v. Martinez — 6 percent
  7. California v. Cabazon Band — 6 percent
  8. Sherrill v. Oneida Indian Nation — 5 percent
  9. Lone Wolf v. Hitchcock — 2 percent

No other case received more than 1 percent of the vote.

Personally, I would have voted for Santa Clara Pueblo v. Martinez. Tribal sovereign immunity, power to tribal courts to decide internal disputes, membership criteria to be decided by the tribes.

John Yoo on Andrew Jackson

John Yoo, author of some of the notorious torture papers, just published “Andrew Jackson and Presidential Power” in the Charleston Law Review. I guess it’s not surprising that a scholar with a such robust view of  Executive power would try to resurrect Jackson. Here’s an excerpt concerning Worcester v. Georgia:

Although Jackson did nothing to support the Court’s constitutional powers, he acted to defuse the political crisis. Rather than defy the Supreme Court outright, the Georgia courts simply refused to acknowledge the Supreme Court’s decision. Without any formal acceptance or rejection of Worcester by the state courts, the Supreme Court had no formal legal authority to order Georgia to obey the decision.  Even if Georgia had openly refused to obey Worcester, the Supreme Court recessed for nine months and was unable to reverse the State’s decisions. Jackson commented that “the decision of the supreme court has fell still born, and they find they cannot coerce Georgia to yield to its mandate.” The confrontation, however, generated political trouble for the Administration. Newspapers widely reprinted Worcester, which served as ammunition to attack Jackson in his soon-approaching re-election campaign. Jackson and Van Buren worked through the party machinery to convince the Governor of Georgia to commute the sentences in exchange for the missionaries’ agreement not to seek further Court review. Indian issues would figure in the election of 1832, and Jackson would take his overwhelming re-election as a validation of his Indian removal policy.

Even though this paragraph seems internally inconsistent, it appears to be a more nuanced view of the Worcester crisis for Jackson.