“John Marshall has made his decision;

now let him enforce it.”

Those are the famous words uttered by President Andrew Jackson in relation to U.S. Supreme Court Chief Justice John Marshall’s 1832 decision in Worcester v. Georgia to strike down a Georgia law that imposed regulations on the comings and goings of white people in Native American land.

This ruling was foundational in establishing the general idea that Native Americans have some degree of sovereignty in their interaction with U.S. governments. The words and actions of President Jackson in relation to the opinion is a historic event exemplifying the ever present debate over state and federal power and the role of the courts in our modern times.

In the spring of 2014 the nation was stricken with Cliven Bundy fever. Mr. Bundy is the Nevadan rancher who not only refused to pay fees to the federal government for the right to graze on federal lands, but also sought an armed conflict with federal officials. It briefly ignited a debate over the role of the federal government in land management and ownership, particularly in western states where the federal government owns a large percentage of the land. The debate didn’t last long, possibly because of Mr. Bundy’s own antics and personal beliefs and possibly because the right of the federal government to assert such powers has long been established.

Andrew Jackson ncpedia.org Justice John Marshall wikipedia.org

The spat between President Andrew Jackson and Chief Justice John Marshall is an interesting hiccup in nation’s evolving belief that the US Supreme Court has the authority to decide whether laws are constitutional. The conflict centered on arguments over states’ rights as well as land ownership and use policies, but it also brought into question the entire idea of judicial review. The power of the US Supreme Court to interpret the US Constitution and review federal and state laws to ensure compliance is generally something we don’t question today; it’s fundamentally essential to the smooth operation of the country. Well back at the time of the Worcester decision, this idea wasn’t so fundamental.

Putting The Supreme in Supreme Court

Thirty years prior to Worcester, the US Supreme Court issued what was arguably the most important opinion in the history of the bench. In Marbury v. Madison, the same Chief Justice John Marshall ruled that the Supreme Court is vested with the power of judicial review; it has the ability to determine that a law is at odds with the US Constitution and therefore invalid. Today we view this power as one of the important “checks” on the government’s lawmaking ability. After all, if the courts cannot decide that a law is incongruous with the Constitution then who can? The politicians who made the law?

Establishing judicial review was especially important for the Court since it made the judicial branch highly relevant. The decision strengthened the separation of powers between the three branches and made the Constitution the cornerstone of lawmaking throughout the country. But the Court had to walk a fine line in establishing judicial review. At the time, the Supreme Court was a fledgling entity that had little relevance and whose daily functions were at the whim of whatever party was in power.

See Related Article: Why Law Professors on the Right and Left Think Adding More Justices and Ending Lifetime Tenure Could Vastly Improve the Supreme Court

In 1800 Thomas Jefferson defeated John Adams to become the third President of the United States. The two were bitter rivals as Adams was the leader of the Federalist Party and Jefferson was the leader of the Democratic-Republican party. Prior to leaving office, Adams appointed many like-minded people to federal courts across the country as a means of preserving his party’s influence on policy. However, the letter of commission for one William Marbury for Justice of the Peace of the District of Columbia was not delivered to him prior to Adams leaving office and Thomas Jefferson had no intention of delivering it.

That gave way to William Marbury filing a lawsuit under the Federal Judiciary Act of 1789 to force Jefferson’s Secretary of State, James Madison, to give him his commission. The Act allowed him to file the suit directly in the Supreme Court, where Chief Justice John Marshall was waiting with open arms. This was the opportunity he had been waiting for that would allow him to make the Supreme Court much more relevant.

But the situation was tricky. Although Marshall was political allies with John Adams, he realized he needed to reach a decision that President Jefferson would want to enforce. Since the Supreme Court at that time had a fraction of the significance it has today, the president was largely free to ignore the ruling of the Court without suffering political or popular harm.

Marshall began his opinion by stating that William Marbury was entitled to his commission; Secretary of State Madison had no discretion to withhold carrying out the lawful appointment of Marbury as Justice of the Peace. However, in a stroke of genius, Marshall dismissed the claim on procedural grounds, stating that the US Constitution did not give Congress the authority to enact a law that allowed William Marbury’s type of lawsuit to be filed directly in the US Supreme Court; such a suit would have to work its way up the court system prior to reaching the Supreme Court. Marshall was able to satisfy his political party by declaring Madison’s actions to be improper while simultaneously delivering a final ruling that pleased Jefferson enough to make him want to enforce it.

Fast forward to 1832. Having firmly established judicial review with the ruling in favor of Jefferson’s administration in Marbury v. Madison, Chief Justice Marshall was free to rule against the new sitting president, Andrew Jackson, right? Well perhaps thirty years isn’t enough time to let something set, especially when you’re dealing with someone like Andrew Jackson.

Georgia VS the Cherokee Nation

Throughout the 1820’s Georgia worked tirelessly to remove the Cherokee Indians from their lands in the northern part of the state. It enacted laws that extended its jurisdiction over Cherokee territory, acquired tribal lands, and attempted to redistribute that land to non-native residents. Andrew Jackson was elected president in 1828 and joined Georgia in its quest to remove the Cherokee and other Native Americans from their land.

In 1831 the Cherokee Nation challenged the Georgia laws in the US Supreme Court. Similar to the procedural grounds upon which Marbury v. Madison was dismissed decades earlier, the Court declined to the hear the case on its merits. In Cherokee Nation v. Georgia, the Court held that, since the Cherokee Nation was a “domestic, dependent nation” and not a foreign nation, the Court lacked jurisdiction.

But a man named Samuel Worcester would throw a wrench in that decision. A minister from Vermont who worked as a missionary with the American Board of Commissioners for Foreign Missions, Worcester was assigned a post within the Cherokee Nation and took up residence in the Cherokee capital of New Echota. Worcester not only taught the Cherokee the words of the Bible, but advised them of their legal rights. Unsurprisingly, this sparked outrage from Georgia leaders as they saw Worcester as a linchpin in the Cherokee resistance. This prompted the state to enact licensing laws regulating how white people moved to and from the Cherokee lands. As a white person residing in Cherokee land without a license, Worcester and several other missionaries were retrieved from Cherokee land and imprisoned.

This resulted in another showdown in the US Supreme Court. In Worcester v. Georgia, the Court seemingly reversed Cherokee Nation v. Georgia, holding that Indian nations were sovereign nations with inherent natural rights to land. As the Constitution grants the federal government the exclusive power to negotiate treaties with foreign nations, Georgia’s laws were in direct conflict with the US Constitution and with existing treaties. The Court even cited previous pieces of Georgia legislation, including the Act of Cession of 1802, showing that the state had acknowledged the idea that Indian nations have a full right to the territory they occupy and that this right can only be extinguished in negotiation with the government of the United States.

Enter Andrew Jackson. Two years prior to the Worcester decision, he successfully convinced Congress to pass the Indian Removal Act. Despite his strong belief in states’ rights and the power of each state to govern its own jurisdiction, the Act created a scheme which gave the president jurisdiction over Indian-state relations. This included the right to grant land west of the Mississippi River to Native Americans following negotiations with the tribes for their removal from eastern areas. Ultimately, Jackson wanted to remove the Native Americans from their land regardless of whether the means were in accordance with his own political beliefs. Unsurprisingly, when the Worcester decision was announced Jackson wasn’t too pleased.

“John Marshall has made his decision; now let him enforce it.”

Though President Jackson’s exact words were a bit different, the sentiment remained. Enforcing the ruling would mean not only deviating from his own ideology, but alienating a state that shared his core beliefs. So he decided to undermine the system of checks and balances and ignore the ruling. Without the president’s enforcement of the Supreme Court’s ruling, the opinion largely meant nothing. Samuel Worcester remained imprisoned in Milledgeville and the militia of Georgia was free to encroach on Cherokee land.

The Worcester opinion should have given the Native Americans much more leverage in future negotiations with the federal government. The decision, after all, established some degree of sovereignty and revoked the states’ ability to take part in such negotiations. However, it had little effect since neither the President of the United States nor the State of Georgia showed any acknowledgement of the ruling. Subsequently, in 1835 the Cherokee Nation signed the Treaty of New Echota which would effectively remove them from Georgia. The US Army promptly initiated the Trail of Tears, forcibly relocating over 15,000 Native Americans from Georgia to Oklahoma. Over 4,000 lost their lives on the journey.

Eventually the Georgia licensing law was repealed by the Georgia legislature after generating a public outcry over the continued imprisonment of missionaries and at the behest of new Governor Wilson Lumpkin.

While the Supreme Court has historically applied different theories of sovereignty based on the issue, the underlying idea of Worcester remains intact: any diminution in sovereignty is reserved as an issue for the federal government, not the states. A state cannot interfere with internal tribal affairs unless the federal government has granted such authority; whether this power has been granted is a decision for a federal court.

Ultimately, the actions of President Jackson to not recognize the opinion in Worcester had profound implications for Native Americans and for Georgia. Much of our lands in the Southeast and throughout the country bear the names of Native Americans and, being as such, these placemarks offer glimpses into a troubled yet rich history and lessons we should’t forget.

In the end, Andrew Jackson’s story reveals the ease at which the foundation of our governmental structure can be eroded. One person, in a powerful position, deciding to challenge the political and legal norms that we’ve come to rely on can have a profoundly negative impact on the integrity of our legal and political system.

On July 28 2016 this article was edited to include additional discussion regarding Marbury v. Madison.