Thursday, June 23, 2016

Could Worcester v. Georgia have averted the Civil War?

Where the sun sleeps, our fathers came thence.
... the Earth opened in the West, where its mouth is.
Siberia, the Angara culture: sedentary, fishing 
through the ice on lake Baikal, the Amoor and shill Rivers...
Long ago they didn't know there was land here.

                                      Paul Metcalf--Apalache

Columbus discovered North America sailing from the east, looking for India. Perhaps 13,000 years before, man first followed game across the Bering Sea land bridge and discovered North America from the west, at the tail end of the last Ice Age. Artifacts discovered in North and South America indicate that human life was well established here by 10,000 BCE, about the time, Mammoth began to die out and buffalo became a main source of food for early North American plains Indians. 
Indian Regions in North America ca 1400
In central Mexico man began to cultivate corn as early as 8,000 BCE, keeping pace with neolithic culture in in the Middle East.  By 3,000 BCE primitive corn was grown by tribes in the American Southeast (New Mexico and Arizona). Mayan culture in Central America began to build cities by 750 BCE, coinciding with the founding of Rome. Still, in the course of human development, by 750 BCE the people of the America's had fallen far behind their Mediterranean cousins. By then their Mediterranean cousins had produced land-based empires in the Fertile Crescent, in Egypt, in Anatolia. They had produced a seafaring empire: the Phoenicians.  They had produced Homeric poetry and pre-Socratic philosophy; they were about to create Classical Greece, the Persian Empire, the Roman Empire. 

By the time Columbus sailed the ocean blue there existed a chasm the size of the Atlantic Ocean between these peoples. Copernicus was 19 years old; Michelangelo di Ludovico de Buonarotti had completed his apprenticeship. The Renaissance was flourishing. In North America, by contrast, they never managed to reach the bronze age.

Columbus's men had steel swords, guns, cannon, the wind at their backs, and the momentum and motivating force of three religions: Zoroastrianism, Judaism, and Christianity.  But religion, Plato, Aristotle, Virgil, and Dante notwithstanding, Columbus's men, and all those who followed, utterly lacked the perspective and knowledge to appreciate or value the cultures they encountered in North America. Western Europeans did not manage this encounter with grace; they did not play nice. 

Europeans following in the footsteps of Columbus intruded on an idyllic landscape.


North America is a beautiful place. In 1400 it must have been a paradise. To be sure, a harsh heaven of animals kind of paradise. A land of hunters and gatherers. But a paradise. And its indigenous population had its own wisdoms. The country would have been better off if our forefathers had been more sensitive to this wisdom.

The population in North America, north of the Rio Grande, before contact with Europeans is hard to know. Some say it may have been between 7-10 million. They were highly fragmented, speaking more than 300 distinct languages. All of the eastern seaboard, the Great Lakes, Canada, the South and Southwest, the prairies, the Rocky Mountain region, and the western seaboard for a population roughly the size of New York City. There was lots of room to roam about.

The ways of settler colonialism were not compatible with wide open roaming for hunting and gathering. The immune systems of the Bearing Straight people were no match for influenza, bubonic plague, chicken pox, pneumonic plague, cholera, diphtheria, measles, scarlet fever, smallpox, typhus, tuberculosis, and whooping cough brought over by Europeans. The empire building, private property oriented, religiously rigid and ideological ways of the Europeans overwhelmed  and destroyed the communal, yielding, and peripatetic nature of the Bearing Straights people. Native American populations plummeted.

The colonization of North America started in earnest in the early 17th century. The North American census of 1610 counted just 350 Europeans. By 1700 the white settler population had increased to  250,000; by 1770, on the eve of the Revolutionary War, white settler population had increased to 2.1 million mostly confined to the eastern seaboard.

For 200 years of settlement, English and French policy towards the Indians was accommodation and displacement. The goal was not conquest and destruction.  Later the policy switched to herding Indians into reservations by force: conquest and destruction.

Empty Promises

Between 1778 and 1871 the United States entered into 370 separate treaties with various Indian tribes. These treaties were kept by the United States, it appears, only as long as convenient. As soon as the onward march of settlement and colonization was inconvenienced by one of those treaties, the treaties gave way.

Take the plight of the Cherokee.

The Cherokee were one of the five Southeast "civilized tribes" (meaning they adopted farming, Christianity, and the English language). Between 1785 and 1802 the Cherokee entered into a series of treaties with the United States whereby they ceded large portions of their ancestral lands in exchange for compensation and guaranteed borders within which they would keep their own jurisdiction and sovereignty.
Cherokee Nation (1830) 
By 1802, however, white settlers coveted this land guaranteed to the Cherokee by treaty. They started to agitate for the removal of the tribe from Georgia and they found a sympathetic ear with the slave-owning large plantation farmer, President Jefferson. The federal government made promises to white settlers to remove the Indians from Georgia.

Jefferson, of course, was the drafter of our Declaration of Independence. The second paragraph begins with the famous and inspiring phrase: "We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights...."  If only our founding fathers had a deeper appreciation for that phrase than they did. Perhaps our history would have gone better.

By 1830 Congress passed the Indian Removal Act which proposed to remove all of the Southeast Indian tribes to the Oklahoma territory, west of the Mississippi.

Cherokee Nation v. Georgia (1831)

In the meantime, Georgia took matters into its own hands. After the discovery of gold and silver on Cherokee lands, the state passed laws designed to entirely subvert the national character of the Cherokee. They abolished the tribal government, they took possession of all gold and silver mines, and they prohibited any Cherokee from employment in those mines. 

The Cherokee sued for an injunction for violation of their treaty rights in the Supreme Court. The Supreme Court refused to hear the merits of the case. Cherokee Nation v. Georgia (1831). Chief Justice Marshall said that the court lacked jurisdiction, and that the Cherokee's remedy, if any, was with Congress. In a long and careful dissent Justice Thompson made the case for how the court could most certainly have heard this case and granted relief if it wanted to. The Chief Justice and the majority of the court didn't want to. They made a political decision to bar the Cherokee from the courthouse. 

Worcester v. Georgia (1832)

The following year, Worcester v. Georgia (1832) demonstrated the tenuous political reality in which the Supreme Court operated and the limits of the court's power. The case also represents a path not taken for the country.

In order to remove missionaries sympathetic to the Cherokee cause from Cherokee lands, Georgia passed a law that any white person living on Cherokee lands would have to obtain a license from the state (which presumably would be denied). Samuel Worcester was a missionary and refused to apply for a license. He was promptly charged, convicted in state court, and sentenced to four years at hard labor in the Georgia penitentiary. 

Worcester appealed to the Supreme Court, arguing that the state lacked the power to impose its permit requirement, that only the Federal Government had jurisdiction with respect to regulating Indian nation, subject to valid treaties, and that he (Worcester) should not be in jail! The court agreed... but in a remarkable chapter of our jurisprudence, the state of Georgia, Congress, and President Andrew Jackson all defied the court and its order. Worcester was left to toil at hard labor in the Georgia penitentiary and the Southeast Indian tribes were forcibly removed to lands east of the Mississippi along the Trail of Tears. Thousands died in detention camps and in forced marches along the trail. 

Chief Justice Marshall again delivered the opinion of the court, but this time he addressed the merits of the case. In a remarkable decision, he first provided an overview of the pre-existing rights of the indigenous peoples and the colonization process. He recognized the sovereign status of the Indian nations before the Europeans arrived, discussed the policy of the British to pursue lawful purchase of property, rather than conquest, and the limited rights conferred by war and conquest in this case.  After independence, the United States by and large followed the British example....until Georgia, Congress, and he President defied the Supreme Court in this case.

The decision is worth reading at some length. I have added brief headings for clarity. The indented language is Chief Justice Marshall in Worcester:

Marshall begins with a description of the pre-existing rights of the ancient possessors of the land and the fact that discovery alone does not confer any rights....
America, separated from Europe by a wide ocean, was inhabited by a distinct people, divided into separate nations, independent of each other and of the rest of the world, having institutions of their own, and governing themselves by their own laws. It is difficult to comprehend the proposition, that the inhabitants of either quarter of the globe could have rightful original claims of dominion over the inhabitants of the other, or over the lands they occupied; or that the discovery of either by the other should give the discoverer rights in the country discovered, which annulled the pre-existing rights of its ancient possessors.... 
Did these [European] adventurers, by sailing along the coast, and occasionally landing on it, acquire for the several governments to whom they belonged, or by whom they were commissioned, a rightful property in the soil, from the Atlantic to the Pacific; or rightful dominion over the numerous people who occupied it? Or has nature, or the great Creator of all things, conferred these rights over hunters and fishermen, on agriculturists and manufacturers?...
Discovery gave Rights, but only with Respect to other European Nations... not vis a vis the indigenous population, said the Chief Justice:
The great maritime powers of Europe discovered and visited different parts of this continent at nearly the same time. The object was too immense for any one of them to grasp the whole; and the claimants were too powerful to submit to the exclusive or unreasonable pretensions of any single potentate. To avoid bloody conflicts, which might terminate disastrously to all, it was necessary for the nations of Europe to establish some principle which all would acknowledge, and which should decide their respective rights as between themselves. This principle, suggested by the actual state of things, was, "that discovery gave title to the government by whose subjects or by whose authority it was made, against all other European governments, which title might be consummated by possession."  
This principle, acknowledged by all Europeans, because it was the interest of all to acknowledge it, gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlements on it. It was an exclusive principle which shut out the right of competition among those who had agreed to it; not one which could annul the previous rights of those who had not agreed to it. It regulated the right given by discovery among the European discoverers; but could not affect the rights of those already in possession, either as aboriginal occupants, or as occupants by virtue of a discovery made before the memory of man. It gave the exclusive right to purchase, but did not found that right on a denial of the right of the possessor to sell....
The feeble settlement efforts of charter companies conferred no rights over local sovereign tribes:
Soon after Great Britain determined on planting colonies in America, the king granted charters to companies of his subjects who associated for the purpose of carrying the views of the crown into effect, and of enriching themselves. ... This soil was occupied by numerous and warlike nations, equally willing and able to defend their possessions. The extravagant and absurd idea, that the feeble settlements made on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern the people, or occupy the lands from sea to sea, did not enter the mind of any man. They (had)...  the exclusive right of purchasing such lands as the natives were willing to sell. The crown could not be understood to grant what the crown did not affect to claim; nor was it so understood.
Only defensive war, and offensive war on "just cause," was authorized by the colonial charters:
The power of making war is conferred by these charters on the colonies, but defensive war alone seems to have been contemplated. In the first charter to the first and second colonies, they are empowered, "for their several defences, to encounter, expulse, repel, and resist, all persons who shall, without license," attempt to inhabit "within the said precincts and limits of the said several colonies, or that shall enterprise or attempt at any time hereafter the least detriment or annoyance of the said several colonies or plantations." The charter to Connecticut concludes a general power to make defensive war with these terms: "and upon just causes to invade and destroy the natives or other enemies of the said colony." The same power, in the same words, is conferred on the government of Rhode Island. This power to repel invasion, and, upon just cause, to invade and destroy the natives, authorizes offensive as well as defensive war, but only "on just cause." ....
Charters contemplated conversion to Christianity of the Indians "by conciliatory conduct and good example:"
The charters contain passages showing one of their objects to be the civilization of the Indians, and their conversion to Christianity — objects to be accomplished by conciliatory conduct and good example; not by extermination. 
And conflict among European nations inevitably dragged in Indian Nations and tribes:
...[O]n so much of the American continent as lies between the Mississippi and the Atlantic, ... [t]heir pretensions unavoidably interfered with each other; though the discovery of one was admitted by all to exclude the claim of any other, the extent of that discovery was the subject of unceasing contest. Bloody conflicts arose between them, which gave importance and security to the neighbouring nations. Fierce and warlike in their character, they might be formidable enemies, or effective friends. Instead of rousing their resentments, by asserting claims to their lands, or to dominion over their persons, their alliance was sought by flattering professions, and purchased by rich presents. The English, the French, and the Spaniards, were equally competitors for their friendship and their aid....
The King purchased land Indian Nations were willing to sell; he did not set out to conquer land from the Indians:
Certain it is, that our history furnishes no example, from the first settlement of our country, of any attempt on the part of the crown to interfere with the internal affairs of the Indians, farther than to keep out the agents of foreign powers, who, as traders or otherwise, might seduce them into foreign alliances. The king purchased their lands when they were willing to sell, at a price they were willing to take; but never coerced a surrender of them. He also purchased their alliance and dependence by subsidies; but never intruded into the interior of their affairs, or interfered with their self government, so far as respected themselves only.
[It should perhaps be observed that, surely, Chief Justice Marshall offered all this as a theoretical legal construct and not as a verbatim account of history]

There were promises, noted the Chief Justice, that "the boundaries of your hunting grounds will be fixed" and "all treaties will be faithfully kept:"
The general views of Great Britain, with regard to the Indians, were detailed by Mr Stuart, superintendent of Indian affairs, in a speech delivered at Mobile, in presence of several persons of distinction, soon after the peace of 1763. Towards the conclusion he says, "lastly, I inform you that it is the king's order to all his governors and subjects, to treat Indians with justice and humanity, and to forbear all encroachments on the territories allotted to them; accordingly, all individuals are prohibited from purchasing any of your lands; but, as you know that, as your white brethren cannot feed you when you visit them unless you give them ground to plant, it is expected that you will cede lands to the king for that purpose. But, whenever you shall be pleased to surrender any of your territories to his majesty, it must be done, for the future, at a public meeting of your nation, when the governors of the provinces, or the superintendent shall be present, and obtain the consent of all your people. The boundaries of your hunting grounds will be accurately fixed, and no settlement permitted to be made upon them. As you may be assured that all treaties with your people will be faithfully kept, so it is expected that you, also, will be careful strictly to observe them."
The King's proclamation of 1763:
The proclamation issued by the king of Great Britain, in 1763, soon after the ratification of the articles of peace, forbids the governors of any of the colonies to grant warrants of survey, or pass patents upon any lands whatever, which, not having been ceded to, or purchased by, us (the king), as aforesaid, are reserved to the said Indians, or any of them.
The proclamation proceeds: "and we do further declare it to be our royal will and pleasure, for the present, as aforesaid, to reserve, under our sovereignty, protection, and dominion, for the use of the said Indians, all the lands and territories lying to the westward of the sources of the rivers which fall into the sea, from the west and northwest as aforesaid: and we do hereby strictly forbid, on pain of our displeasure, all our loving subjects from making any purchases or settlements whatever, or taking possession of any of the lands above reserved, without our special leave and license for that purpose first obtained. 
"And we do further strictly enjoin and require all persons whatever, who have, either wilfully or inadvertently, seated themselves upon any lands within the countries above described, or upon any other lands which, not having been ceded to, or purchased by us, are still reserved to the said Indians, as aforesaid, forthwith to remove themselves from such settlements."
The Governor's proclamation of 1772 :
A proclamation, issued by Governor Gage, in 1772, contains the following passage: "whereas many persons, contrary to the positive orders of the king, upon this subject, have undertaken to make settlements beyond the boundaries fixed by the treaties made with the Indian nations, which boundaries ought to serve as a barrier between the whites and the said nations; particularly on the Ouabache." The proclamation orders such persons to quit those countries without delay.
The court concluded that during its colonization period, Great Britain viewed the Indian tribes as independent nations, capable of maintaining the relations  of peace and war. Britain managed those relations through treaties that Britain acknowledged.

After the revolutionary war started, observed Chief Justice Marshall, the rebels were concerned about a possible alliance between Britain and various Indian tribes. "Far from advancing a claim to their lands, or asserting any right of dominion over them," however, "congress resolved "that the securing and preserving the friendship of the Indian nations appears to be a subject of the utmost moment to these colonies." Consistent with this the young United States established Indian departments whose mission was to preserve good relations with the Indian tribes:
Three Indian departments were established; and commissioners appointed in each, "to treat with the Indians in their respective departments, in the name and on the behalf of the United Colonies, in order to preserve peace and friendship with the said Indians, and to prevent their taking any part in the present commotions." The most strenuous exertions were made to procure those supplies on which Indian friendships were supposed to depend; and every thing which might excite hostility was avoided.
And pursuant to those friendly relations, and the continuation of Britain's policies, the U.S. entered into many treaties, all of which treated and recognized Indian tribes as separate sovereigns.

The Hopwell Treaty and subsequent treaties with the Cherokee, marked boundaries, but the Cherokees did not give up their nation status.  In fact, in those treaties, noted the Chief Justice, the United States guaranteed to the Cherokee all their lands not previously ceded.

The court's interpretation of the general relationship between the Indian tribes and the U.S. in general, and the Cherokee treaties in particular, lead directly to its legal conclusions that Worcester's rights had to be vindicated. The court noted that the Constitution made treaties the supreme law of the land. Therefore, the laws passed by Georgia were unconstitutional.  The Indian nations possessed rights within their boundaries with which no state could interfere, it followed that Georgia did not have the power to pass laws requiring a license for white people to live on Cherokee lands. Worcester's conviction was null and void, and the court ordered him to be set free.

Implications of Worcester

Although the Chief Justice never mentioned his decision declining jurisdiction in The Cherokee Nation v. Georgia from the previous term, the implications of Worcester pretty clearly include that the rights of the Cherokee Nation should also have been vindicated. Also, under the Supremacy clause, the Indian Removal Act was pretty clearly unconstitutional in light of the court's decision.

None of that mattered. Georgia defied the Supreme Court and kept Worcester in prison at hard labor. [He was released only after a change in governors] Congress, Georgia, and President Jackson all ignored the court's opinion and proceeded with the forced relocation of the Southeast Indians to the specially set aside Indian Territory in what is now Oklahoma.


Worcester was a timely decision which, if respected by Georgia, the U.S., and other states could have altered our relationship with the Indian Tribes and could have resulted in a much more honorable outcome. Coming 30 years before the Civil War, is it too far fetched to speculate that if the states and the U.S. had done right by its Indian Tribes, if the Trail of Tears did not happen, if Worcester had become the model, that this could have led the Southeast and the United States in a direction that would have made progress on slavery earlier? That our history might have unfolded without Civil War? 

It appears that by 1830 the Cherokee had made considerable progress integrating into the overall Southeast economy. If white settlers had found it within themselves to hold the racism that led the Cherokee to the Trail of Tears at bay...., who knows what could have happened. 

As it was, Georgia snubbed its nose at the Supreme Court; Andrew Jackson was afraid of war with the southern militias and refused to back up the court; federal and state militias blotted a large stain on our judicial system, on our country, by forcibly and cruelly removing the Southeast Indian Nations from their treaty lands. The country marched towards civil war, a war that we still have not truly worked out of our system. There followed the slaughter of the buffalo on the prairies. There followed Wounded Knee

Could a different implementation of one Supreme Court case in Worcester have resulted in an altered history? A better history? 
Wounded Knee Massacre 1890/Robinson library.com



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