Yakima, WA asked in Native American Law for Washington

Q: Did the Executive Branch work during the time of the Cherokee Nation v. Georgia?

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1 Lawyer Answer

A: It's an unusual question. In Cherokee Nation v. Georgia the Cherokee sued Georgia seeking release of a Cherokee citizen being tried for a murder committed on the Cherokee territory, taking the position that Georgia lacked jurisdiction over that territory. While the suit was pending, Georgia executed the individual in question in defiance of a writ of habeas corpus signed by Chief Justice John Marshall. The Supreme Court ultimately dismissed the case, holding that it lacked original jurisdiction over a suit by the Cherokee Nation because, while a "nation" in an international law sense, the Cherokee were not a "foreign nation" as that term is used in Article III of the U.S. Constitution, but were rather a "domestic dependent nation."

In the related Worcester v. Georgia case, though, the plaintiff was an individual U.S. citizen preacher who had been arrested and jailed by Georgia for living and preaching among the Cherokee in violation of a state law, and the case invoked appellate and not original jurisdiction of the Supreme Court, challenging the decisions of the Georgia courts to affirm his criminal conviction. The Supreme Court in Worcester actually reached the merits of the case, and held that indeed, the Cherokee were right and Georgia lacked jurisdiction over the Cherokee territory. The Court ordered Worcester released.

To address the specific question, the Executive Branch, in the person of Andrew Jackson, is famously misquoted as having stated, "John Marshall has issued his decision. Now let him enforce it." The quote is apocryphal, and strictly speaking the Executive was never called on to act in either of the two cases. The Cherokees' attorney (William Wirt, who ran against Jackson for President as the Anti-Masonic Party nominee in 1832) never moved to hold Georgia in contempt, which would have resulted potentially in a need for the Executive to intervene by, for example, sending the U.S. Marshals to arrest Georgia officials. And Georgia did eventually comply with the Worcester holding by releasing Worcester, though it extorted from him first a promise to stop preaching among the Cherokee.

In a broader sense, the case is an example of the Executive working too well. Indeed, the Whig opposition generally supported the Cherokee and viewed Jackson as an incipient dictator assuming too much power for the Executive vis-a-vis other branches of government. Georgia continued to ignore the holding of Worcester by continuing to encroach on the Cherokee, and Jackson implicitly sided with Georgia by supporting efforts to obtain a sham treaty consenting to forced removal to Oklahoma.

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