The Marshall Trilogy: Worcester v. Georgia (1832) - Domination Translator Series - Part 5

The Marshall Triology

Worcester v. Georgia

The 1832 U.S. Supreme Court ruling Worcester v. Georgia is notable for its complexity and its ambiguity. In the one hundred ninety-three years since it was handed down, countless efforts have been made to correctly interpret not just the decision, but also the massive amount of information detailed by the defense team, and by the Court itself.

The State of Georgia declined to deliver a defense during the judicial proceedings. In 1830, Congress passed legislation for a policy of Indian Removal. A statement made by Georgia Senator John Forsyth says everything we need to know about the attitude of domination on the part of the state of Georgia in relation to Native nations: “All Christendom seems to have imagined that, by offering that immortal life promised by the Prince of Peace to fallen man, to the aborigines of this country, the right [of domination] was fairly acquired of disposing of their persons and their property at pleasure.”

Until fairly recently it had been an article of faith that Chief Justice John Marshall, who authored the majority opinion in Worcester, wrote a “pro-Indian” ruling. It is advisable, however, to try and discern what typically remains in the background of the Worcester ruling. Marshall skillfully used ambiguous language to make it seem as if he was deciding in favor of the Cherokee Nation, while keeping the premise of the Johnson v. McIntosh ruling unchanged. What is usually overlooked is the extent to which the claim of a right of domination expressed in the Johnson ruling remains cloaked and hidden in the background of the Worcester ruling with regard to the doctrine of Christian discovery.

The plaintiff in this case was Samuel Worcester, a Christian missionary from Vermont. He, along with several other missionaries, had entered the Cherokee Nation territory without first obtaining a permit from the state of Georgia. In 1831, Worcester and eleven other missionaries were arrested, charged, and convicted by the State of Georgia for violating a Georgia statute that required non-Cherokees to obtain a permit from the State of Georgia before entering Cherokee country. Worcester was convicted and sentenced to four years of hard labor in a Georgia penitentiary. This is certainly an example of Worcester being subjected to domination for not obeying the expressed will of the state-of-domination called “Georgia.”

The lead defense attorney for Samuel Worcester was William Wirt, former Attorney General of the United States. He contextualized Worcester’s defense arguments by pointing to the history of the doctrine of discovery and the history of the royal charters issued by the monarchs of England and Great Britain. The origin of the state of Georgia is found in the series of royal charters of Great Britain that expressed the discovery doctrine in relation to North America (Turtle Island).

A central question of the case was whether the state of Georgia had the right to extend its laws into the country and territory of the Cherokee Nation. The attorneys for Worcester addressed this question as follows: “The extraterritorial power of every legislature being limited in its action to its own citizens or subjects, the very passage of this act is an assertion of jurisdiction over the Cherokee Nation, and of the rights and powers consequent thereto.”

The term “extraterritorial” is defined as “Outside the boundaries of the state or country.” The term “extraterritoriality” is further defined as “the operation of the laws of a state of country outside of its physical boundaries.” emphasis added The idea of a boundary is “a line that marks the limits of an area,” or “a dividing line.” An area is also understood as “an expanse,” which is defined as “a wide space.” In Physics As Metaphor (1987) physicist Roger Jones asserts that “space,” “time,” “matter,” and “number” are the four cardinal metaphors of physics. He defines “metaphor” as “an act of consciousness [the mind] that borders on the very creation of things.”¹

The idea of a “line” is also found in geometry. The field of geometry is a product or creation of the human mind. The artistry that creates a map, including the boundary “lines” depicted on it, is the result of human imagination. One purpose for “a line” is to designate or delineate one area (space) that is classified as separate from another area (space). In this instance, even the idea of physicality (i.e. “matter”) is metaphoric, such as in the statement about “physical boundaries.” Even the boundary lines are thought of as if they are physically existing on the land, which could also be true if a river is agreed upon as a “natural” boundary line.

Where Georgia “begins” and “ends” was central to the question of whether Georgia had passed a law that was validly operative “within” (inside) or “without” (outside) its own boundaries as “a state [of domination].”

The plaintiff, Samuel Worcester, and his legal team, conceived of and wrote about “the State of Georgia” on the assumption that it had “a state of being” inclusive of “an extent” of geographical space termed its “territory.” A territory is typically thought of as the designated space or area within which “a state” [of domination] is considered to possess absolute and exclusive control.

Worcester and his attorneys were arguing that while Worcester was residing on the lands of the Cherokee Nation he was situated “outside” or beyond the boundaries of the “State of Georgia,” even if those Cherokee lands were circumscribed by the lands of the state of Georgia. Why “outside” or beyond? Because the authority and jurisdiction of the “State of Georgia” did not rightfully extend into the “territory” (i.e. territorial space of the Cherokee Nation).

Worcester’s predicament seems to match a Latin language phrase “Extra territorium jus dicenti non paretur impune,” which translates as, “a person may not with impunity [without incurring harm or punishment] obey the law laid down by a body exercising jurisdiction [a claimed right of domination] outside its territorial limits.” This is accurately re-expressed as follows: “the person who obeys ‘the law’ laid down by a body exercising jurisdiction [domination] outside its own actual territorial limits is unlikely to escape punishment [domination].”

Eventually, Worcester invoked the principle of discovery, saying that it was a principle that only “gave to the nation making the discovery … the sole right of acquiring the soil and making settlements on it.”

Worcester’s defense continued:

“It [the principle of discovery] was an exclusive principle which shut out the right of competition among those [Christian European powers] who had agreed to it, not one of which could annul the previous rights of those [Native nations and peoples] who had not agreed to it. It [was a principle that] regulated the [claimed] right [of domination] given by discovery among [agreed to by] the European discoverers, but could not affect [change] the rights of those already in possession, either as aboriginal occupants [a term that matches the Indian title or right of ‘occupancy’ found in Johnson v. McIntosh] or as [Native] 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 [Native] possessor[s] to sell.”

Chief Justice John Marshall Delivered the Majority Decision in Worcester

Marshall pointed out that the plaintiff, Samuel A. Worcester, had sworn emphasis added that “he was, and still is, a resident in the Cherokee Nation, and that the said supposed crime or crimes, “if committed at all,” were committed… in the Cherokee Nation,” and thus in a place “out of [beyond] the jurisdiction of this Court.” emphasis added

“And the said Samuel A. Worcester, in his own proper person, comes and says that this Court ought not to take further cognizance of the action and prosecution aforesaid because he says that, on the 15th day of July in the year 1831, he was, and still is, a resident in the Cherokee Nation, and that the said supposed crime or crimes, and each of them, were committed, if committed at all, at the town of New Echota, in the said Cherokee Nation, out of the jurisdiction of this Court, and not in the County Gwinnett, or elsewhere, within the jurisdiction of this Court, and this defendant saith that he is a citizen of the State of Vermont, one of the United States of America, and that he entered the aforesaid Cherokee Nation in the capacity of a duly authorised missionary of the American Board of Commissioners for Foreign Missions, under the authority of the President of the United States, and has not since been required by him to leave it; that he was, at the time of his arrest, engaged in preaching the gospel to the Cherokee Indians.”

”[A]ll … treaties [with the Cherokee Nation] have been duly ratified by the Senate of the United States of America, and by … [those] treaties the United States of America acknowledge the said Cherokee Nation to be a sovereign [free] nation, authorised to govern themselves and all persons who have settled within their territory free from any right of legislative interference by the several states composing the United States of America, in reference to acts done within their own territory, and by which treaties the whole of the territory now occupied by the Cherokee Nation on the east of the Mississippi has been solemnly guaranteed to them, all of which treaties are existing treaties at this day, and in full force.” emphasis added

Marshall continued by adding the plaintiff’s point that “The extraterritorial power of every legislature being limited in its action to its own citizens or subjects, the very passage of this act [by the State of Georgia] is an assertion [by Georgia] of jurisdiction over the Cherokee Nation, and of the rights and powers consequent on jurisdiction.”

“The first step, then, in the inquiry which the Constitution and laws impose on this Court is an examination of the rightfulness of this claim [of jurisdiction over the Cherokee Nation by the State of Georgia].”

Next Marshall briefly acknowledged the original free existence of the Native nations and peoples of this continent:

“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.”

Marshall then moved on to discuss the claim of a right of domination [which he termed “rightful original claims of dominion”] in relation to the continent and the Indians:

“It is difficult to comprehend the proposition [expressed in the Johnson ruling] 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 preexisting rights of its ancient possessors.”

“After lying concealed for a series of ages, the enterprise of Europe, guided by nautical science, conducted some of her adventurous sons into this western world. They found it in possession of a [Native] people who had made small progress in agriculture or manufactures, and whose general employment was war, hunting, and fishing.”

“Did these [Christian 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 [domination] in the soil, from the Atlantic to the Pacific, or rightful dominion [domination] over the numerous people who occupied it? Or has nature, or the great Creator of all things, conferred these rights [of property and dominion] over hunters and fishermen, on agriculturists and manufacturers?”

“But power [domination], war [domination], conquest [domination], give rights [of domination], which, after possession, are conceded by the [Christian European] world, and which can never be controverted [contradicted] by those [Native nations and peoples] on whom they [those imposed rights] descend. We proceed, then, to the actual state of things, having glanced at their origin, because holding it in our recollection might shed some light on existing pretensions.”

Let’s Combine Two of Chief Justice Marshall’s Sentences:

“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, … [b]ut power, war, conquest, give rights [of domination], which, after possession [by a dominating power], are conceded by the world, and which can never be controverted [contradicted or thrown off] by those [Native nations and peoples] on whom they [those imposed rights of domination] descend.”

Note: A reader could easily fall into the trap of thinking that Marshall, on behalf of the Court, is rejecting the “proposition” he is pointing to. All that he is doing, however, is stating that it is difficult to understand and accept such an assertion. He is not saying that the Court is rejecting the statement. Marshall makes a similar point in the Johnson ruling when he uses the phrasing “however extravagant the pretension of converting the discovery of an inhabited country into conquest may appear” the future of the United States depends upon that “pretension” it will nevertheless be accepted by the U.S. government as “the law of the land.” Such a pretension may seem unreasonable or outlandish but the Court is willing to accept it nonetheless. Now let us return to the language of the Worcester decision:

“The great maritime powers [dominators with ships] of Europe discovered and visited different parts of this continent at nearly the same time. The [continental] object [vast space of the continent] was too immense for any one of them to grasp the whole, and the [various] 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 [mentally create and agree upon] 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 [a] title [of ‘ultimate dominion’] to the government by whose subjects or by whose authority it was made against all other European governments, which title might be consummated [completed] by possession.’ [Johnson v. McIntosh] 8 Wheat. 21 U. S. 573.”

“This principle [mental construct], acknowledged by all Europeans because it was the interest of all to acknowledge it, [mentally] gave [accorded] 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 [Christian European monarchs] who had agreed to it, not one which could annul the previous rights of those who had not agreed to it.”

Note: How shall we accurately interpret this statement that the “principle” [idea] of “discovery” could not “annul [nullify] the previous rights of those [the Indians] who had not agreed to it”? At a point such as this we are well advised to slow down and deeply reflect upon what we are reading. Once we do this, we can take the time to realize that an annulment or nullification is not the same as a diminishment, which can be thought of as a partial nullification. A partial nullification is accurately termed a diminishment in content, quality, or quantity from a specific starting point of the whole, meaning one hundred percent. After a process of “diminishment,” some percentage of the whole or portion will remain.

Is it possible that Marshall used the word “annul” to get the reader to assume that the idea of discovery could have no impact at all on “the previous rights” of the Indians “who had not agreed to” the principle [idea] of “discovery” of heathen lands by “Christian people”? To say that the principle of discovery could not “annul” or altogether cancel out the previous rights of the Indians still leaves open another possibility, namely, the principle of discovery could be imagined or thought of as having “diminished” or reduced the full extent of the Indians’ right to continue living a free existence.

Marshall was able to suggest that an annulment of Native peoples’ rights had not happened, while leaving intact a statement he made in the Johnson v. McIntosh ruling: “Their [the Indians’] rights to complete sovereignty as independent nations were necessarily diminished by the original fundamental principle that discovery gave title to those who made it.” emphasis added This statement does not claim or assert that the rights of the Indians were entirely canceled out (i.e. “annulled”).

In other words, Marshall imagined and wrote about the rights of the Indians as having been only partially cancelled out as a result of the Court thinking about the right of the Native peoples to a free existence as having been merely “diminished” (reduced) by the Christian Europeans claiming or assuming a right of “ultimate dominion” (i.e. reduced by a claim of a right of domination). Part of the result of such a diminishment involved the Court thinking about the Indians as being left with only a right of occupancy as a consequence of the Christian Europeans’ assertion of “ultimate dominion” or “property” in the lands where the Indians were already living.

It is helpful to remain mindful of a key point: What Marshall called a “principle” of “discovery” was invented or made by the mind, meaning it had to originate in the imagination before it could be “acknowledged” as existing at all. The “principle” was thereby imagined and thus maintained in the mental world of the Christian Europeans. How could an idea that Christian European intellectuals had imagined into existence have an physical “impact” on Native nations and peoples? It couldn’t. It could, however, have a metaphysical impact on Native nations and peoples. The principle could be mentally envisions as having had an impact or influence on Native nations to whatever extent intellectuals such as Chief Justice Marshall mentally pictured that principle as having an impact or influence on them.

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Debunking Claims that Worcester is a “pro-Indian ruiling”

Some scholars have contended that Marshall’s statement demonstrates that Worcester is a “pro-Indian” ruling, or a ruling favorable to the Indians. Take, for instance, the following quote from Worcester which we have previously quoted:

“It [the principle of ‘discovery’] regulated the [claimed] right [of domination] 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.”

A question arises: If the principle of “discovery” could not affect [change] the rights of those [Native peoples] already in possession of the land, then how could that principle have “diminished their rights” to a free and independent existence? Also, notice that Marshall’s use the word “occupants” which matches his language in the Johnson ruling and does not contradict the assertion by the Christian European powers that the “ultimate dominion” [assumed right of domination] was, as Marshall put it, “in themselves.”

“The relation between the Europeans and the natives was determined in each case by the particular government which asserted and could maintain this preemptive privilege in the particular place. The United States succeeded to all the claims of Great Britain, both territorial and political, but no attempt, so far as is known, has been made to enlarge them.”

Note: The phrase “all the claims of Great Britain” is accurately expressed as “all the claims of the British crown,” which, in Marshall’s view, as noted in a previous section, was expressed as follows in the Johnson ruling:

“So far as respected the authority of the Crown, no distinction was taken [made] between vacant lands and lands occupied by the Indians. The title [of ‘ultimate dominion’] subject only to the right of occupancy by the Indians, was [ mentally] admitted to be in the King, as was his right to grant that title [of ‘ultimate dominion’]. The lands, then, to which this [royal] proclamation referred were lands which the King [, as a result of his assumption of “ultimate dominion,”] had a right to grant, or to reserve for the Indians.”

In Worcester, Marshall continued:

“So far as they [those claims] existed merely in theory, or were in their nature only exclusive of the claims of other European nations, they still retain their original character, and remain dormant. So far as they [the claims] have been practically exerted, they exist in fact, are understood by both parties, are asserted by the one, and admitted by the other.”

Marshall adds:

“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. The first of these charters [issued to John Cabot and his sons] was made before possession was taken of any part of the country. They purport, generally, to convey the soil from the Atlantic to the South Sea.”

The royal commission issued by King Henry VII to John Cabot and his sons instructed the Cabots to get “unto” that monarch the “jurisdictionem” and “dominium titilum” (domination title). This was an admission by that monarch that he had no rightful jurisdiction and no rightful title to distant foreign lands across an ocean. There is no basis upon which Henry VII could sensibly “purport” to righfully “grant” the “soil” to lands he had no rightful possession of.

Above, Marshall refers to the “planting” of “colonies” in America. What type of political entity “plants” “colonies”? Answer: an empire, such as the British Empire. Marshall continues:

“This soil [the monarch purported to ‘grant’] was [already] 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 [Native] people, or occupy the lands from sea to sea did not enter the mind of any man. They [the royal charters] were well understood to convey the title [of ‘ultimate dominion’ to the soil] which, according to the common law of European sovereigns [dominators] respecting America, they might rightfully convey, and no more. This was 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.”

Note: Marshall seems to contradict himself. In the Worcester ruling, Marshall said that the royal charters issued by the monarch of Great Britain purported to “convey the soil.” Question: How could the British monarch purport to grant distant foreign soil, soil existing across an entire ocean, without, in some sense, “claiming” the soil he was purporting to grant? And wasn’t the British monarchy thereby purporting to engage in an act of extraterritoriality by pretending to grant away foreign soil which, presumably, rightfully belonged to some foreign Native nation or people already existing there?

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Cases

• Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). https://www.law.cornell.edu/supremecourt/text/31/515
• Johnson & Graham’s Lessee v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823). https://www.law.cornell.edu/supremecourt/text/21/543
• Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831). https://www.law.cornell.edu/supremecourt/text/30/1

Series Navigation

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Copyright

© Copyright Steven T. Newcomb, January 1, 2026

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Footnotes

1. Roger Jones, Physics As Metaphor (University of Minnesota Press, 1982), 4. ↩