Supreme Court Request to the State of Georgia to Appear in Washington
10/24/1831
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This document comes from the case file for Worcester v. Georgia. The Supreme Court requests the State of Georgia to appear in Washington, DC, to answer a writ of error (a demand for the lower court to provide the full record to a higher court for review of errors) in the Elizur Butler case.
Butler and Samuel Worcester had pleaded not guilty to the charge of failing to obtain a permit or license to reside on Cherokee land. In 1830, Georgia had passed a law requiring non-Cherokee to obtain a permit from the state of Georgia to do so. A group of missionaries, including Worcester and Butler, were indicted by a grand jury after they went to live on Cherokee land in Georgia, with permission from the Cherokee Nation and the U.S. Government. The Superior Court of Gwinnet in Georgia found them guilty, and sentenced them to four years of hard labor.
The men appealed. After they were unsuccessful in the highest state court, they appealed to the U.S. Supreme Court on a writ of error in Worcester v. Georgia. The Federal question raised (necessary to appeal to the U.S. Supreme Court) was whether the state of Georgia had jurisdiction, since the men were present in the territory under authority of the U.S. President doing missionary work, and with the permission of the Cherokee Nation. In other words, did the state of Georgia have the authority to hear the case or to pass laws concerning sovereign Indian nations?
The question had been asked of the Supreme Court before. In 1828, Georgia had passed a series of acts taking away rights of Cherokees residing within the state, including Cherokee removal from land that the state wanted. The Cherokee asserted that Georgia did not have the jurisdiction or authority to do these things, since the Cherokee Nation was sovereign and protected under a treaty with the United States. They sought an injunction — or order to stop what the State of Georgia was doing — from the U.S. Supreme Court in Cherokee Nation v. Georgia in 1831. The Supreme Court said they lacked jurisdiction to hear the case and it was dismissed, leaving the Cherokee at the mercy of the laws of the state of Georgia.
In Worcester v. Georgia in 1832, however, the Supreme Court ruled that states, like Georgia, could not diminish rights of tribes because the Cherokee Nation constituted a nation holding distinct sovereign powers as granted by Congress and the United States. This established the principle of "tribal sovereignty." The Court also issued a mandate to release Worcester and Butler.
Georgia ignored the ruling, however, and did not release the men. President Andrew Jackson did not intervene to enforce the Supreme Court ruling. (Georgia Governor Wilson Lumpkin pardoned Butler and Worcester in 1833.)
So the judicial branch handed down a ruling that should have freed Butler and Worcester and established more sovereignty for the tribes; but it didn't have that effect because the executive branch did not enforce it.
President Andrew Jackson had called for the relocation of eastern Native American tribes to land west of the Mississippi River, and Congress had passed the Indian Removal Act, in 1830. The Cherokee were forcibly removed from Georgia — a journey west that became known as the “Trail of Tears” because of the thousands of deaths along the way.
This document was digitized by teachers in our Primarily Teaching 2016 summer workshop in Washington, D.C.
Butler and Samuel Worcester had pleaded not guilty to the charge of failing to obtain a permit or license to reside on Cherokee land. In 1830, Georgia had passed a law requiring non-Cherokee to obtain a permit from the state of Georgia to do so. A group of missionaries, including Worcester and Butler, were indicted by a grand jury after they went to live on Cherokee land in Georgia, with permission from the Cherokee Nation and the U.S. Government. The Superior Court of Gwinnet in Georgia found them guilty, and sentenced them to four years of hard labor.
The men appealed. After they were unsuccessful in the highest state court, they appealed to the U.S. Supreme Court on a writ of error in Worcester v. Georgia. The Federal question raised (necessary to appeal to the U.S. Supreme Court) was whether the state of Georgia had jurisdiction, since the men were present in the territory under authority of the U.S. President doing missionary work, and with the permission of the Cherokee Nation. In other words, did the state of Georgia have the authority to hear the case or to pass laws concerning sovereign Indian nations?
The question had been asked of the Supreme Court before. In 1828, Georgia had passed a series of acts taking away rights of Cherokees residing within the state, including Cherokee removal from land that the state wanted. The Cherokee asserted that Georgia did not have the jurisdiction or authority to do these things, since the Cherokee Nation was sovereign and protected under a treaty with the United States. They sought an injunction — or order to stop what the State of Georgia was doing — from the U.S. Supreme Court in Cherokee Nation v. Georgia in 1831. The Supreme Court said they lacked jurisdiction to hear the case and it was dismissed, leaving the Cherokee at the mercy of the laws of the state of Georgia.
In Worcester v. Georgia in 1832, however, the Supreme Court ruled that states, like Georgia, could not diminish rights of tribes because the Cherokee Nation constituted a nation holding distinct sovereign powers as granted by Congress and the United States. This established the principle of "tribal sovereignty." The Court also issued a mandate to release Worcester and Butler.
Georgia ignored the ruling, however, and did not release the men. President Andrew Jackson did not intervene to enforce the Supreme Court ruling. (Georgia Governor Wilson Lumpkin pardoned Butler and Worcester in 1833.)
So the judicial branch handed down a ruling that should have freed Butler and Worcester and established more sovereignty for the tribes; but it didn't have that effect because the executive branch did not enforce it.
President Andrew Jackson had called for the relocation of eastern Native American tribes to land west of the Mississippi River, and Congress had passed the Indian Removal Act, in 1830. The Cherokee were forcibly removed from Georgia — a journey west that became known as the “Trail of Tears” because of the thousands of deaths along the way.
This document was digitized by teachers in our Primarily Teaching 2016 summer workshop in Washington, D.C.
Transcript
3United States of America
To the State of Georgia — Greeting:
You are hereby cited and admonished to be and appear at a Supreme Court of the United States, to be holden at Washington on the second Monday of January next, pursuant to a writ of error filed in the Clerk’s office of the Superior Court for the County of Gwinnett in the State of Georgia, wherein Elizur Butler is Plaintiff in Error and the State of Georgia is Defendant in Error, to show cause if any there be, why judgment rendered against the said Elizur Butler as in the said writ of Error mentioned, should not be corrected, and why speedy justice should not be one to the parties in that behalf.
Witness the Honorable Henry Baldwin one of the Justices of the Supreme Court of the United States this twenty fourth day of October in the year of our Lord one thousand eight hundred and thirty one.
Henry Baldwin
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State of Georgia
County of Gwinnett
On this twenty sixth day of November in the year of our Lord Eighteen hundred and thirty one William Potter personally appeared before the subscriber John Mills a Justice of the Peace in and for said County and being duly sworn on the Holy Evangelists of almighty god [illegible] and saith that on the twenty fourth day of November instant he delivered a true copy of the within citation to his Excellency Wilson Lumpkin Governor of the State of Georgia, and another true copy thereof he delivered on the twenty second day of November instant to Charles J. Jenkins Esquire Attorney General [crossed out: or Solicitor General] of the State aforesaid; showing to the said Governor and Attorney General [crossed out: or Solicitor General] respectively at the times of delivery herein stated, the within citation.
Wm Potter
Sworn to & subscribed before me this 26th Nov. 1831
John Mills JP
Georgia
Gwinnett County
I William Maltbie, Clerk of the Inferior Court of said County do hereby certify that John Mills whose name appears to the foregoing affidavit is ^ & was at the [illegible] of said affidavit a Justice of the Peace for said County & that all due
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faith & credit ought to be given to his attestation as such. Given under my hand & the seal of said Inferior Court this twenty eighth day of November in the year of our Lord eighteen hundred & thirty one.
Wm Maltbie C.H.
Georgia
Gwinnett County
I John Brewster one of the Justices of the Inferior Court in & for said County do hereby certify that William Maltbie whose name appears to the foregoing certificate is Clerk of the Inferior Court of said County & that all due faith & credit ought to be given to his attestation as such & that the same is in due form. Given under my hand & seal this twenty eighth day of November in the year of our Lord eighteen hundred and thirty one.
John Brewster J.H.
State of Georgia
County of Gwinnett
On this twenty sixth day of November in the year of our Lord Eighteen hundred and thirty one William Potter personally appeared before the subscriber John Mills a Justice of the Peace in and for said County and being duly sworn on the Holy Evangelists of almighty god [illegible] and saith that on the twenty fourth day of November instant he delivered a true copy of the within citation to his Excellency Wilson Lumpkin Governor of the State of Georgia, and another true copy thereof he delivered on the twenty second day of November instant to Charles J. Jenkins Esquire Attorney General [crossed out: or Solicitor General] of the State aforesaid; showing to the said Governor and Attorney General [crossed out: or Solicitor General] respectively at the times of delivery herein stated, the within citation.
Wm Potter
Sworn to & subscribed before me this 26th Nov. 1831
John Mills JP
Georgia
Gwinnett County
I William Maltbie, Clerk of the Inferior Court of said County do hereby certify that John Mills whose name appears to the foregoing affidavit is ^ & was at the [illegible] of said affidavit a Justice of the Peace for said County & that all due
5
faith & credit ought to be given to his attestation as such. Given under my hand & the seal of said Inferior Court this twenty eighth day of November in the year of our Lord eighteen hundred & thirty one.
Wm Maltbie C.H.
Georgia
Gwinnett County
I John Brewster one of the Justices of the Inferior Court in & for said County do hereby certify that William Maltbie whose name appears to the foregoing certificate is Clerk of the Inferior Court of said County & that all due faith & credit ought to be given to his attestation as such & that the same is in due form. Given under my hand & seal this twenty eighth day of November in the year of our Lord eighteen hundred and thirty one.
John Brewster J.H.
This primary source comes from the Records of the Supreme Court.
National Archives Identifier: 38995510
Full Citation: Supreme Court Request to the State of Georgia to Appear in Washington; 10/24/1831; Appellate Case File Number 1705; Case File for Worcester v. Georgia; Appellate Jurisdiction Case Files, 1792-2010; Records of the Supreme Court, Record Group 267; National Archives Building, Washington, DC. [Online Version, https://www.docsteach.org/documents/document/worcester-v-georgia-appear-dc, February 26, 2020]Rights: Public Domain, Free of Known Copyright Restrictions. Learn more on our privacy and legal page.
