Worcester v. State of Georgia

U.S. Supreme Court -- 31 U.S. 530 (1832)

USA Application of laws to AboriginalsDoctrine of discovery

This American decision had been used by the Supreme Court of Canada since the very beginning of the development of Canadian Aboriginal law. It is one of the famous decisions rendered by the “Marshall court”.

Historically, Indians were considered as nations by Great Britain. A European nation acquired title to Indian lands only if the occupants decided to cede them.


Such was the policy of Great Britain towards the Indian nations inhabiting the territory from which she excluded all other Europeans; such her claims, and such her practical exposition of the charters she had granted. She considered them as nations capable of maintaining the relations of peace and war; of governing themselves, under her protection; and she made treaties with them the obligation of which she acknowledged. (p. 31)


Are Georgia’s laws in effect on Cherokee territory?


Majority decision – 2 vs. 1: The laws of the State of Georgia do not apply on Cherokee territory, which forms an independent nation.


Between: Samuel Worcester

And: State of Georgia



In 1830, Georgia’s legislature passed a law requiring all “white persons” who wished to reside in Cherokee territory to obtain a license delivered by the governor or one of his agents. Those entering without one were guilty of an offence punishable by fine or imprisonment.

The crux of the case

In July 1831, Samuel Worcester and six other missionaries crossed into Cherokee territory with the intent of preaching the gospel to the Cherokee Indians. They resided there without prior authorization of the governor of Georgia.

They voluntarily went on Cherokee territory without asking the State of Georgia for permission beforehand. They had the intention of challenging the constitutionality of the law.

In September 1831, Samuel Worcester and the six others were convicted in the Court of Gwinnett County, facing the charge of “residing within the limits of the Cherokee nation without a license.”


Samuel Worcester: Georgia had no jurisdiction over the Cherokee territory since power over Indians belongs exclusively to the U.S. federal government.

Furthermore, the state legislature did not have jurisdiction over the Cherokee territory because the Cherokee are a sovereign nation.

The US entered several times into treaties with the Cherokee in which they recognized them as a sovereign nation

Decision of the lower courts

The Superior Court of Gwinnett County, Georgia found Samuel Worcester guilty and sentenced him to four years of forced labour.

Reasons for Judgement


Marshall, Johnson, Duvall, Story, Thompson, McLean (wrote a concurring opinion)


Chief Justice Marshall reaffirmed his “Discovery Doctrine” first elaborated in Johnson & Graham’s  v. M’Intosh, but distinguished between the two decisions.

The “Discovery Doctrine” only had consequences between European states. A European nation gains title to Indian lands only if their occupants choose to cede them. Historically, Indians, including the Cherokee, were considered nations by Great Britain. They were either formidable adversaries or important allies; hence, they were treated as equals.

At the time of the judgement, the relationship between the U.S. and the Indian nation was one of a protectorate in which the Indian nations remained sovereign.

In this case, the Cherokee had an autonomous political system distinct from that of the State of Georgia. Therefore, the State of Georgia’s laws are not applicable on the Cherokee territory. The law under which Worcester and the other six missionaries were convicted is void.



This decision had an international impact politically. This is due to the generosity of Justice Marshall in picking his words when rendering his decision (Jenkins, 2001). The Worcester case is the last of a trilogy of decisions rendered by Justice Marshall regarding Aboriginal Nations in the U.S. The first two were Cherokee v. Georgia et Johnson & Graham’s Lessees v. M’Intosh.

As in the Cherokee case, Justice Marshall acknowledged a certain political sovereignty that could be limited by the U.S. government (ENotes, 2006). This is first significant difference between the U.S. and Canada, as Canada does not recognize even a limited form of internal sovereignty of Aboriginal peoples or grant them the power due to a distinct political society.

The second difference is that Aboriginal rights in Canada are entrenched in the Constitution. As acknowledged by the Sparrow case, this limits the possibility of infringement on these rights by the federal government. Since there is no constitutional guarantee of Aboriginal rights in the U.S., even if sovereignty is presumed, Congress has the power to limit them at will (Jenkins, 2001).  There is no limit on Congress’ power with regards to Aboriginal rights and so they can be restricted.

Worcester however specified that states do not have jurisdiction to adopt laws that apply to Aboriginal nations as only the federal government has such a power. This remains the case today, in the U.S. (ENotes, 2006).

Discovery doctrine

The other big step forward that was taken was the discarding of the discovery doctrine as a legal principle. The Court found that this doctrine could not be used to extinguish Aboriginal rights to their land. They have the right to their lands and their discovery cannot restrict it (Leclair, 2013).

The Court went further to say that this doctrine is only binding on Europeans, who were the only ones who stood to gain from the doctrine of discovery by the acquisition of rights that were not theirs. The Aboriginals did not understand the consequences of such a theory at the time of the conquests. It is therefore impossible to impose it on them (Leclair, 2013).

In other words, the doctrine of discovery has no legal value and the possession of lands can only be accomplished by military conquest or an act of sale. Since the U.S. did not do one or the other, it does not possess the land on which the Cherokee live.

President Andew Jackson, however, refused to implement the terms of the decision. As a result, the Cherokee were forced to leave their ancestral lands. On the way to their new lands, more than 4000 of them died due to inhumane conditions in the detention camps, a lack of nutrition, housing, clothes and other serious sanitary deficiencies. This road was later dubbed the Trail of Tears (Patrick, 2002).

Related Cases

The other Marshall cases:

Johnson & Graham’s Lessees c. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823)

Cherokee Nation c. Georgia, 30 U.S. (5 Peters) 1 (1831)


Burke, Joseph C. 1968. “The Cherokee Cases: A Study in Law, Politics, and Morality.” Stanford Law Review 21: 500.

Enotes. 2006. Worcester v. Georgia; Supreme Court Drama. Law and Politics in Enotes Home. Online : http://www.enotes.com/worcester-v-georgia-reference/worcester-v-georgia. (Accessed July 15, 2013)

Jenkins, Christopher D. 2001. “John Marshall’s Aboriginal Rights Theory and its Treatment in Canadian Jurisprudence.” University of British Columbia Law Review 35: 1-42.

Leclair, Jean. Hiver 2013. Course notes, Droit des autochtones.

Patrick, John; Pious, Richard and Ritchie, Donald. 2002. Worcester v. Georgia. The Oxford Guide to the United States Governement. Online: http://www.answers.com/topic/worcester-v-georgia. (accessed July 15, 2013).

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