The outlook for the Cherokees was now dark.  Both the executive and legislative branches of the Federal Government were committed to a policy which offered only the alternatives of removal or subjection; and, thus encouraged, the Georgia Legislature voted to proceed with the extension of the full authority of the State over both the Cherokees and the Creeks after June 1, 1830.  To make matters worse, the discovery of gold in the northeastern corner of the State in 1829 brought down upon the Cherokee lands a horde of scrambling, lawless fortune seekers, numbered already in 1830 by the thousand.  None the less, the Cherokee opposition stiffened.  The Indian legislative council voted that all who accepted lands beyond the Mississippi and settled on them should forfeit their tribal membership, that those who sold their individual property to emigrate should be flogged, and that those who voted to sell a part or all of the tribal possessions should be put to death.

One resource remained to be exhausted in defense of the Indian claims; this was the courts.  But here again things went unfavorably.  After many delays a test case, Cherokee Nation vs.  State of Georgia, was placed upon the docket of the Supreme Court.  The bill set forth the plaintiff to be “the Cherokee Nation of Indians, a foreign State, not owning allegiance to the United States, nor to any State of this union, nor to any prince, potentate, or State other than their own,” and it asked that the Court declare null the Georgia Acts of 1828 and 1829 and enjoin the Georgia officials from interfering with Cherokee lands, mines, and other property, or with the persons of Cherokees on account of anything done by them within the Cherokee territory.  The Indians were represented before the Court by two attorneys, one of them being William Wirt; Georgia employed no counsel.  The opinion of the Court as announced at the January term, 1831, by Chief Justice Marshall was that while the Cherokee nation was a State and had uniformly been dealt with as such by the Federal Government since 1789, it was not a “foreign State” within the meaning of the Constitution, and therefore was not entitled to sue in that character in the courts of the United States.  “If it be true,” the decision concluded, “that wrongs have been inflicted and that still greater are to be apprehended, this is not the tribunal which can redress the past or prevent the future.  The motion for an injunction is denied.”

The case was thus thrown out of court.  Yet the Cherokees were recognized as a “domestic, dependent” nation, and there was nothing in the decision to indicate that the extension of the laws of Georgia over them was valid and constitutional.  Indeed, in a second case that came up shortly, Worcester vs. State of Georgia, the Court strongly backed up the Indians’ contention.  Worcester was a Presbyterian missionary who was imprisoned for violation of a Georgia statute forbidding white persons to reside in the Cherokee