Johnson v. McIntosh
Johnson v. McIntosh, 21 U.S. 543, also written M‘Intosh, is a landmark decision of the U.S. Supreme Court that held that private citizens could not purchase lands from Native Americans. As the facts were recited by Chief Justice John Marshall, the successor in interest to a private purchase from the Piankeshaw attempted to maintain an action of ejectment against the holder of a federal land patent.
The case is one of the most influential and well-known decisions of the Marshall Court, a fixture of the first-year curriculum in nearly all U.S. law schools. Marshall's opinion lays down the foundations of the doctrine of aboriginal title in the United States, and the related doctrine of discovery. However, the vast majority of the opinion is dicta; as valid title is a basic element of the cause of action for ejectment, the holding does not extend to the validity of McIntosh's title, much less the property rights of the Piankeshaw. Thus, all that the opinion holds with respect to aboriginal title is that it is inalienable, a principle that remains well-established law in nearly all common law jurisdictions.
Citation to Johnson has been a staple of federal and state cases related to Native American land title for 200 years. Like Johnson, nearly all of those cases involve land disputes between two non-Native parties, typically one with a chain of title tracing to a federal or state government and the other with a chain of title predating U.S. sovereignty. A similar trend can be seen in the early case law of Australia, Canada, and New Zealand. The first land dispute involving an indigenous party to reach to the Supreme Court was Cherokee Nation v. Georgia.
Background
, one of the first Supreme Court justices, bought land from Piankeshaw Native American tribes in 1773 and 1775. The plaintiffs were lessees of Thomas Johnson's descendants, who had inherited the land. The defendant, William McIntosh, subsequently obtained a land patent, according to the facts as Marshall accepted them, to this same land from the United States. In fact, the two parcels did not overlap at all. Further, there is evidence that the parties were aware the tracts did not overlap and purposely misrepresented the facts to the court to obtain a ruling.Prior history
The plaintiffs brought an action for ejectment against McIntosh in the United States District Court for the District of Illinois, contending that their chain of title was superior by virtue of Johnson's purchases. The District Court dismissed the claim on the grounds that the Piankeshaw were not able to convey the land.Opinion
Marshall, writing for a unanimous court, affirmed the dismissal.Marshall begins with a lengthy discussion of the history of the European colonization of the Americas and the legal foundations of the American Colonies. In particular, Marshall focuses on the manner in which each European power took land from the indigenous occupants. European powers used conquest and treaties to claim vast territories in North America, regardless of Indigenous occupation. Synthesizing the law of colonizing powers, Marshall traces the outlines of the "discovery doctrine"—namely, that a European power gains radical title to the land it discovers. As a corollary, the "discovering" power gains the exclusive right to extinguish the "right of occupancy" of the Indigenous occupants, which otherwise survived the assumption of sovereignty.
By negotiating treaties, nations surrendered the exclusive right to acquire territory from the Indians, not just land they physically held. At the conclusion of the French and Indian War, France ceded all its territories east of the Mississippi to Great Britain, while Great Britain ceded its claims west of the river to France. Spain also ceded Florida to Britain. These diplomatic exchanges transferred sovereign claims over entire regions, even though, as Marshall notes, "a great and valuable part" of these lands were occupied by Native Americans.
While European nations recognized Native Americans' immediate right to live on and use their land, they asserted a superior, "ultimate dominion" or underlying ownership for themselves. Based on this asserted ultimate dominion, they claimed the power to grant the land to settlers through charters. Crucially, these colonial grants were understood to give the grantees full legal title, subject only to the remaining, and now subordinate, "Indian right of occupancy."
Marshall further opined that when it declared independence from the Crown, the United States government inherited the right of preemption over Native American lands. The legal result is that the only Native American conveyances of land that can create valid title are sales of land to the federal government.
Legacy
Law and economics
At least one commentator has noted that Johnson, by holding that only the federal government could purchase Native American lands, created a system of monopsony, which avoided bidding competition between settlers and thus enabled the acquisition of Native American lands at the lowest possible cost.Role in law school curriculum
Prof. Stuart Banner at UCLA School of Law, writes of the case:In 1998, Native American legal scholar Matthew Fletcher reflected on his experience studying the case, portraying it as fundamental to founding injustices in American society:
Catholic teaching on the Doctrine of Discovery
The Vatican on March 30, 2023 formally repudiated the "doctrine of discovery," officially declaring that that legal doctrine, used historically to justify colonial exploitation, is "not part of the teaching of the Catholic Church," and that the papal bulls used to justify it "have never been considered expressions of the Catholic faith."In commenting on this public statement, Cardinal Michael Czerny referred to Johnson v. McIntosh as "an invention or creation of the U.S. Supreme Court in the 19th century" and stated it was "unfortunate" that "a very strongly church related word is used by the U.S. Supreme Court to name an idea or a historical process".