This essay originally appeared in Journal of the West, vol. 39 no. 3 (Summer 2000). Copyright © 2000 by Journal of the West, Inc. Reprinted with permission.

Summary

Johnson v. McIntosh, the first of the Marshall "Indian trilogy," constitutes one of the most ambitious efforts in legal history to tailor new clothes for an emperor.

Far from being an "advocate for Indians," Chief Justice John Marshall may be seen as advocating a concept of "tribal quasi-sovereignty" that filled an important role in the United States system of land title. Johnson v. McIntosh created a legal framework for property law on a foundation of subordinate Indian occupancy and superior Christian empire. Whatever the rhetoric of "protection" in the subsequent Cherokee Nation and Worcester cases, it is clear that nothing in Johnson v. McIntosh was intended to "protect" any interest other than security of the chain of title derived from royal grants and colonial "discovery."

After the Marshall trilogy, federal primacy over indigenous peoples would be presented as "protection" and this image would come to dominate "federal Indian law." Marshall's adoption of "Christian discovery" as the foundation of land title in the United States has only rarely been seen for what it is: a subjugation of indigenous peoples to 15th century theological and colonial legalisms, in derogation of their status as free and independent nations.


JOHN MARSHALL: INDIAN LOVER?

By Peter d'Errico, Legal Studies Department, University of Massachusetts/Amherst

It is not unusual to find John Marshall lauded as the "greatest judicial advocate of Indian sovereignty."1 Three seminal Supreme Court opinions authored by him -- Johnson v. McIntosh (1823), Cherokee Nation v. Georgia (1831), and Worcester v. Georgia (1832)2 -- are frequently said to have established legal "protection" for American Indians.3

These cases came to the Court in the later years of Marshall's tenure as Chief Justice (1801 -1835), after he had an already well-established reputation as an "ardent nationalist" and "a kind of mythical being."4 Whether or not the "myth" already included the image of Marshall as a friend to the indigenous peoples of the continent, it is clear that these three opinions were in later years to have that effect.

From the perspective developed in this essay, the "myth" of Marshall as a champion of indigenous peoples is problematic. It is true that Marshall exerted himself to protect "free Indians" from being sold as slaves and that he proposed intermarriage of whites and Indians. While the former is certainly a friendly act, the latter was as much a means to disrupt and assimilate as to befriend the natives:

The half-breed men ... acquir[ed] direct or indirect control of tribal politics, .. [and] often determined the outcome of treaty negotiations. ... The rise of the half-breeds to power, the rewards they received, and their efforts on behalf of tribal reform gave rise to bitter opposition.5

What is in question here is whether Marshall's opinions in the Indian cases were an expression of "concern for the Indians" or something quite different. The critical perspective developed here will focus on a close textual analysis of the first of the three cases, Johnson v. McIntosh, which produced a legal theory and a jurisprudential basis for all that followed. Some commentators prefer to focus on the later Cherokee cases, particularly to argue that Marshall's views changed between 1823 and 1832. Whether a compelling case can be made for that proposition is another matter. What is crucial is that we understand the starting point.

The beatification of the fourth Chief Justice as the "definer of a nation" indicates the wider context in which the Indian cases were decided. Marshall celebrated federalism as a basis for cohesion and westward expansion of the United States. He led the Supreme Court through a convoluted period of post-revolutionary politics to establish the notion of national Constitutional law under which a "separation of powers" might govern and protect the security of private property. Modern "rule of law" theory owes a great deal to Marshall's conception of the Constitution.

In this wider context, the Indian cases have more to do with the battle between federal and state powers than they do with the indigenous peoples. In each instance, what was at issue in the cases centered not on the Indians, but on competing groups of white men6 struggling for superior position in the legal framework of politics and economy. The legal status of Indians was created to fit that framework.

The controversy in Johnson v. McIntosh began with an "action of ejectment"7 for lands in Illinois, claimed by the plaintiffs under a purchase and conveyance from the Piankeshaw Indians, and by the defendant, under a grant from the United States. It came to the Court on a "case stated,"8 upon which there was a judgment below for the defendant.

The "case stated" described a history of transactions affecting the land in question from May 23, 1609, to the date of the action. The history did not begin with Indians, whose presence was not referred to until the third section. From the point of view of the parties to the case, the starting point was the English crown:

... [O]n the 23d of May, 1609, James I., King of England, by his letters patent of that date, under the great seal of England, did erect, form, and establish Robert, Earl of Salisbury, and others, his associates, in the letters patent named, and their successors, into a body corporate and politic, by the name and style of "The Treasurer and Company of Adventurers and Planters of the City of London, for the first Colony in Virginia," with perpetual succession, and power to make, have, and use a common seal; and did give, grant, and confirm unto this company, and their successors, under certain reservations and limitations in the letters patent expressed, "All the lands, countries, and territories, situate, lying, and being in that part of North America called Virginia,...; with all the soil, grounds, rights, privileges, and appurtenances to these territories belonging, and in the letters patent particularly enumerated;" and did grant to this corporation, and their successors, various powers of government, in the letters patent particularly expressed.

The first "fact" in the history of the case was thus monarchical sovereignty: the capacity to "erect, form, and establish" corporations and to "give, grant, and confirm ... lands, countries, and territories... and powers of government" to them. The case begins in a legal framework derived from monarchy. By 1823, the English crown had been overthrown, but its legacy lived on in the sovereignty of the United States. As we shall see, Johnson v. McIntosh, among other early Supreme Court decisions, demonstrated how little of English law was actually overthrown by the American revolution. Indians were only the ostensible issue of the case. The real issue was: who would get to inherit the legacy of the crown?

The case history continued with a statement that "the corporation proceeded ... to take possession of parts of the territory ... and to form settlements, plant a colony, and exercise the powers of government ...." The existence of indigenous peoples was acknowledged in the following section:

That at the time of granting these letters patent, and of the discovery of the continent of North America by the Europeans, and during the whole intermediate time, the whole of the territory, in the letters patent described, except a small district on James River, where a settlement of Europeans had previously been made, was held, occupied, and possessed, in full sovereignty, by various independent tribes or nations of Indians....

The parties agreed that Indians "were the sovereigns of their respective portions of the territory, and the absolute owners and proprietors of the soil; and who neither acknowledged nor owed any allegiance or obedience to any European sovereign or state whatever...." But this sovereignty was removed in the next clause:

... [I]n making settlements within this territory, and in all the other parts of North America, where settlements were made, under the authority of the English government, or by its subjects, the right of soil was previously obtained by purchase or conquest, from the particular Indian tribe or nation by which the soil was claimed and held; or the consent of such tribe or nation was secured.

Indian sovereignty was thus stated only for the purpose of noting its surrender or defeat. Marshall's opinion would adopt this device of a transient "American Indian sovereignty," an indigenous sovereignty capable of effacing itself or of being effaced. His opinion in Johnson v. McIntosh would ensconce this as a key feature of federal law.

In the fourth section of the history of the case, the parties recited the sequence of events from the year 1624, when the "corporation was dissolved ... and all its powers, together with its rights of soil and jurisdiction ... were revested in the crown of England; whereupon the colony became a royal government ... and so continued until it became a free and independent State...." The only encroachment noted on the geographical limits and extent of the colony was that they "were altered and curtailed by the treaty of February 10th, 1763, between Great Britain and France, and by the letters patent granted by the King of England, for establishing the colonies of Carolina, Maryland, and Pennsylvania."

Next, the litigants provided a capsule history of the French and Indian War, from "some time previous to the year 1756," when "the French government, laying a claim to the country west of the Allegheny or Appalachian mountains ... took possession of certain parts of it, with the consent of the several tribes or nations of Indians possessing and owning them; and, with the like consent, established several military posts and settlements therein...." The parties stated that "the Indian tribes inhabiting and holding the countries northwest of the Ohio, and on the Mississippi above the mouth of the Ohio, were the allies of France, and the Indians known by the name of the Six Nations, or the Iroquois, and their tributaries and allies, were the allies of Great Britain...." A "definitive treaty of peace between Great Britain and France, and their allies" stipulated that the river Mississippi "should for ever after form the boundary between the dominions of Great Britain and those of France, in that part of North America, and between their respective allies there." This was the Treaty of Paris of 1763, by which the two crowns determined Indian territories co-extensively with colonial boundaries. Indian ownership was again postulated only for the purpose of explaining the operation of crown sovereignty.

The seventh section of the "case stated" asserted:

That at and before the commencement of the war in 1756, and during its whole continuance, and at the time of the treaty of February 10th, 1763, the Indian tribes or nations ... were the allies of France in the war, but not her subjects, never having been in any manner conquered by her, and held the country in absolute sovereignty, as independent nations, both as to the right of jurisdiction and sovereignty, and the right of soil, except a few military posts, and a small territory around each, which they had ceded to France, and she held under them ... and that these Indians, after the treaty, became the allies of Great Britain, living under her protection as they had before lived under that of France, but were free and independent, owing no allegiance to any foreign power whatever, and holding their lands in absolute property; the territories of the respective tribes being separated from each other, and distinguished by certain natural marks and boundaries to the Indians well known; and each tribe claiming and exercising separate and absolute ownership, in and over its own territory, both as to the right of sovereignty and jurisdiction, and the right of soil.

The function of this broad statement of Indian independence from any crown was, yet again, to set the stage for the demise of such independence.9 It was a case of "now you see it, now you don't."

According to the plaintiffs' side of the case, the lands in question had been transferred to one of their predecessors. It was a curiously complex transaction:

... [O]n the 18th of October, 1775, Tabac, and certain other Indians, all being chiefs of the Piankeshaws, and jointly representing, acting for, and duly authorized by that nation, in the manner stated above, did, by their deed poll,10 duly executed, and bearing date on the day last mentioned, ... and at a public council there held by them, for and on behalf of the Piankeshaw Indians, with Louis Viviat, of the Illinois country, ... and for good and valuable considerations,11 in the deed poll mentioned and enumerated, grant, bargain, sell, alien, enfeoff, release, ratify, and confirm to the said Louis Viviat, and the other persons last mentioned, their heirs and assigns, equally to be divided, or to George III., then King of Great Britain and Ireland, his heirs and successors, for the use, benefit, and behoof of all the above mentioned grantees, their heirs and assigns, in severalty, by which ever of those tenures they might most legally hold, all those two several tracts of land, in the deed particularly described....

This verbose section was the legal core of the plaintiffs' claim. One might suspect from the complex legalese that the Indians had been taken advantage of; certainly the words of conveyance were not derived from the Piankeshaw tongue. But the verbosity is not a sign that white men had been trying to trick Indians. After all, what possible difference could it have made to the latter whether the "consideration" involved was "good" or "valuable" or both? And if we assume for the moment that the Indians intended to give permanent possession of land to the white men, what difference whether this was referred to as sale, alienation, or enfeoffment?

The verbosity of the transaction is a sign of the confused and changing legal world the white men brought with them. They were concerned about "consideration" because their legal world was struggling with new forms of economic exchange.12 Eighteenth century common law categories were being stretched to fit an economy teetering between feudal and market relations.

The series of words -- "grant, bargain, sell, alien, enfeoff, release, ratify, and confirm" -- were alternative links between the circumstances of the transaction and its enforceability. The white men, not sure of their position in an emerging economy of private property, stated claims as individuals free from obligations to a feudal lord and also as "subjects of the crown of Great Britain," of such "quality, station, and residence," as would permit them to negotiate in the name of their king and hold property by feudal tenure.13

In the description of the transaction, legal ambiguity among white men was stated as an ambiguity of action by Indians. Various possible permutations of land tenure among white men were expressed as permutations of verbs characterizing actions of Indians. If white men were free from their king, then Indians "grant, bargain, sell, [and] alien" the tracts of land. If white men were yet vassals, Indians "enfeoff, release, ratify, and confirm." Uncertainty in colonial political-economy produced a profusion of possible Indian actions, white men hoping to guarantee that they, "their heirs and assigns," would have this land "by which ever of those tenures they might most legally hold." The apparent legal versatility of Indians was, like their "absolute sovereignty," a function of white men's legal metaphysics.

Having set forth the basis for the plaintiffs' claims to "lands held, possessed, and inhabited by the Piankeshaw Indians, from time immemorial," the "case stated" shifted to tell the defendant's history of the land, beginning with the American revolution:

... [O]n the 6th of May, 1776, the colony of Virginia threw off its dependence on the crown and government of Great Britain, and declared itself an independent State and government....
... [O]n the 5th of October, 1778 the General Assembly of Virginia, having taken by arms ... from the British forces ... did, by an act of Assembly of that date, entitled, "An act for establishing the county of Illinois, and for the more effectual protection and defence thereof," erect that country ... into a county....
...[O]n the 20th of December, 1783, the State of Virginia, by an act of Assembly of that date, authorized their Delegates in the Congress of the United States ... to convey, transfer, assign, and make over to the United States, in Congress assembled, for the benefit of the said States, all right, title, and claim, as well of soil as jurisdiction, which Virginia had to the territory or tract of country within her limits ... lying to the northwest of the Ohio ... which cession the United States accepted.

The language of conveyance is simpler and there is no ethnographic detail about "chiefs" and Indians. The basis of the defendant's claim was stated with neither the verbosity nor ambiguity of the plaintiffs':

... [O]n the twentieth day of July, in the year of our Lord one thousand eight hundred and eighteen, the United States, by their officers duly authorized for that purpose, did sell, grant, and convey to the defendant in this action, William M'Intosh, all those several tracts or parcels of land, containing 11,560 acres ...
... [T]he lands described and granted in and by this patent, are situated within the State of Illinois, and are contained within the lines of the ... tracts, described and purporting to be granted and conveyed to Louis Viviat and others, by the deed of October 18th, 1775 .... William M'Intosh, the defendant, entered upon these lands under, and by virtue of his patent, and became possessed thereof before the institution of this suit.

The "facts" of the dispute thus set out rival claims from widely divergent perspectives. The official report of the Supreme Court's decision in the case provides a single sentence "syllabus" of the answer: "A title to lands, under grants to private individuals, made by Indian tribes or nations northwest of the river Ohio, in ... 1775, cannot be recognised in the Courts of the United States." It was John Marshall's task to demonstrate that this succinct conclusion was a result of legal reasoning. As we shall see, this task -- carried out by one of the most celebrated jurists in the history of the Supreme Court -- was accomplished only by declaring that the power of the state is the law's reason.

In the argument before the Court, counsel for plaintiffs contended, "It would seem, ... to be unnecessary, and merely speculative, to discuss the question respecting the sort of title or ownership, which may be thought to belong to savage tribes, in the lands on which they live." The lawyers proceeded in a speculative tone, citing a variety of authorities in support of Indian title: "Probably, however, their title by occupancy is to be respected, as much as that of an individual, obtained by the same right, in a civilized state." Their argument concluded, "In short, all, or nearly all, the lands in the United States, is holden under purchases from the Indian nations; and the only question in this case must be, whether it be competent to individuals to make such purchases, or whether that be the exclusive prerogative of government."

As might be expected, the lawyers for the defendant presented a sharply clashing theory of the case. Counsel urged that "the uniform understanding and practice of European nations, and the settled law, as laid down by the tribunals of civilized states, denied the right of the Indians to be considered as independent communities, having a permanent property in the soil, capable of alienation to private individuals. They remain in a state of nature, and have never been admitted into the general society of nations." Defendant's counsel asserted the right and power of "civilized nations" to "hypothesize" the invalidity of Indian ownership:

Not only has the practice of all civilized nations been in conformity with this doctrine, but the whole theory of their titles to lands in America, rests upon the hypothesis, that the Indians had no right of soil as sovereign, independent states.

The defendant's argument rang of the most unabashed ethno-centrism. Indians, though presumably human, did not count in the scale of civilized law:

It is unnecessary to show, that they are not citizens in the ordinary sense of that term, since they are destitute of the most essential rights which belong to that character. They are of that class who are said by jurists not to be citizens, but perpetual inhabitants with diminutive rights. The statutes of Virginia, and of all the other colonies, and of the United States, treat them as an inferior race of people, without the privileges of citizens, and under the perpetual protection and pupilage of the government.

Counsel for defendant set forth the "discovery" doctrine of sovereignty and property:

Discovery is the foundation of title in European nations, and this overlooks all proprietary rights in the natives. The sovereignty and eminent domain thus acquired, necessarily precludes the idea of any other sovereignty existing within the same limits.

In this argument, subjection of Indians to "civilization" took on the character of "natural law": "... statutes seem to define sufficiently the nature of the Indian title to lands; a mere right of usufruct and habitation, without power of alienation. By the law of nature, they had not acquired a fixed property capable of being transferred." Note that "usufruct and habitation" -- food and shelter -- were "a mere right"; these basic preconditions of life were not as important as the "power of alienation" -- the abstract capacity of exchange which was the precondition of private property.

Marshall would borrow and rework this argument. From his pen, "discovery" would be the "foundation of title," but it would not "overlook all rights in the natives"; a "right of occupancy," of "usufruct and habitation," would remain. This right would be subject to the "paramount title" of the United States.

Defendant's counsel outlined the "natural law" logic that informed this view:

The measure of property acquired by occupancy is determined, according to the law of nature, by the extent of men's wants, and their capacity of using it to supply them. ... According to every theory of property, the Indians had no individual rights to land; nor had they any collectively, or in their national capacity; for the lands occupied by each tribe were not used by them in such a manner as to prevent their being appropriated by a people of cultivators.

This must have been an appealing argument to Marshall:

If any common thread weaves through the life of John Marshall or expresses itself in his political and judicial outlook, it is the belief in the alliance of nature and reason that he took from [Alexander] Pope. ... In the Essay on Man, Pope identified self-interest with the public interest -- a powerful talisman for an age of economic expansion and discovery.14

Marshall began the opinion of the Court with the statement, "The inquiry is, in a great measure, confined to the power of Indians to give, and of private individuals to receive, a title which can be sustained in the Courts of this country." Here he positions the ostensible and real issues: the "power of the Indians" is to be defined as an element in the rules governing private property in the United States.

Marshall's first move was to insist on the social character of property: "... the right of society, to prescribe those rules by which property may be acquired and preserved is not, and cannot be drawn into question; ... the title to lands, especially, is and must be admitted to depend entirely on the law of the nation in which they lie...." To a modern, especially post-modern, reader, this proposition hardly needs stating; property is created by law; it is a social construct. But to natural law theorists whose ideas interwove with the emergence of private property concepts, this was a bold and naked assertion.

Marshall took immediate note of the bold implication of his premise: "natural law" was not sufficient to answer questions of property rights; it was "necessary" to inquire into "national law," the rules set forth by government:

... [I]t will be necessary, in pursuing this inquiry, to examine, not singly those principles of abstract justice, which the Creator of all things has impressed on the mind of his creature man, and which are admitted to regulate, in a great degree, the rights of civilized nations, whose perfect independence is acknowledged; but those principles also which our own government has adopted in the particular case, and given us as the rule for our decision.

In one fell swoop, Marshall bowed respectfully to natural law and disemboweled it. One quick phrase plucked "the perfect independence" of nations like a rabbit from the hat of "the Creator of all things" while another crowned this rabbit with the power to give "us ... the rule for our decision."

Next, Marshall painted a broad-brush picture of "European discovery," describing with appreciative candor the motivation and "apology" for "ascendency" of the discoverers:

On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. Its vast extent offered an ample field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new, by bestowing on them civilization and Christianity, in exchange for unlimited independence.

The possibility of irony in Marshall's statement that "the potentates ... found no difficulty in convincing themselves" is foreclosed by his unambiguous reference to "the superior genius of Europe," though he offered nothing to demonstrate this "genius" apart from "ambition and enterprise."

More significantly, he wrote that it was "the character and religion" of the indigenous peoples which "afforded an apology" for considering them inferior and that "civilization and Christianity" were traded as "compensation" for colonial subjugation.15

The "discovery principle" emerges almost effortlessly in Marshall's text. It seemed to flow naturally out of the practical necessities of colonialism. Accept colonialism as the major premise and the rest follows:

... [A]s they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession. The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no Europeans could interfere. It was a right which all asserted for themselves, and to the assertion of which, by others, all assented.

For Marshall, the "discovery principle" was colonial realpolitic -- desire "to avoid conflicting settlements, and consequent war with each other" -- but avoidance of war did not eliminate the violent basis of "title by discovery":

The title by conquest is acquired and maintained by force. The conqueror prescribes its limits.

In other words, the "discovery principle" did not actually "avoid conflict ... and ... war," but aimed to locate war at the colonial site, where "title" might be "consummated," rather than at the "discoverer's" homelands. The principle didn't always work, as became evident when French and English colonial rivalries triggered the Seven Years War on their mainlands.

Marshall sketched the consequences of the "discovery principle" for the natives, though they are obviously not among those who counted for "universal recognition" of the principle:

... [T]he rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil at their own will, to whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it. While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves; and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy. The history of America, from its discovery to the present day, proves, we think, the universal recognition of these principles.

Marshall was clear about the Christian theological foundation of the "discovery principle." In discussing English precedents, he referred to the 1496 commission to the Cabots, "to discover countries then unknown to Christian people, and to take possession of them in the name of the king of England." This effort to claim English territory on the American continent asserted "... a right to take possession, notwithstanding the occupancy of the natives, who were heathens, and, at the same time, admitting the prior title of any Christian people who may have made a previous discovery. "

Marshall acknowledged that Christianity and English colonialism were intertwined:

The charter granted to Sir Humphrey Gilbert, in 1578, authorizes him to discover and take possession of such remote, heathen, and barbarous lands, as were not actually possessed by any Christian prince or people. This charter was afterwards renewed to Sir Walter Raleigh, in nearly the same terms. By the charter of 1606, under which the first permanent English settlement on this continent was made, James I granted to Sir Thomas Gates and others, those territories in America lying on the seacoast, between the 34th and 45th degrees of north latitude, and which either belonged to that monarch, or were not then possessed by any other Christian prince or people.

Marshall did not quote the 15th century Papal Bulls that underlie the origin of the "discovery principle" in Spanish and Portuguese charters, though he was undoubtedly aware of them:16

Romanus Pontifex, January 8, 1455 - …we bestow suitable favors and special graces on those Catholic kings and princes, … athletes and intrepid champions of the Christian faith… to invade, search out, capture, vanquish, and subdue all Saracens and pagans whatsoever, and other enemies of Christ wheresoever placed, and… to reduce their persons to perpetual slavery, and to apply and appropriate… possessions, and goods, and to convert them to … their use and profit…
Inter Caetera, May 3, 1493 - among other works well pleasing to the Divine Majesty and cherished of our heart, this assuredly ranks highest, that in our times especially the Catholic faith and the Christian religion be exalted and everywhere increased and spread, that the health of souls be cared for and that barbarous nations be overthrown and brought to the faith itself. … our beloved son Christopher Columbus, … sailing… toward the Indians, discovered certain very remote islands and even mainlands… . we,… by the authority of Almighty God… do… give, grant, and assign forever to you and your heirs and successors, kings of Castille and Leon, all and singular the aforesaid countries and islands… provided however they at no time have been in the actual temporal possession of any Christian owner… .

These Bulls were the foundation of the earliest claims of "discovery" in the "New World," enunciated most forcefully in the Spanish Requerimiento17. Though the English Church disputed Papal supremacy, it maneuvered in its own right to provide the English crown with equal theological authority. Marshall focused on English colonial grants and emphasized these as the basis for property rights in the United States:

Thus has our whole country been granted by the crown while in the occupation of the Indians. ... The governments of New England, New York, New Jersey, Pennsylvania, Maryland, and a part of Carolina, were thus created. In all of them, the soil, at the time the grants were made, was occupied by the Indians. Yet almost every title within those governments is dependent on these grants. ... It has never been objected to this, or to any other similar grant, that the title as well as possession was in the Indians when it was made, and that it passed nothing on that account. These various patents cannot be considered as nullities....

Of course, the indigenous peoples were not asked whether they objected. Their views as to whether anything was "passed" by the grants were legally irrelevant by the terms of the "discovery principle" itself. Marshall concluded that "... all the nations of Europe, who have acquired territory on this continent, have asserted in themselves, and have recognised in others, the exclusive right of the discoverer to appropriate the lands occupied by the Indians."

Marshall turned next to the question, "Have the American States rejected or adopted this principle?" His answer was quick: "It has never been doubted, that either the United States, or the several States, had a clear title to all the lands within the boundary lines described in the treaty [concluding the revolution], subject only to the Indian right of occupancy...."

The only remaining issue was whether "the United States, or the several States" have "the exclusive power to extinguish that right." Marshall preliminarily concluded that the power is "vested in that government which might constitutionally exercise it."

The introduction of a "constitutional" issue was consistent with Marshall's general strategy for enhancing the Court's position in its "balance of power" with President and Congress and federal power as against the states. But the assertion of a "constitutional" issue also had a special doctrinal function in Johnson v. McIntosh: to transform and mask theological grounds of "discovery" in land title law. It was one thing to refer to a history of "monarchs and potentates" who "found no difficulty in convincing themselves," but Marshall was writing in an era of increasing diversity and ambivalence about theology, especially in relation to government power. He aimed to transmute sectarian religious origins into transcendent constitutional theory.

Explication of a "constitutional" issue would seem to require an inquiry into secular legal principles. But that was not the direction Marshall took. Instead, his opinion continued with an examination of post-revolutionary land transactions:

The States, having within their chartered limits different portions of territory covered by Indians, ceded that territory, generally, to the United States, ... and that in doing so, they granted a productive fund to the government of the Union.

As to the title claims of "the government of the Union," Marshall wrote:

The United States ... maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest .... The power now possessed by the government of the United States to grant lands, resided, while we were colonies, in the crown, or its grantees.

So there we have it. An inquiry into law began as an inquiry into history, proceeded through theology, and ended as an inquiry into power politics -- unilateral claims of jurisdiction backed by war and producing profit. Marshall explicitly refused to engage critical philosophical questions:

We will not enter into the controversy, whether agriculturists, merchants, and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits. Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted.

Those accustomed to the idea that the Supreme Court has power to rule on the Constitutional validity of government actions (an idea central to Marshall's strategy for the Court) may be startled by this passage. The notion of a "government of laws" and of the Court as the organ for enforcement of the Constitution implies that naked power is unacceptable. Johnson v. McIntosh demonstrates that the domain of federal Indian law was excepted from this "rule of law" system:

These claims have been maintained and established as far west as the river Mississippi, by the sword. The title to a vast portion of the lands we now hold, originates in them. It is not for the Courts of this country to question the validity of this title, or to sustain one which is incompatible with it.

Embarrassed by the "extravagance" of the "discovery principle," Marshall turned again to the magnitude of property claims that were at stake, insisting that the "pretensions" of the "conquerors" "cannot be questioned":

However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. So, too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants.... However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by Courts of justice.

In the end, Marshall was willing to jettison "natural right" and even "reason"! He could conclude with "justice," because his opinion had made it synonymous with "power." But if this is the meaning of the case, what is the necessity of having courts? It would seem that, by allowing power to justify itself, Marshall relegated the Court to the status of courtier.

Marshall's opinion in Johnson v. McIntosh is actually quite consistent with his overall strategy as a federalist judge. It asserts the primacy of the United States over indigenous peoples by "constitutionalizing" the legacy of royal power and prerogative in the "general government." Later, in the Cherokee cases, Marshall would articulate this primacy as a "special relationship" between the federal government and the Indians , in an attempt to exclude the states from any role in the management of Indian lands. Taken together, the trilogy of Indian cases are an important example of how Marshall "transformed the Constitution from a compact among the states into a charter of national life and created a political role for the Supreme Court at the very center of the nation's development."18

In the context of the Cherokee cases, federal primacy would be presented as "protection" and this image would come to dominate "federal Indian law" and conventional discussion of Marshall as an "advocate of the Indians." What is striking, however, is that Marshall's adoption of "Christian discovery" as the foundation of land title in the United States has only rarely been seen for what it is: a subjugation of indigenous peoples to 15th century theological and colonial legalisms, in derogation of their status as free and independent nations.

Far from being an "advocate for Indians," Marshall may be seen as advocating a concept of "tribal quasi-sovereignty" that filled an important role in the United States system of land title. Johnson v. McIntosh created a legal framework for property law on a foundation of subordinate Indian occupancy and superior Christian empire. Whatever the rhetoric of "protection" in the subsequent Cherokee Nation and Worcester cases, it is clear that nothing in Johnson v. McIntosh was intended to "protect" any interest other than security of the chain of title derived from royal grants and colonial "discovery."

It is also striking that Marshall's personal and family interests in land speculation have not been highlighted in studies of the Indian cases. He typically recused himself in cases specifically touching his land claims under the Fairfax grant in Virginia, which seems to have convinced historians that his personal property interests did not influence his judicial decisions. This uncritical view is suspect.

"Land warrant" -- the type of transaction sustained for the defendant in Johnson v. McIntosh -- involved the conveyance of "public lands" from government to citizen. These "public lands" were, of course, Indian lands that had been "granted" by the king and devolved to the states or the United States. The dispute in Johnson v. McIntosh was settled precisely as it had to be to protect chains of title linking royal grants through state and federal governments to individuals. Titles traced to direct negotiation between purchasers and indigenous owners were antagonistic to the security of the "productive fund" of lands which could be warranted by the government.

A passage in Marshall's opinion provides an important clue to the significance of his personal interest in the case:

Virginia, particularly, within whose chartered limits the land in controversy lay, passed an act, in the year 1779, declaring her "exclusive right of pre-emption from the Indians, of all the lands within the limits of her own chartered territory...." [and] proceeded ... to open her land office, for the sale of that country which now constitutes Kentucky, a country, every acre of which was then claimed and possessed by Indians, who maintained their title with as much persevering courage as was ever manifested by any people.

The reference to Kentucky is the clue: Marshall's father, Thomas, had been "appointed surveyor of the western lands (Kentucky) by the State of Virginia in 1781 and, upon the formation of the Union under the Constitution, was appointed by President Washington to be the Collector of Revenue for Kentucky, a post he held until 1797." "In 1780 ... Thomas Marshall ... led a new wave of settlement in the Kentucky territory and established the foundation for the subsequent wealth of the Marshall family." "Before the end of the 1780's, Marshall would claim over 200,000 acres in Kentucky. His father and his brothers would own about twice that amount." Marshall's career had involved him from the start as "an intermediary [to his father, who opened the state's survey office in the Kentucky territory in 1782] for investors wishing to convert their land office warrants into surveyed acreage."19

Add to the family land speculation in Kentucky the fact that Marshall's own land claims in Virginia under the Fairfax grant involved a chain of title originating in the English crown. It is not necessary to describe the details of the Fairfax grant and the complex negotiation and litigation to sustain the claims; one need only be reminded that this "litigation would occupy Marshall for the rest of his life."20 In short, Marshall's whole career and family fortune were implicated in the nature of the dispute between Johnson's heirs and McIntosh. This must be acknowledged to arrive at an accurate history of the case.

Johnson v. McIntosh, the first of the Marshall Indian trilogy, constitutes one of the most ambitious efforts in legal history to tailor new clothes for an emperor. It is possible that Marshall presented his opinion in the case "as a prelude to the Monroe Doctrine," issued nine months later to assert United States hegemony over the entire continent.21 The careful weaving of concepts and history in Marshall's opinion -- a skill for which he is famous -- produced a garment fit for a king and yet free of any king's claims, a legal theory suitable for a "democratic" empire. The United States would wear the Crown which had been overthrown.

Johnson v. McIntosh has never been overruled and is cited frequently. "Christian discovery" thus remains the jurisprudential foundation for United States power over indigenous peoples and their lands. This foundation is concealed, not only by the predilections of later observers, but in large part because of Marshall's ability to provide a rhetorical bridge between Christian imperialism and constitutionality: "Christian supremacy" is cloaked in "the Constitution." After Marshall's opinion, no lawyer or court would need to acknowledge that land title in United States law -- and the crucial subordination of indigenous rights necessary to define such title -- are based on a doctrine of Christian supremacy.

For indigenous peoples, the result of Johnson v. McIntosh is that:

Indian nations have been denied their most basic rights ... simply because, at the time of Christendom's arrival in the Americas, they did not believe in the God of the Bible, and did not believe that Jesus Christ was the true Messiah. This basis for the denial of Indian rights in federal Indian law remains as true today as it was in 1823.22

Today, indigenous peoples worldwide are increasingly active in articulating their own perspectives of law and land rights. A United Nations Draft Declaration of the Rights of Indigenous Peoples is one arena of struggle. The very title of the document triggers the key debate: Are indigenous peoples "peoples" in international law? Are they free and independent in the same sense as nation-states? These were questions raised in United States law and decided in the negative by John Marshall in 1823. How, and by whom, the question will be answered on a global level in the 21st century remains to be seen.


NOTES:

1. Steven Paul McSloy, "Back to the Future: Native American Sovereignty in the 21st Century," XX (No. 2) NYU Review of Law and Social Change 217, 254 (1993).

2. Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543; Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1; Worcester v. Georgia, 31 U.S. (6 Pet.) 515.

3. "American Indian" reflects standard usage in Marshall's time. Both "American Indian" and "Native American" have colonial roots; neither is more "correct" than the other. It may be noted that some standard names for particular peoples are relics of foreign impositions (e.g., Navajo, Sioux). There is no unproblematic word to refer generally to the peoples we are discussing. Every term -- including "tribal," "indigenous," and "native" -- has a history of use and abuse as a function of colonialism, invasion, genocide, marginalization, exploitation, and so on.

4. Jean Edward Smith, John Marshall: Definer of a Nation (NY: Henry Holt, 1996), pp. 4, 3. The latter phrase is quoted from Albert Beveridge, an earlier biographer. Biographical details in the following paragraph are also based on Smith's work.

5. Mary E. Young, "Indian Removal and Land Allotment: The Civilized Tribes and Jacksonian Justice," p. 32, in Paul Wallace Gates, ed., The Rape of Indian Lands (NY: Arno, 1979).

6. By the term "white men," I refer, first, to the persons involved with this litigation; and second, to the people who extended Christian-European colonialism into the "new world."

7. Ejectment was a common law action to restore possession of property. "The action was highly fictitious, being in theory only for the recovery of a term for years, and brought by a purely fictitious person, as lessee in a supposed lease from the real party in interest. The latter's title, however, had to be established in order to warrant a recovery, and the establishment of such title, though nominally a mere incident, was in reality the object of the action. Hence this convenient form of suit came to be adopted as the usual method of trying titles to land." Henry Campbell Black, Black's Law Dictionary, Fifth Ed. (St. Paul, MN: West Publishing Co., 1979).

8. Case stated: an agreed statement of the facts submitted by both parties, in order that the case may be decided without trial, upon the court's conclusions of law as to the facts stated.

9. As we interpret this statement, we may take note of the notion that these "free and independent" Indians required "protection" and of the ambiguity about "tribes or nations." These foreshadowed legal theories which came to dominate United States Indian policy by the end of the 19th century.

10. Deed poll: "A deed which is made by one party only. ... only the party making it executes it or binds himself by it as a deed." See Black, note 3. The edge of the paper was "polled" or cut in a straight line, to visibly distinguish it from a "deed indented," which was cut in jagged or wavy lines; the latter was used for deeds made by more parties than one, the cuts separating the document into a sort of jig-saw puzzle which could be reassembled to prove the genuineness of each part.

11. "Consideration" is that which makes an agreement enforceable -- a "contract" rather than just a "naked promise." "Consideration was a technique for limiting the action of assumpsit [a common law action to enforce a contract] rather than a concept one can define." James Gordley, The Philosophical Origins of Modern Contract Doctrine (Oxford: Clarendon Press, 1991), pp. 137-138.

12. Prescient, perhaps, of the coming hegemony of money as consideration for contracts, the parties included a separate section devoted to this matter: "... [T]he consideration in this deed expressed, was of the value of 31,000 dollars, current money of the United States, and upwards, and was paid and delivered at the time of the execution of the deed, by the grantee, Lewis Viviat, in behalf of himself and the other grantees, to the Piankeshaw Indians, who freely accepted it, and divided it among themselves...."

13. Feud: "An inheritable right to the use and occupation of lands, held on condition of rendering services to the lord or proprietor, who himself retains the property in the lands." See Black, note 3.

14. Smith, p. 34.

15. The central role of Christian theology in the Marshall trilogy and in the general framework of United States law governing indigenous peoples is explored in the seminal essay by Steven T. Newcomb, "The Evidence of Christian Nationalism in Federal Indian Law: The Doctrine of Discovery, Johnson v. McIntosh, and Plenary Power," N.Y.U. Rev. of Law & Social Change vol. XX no. 2 (1993) 303.

16. Smith clarifies the breadth and depth of Marshall's education. In sharp contrast to previous authors [For example: "Young John Marshall received a very limited education ... largely a private, familial affair." Francis N. Sites, John Marshall: Defender of the Constitution (Boston: Little, Brown, 1981), p. 5.], Smith demonstrates that Marshall had consistent and early access through his father to "an oasis of learning and culture" in the library of Lord Fairfax, "one of the largest libraries in the colonies ... [with] an "extensive collection of classical and contemporary literature" including "the standard ... legal texts of the period." Smith, p. 27, et seq.

17. Formulated by a Spanish jurist, Palacios Rubios, the Requerimiento is available in English in Arthur Helps, The Spanish Conquest in America, 4 vols.; Vol. 1, pp. 358-61. (New York: Harper & Brothers, 1856-57). The document stated Spain's rights in the Indies and was "required" to be read to the Indians before each Spanish attack.

18. Smith, p. 19.

19. Smith, pp. 31n, 74, 75n, 91.

20. Smith, p. 107. Marshall's claim was pitted against Virginia's escheat laws directed at non-resident English land-owners. Neither side traced title to individual purchase from the Indians; the dispute involved competing proprietary claims resting equally on the premise that the Indians had no title. The final compromise involved a conveyance from the Fairfax heir to Marshall's brother James to the state of Virginia, in return for which Virginia dropped its escheat proceedings against the residual claimed by Marshall.

21. Jill Norgren, The Cherokee Cases (New York: McGraw-Hill, 1996), p. 94.

22. Newcomb, p. 309.


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