Johnson v. M’Intosh
Johnson v. M’Intosh
The Law and Land Cessions. Johnson v. M’Intosh (1823) was the first in a crucial line of nineteenth-century Supreme Court cases to delineate the extent and limitations of American Indian sovereignty. Chief Justice John Marshall wrote the opinion and later elaborated many of the same principles in Cherokee Nation v. Georgia (1831) and Worcester v. Georgia (1832). In Johnson v. M’Intosh Marshall tried to describe the limits of Indian sovereignty (indigenous peoples’ political rights to self-determination and self-government) in order to sort out the legal position of American Indians in the rapidly expanding United States. During the early nineteenth century U.S. citizens had made substantial encroachments on American Indian lands, and there was little sign that this movement would end on its own. The federal government, eager to get lands for white settlers and to avoid conflict with Indians, tried to negotiate land cessions from Indian communities through treaties. Despite such efforts, white settlers often illegally entered Indian lands. As a result confusion often arose over what property belonged to whom.
The Issue. Johnson v. M’Intosh resulted from one such controversy over title. The plaintiff in the case traced his title to a direct cession that the local leaders of the Illinois and Piankeshaw tribes had made to a private citizen. The defendant contended that his title, traced through a later Indian cession to the federal government, was the one that was valid. The issue that Johnson v. M’Intosh turned on, then, was whether the Illinois and Piankeshaw leaders could grant a more valid title than the federal government. If so, then M’Intosh’s title would be invalid.
The Decision. The Supreme Court held that Johnson’s title was not valid. That decision rested on the Court’s definition of Indian land rights as limited by the doctrine of Indian sovereignty. According to this idea, tribes did not have the ability to cede “absolute title” (apparently with the exception of the federal government in treaties). Marshall reasoned that Indians’ “rights to complete sovereignty, as independent nations, were necessarily diminished.” As a result of the European discovery and conquest of America, the U.S. government had “extinguished” absolute Indian title in land. Marshall asserted this conclusion reluctantly, but the way he saw it, to decide otherwise was to invalidate U.S. title to all lands in America and indeed question the legitimacy of the very government: “these claims have been maintained and established as far west as the river Mississippi, by the sword … it is not for the courts of this country to question the validity of this title.”
A Reluctant Opinion. The significance of this case was far-reaching. For the first time there were now explicit limitations on Indian sovereignty in the law of the land. Yet while limiting tribal sovereignty, Marshall took pains to protect it. As he admitted, “conquest gives a title which the court of the conqueror cannot deny,” but Marshall also stressed that the “conquered shall not be wantonly oppressed.” If the Indian peoples coexisted with their conquerors in peace, he wrote, then the Indians and their rights to occupy the land should be protected. From the language of the opinion, Marshall demonstrated his ambivalence about the United States’ conquest of native peoples and wanted to offer American Indians protection through the courts. Indeed, Marshall’s later opinion in Worcester v. Georgia, holding that Indian sovereignty was not subject to state laws, reinforced these protections.
Indian History. Marshall’s legal reasoning also depended on several complicated and conflicting cultural assumptions of his time. First, Marshall assumed that America was one vast wilderness before Europeans came and that the original inhabitants, the Indians, had done nothing to properly “use” the land. He did not recognize that through farming, hunting, fishing, and other subsistence activities Indian peoples did have long-standing effects on and relationships with their environment. Marshall’s vision of proper land use was an inherently European vision of tidy, controlled farms producing agricultural commodities for trade. Therefore, he did not recognize Indian subsistence activities as valid interactions with the land, much less as permanent enough to give Indians absolute title. Second, Marshall’s opinion also held ambivalent, typically nineteenth-century ideas about how these “conquered” indigenous peoples would integrate into American society. On the one hand he considered Indians to be “fierce savages” while on the other he hoped they could peacefully assimilate into the larger society. Marshall’s views toward both proper land use and Indian assimilation foreshadowed late-nineteenth-century efforts, such as the Dawes Act of 1887, to assimilate Indians into white society by turning them into farmers. Therefore, Johnson v. M’Intosh held not only political and legal but also social consequences for American Indian sovereignty and Indian-white relations.
Johnson v. M’lntosh, 21 U.S. (8 Wheat) 543 (1823);
Carol Rose, “Possession as the Origin of Property,” in Property and Persuasion, Essays on the History, Theory, and Rhetoric of Ownership (Boulder, Colo.: Westview Press, 1994), pp. 11-23.