''Johnson v. M'Intosh'', 21 U.S. (7 Wheat.) 543 (1823), 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 John Marshall (September 24, 1755July 6, 1835) was an American politician and lawyer who served as the fourth Chief Justice of the United States from 1801 until his death in 1835. He remains the longest-serving chief justice and fourth-longes ...

, the successor in interest to a private purchase from the

Piankeshaw The Piankeshaw, Piankashaw or Pianguichia were members of the Miami tribe who lived apart from the rest of the Miami nation, therefore they were known as Peeyankihšiaki ("splitting off" from the others, Sing.: ''Peeyankihšia'' - "Piankeshaw Per ...

attempted to maintain an action of

ejectment Ejectment is a common law term for civil action to recover the possession of or title to land. It replaced the old real actions and the various possessory assizes (denoting county-based pleas to local sittings of the courts) where boundary dis ...

against the holder of a federal land patent. The case is one of the most influential and well-known decisions of the

Marshall Court The Marshall Court refers to the Supreme Court of the United States from 1801 to 1835, when John Marshall served as the fourth Chief Justice of the United States. Marshall served as Chief Justice until his death, at which point Roger Taney t ...

, 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 The United States was the first jurisdiction to acknowledge the common law doctrine of aboriginal title (also known as "original Indian title" or "Indian right of occupancy"). Native American tribes and nations establish aboriginal title by act ...

, and the related doctrine of discovery. However, the vast majority of the opinion is ''

dicta In general usage, a dictum ( in Latin; plural dicta) is an authoritative or dogmatic statement. In some contexts, such as legal writing and church cantata librettos, ''dictum'' can have a specific meaning. Legal writing In United States legal term ...

''; as valid title is a basic element of the

cause of action A cause of action or right of action, in law, is a set of facts sufficient to justify suing to obtain money or property, or to justify the enforcement of a legal right against another party. The term also refers to the legal theory upon which a ...

for ejectment, the holding does not extend to the validity of M'Intosh's title, much less the property rights of the Piankeshaw. Thus, all that the opinion holds with respect to

aboriginal title Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism. The requirements of proof for the recognition of aboriginal titl ...

is that it is

inalienable ''InAlienable'' is a 2007 science fiction film with horror and comic elements, written and executive produced by Walter Koenig, and directed by Robert Dyke. It was the first collaboration of Koenig and Dyke since their 1989 production of ''Moon ...

, a principle that remains well-established law in nearly all

common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omniprese ...

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 A chain of title is the sequence of historical transfers of title to a property. It is a valuable tool to identify and document past owners of a property and serves as a property's historical ownership timeline. The "chain" runs from the present o ...

tracing to a federal or state government and the other with a chain of title predating US 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 ''Cherokee Nation v. Georgia'', 30 U.S. (5 Pet.) 1 (1831), was a United States Supreme Court case. The Cherokee Nation sought a federal injunction against laws passed by the U.S. state of Georgia depriving them of rights within its boundaries, but ...

'' (1831). The ruling essentially enforces the 1763 Royal Proclamation of King George III.

Background

Thomas Johnson, one of the first

Supreme Court A supreme court is the highest court within the hierarchy of courts in most legal jurisdictions. Other descriptions for such courts include court of last resort, apex court, and high (or final) court of appeal. Broadly speaking, the decisions of ...

justices, bought land from

Native American tribes in 1773 and 1775. The plaintiffs were lessees of Thomas Johnson's descendants, who had inherited the land. The defendant,

William M'Intosh William Carmichael M'Intosh LLD (also spelt McIntosh; 10 October 1838, St Andrews – 1 April 1931, St Andrews) was a Scottish physician and marine zoologist. He served as president of the Ray Society, as vice-president of the Royal Socie ...

(pronounced "McIntosh"), subsequently obtained a land patent, according to the facts as Marshall accepted them, to this same land from the

United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, primarily located in North America. It consists of 50 U.S. state, states, a Washington, D.C., ...

. 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

against M'Intosh 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 history of the

European colonization of the Americas During the Age of Discovery, a large scale European colonization of the Americas took place between about 1492 and 1800. Although the Norse had explored and colonized areas of the North Atlantic, colonizing Greenland and creating a short t ...

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. Synthesizing the law of colonizing powers, Marshall traces the outlines of the "

discovery doctrine The discovery doctrine, or doctrine of discovery, is a disputed interpretation of international law during the Age of Discovery, introduced into United States municipal law by the US Supreme Court Justice John Marshall in ''Johnson v. M'Intosh' ...

"—namely, that a European power gains

radical title Allodial title constitutes ownership of real property (land, buildings, and fixtures) that is independent of any superior landlord. Allodial title is related to the concept of land held "in allodium", or land ownership by occupancy and defense ...

(also known as

sovereignty Sovereignty is the defining authority within individual consciousness, social construct, or territory. Sovereignty entails hierarchy within the state, as well as external autonomy for states. In any state, sovereignty is assigned to the perso ...

) 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. Marshall further opined that when it declared independence from the

Crown A crown is a traditional form of head adornment, or hat, worn by monarchs as a symbol of their power and dignity. A crown is often, by extension, a symbol of the monarch's government or items endorsed by it. The word itself is used, partic ...

, 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 which 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 In economics, a monopsony is a market structure in which a single buyer substantially controls the market as the major purchaser of goods and services offered by many would-be sellers. The microeconomic theory of monopsony assumes a single entity ...

, 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 The UCLA School of Law is one of 12 professional schools at the University of California, Los Angeles. UCLA Law has been consistently ranked by '' U.S. News & World Report'' as one of the top 20 law schools in the United States since the inception ...

, writes of the case: :''Johnson''s continuing prominence is reinforced every year in law schools, where it is the very first case most beginning students read in their required course in Property. The bestselling property casebook calls ''Johnson'' 'the genesis of our subject' because it lays 'the foundations of landownership in the United States.' Given current understandings surrounding Indigenous law, and the role of Native Americans in America, the outcome of the case has come to be viewed with disapproval in law school. ''Johnson'' has joined ''

Dred Scott v. Sandford ''Dred Scott v. Sandford'', 60 U.S. (19 How.) 393 (1857), was a landmark decision of the United States Supreme Court that held the U.S. Constitution did not extend American citizenship to people of black African descent, enslaved or free; th ...

'' and a few others to form a small canon (or maybe an anti-canon) of famous cases law students are taught to criticize. The leading casebook describes the philosophy underlying ''Johnson'' as "discomforting" and quotes with approval the recent view of a law professor that Marshall's opinion "was rooted in a Eurocentric view of the inferiority of the Indian people." ''Johnson'', though, might be the only member of this anti-canon that remains the law, and that is still cited as authority by lower courts several times a year. In 1998, Matthew Fletcher published a reflection on his experience studying ''Johnson v. M'Intosh'' as part of the first-year law curriculum. Fletcher is a member of the

Grand Traverse Band of Ottawa and Chippewa Indians The Grand Traverse Band of Ottawa and Chippewa Indians ( oj, Gichi-wiikwedong Odaawaag miina ojibweg) is a federally recognized Native American tribe located in northwest Michigan on the Leelanau Peninsula. Sam McClellan is the current tribal ...

and a graduate of the University of Michigan Law School. Blending autobiography, story-telling and poetry, and legal discourse, he portrays the case as fundamental to founding injustices in American society, showing that "you ''can'' kill people and destroy what they are and call it legal and fair play" (530).

Notes

External links