On February 28, 1823, the U.S. Supreme Court handed down a decision in Johnson v. M’Intosh (21 U.S. 543).
This dispute over Indian land arose between two non-Indians; one claimed title by virtue of an Indian conveyance, and the other claimed title under a subsequent cession by the Indians to the U.S. followed by a conveyance from the U.S.
Chief Justice John Marshall, writing for the Court, addressed the nature of Indian conveyance, holding that aboriginal title was inalienable, and thus private citizens could not purchase land from Native Americans.
The case is most remarkable for its discussion of conquest, and for Marshall’s dicta pondering what it means for a “discoverer” to claim title to land already occupied by others.
In his opinion, Justice Marshall observed that at the time of the discovery of the continent by Europeans [note he qualifies his use of the word “discovery”]:
…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, who 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, and that in 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.”
He went on to observe that “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.”
Further, “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.”
They established a principle of “the right of acquisition,” whereby “discovery” gave title to “the government by whose subjects or by whose authority it was made against all other European governments.…” The European discovers then had the right to determine how to eliminate the Natives, by one means or another, from the land.
Justice Marshall puts a rather positive spin on the history of such negotiations by his statement that:
In the establishment of these relations, the 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.”
He stated that the history of America from its discovery to the present day proved that “our whole country been granted by the Crown while in the occupation of the Indians.”
However, though the power to dismember regal governments was asserted and exercised by the Crown, the power to dismember proprietary governments was not claimed, and in some instances, even after the powers of government were revested in the Crown, the title of the proprietors to the soil was respected. He then poses the question: “Have the American states rejected or adopted this principle?”
According to the treaty that ended the Revolutionary War, Great Britain relinquished all claim not only to the government, but to the “propriety and territorial rights of the United States” whose boundaries were fixed in the second article. Thus, Marshall observes:
By this treaty the powers of government and the right to soil which had previously been in Great Britain passed definitively to these states. We had before taken possession of them by declaring independence, but neither the declaration of independence nor the treaty confirming it could give us more than that which we before possessed or to which Great Britain was before entitled.
The United States subsequently “has unequivocally acceded to that great and broad rule by which its civilized [sic] inhabitants now hold this country. They hold and assert in themselves the title by which it was acquired. They 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, and gave also a right to such a degree of sovereignty as the circumstances of the people would allow them to exercise.”
But then Marshall, by negation, addresses the philosophical territory he says he will not engage:
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.”
He vitiates his own stance a bit however by offering an excuse to the European conquerers:
. . . 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.
Although we do not mean to engage in the defense of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them.”
But from Marshall’s expression of his hopes for American behavior, he unfortunately reveals a quixotic outlook or at best, a utopian vision that would never hold up in the cold light of reality:
The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. Most usually, they are incorporated with the victorious nation, and become subjects or citizens of the government with which they are connected. The new and old members of the society mingle with each other; the distinction between them is gradually lost, and they make one people. Where this incorporation is practicable, humanity demands and a wise policy requires that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connections, and united by force to strangers.”
Once again though, he thinks it necessary to offer excuses:
But the tribes of Indians inhabiting this country were fierce savages whose occupation was war and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country was to leave the country a wilderness; to govern them as a distinct people was impossible because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence.
What was the inevitable consequence of this state of things? The Europeans were under the necessity either of abandoning the country and relinquishing their pompous claims to it or of enforcing those claims by the sword, and by the adoption of principles adapted to the condition of a people with whom it was impossible to mix and who could not be governed as a distinct society, or of remaining in their neighborhood, and exposing themselves and their families to the perpetual hazard of being massacred.
Frequent and bloody wars, in which the whites were not always the aggressors, unavoidably ensued. European policy, numbers, and skill prevailed. As the white population advanced, that of the Indians necessarily receded. The country in the immediate neighborhood of agriculturists became unfit for them. The game fled into thicker and more unbroken forests, and the Indians followed.”
That law which regulates and ought to regulate in general the relations between the conqueror and conquered was incapable of application to a people under such circumstances. The resort to some new and different rule better adapted to the actual state of things was unavoidable. Every rule which can be suggested will be found to be attended with great difficulty.
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.”
And thus the practice of colonialism won what might be an undeserved victory, even as Justice Marshall attempted (in vain, it would turn out) to make a bid for humane, decent behavior by the latecomers to the continent.