Johnson v. McIntosh,[a] 21 U.S. (8 Wheat.) 543 (1823), 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 (1831).
Thomas Johnson, 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.[3] 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.[4]
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. Synthesizing the law of colonizing powers, Marshall traces the outlines of the "discovery doctrine"—namely, that a European power gains radical title (also known as sovereignty) 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, 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.[5]
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.[6]
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 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.[7]
In 1998, Native American legal scholar[8] Matthew Fletcher reflected on his experience studying the case, portraying it as fundamental to founding injustices in American society:
"Maybe you can kill people and destroy what they are and call it legal and fair play."[9]
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 (such as Inter caetera) "have never been considered expressions of the Catholic faith."[10]
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" (referring to the word "doctrine," which is used in both law and theology).[11]
^Kades, 148 U. Pa. L. Rev. at 1098 ("[T]he basis for the holding in M'Intosh: custom. Phrases like 'understood by all,' 'exercised uniformly,' and 'universal recognition' appeal to long-established practice, not to any specific constitutional, statutory, or common law rule.").
^Michael G. Collins, M‘Culloch and the Turned Comma, 12 Greenbag 2d 265 (2009).
^Kades, 148 U. Pa. L. Rev. at 1092 ("Mapping the United Companies' claims alongside M'Intosh's purchases, as enumerated in the district court records, shows that the litigants' land claims did not overlap. Hence, there was no real 'case or controversy,' and M'Intosh, like another leading early Supreme Court land case, Fletcher v. Peck, appears to have been a sham." (footnotes omitted)).
^Kades, 148 U. Pa. L. Rev. at 1093 ("M'Intosh did not contest a single fact alleged in the complaint, jurisdictional or otherwise. Perhaps he participated in framing the complaint, which became the stipulated facts of the case. Neither the district court nor the Supreme Court questioned any of these facts. Everyone involved, it seems, wanted a decision on the legal question of the validity of private purchases from the Native Americans." (footnote omitted)).
^Kades, 148 U. Pa. L. Rev. at 1189 ("With its customary rule against private purchases of Native American land, reaffirmed in M'Intosh, the state prevented competitive bidding for Native American lands. It drew on a special cadre of career Native American negotiators to buy land cheaply. . . . [T]he bottom line was the bottom line: acquiring Native American lands at least cost. . . . [M]inimizing cost were not simple. . . . Threats . . . were often not credible, and so the United States pursued all the negotiating tricks . . . .").
Michael C. Blumm, Retracing the Discovery Doctrine, Aboriginal Title, Tribal Sovereignty, and Their Significance to Treaty-Making in the United States, 28 Vt. L. Rev. 713 (2004).
Eric Kades, The Dark Side of Efficiency: Johnson v. M'Intosh and the Expropriation of American Indian Lands, 148 U. Pa. L. Rev. 1065 (2000).
Eric Kades, History and Interpretation of the Great Case of Johnson v. M'Intosh, 19 L. & Hist. R. 67 (2001).
Blake A. Watson Buying America From the Indians: "Johnson v. McIntosh" and the History of Native Land Rights (University of Oklahoma Press; 2012) 494 pages
