Johnson v. McIntosh; SCOTUS Case Background
It took over 200 years after the invading Europeans assumed the land was theirs for various religious and cultural reasons, for the Supreme Court case – Johnson v. McIntosh – to finally establish the property laws in the United States. To finally answer that question, “Who owns the land?” The Johnson v. McIntosh ruling also set the basic policy and principles for what is now known as ‘United States Indian Law’.
The ingredients that were eventually mixed into the Johnson v. McIntosh case began appearing in the mid 1700s. The colonies had sorted themselves out along the Eastern seaboard and their colonial governments were operating under the British King and Parliament. West of the Alleghenies however, was a different matter. Colony borders were not clear; individuals and companies had either a colonial or a royal land grant, sometimes with overlapping boundary lines; there were a significant number of squatters; a relatively large number of Indigenous Peoples congregated in established settlements, but also moving about; and portions of the land were without any habitation. The three Doctrine of Discovery Rules of Preemption, Native Title, and Limited Sovereignty were becoming more irrelevant as countries were engaging less in discovery activities. For the British Crown and Parliament there were other problems with the colonies which were much more troubling than land ownership conflicts. And later, for the young United States, the problem simply wasn’t as pressing as some others that were taking the attention and time of government officials. Following independence, the Confederation of States never became firmly established and wasn’t designed to address land issues, in any event. And the Constitutional United States struggled in the first few years to administer the tasks of governance, primarily within the legislative and executive branches and not so much with the judiciary. As a result, the matter wasn’t resolved for 50 years, spanning three periods of governments – British, U. S. Confederacy, and U. S. Constitutional.
In 1773, a land speculator, William Murray from Philadelphia, purchased a tract of land between the Illinois and Wabash Rivers from some of the nations that comprised the Illini Confederation of Tribes. At the time, Murray was not at all sure it was a legitimate transaction, but the business approach he used was to take an action and then have it approved. He calculated the worst that could happen is that he’d loose some money, and not get the land. It was a risk he was willing to take since if he won, the profits would be astronomical. He wasn’t alone. Other land speculators were following the same pattern. And to increase their ‘holdings’ they formed companies to attract investors. Murray’s firm was the Wabash Company which would later merge with other companies to become the United Illinois and Wabash Land Companies based in Philadelphia. Murray would routinely submit detailed petitions (called memorials) seeking approval and ratification of his land purchases. First to the British Parliament and later to the United States governing bodies. At the same time there were attempts to have whatever courts had jurisdiction to approve the sale and title transfer. For years the best he accomplished was an occasional Justice of the Peace who would record some portion of a transaction that would have supported Murray’s claim, if he had ever gotten a legislative hearing or a day in court.
At one point prior to the 1783 Treaty of Paris, which ceded all English lands East of the Mississippi River to the United States, Murray used a “altered” order in an attempt to secure some land. The order was initially prepared for the British East Indies Company to address a similar situation with a particular group of Indigenous Peoples in India. The regional military commander was skeptical, even though the order appeared legitimate and properly authorized. His superiors, once informed, quickly sent orders to reverse any action he had taken and the scheme failed. If it had not been for the upcoming Revolutionary War, there more than likely would have been some serious consequences for Murray. While nothing rose to the level of criminality as that endeavor, there were continuous efforts by all the speculators to influence members of the government with offers of position and/or benefits in return for assistance with the approval of land acquisitions.
Thomas Johnson, Jr. was an important shareholder with Murray’s land company. Johnson was the first Governor of the State of Maryland and before that a military commander serving with George Washington in the War for Independence. He and Washington became close friends and formed a partnership in a firm that sought to increase the level of commercial shipping on the Potomac River. And as President, Washington appointed Johnson a Justice in the country’s first Supreme Court. Due to some medical issues, he was only able to serve about a year on the court, but he did author the very first opinion issued by that court. With those credentials, it isn’t surprising that his name was used on the litigation that eventually appeared before the Supreme Court.
In 1809, the United Illinois and Wabash Land Companies’ Board of Director called on Robert Harper, a Baltimore attorney who had served as a congressman from South Carolina to head the company and guide its legal processes to gain official recognition of the land it had purchased. Harper continued the legal practices and arguments that William Murray had been using, but he also determined a different approach might be successful – a writ of ejectment; the process used by a landlord to evict a tenant. Harper instructed the company’s representatives to find a willing and suitable tenant; possibly a land speculator who had also purchased land in the same vicinity as the United Illinois and Wabash Land Companies, but from the government rather than the Indigenous Peoples living there. The person they found to participate in this action was William McIntosh (correctly spelled M’Intosh). McIntosh was a Scotsman who served with the British army during the War for Independence and had later found his way to the Indiana/Illinois region as a fur trader for a French firm. He was generally opposed to the rules being imposed by the new United States government, and felt becoming a land owner would give him some leverage in changing the regulations. He agreed to Harper’s offer, possibly in return for a substantial stake in the company’s profits. But also, based on his character, just because he felt it was a fight in which he wanted to be involved. It should be noted the actual land that McIntosh owned and the land claimed by the United Illinois and Wabash Land Companies were not exactly identical. They did not have the same boundaries, though they may have overlapped, depending on the surveyor chart that was referenced.
Harper’s idea actually worked, in that it started a process in the court system to review Johnson’s eviction notice against McIntosh’s ownership claims. The two agreed that whoever lost at each step would appeal until the case would finally end up being placed on the Supreme Court’s docket. The court system worked slowly, and there was an unfortunate delay when Thomas Johnson died and time was spent on settling his estate so that his son would hold the company shares and the Johnson name could remain on the case. But eventually, in early 1823 the case was argued before the Supreme Court of the United States with Chief Justice John Marshall.
The above information has been perhaps a somewhat over-simplification of the legal and strategic maneuvering that took place and ignores the many players that were involved. But, it does bring us to the ruling by the Supreme Court that will answer the question – “Who owns the land?”, and to the law that will affect the culture and future lives of Indigenous Peoples around the world.
Primary Sources:
In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided, Walter R. Echo-Hawk, Fulcrum Publishing, 2010
Conquest by Law: How the Discovery of America Dispossessed Indigenous Peoples of Their Lands, Lindsay G. Robertson, Oxford University Press, 2007