The decision in the 1823 Supreme Court case of Johnson v. McIntosh established the foundational principles for the property laws and regulations in this country. It also set a pattern for accepting colonization practices that have occurred since early in the 19th century. And it provided a legal precedent for various court rulings in cases brought by or against Indigenous Peoples. The Johnson v. McIntosh case is cited around the world in courts issuing rulings that uphold the ‘discovery’ principle that Marshall wrote. The following are brief summaries for three of those cases that impacted the lives of Indigenous Peoples in the United States.
Tee-Hit-Ton Indians v. United States (1955)
The Tee-Hit-Ton Nation brought their case to the United States Court of Claims seeking compensation from a lumbering operation. The Secretary of the Interior had sold rights to a non-Indigenous company to harvest timber on tribal-occupied lands. The tribe contended it had “full proprietary ownership” and should receive some of the revenue realized by the lumber company. The federal government asserted the tribe had ownership of the land with an “original Indian title” which only gave them permission to occupy it.
The case was argued in the United States Court of Claims on November 12, 1954 and decided on February 7, 1955. Paragraph 2 of the decision states:
“The great case of Johnson v. McIntosh denied the power of an Indian tribe to pass their right of occupancy to another. It confirmed the practice of two hundred years of American history ‘that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest.’”
The ruling derived from Johnson v. McIntosh supported the government’s position that it can legally grant permission to use land for whatever purpose it finds reasonable without consideration of compensation for the Indigenous occupants.
Oliphant v. Suquamish Indian Tribe (1978)
During the August 1973 Suquamish Tribe’s Chief Seattle Days, Mark David Oliphant was arrested and charged by tribal police with assaulting a tribal officer and resisting arrest. Oliphant was a non-Indian living as a permanent resident on the Suquamish Port Madison Indian Reservation in Washington.
Oliphant applied for a writ of habeas corpus in federal court challenging the application of criminal jurisdiction by the tribe over non-Indians. The Ninth Circuit Court found against Oliphant because the Treaty of Point Elliot (which had established the Port Madison Reservation) did not address, in any manner, tribal criminal jurisdiction over non-Indians. The Ninth Circuit interpreted the treaty’s silence on this point as an indication it should favor tribal sovereignty in the case. On appeal, the Supreme Court of the United States (SCOTUS) reversed the Ninth Circuit and ruled in Oliphant’s favor by deciding Indian tribal courts have no criminal jurisdiction for actions by non-Indians occurring on Indian land.
The case was argued January 9, 1978 and the decision published on March 6, 1978. The ruling stated, in part:
“We have already described some of the inherent limitations on tribal powers that stem from their incorporation into the United States. In Johnson v. M’Intosh, we noted that the Indian tribes’ “power to dispose of the soil at their own will, to whomsoever they pleased,” was inherently lost to the overriding sovereignty of the United States.”
By citing Johnson v. McIntosh SCOTUS established that preventing tribal criminal jurisdiction over non-Indians was similar to the tribes losing their land.
(NOTE: The Violence Against Women Reauthorization Act that Congress passed in 2013 did partially repair the damage done with this decision by giving tribal criminal jurisdiction over non-Indian perpetrators of domestic violence on reservations.)
City of Sherrill v. Oneida Indian Nation of New York (2005)
Beginning in 1788, and for the next 140 years or so, the Oneida Indian Nation of central New York State ceded or sold almost all of its original 6,000,000 acres (9,400 square miles) to the state. By 1920 their reservation was only 32 acres. In 1973 the nation opened its first gaming venue and by 1977 had acquired the funds to began reclaiming some of its original land by purchasing plots on the open market. One of those purchases was located in the City of Sherrill in Madison County. Both the city and the county assessed the Nation for property taxes due on the purchased land. The Oneida Nation refused to pay as it felt the land was within its aboriginal lands with full tribal sovereignty rendering the property tax exempt.
The city and the county sued in the Second Circuit Court which found that the land did qualified as Indian Territory and was exempt from state and local taxation. However, on appeal, SCOTUS held that purchase of former tribal land almost 200 years after it had been originally ceded or sold, did not restore tribal sovereignty to that land. The Supreme Court did not actually overturn the Second Circuit’s opinion that the land was Indian Territory. Instead, it ruled that because of the long period of time when the land was not under Oneida control and local jurisdictions had come to rely on the taxable revenue, the Oneida Nation could not reassert its tribal immunity from taxes.
The case was argued January 11, 2005 and the decision published on March 29, 2005. The majority opinion was written by Justice Ginsburg, with two dissents and one recusal. Ginsburg included the following footnote in her decision:
“Under the “doctrine of discovery,” fee title to the lands occupied by Indians when the colonists arrived became vested in the sovereign—first the discovering European nation and later the original States and the United States,….”
The ruling was based on the passage of time, a kind of undefined ‘statue of limitations’ which prevented the Oneidas from presenting their claim. Ginsburg’s footnote does not help explain the decision. It does emphasize, however, the overriding concept that Indigenous Peoples lost all sovereign rights to the land due to ‘discovery’. And further, jurisdictional questions concerning Indigenous lands will be decided within a framework of domination by the colonists.
Primary Source:
In the Courts of the Conqueror: The 10 Worst Indian Law Cases Ever Decided, Walter R. Echo-Hawk, Fulcrum Publishing, 2010