The original and core purpose of this 1823 SCOTUS case was about property ownership. Today’s law students who wish to pursue their practice in property matters, generally start by studying Johnson v. McIntosh. It took some time, but detailed legal concepts were gradually developed to put this decision into legal statutes. For Indigenous Peoples, on the other hand, it didn’t take very long at all for this ruling to have an immediate impact on their cultures and daily lives. While it did in fact set up the framework for the country’s land ownership, it also established the foundation for the laws that would govern how Indigenous Peoples would be considered relative to everyone else in the country. But it is more than a document with legal statements. The manner in which it was written, the words and phrases used, marked the Indigenous Peoples as unworthy of the same legal status as everyone else. The author of those words and phrases was the Chief Justice, John Marshall.
John Marshall was the fourth Chief Justice of the Supreme Court. The Court had been in operation, after a fashion, for 11 years when he was appointed and confirmed. His was a ‘lame-duck’ appointment by President John Adams; Thomas Jefferson was the incoming President. Marshall and Jefferson were political opposites and personally didn’t like each other very much, even though they were second cousins. Marshall is credited with strengthening the Supreme Court so that it became a co-equal branch of the federal government, ensuring the separation of powers. Before Marshall, the new government concentrated mostly on establishing the operation of the executive governing agencies and organizing legislatorial policies and procedures. Historians and scholars consider the Marshall Supreme Court’s most famous and important case was the ruling, for the first time, that a law Congress had passed could be ruled as unconstitutional.
The Johnson v. McIntosh ruling is a long document. Marshall was known as an excessive writer, a trait that some of his colleagues felt created problems where none had to exist. The case was argued February 15 to February 19, 1823. The ruling was issued on February 28, 1823, indicating that Marshall was also a very efficient writer by completing the document in nine days, assuming portions had not already been written ahead of or during the arguments.
McIntosh won. He won because he bought the land from the United States. The decision upheld the lower court’s ruling that McIntosh was not Johnson’s tenant because Johnson could not own the land purchased from the Illini tribes and therefore McIntosh was not trespassing.
John Marshall used language in this ruling that endorsed the ancient Doctrine of Discovery. His conclusion that “discovery” took away land ownership from the Indigenous inhabitants is stated at several points in the ruling, but this passage is the one most often quoted:
“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.”
This matches the Rules of the Doctrine of Discovery which are based on religious and royal directives from as far back as at least the 15th Century. The above passage is enough to set the ruling into law, but Marshall had more to say:
“It is unnecessary to show, that they are not citizens in the ordinary sense of that term, since they are destitute of the most essential rights which belong to that character. They are of that class who are said by jurists not to be citizens, but perpetual inhabitants with diminutive rights.
“The statutes of Virginia, and of all the other colonies, and of the United States, treat them as an inferior race of people, without the privileges of citizens, and under the perpetual protection and pupilage of the government.”
It can be noted that Marshall changed the phrase ‘perpetual slavery’ found in the 15th century Papal Bulls to ‘perpetual protection’. In another section Marshall writes:
“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.”
But Marshall then writes this in another section of the ruling:
“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.”
This is a bit of a contradiction to the previous quote that indicated the Indians would ‘recede’ and follow the game. Here they are ‘savage’ defenders of their land. Perhaps this is an example of Marshall writing in excess. He also tries to justify the decision in another part of the ruling by writing:
“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.”
In other words – if you do something for a long time and no one is able to stop you and most everyone doing it is apparently ok doing it, then it’s right, can’t be changed and should become the law. And since there apparently are no good answers, this is the best that it can be. Marshall re-emphasizes that point in one of the concluding statements of the ruling:
“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 claim 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.”
It is disheartening to read all these harsh and demeaning words by a Chief Justice of the United States Supreme Court. Marshall’s characterization of Indigenous Peoples provided the authority from that point in time forward to classify Indigenous Peoples as less deserving of protection and opportunity.
Primary Sources:
Johnson v. McIntosh, 21 U.S. (8 Wheat.) 543 (1823) Abridged
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