Appellants: Johnson and Graham
Appellee: William McIntosh
Appellant's Claim: That title to land purchased by private individuals directly from Indian tribes before the United States gained independence should be recognized by the United States.
Chief Lawyers for Appellants: Harper and Webster
Chief Lawyers for the Appellee: Winder and Murray
Justices for the Court: Gabriel Duvall, William Johnson, Chief Justice John Marshall, Joseph Story, Smith Thompson, Thomas Todd, Bushrod Washington
Justices Dissenting: None
Date of Decision: February of 1823
Decision: Ruled in favor of McIntosh by denying recognition of land purchases from Indian tribes by individuals.
Significance: This landmark ruling established the legal basis by which the United States could establish its land base. Chief Justice John Marshall had to piece together the concept of discovery as used by early European explorers and Indian sovereignty (governmental independence). Being sovereign governments, the rights to lands that Indians physically possessed could only be acquired by the U.S. government, not by private individuals or states.
When European explorers began arriving on the eastern shores of North America in the sixteenth century, they found numerous long-established Indian societies, each with their own governments, laws, and customs. Although the explorers asserted the "doctrine of discovery" to claim control of lands they "discovered" for their rulers, European colonists who later followed the explorers still had to deal with the question of Indian land possessions. By 1532 Spain officially declared that Indians held a certain right to land that foreign nations could not take simply through "discovery." Actual possession of land occupied and used by American Indians could only be gained by signing a treaty or by waging a "just war."
Mr. Johnson and Mr. Graham
Prior to the Revolutionary War (1776783) while the thirteen American colonies were still under British rule, the Illinois and Piankeshaw Indian tribes lived in the Ohio Valley region to the west. During the period of European exploration, France had claimed the region through discovery. A 1763 treaty ending the French and Indian War (1754763) between France and Great Britain over North American lands transferred claim to the region to Great Britain. A number of years later, in 1773 and 1775, Mr. Johnson and Mr. Graham, two individuals acting on their own, purchased lands northwest of the Ohio River directly from the two tribes.
At the outbreak of the Revolutionary War in 1776, numerous conflicts erupted between tribes, the colonies, and their citizens. Many of the tribes were sympathetic to the British. Attempting to establish claim and some control over the Ohio Valley to its west, the state of Virginia passed a law proclaiming exclusive right to large tracts of land. Included were the two parcels owned by Johnson and Graham. Consistent with existing legal principles, the law recognized that the Indians held a right of possession to continue living in the region until the lands could be purchased by Virginia. The act also provided that all previous land transactions by Indians to private individuals for their own use were not valid. Additionally, upon defeat, Great Britain gave up its claim to the Ohio River area.
The newly established United States immediately began to address land ownership issues on its frontier. It also needed a national policy for Indian relations as ruthless conflicts continued among tribes and frontier populations. The 1787 Northwest Ordinance established U.S. claim to the newly gained lands and recognized Indian rights of possession to their existing holdings on those lands. The Ordinance established how newly acquired lands from the British, not previously part of the original colonies, would be governed. Individual state claims, such as Virginia's, were no longer valid. The Ordinance stated that Indian "lands and property shall never be taken from them without their consent." The U.S. Constitution, adopted in 1789, further recognized Indian nations as one of three types of sovereign governments in the United States, the other two being the states and the federal government. Article 1 of the Constitution gave Congress authority to "regulate commerce with . . . the Indian Tribes" and Article VI recognized Indian treaties along with acts of Congress as the "supreme law of the land."
Questions persisted, however, as to just what kind of title to land did tribes hold and how could that title be transferred to others. In an attempt to further address this issue, one of the first laws passed by the first U.S. Congress in 1790 was the Indian Trade and Intercourse Act. The act recognized the federal government's role in negotiating Indian treaties and prohibited tribes from selling lands to anyone else except the U.S. government. The U.S. government immediately began negotiating treaties with the tribes as equal sovereigns, seeking to establish peace and acquire a land base.
With the general framework in place for securing peace and acquiring Indian lands on the U.S. frontier, the United States acquired the Ohio Valley area. Selling the land to raise money and encourage frontier settlement, the United States soon sold to William McIntosh some of the land including the original parcels earlier acquired by Johnson and Graham. With McIntosh laying claim to his new lands, Johnson and Graham filed a lawsuit in the District Court for Illinois challenging McIntosh's ownership. Johnson and Graham argued they had legally purchased the parcels directly from the tribes before the United States had gained control of the region. The court rejected their argument and ruled in favor of McIntosh. Johnson and Graham appealed to the U.S. Supreme Court.
The Discovery Doctrine
In a landmark decision establishing the basic principles of property ownership in the new nation, legendary Chief Justice John Marshall wrote the Court's opinion. Supporting the lower court's decision in favor of McIntosh, Marshall carefully detailed the basic rules for land acquisition along the expanding frontier. First, Marshall returned to the early European concepts of discovery that led to settlement of the colonies. Marshall wrote, "that discovery gave title to the government by whose subjects it was made, against all other European governments [which] necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives." In other words, the key importance of the doctrine of discovery was establishing which European nation held the right to acquire particular lands from Indian groups who actually lived on it.
Then Marshall described the implication of discovery to the tribes. According to Marshall, the tribes
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 [choice]; 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 whomever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made [the discovery].
Although the tribes held right of possession, the individual European countries held a title by discovery. That title of discovery was clearly held by nations and not by individuals. Marshall contended these principles underlying discovery were recognized by all European nations during colonization in the seventeenth and eighteenth centuries.
Regarding Johnson's and Graham's properties, Marshall asserted that title of discovery to the two parcels was held by Great Britain after 1763, but "was forfeited by the laws of war" to the United States. Marshall claimed, "It is not for the courts of this country to question the validity of this [the United States'] title." Consequently, Marshall assumed the United States held clear title of discovery, and the 1790 Indian Intercourse Act established that only the United States could acquire right of possession from the tribes and sell the lands to private individuals. The United States held such a discovery right of acquisition to the Ohio Valley following the Revolution.
Since a national control of lands can only pass from one government to another government, individuals such as Johnson and Graham could not have gained a valid U.S. legal title from the tribes. Their right of ownership could only be recognized under tribal law, not U.S. law. Their title, therefore, "cannot be recognized in the courts of the United States." Marshall declared McIntosh the rightful owner since he had purchased the land from the United States after the United States acquired it from the Indian nations through treaty.
The Johnson decision served to more fully interpret the Indian Trade and Intercourse Act. A process was defined for recognizing tribal land rights and the orderly transfer to the United States. The ruling held that
Indians did not hold absolute title to their lands, but a lesser right of occupancy. Indians were also restricted in how they could dispose of their lands. They could only sell to the U.S. government or to other parties with approval of the United States. Therefore, the United States held exclusive right to acquire Indian lands, either "by purchase or conquest." In practicality, this ruling recognized that Indian nations retained national sovereignty, but in some limited way. Marshall would soon more specifically define the nature of that sovereignty in Cherokee Nation v. Georgia (1831) in which he would describe tribes as "domestic dependent nations."
In a third ruling establishing the basis of U.S. Indian law, Marshall ruled in Worcester v. Geogia (1832) that tribal sovereignty meant that states could not enforce their laws on tribal lands. Tribes could govern their own internal affairs, restricted only by Congress which held ultimate legal power. The rulings of Johnson, Cherokee Nation, and Worcester have been described as Marshall's Trilogy of Indian court cases legally defining U.S.-Indian relationships for most of the next two centuries.
The ruling in someways was a compromise. Discovery did not end tribal ownership but the Indians did not retain full title either. Marshall placed Indian land claims into a European land ownership system.
Suggestions for further reading
National Congress of American Indians. [Online] http://www.ncai.org (Accessed July 31, 2000).
Wilson, James. The Earth Shall Weep: A History of Native America. New York: Atlantic Monthly Press, 1999.
Wunder, John R. editor. Native American Law and Colonialism, Before 1776 to 1903. New York: Garland Publishing, Inc., 1996.
Did this raise a question for you?