Johnson v. McIntosh

Appellants
Johnson, Graham
Appellee
William McIntosh
Appellants' Claim
That title to land purchased by private individuals directly from Indian tribes is entitled to recognition by the United States.
Chief Lawyers for Appellants
Harper, Webster
Chief Lawyers for Appellee
Winder, Murray
Justices for the Court
Gabriel Duvall, William Johnson, John Marshall (writing for the Court), Joseph Story, Smith Thompson, Thomas Todd, Bushrod Washington
Justices Dissenting
None
Place
Washington, D.C.
Date of Decision
February term, 1823
Decision
The Court upheld McIntosh's claim and affirmed the lower court's decision denying U.S. recognition of land title purchased from Indian tribes by individuals.
Significance
The landmark ruling reaffirmed the legal basis by which the United States established its land base. In this decision and two companion cases, Chief Justice Marshall reconciled European concepts of "discovery," U.S. independence, tribal dependence on U.S. control, and Indian human rights. A relationship with tribes based on dependence and trust evolved. The U.S. government held plenary (absolute) power over Indian affairs, yet had legal responsibilities forprotection and fair treatment. Tribes retained a limited right to occupy lands not acquired by the United States through treaty or conquest, but were restricted with respect to how they could sell those lands.
When European colonists arrived in North America, they found Indian societieswith established governments, laws, and customs. As early as 1532, Spain specifically addressed the question of Indian land ownership and concluded thatIndians held a certain right to the land that Spain could not acquire simplyby "discovery." This right could only be acquired by treaty or "just war." European adoption of the treaty process meant accepting three assumptions: (1)Tribes had sovereign powers enabling them to enter into an agreement free ofother parties. ("Sovereignty" means the power of a government to regulate itsown internal business free of outside control.) (2) Indians held some form of title to the land that they could give to someone else. (3) The transfer ofland was a matter between governments, not individuals.
Such land ownership issues were a central concern of the future founders of the United States in the eighteenth century. With Indian nations holding military supremacy over the colonists for many years, the early colonists negotiated with Indian governments as between two sovereign powers. Indian tribes remained free and independent nations within their own territories, governed bytheir own laws and customs rather than by the rules of U.S. common law. It was in this setting, just prior to the Revolutionary War, that Mr. Johnson andMr. Graham, acting on their own behalf, purchased land northwest of the OhioRiver outside the colonies from the Illinois and Piankeshaw Indian tribes in1773 and 1775.
Upon conclusion of the Revolutionary War in 1776, numerous hostilities erupted between various tribes and the United States and its citizens. In 1779, inan effort to claim control over new land won from the British, the state of Virginia passed an act proclaiming exclusive right to the territory containingthe two parcels purchased by Johnson and Graham for the "commonwealth." TheIndians retained a right to continue living in the region until the lands could be purchased by the state. The act negated all previous transactions madeby Indians to individuals for their private use.
The newly formed federal government immediately began to define a national policy for treating the tribes, acquiring Indian lands, and restoring order toits frontiers, where conflicts had been marked with arrogance and ruthlessness. The government expressed clear recognition of tribal "ownership" in the Northwest Ordinance of 1787, an ordinance guiding how to govern newly acquiredlands from the British not previously in colonies. The historic document stated that Indian "lands and property shall never be taken from them without their consent." The 1789 U.S. Constitution further recognized tribal political presence as one of three kinds of sovereign governments within the United States borders. The two others were the federal government and states. Article Iof the Constitution gave Congress authority to "regulate commerce with foreign Nations and with the Indian Tribes." Article VI of the Constitution recognized treaties as having the same weight as laws passed by Congress. Questionspersisted however as to whether tribes actually "owned" the land, and, if so,what kind of title they had and how it could be transferred. To address these tough issues facing the nation, the newly formed U.S. Congress passed the Indian Trade and Intercourse Act of 1790 as one of its first actions. Among other things, the act established restrictions on tribes' rights to sell landsto parties other than the U.S. government.
With the U.S. government assuming the exclusive role in land purchases from tribes and sales of those lands to its citizens, William McIntosh acquired lands from the U.S. government including the parcels purchased by Johnson and Graham some four decades earlier. Johnson and Graham filed suit challenging McIntosh's acquisition by claiming they held legal title to the land through their earlier direct purchase from the tribes. The District Court for Illinois ruled in favor of McIntosh. Johnson and Graham next took their case to the U.S. Supreme Court.
The Discovery Doctrine
Chief Justice Marshall, writing on behalf of the Court in 1823 with no dissenting opinions, carefully constructed new fundamental rules of land acquisition "supported by reason." Summarizing earlier European concepts of "discovery," 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." The tribes

were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession ofit, 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 whomever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it [the discovery].

By briefly reviewing the history of early North American settlement by European nations, Marshall acknowledged "the universal recognition of these principles." Title todiscovery went to governments, not individuals. The two land parcels in question actually lay in territory claimed by France but transferred to British jurisdiction by the 1763 Treaty of Paris. Next, title of the two parcels "was forfeited by the laws of war" from Great Britain to the United States as a result of the Revolution. Marshall wrote, "It is not for the courts of this country to question the validity of this title, or to sustain one which is incompatible with it." Meanwhile, the Intercourse Act served to reaffirm the exclusive right of the federal government to acquire land from Indians. In sum, Marshall wrote, the "absolute ultimate title has been considered as acquired bydiscovery, subject only to the Indian title of occupancy, which title the discoverers [United States] possessed the exclusive right of acquiring."
In respect to what happened to the Indian peoples following "discovery" of their lands, Marshall wrote, "Humanity acting on public opinion, has established that the conquered shall not be wantonly oppressed" since the "new and oldmembers of the society mingle with each other; the distinction between them is gradually lost, and they make one people." Marshall asserted "the new subjects should be governed as equitably as the old."
The Court held that tribes retained a right to occupy the land and that "title of occupancy" could only be passed from government to government, tribal tofederal. This transfer had not occurred prior to the time of purchase by Johnson and Graham. Therefore, the land title they purchased only had legal status within tribal law and "cannot be recognized in the courts of the United States." McIntosh was declared the rightful owner.
Impact
Together with the Intercourse Act, the Court and Congress attempted to establish a foundation for the recognition and orderly disposition of Indian property interests. The decision held that tribes did not own absolute title to their lands, but a lesser interest described as a right of occupancy. The tribalright to sell their land to non-Indians was restricted, with any transfer ofland being illegal unless approved by the federal government. The United States held exclusive right to obtain Indian land title either "by purchase or conquest." In what constituted a compromise, Marshall accepted neither that discovery ended all Indian title claims nor that Indians maintained absolute title unaffected by European claims of discovery. The Court's decision represented an effort to fit Indian land title claims into the European system of land ownership and minimize the effects on the previous acquisition of millionsof acres by the United States and its European predecessors. Many of the original eastern states had negotiated directly with Indian tribes for their lands and those transfers were never approved by Congress.
The Johnson decision thus held that tribes did not retain full national sovereignty. Congress obtained its power to restrict Indian rights throughthe "discovery doctrine." The Johnson decision was the first of threeSupreme Court decisions over nine years, known as the Marshall Trilogy, thatestablished the foundation for U.S. Indian law and defined the nature and extent of the doctrine of inherent tribal sovereignty. In 1831, in Cherokee Nation v. Georgia Justice Marshall found that although the Cherokee, and other tribes, were distinct societies and separate politically, they were still under the control of the United States. Tribes were not foreign nations but"domestic dependent nations." In Worcester v. Georgia in 1832, the third opinion of the trilogy, Marshall established that tribes were not withinstate jurisdictions. Georgia could not enforce state laws on tribal lands. The tribes could regulate their own activities limited only by treaties or actsof Congress, thus recognizing Congress' plenary (total) powers over tribal rights.
The Court had to resolve other aspects of Indian land disposal at times. In 1955 in Tee-Hit-Ton Indians v. United States, the Court ruled that compensation required by the Fifth Amendment for lands taken, such as through condemnation, by the United States did not apply to Indian lands unless their property rights had been previously recognized in some formal manner, such as treaty.
In the 1970s, tribes began to challenge the early land transactions that hadnot been approved by the federal government as required by the Intercourse Act and the Johnson decision. In 21 lawsuits in the seven eastern statesand Louisiana, tribes claimed that their right of possession as recognized by Marshall was never legally surrendered. In 1972, several tribes filed suitseeking 7.5 million acres and $150 million in damages for alleged illegal land transfers in Maine and Massachusetts. In Passamaquoddy Tribe v. Morton, a U.S. district court in 1975 ruled that the tribes had legal standing topursue the claim in courts. The claim was settled in 1980 before proceedingto the Supreme Court. Through the resulting Maine Indian Claims Settlement Act of 1986, the tribes received $81.5 million, much of which was used to purchase 300,000 acres of timbered land. In a 1985 decision in County of Oneidav. Oneida Indian Nation, the Court ruled that a 1795 agreement between the tribe and the state of New York transferring 100,000 acres was invalid because of federal approval was not given. These cases highlight the complex historical relationships between tribes and the eastern states.
Related Cases

• Cherokee Nation v. Georgia, 30 U.S. 1 (1831).
  
• Worcester v. Georgia, 31 U.S. 515 (1832).
  
• Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1955).
  
• Passamaquoddy Tribe v. Morton, 528 F.2nd 370 (1975).
  
• County of Oneida v. Oneida Indian Nation, 430 U.S. 226 (1985).