Johnson v. McIntosh

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 for protection 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 societies with established governments, laws, and customs. As early as 1532, Spain specifically addressed the question of Indian land ownership and concluded that Indians held a certain right to the land that Spain could not acquire simply by "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 of other parties. ("Sovereignty" means the power of a government to regulate its own 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 of land 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 by their 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 and Mr. Graham, acting on their own behalf, purchased land northwest of the Ohio River outside the colonies from the Illinois and Piankeshaw Indian tribes in 1773 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, in an effort to claim control over new land won from the British, the state of Virginia passed an act proclaiming exclusive right to the territory containing the two parcels purchased by Johnson and Graham for the "commonwealth." The Indians retained a right to continue living in the region until the lands could be purchased by the state. The act negated all previous transactions made by 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 to its 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 acquired lands 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 I of 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. Questions persisted 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 lands to 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.