Johnson v. McIntosh

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 tribal right to sell their land to non-Indians was restricted, with any transfer of land 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 millions of 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 through the "discovery doctrine." The Johnson decision was the first of three Supreme Court decisions over nine years, known as the Marshall Trilogy, that established 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 within state jurisdictions. Georgia could not enforce state laws on tribal lands. The tribes could regulate their own activities limited only by treaties or acts of 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 had not been approved by the federal government as required by the Intercourse Act and the Johnson decision. In 21 lawsuits in the seven eastern states and Louisiana, tribes claimed that their right of possession as recognized by Marshall was never legally surrendered. In 1972, several tribes filed suit seeking 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 to pursue the claim in courts. The claim was settled in 1980 before proceeding to 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 Oneida v. 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.