Johnson v. McIntosh
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 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 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 to discovery 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 by discovery, 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 old members 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 to federal. 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.