Johnson v. M'Intosh
Encyclopedia
Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823), is a landmark decision of the U.S. Supreme Court that held that private citizens could not purchase lands from Native Americans
. As the facts were recited by Chief Justice John Marshall
, the successor in interest to a private purchase from the Piankeshaw
attempted to maintain an action of ejectment
against the holder of a federal land patent.
The case is one of the most influential and well-known decisions of the Marshall Court, a fixture of the first-year curriculum in nearly all US law schools
. Marshall's prosaic and eminently quotable opinion lays down the foundations of the doctrine of aboriginal title in the United States
, and the related discovery doctrine
. However, the vast majority of the opinion is dicta; as valid title is a basic element of the cause of action
for ejectment, the holding does not extend to the validity of M'Intosh's title, much less the property rights of the Piankeshaw. Thus, all that the opinion holds with respect to aboriginal title
is that it is inalienable
, a principle that remains well-established law in nearly all common law
jurisdictions.
Citation to Johnson has been a staple of federal and state cases related to Native American land title for 200 years. Like Johnson, nearly all of those cases involve land disputes between two non-Native parties, typically one with a chain of title
tracing to a federal or state government and the other with a chain of title predating US sovereignty. A similar trend can be seen in the early case law of Australia, Canada, and New Zealand. The first land dispute involving an indigenous party to reach to the Supreme Court was Cherokee Nation v. Georgia
(1831).
Native American tribes in 1773 and 1775. The plaintiffs were lessees of Thomas Johnson's descendants, who had inherited the land. The defendant, William M'Intosh , subsequently obtained a land patent, according to the facts as Marshall accepted them, to this same land from the United States
federal government. In fact, the two parcels did not overlap at all. Further, there is evidence that the parties were aware the tracts did not overlap and purposely misrepresented the facts to the court in order to obtain a ruling.
against M'Intosh in the United States District for the District of Illinois, contending that their chain of title was superior by virtue of Johnson's purchases. The District Court dismissed the claim on the grounds that the Piankeshaw were not able to convey the land.
Marshall begins with a lengthy discussion of history of the European discovery of the Americas and the legal foundations of the American Colonies. In particular, Marshall focuses on the manner in which each European power acquired land from the indigenous occupants. Synthesizing the law of nations, Marshall traces the outlines of the "discovery doctrine
"—namely, that a European power gains radical title (also known as sovereignty
) to the land it discovers. As a corollary, the discovering power gains the exclusive right to extinguish the "right of occupancy" of the indigenous occupants, which otherwise survived the assumption of sovereignty.
Marshall further opined that when they declared independence from Great Britain, the United States government inherited the British right of preemption over Native American lands. The legal result is that the only Native American conveyances of land which can create valid title are sales of land to the federal government.
At least one commentator has noted that Johnson, by holding that only the federal government could purchase Native American lands, created a system of monopsony
, which avoided bidding competition between settlers and thus enabled the acquisition of Native American lands at the lowest possible cost.
Role in law school curriculum
Prof. Stuart Banner at UCLA School of Law
, writes of the case:
Native Americans in the United States
Native Americans in the United States are the indigenous peoples in North America within the boundaries of the present-day continental United States, parts of Alaska, and the island state of Hawaii. They are composed of numerous, distinct tribes, states, and ethnic groups, many of which survive as...
. As the facts were recited by Chief Justice John Marshall
John Marshall
John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...
, the successor in interest to a private purchase from the Piankeshaw
Piankeshaw
The Piankeshaw Indians were Native Americans, and members of the Miami Indians who lived apart from the rest of the Miami nation. They lived in an area that now includes western Indiana and Ohio, and were closely allied with the Wea Indians...
attempted to maintain an action of ejectment
Ejectment
Ejectment is the common law term for civil action to recover the possession of and title to land. It replaced the old real actions as well as the various possessory assizes...
against the holder of a federal land patent.
The case is one of the most influential and well-known decisions of the Marshall Court, a fixture of the first-year curriculum in nearly all US law schools
Law school in the United States
In the United States, a law school is an institution where students obtain a professional education in law after first obtaining an undergraduate degree.Law schools in the U.S...
. Marshall's prosaic and eminently quotable opinion lays down the foundations of the doctrine of aboriginal title in the United States
Aboriginal title in the United States
The United States was the first jurisdiction to acknowledge the common law doctrine of aboriginal title...
, and the related discovery doctrine
Discovery Doctrine
The Discovery doctrine is a concept of public international law expounded by the United States Supreme Court in a series of decisions, most notably Johnson v. M'Intosh in 1823. Chief Justice John Marshall justified the way in which colonial powers laid claim to lands belonging to sovereign...
. However, the vast majority of the opinion is dicta; as valid title is a basic element of the cause of action
Cause of action
In the law, a cause of action is a set of facts sufficient to justify a right to sue to obtain money, property, or the enforcement of a right against another party. The term also refers to the legal theory upon which a plaintiff brings suit...
for ejectment, the holding does not extend to the validity of M'Intosh's title, much less the property rights of the Piankeshaw. Thus, all that the opinion holds with respect to aboriginal title
Aboriginal title
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism...
is that it is inalienable
Alienation (property law)
Alienation, in property law, is the capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another. Although property is generally deemed to be alienable, it may be subject to restraints on alienation....
, a principle that remains well-established law in nearly all common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
jurisdictions.
Citation to Johnson has been a staple of federal and state cases related to Native American land title for 200 years. Like Johnson, nearly all of those cases involve land disputes between two non-Native parties, typically one with a chain of title
Chain of title
A chain of title is the sequence of historical transfers of title to a property. The "chain" runs from the present owner back to the original owner of the property. In situations where documentation of ownership is important, it is often necessary to reconstruct the chain of title...
tracing to a federal or state government and the other with a chain of title predating US sovereignty. A similar trend can be seen in the early case law of Australia, Canada, and New Zealand. The first land dispute involving an indigenous party to reach to the Supreme Court was Cherokee Nation v. Georgia
Cherokee Nation v. Georgia
Cherokee Nation v. Georgia, , was a United States Supreme Court case. The Cherokee Nation sought a federal injunction against laws passed by the state of Georgia depriving them of rights within its boundaries, but the Supreme Court did not hear the case on its merits...
(1831).
Background
Thomas Johnson bought land from PiankeshawPiankeshaw
The Piankeshaw Indians were Native Americans, and members of the Miami Indians who lived apart from the rest of the Miami nation. They lived in an area that now includes western Indiana and Ohio, and were closely allied with the Wea Indians...
Native American tribes in 1773 and 1775. The plaintiffs were lessees of Thomas Johnson's descendants, who had inherited the land. The defendant, William M'Intosh , subsequently obtained a land patent, according to the facts as Marshall accepted them, to this same land from the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
federal government. In fact, the two parcels did not overlap at all. Further, there is evidence that the parties were aware the tracts did not overlap and purposely misrepresented the facts to the court in order to obtain a ruling.
Prior history
The plaintiffs brought an action for ejectmentEjectment
Ejectment is the common law term for civil action to recover the possession of and title to land. It replaced the old real actions as well as the various possessory assizes...
against M'Intosh in the United States District for the District of Illinois, contending that their chain of title was superior by virtue of Johnson's purchases. The District Court dismissed the claim on the grounds that the Piankeshaw were not able to convey the land.
Opinion
Marshall, writing for a unanimous court, affirmed the dismissal.Marshall begins with a lengthy discussion of history of the European discovery of the Americas and the legal foundations of the American Colonies. In particular, Marshall focuses on the manner in which each European power acquired land from the indigenous occupants. Synthesizing the law of nations, Marshall traces the outlines of the "discovery doctrine
Discovery Doctrine
The Discovery doctrine is a concept of public international law expounded by the United States Supreme Court in a series of decisions, most notably Johnson v. M'Intosh in 1823. Chief Justice John Marshall justified the way in which colonial powers laid claim to lands belonging to sovereign...
"—namely, that a European power gains radical title (also known as sovereignty
Sovereignty
Sovereignty is the quality of having supreme, independent authority over a geographic area, such as a territory. It can be found in a power to rule and make law that rests on a political fact for which no purely legal explanation can be provided...
) to the land it discovers. As a corollary, the discovering power gains the exclusive right to extinguish the "right of occupancy" of the indigenous occupants, which otherwise survived the assumption of sovereignty.
Marshall further opined that when they declared independence from Great Britain, the United States government inherited the British right of preemption over Native American lands. The legal result is that the only Native American conveyances of land which can create valid title are sales of land to the federal government.
Legacy
Law and economicsAt least one commentator has noted that Johnson, by holding that only the federal government could purchase Native American lands, created a system of monopsony
Monopsony
In economics, a monopsony is a market form in which only one buyer faces many sellers. It is an example of imperfect competition, similar to a monopoly, in which only one seller faces many buyers...
, which avoided bidding competition between settlers and thus enabled the acquisition of Native American lands at the lowest possible cost.
Role in law school curriculum
Prof. Stuart Banner at UCLA School of Law
UCLA School of Law
The UCLA School of Law is the law school of the University of California, Los Angeles. It has been approved by the American Bar Association since 1950. It joined the Association of American Law Schools in 1952.- History :...
, writes of the case:
- Johnsons continuing prominence is reinforced every year in law schools, where it is the very first case most beginning students read in their required course in Property. The best-selling property casebook calls Johnson 'the genesis of our subject' because it lays 'the foundations of landownership in the United States.' Given current sympathies for Native American, the outcome of the case has come to be viewed with disapproval in law school. Johnson has joined Dred Scott v. SandfordDred Scott v. SandfordDred Scott v. Sandford, , also known as the Dred Scott Decision, was a ruling by the U.S. Supreme Court that people of African descent brought into the United States and held as slaves were not protected by the Constitution and could never be U.S...
and a few others to form a small canon (or maybe an anti-canon) of famous cases law students are taught to criticize. The leading casebook describes the philosophy underlying Johnson as 'discomforting' and quotes with approval the recent view of a law professor that Marshall's opinion 'was rooted in a Eurocentric view of the inferiority of the Indian [sic] people.' Johnson, though, might be the only member of this anti-canon that remains the law, and that is still cited as authority by lower courts several times a year.