Johnson v. M'Intosh (1823) PDF

## Johnson v. M'Intosh 21 U.S. (8 Wheat) 543 , 5 L. Ed. 681 (1823) #### Chief Justice Marshall delivered the opinion of the Court. - The plaintiffs in this cause claim the land, in their declaration mentioned, under two grants, purporting to be made, the first in 1773, and the last in 1775, by...

## Johnson v. M'Intosh 21 U.S. (8 Wheat) 543 , 5 L. Ed. 681 (1823) #### Chief Justice Marshall delivered the opinion of the Court. - The plaintiffs in this cause claim the land, in their declaration mentioned, under two grants, purporting to be made, the first in 1773, and the last in 1775, by the chiefs of certain Indian tribes, constituting the Illinois and the Piankeshaw nations. - The question is whether this title can be recognized in the Courts of the United States? #### The Facts - The facts, as stated in the case agreed, show the authority of the chiefs who executed this conveyance, so far as it could be given by their own people. - The facts also show that the particular tribes for whom these chiefs acted were in rightful possession of the land they sold. - The inquiry, therefore, is, in a great measure, confined to the power of Indians to give, and of private individuals to receive, a title which can be sustained in the Courts of this country. #### The Right of Society - The right of society to prescribe those rules by which property may be acquired and preserved is not, and cannot be drawn into question. - The title to lands, especially, is and must be admitted to depend entirely on the law of the nation in which they lie. - It will be necessary, in pursuing this inquiry, to examine, not singly those principles of abstract justice, which the Creator of all things has impressed on the mind of his creature man, and which are admitted to regulate, in a great degree, the rights of civilized nations, whose perfect independence is acknowledged; but those principles also which our own government has adopted in the particular case, and given us as the rule for our decision. #### The Discovery Principle - On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire. - Its vast extent offered an ample field to the ambition and enterprise of all, and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency. - The potentates of the old world found no difficulty in convincing themselves that they made ample compensation to the inhabitants of the new by bestowing on them civilization and Christianity, in exchange for unlimited independence. - But, as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements, and consequent war with each other, to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated as between themselves. - This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession. #### Exclusive Right of Discovery - The exclusion of all other Europeans, necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. - It was a right with which no Europeans could interfere. - It was a right which all asserted for themselves, and to the assertion of which by others, all assented. #### Relations with Indigenous Peoples - Those relations which were to exist between the discoverer and the natives, were to be regulated by themselves. - The rights thus acquired being exclusive, no other power could interpose between them. - In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were necessarily, to a considerable extent, impaired. - They 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 whomsoever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it. #### Dominion with Indian Right of Occupancy - While the different nations of Europe respected the right of the natives, as occupants, they asserted the ultimate dominion to be in themselves and claimed and exercised, as a consequence of this ultimate dominion, a power to grant the soil, while yet in possession of the natives. - These grants have been understood by all, to convey a title to the grantees, subject only to the Indian right of occupancy. #### English Acquisition of Territory - No one of the powers of Europe gave its full assent to this principle, more unequivocally than England. - The documents upon this subject are ample and complete. - So early as the year 1496, her monarch granted a commission to the Cabots, to discover countries then unknown to Christian people, and to take possession of them in the name of the king of England. - Two years afterwards, Cabot proceeded on this voyage, and discovered the continent of North America, along which he sailed as far south as Virginia. - To this discovery the English trace their title. #### American States and the Discovery Doctrine - By the treaty which concluded the war of our revolution, Great Britain relinquished all claim, not only to the government, but to the "propriety and territorial rights of the United States", whose boundaries were fixed in the second article. - By this treaty, the powers of government, and the right to soil, which had previously been in Great Britain, passed definitively to these States. - We had before taken possession of them, by declaring independence. - But neither the declaration of independence, nor the treaty confirming it, could give us more than that which we before possessed, or to which Great Britain was before entitled. - It has never been doubted, that either the United States, or the several States, had a clear title to all the lands within the boundary lines described in the treaty, subject only to the Indian right of occupancy, and that the exclusive power to extinguish that right, was vested in that government which might constitutionally exercise it. #### Acquiring Title - The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. - They hold and assert in themselves, the title by which it was acquired. - They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest, and gave also a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise. #### Granting of Lands - The power now possessed by the government of the United States to grant lands, resided, while we were colonies, in the crown, or its grantees. - The validity of the titles given by either has never been questioned in our Courts. It has been exercised uniformly over territory in possession of the Indians. The existence of this power must negative the existence of any right which may conflict with and control it. - An absolute title to lands cannot exist, at the same time, in different persons, or in different governments. - An absolute, must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognize the absolute title of the crown, subject only to the Indian right of occupancy, and recognize the absolute title of the crown to extinguish that right. - This is incompatible with an absolute and complete title in the Indians. #### Conquest Title - We will not enter into the controversy, whether agriculturists, merchants, and manufacturers, have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits. - Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted. - The British government, which was then our government, and whose rights have passed to the United States, asserted title to all the lands occupied by Indians, within the chartered limits of the British colonies. - It asserted also a limited sovereignty over them, and the exclusive right of extinguishing the title which occupancy gave to them. - These claims have been maintained and established as far west as the river Mississippi, by the sword. - The title to a vast portion of the lands we now hold, originates in them. 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. #### European Views on Indian Rights - Although we do not mean to engage in the defence of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them. #### Conquered Lands - The title by conquest is acquired and maintained by force. The conqueror prescribes its limits. - Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and that their condition shall remain as eligible as is compatible with the objects of the conquest. - Most usually, they are incorporated with the victorious nation, and become subjects or citizens of the government with which they are connected. - The new and old members of the society mingle with each other; the distinction between them is gradually lost, and they make one people. - Where this incorporation is practicable, humanity demands, and a wise policy requires, that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connexions, and united by force to strangers. #### Complete Conquered Lands - When the conquest is complete, and the conquered inhabitants can be blended with the conquerors, or safely governed as a distinct people, public opinion, which not even the conqueror can disregard, imposes these restraints upon him; and he cannot neglect them without injury to his fame, and hazard to his power. #### The Indigenous People of America - But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. - To leave them in possession of their country, was to leave the country a wilderness. - To govern them as a distinct people, was impossible, because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence. #### The Inevitable Consequence - What was the inevitable consequence of this state of things? The Europeans were under the necessity either of abandoning the country, and relinquishing their pompous claims to it, or of enforcing those claims by the sword, and by the adoption of principles adapted to the condition of a people with whom it was impossible to mix, and who could not be governed as a distinct society, or of remaining in their neighbourhood, and exposing themselves and their families to the perpetual hazard of being massacred. - Frequent and bloody wars, in which the whites were not always the aggressors, unavoidably ensued. - European policy, numbers, and skill, prevailed. - As the white population advanced, that of the Indians necessarily receded. - The country in the immediate neighbourhood of agriculturists became unfit for them. - The game fled into thicker and more unbroken forests, and the Indians followed. - The soil, to which the crown originally claimed title, being no longer occupied by its ancient inhabitants, was parcelled out according to the will of the sovereign power, and taken possession of by persons who claimed immediately from the crown, or mediately, through its grantees or deputies. #### The Law of Conqueror and Conquered - That law which regulates, and ought to regulate in general, the relations between the conqueror and conquered, was incapable of application to a people under such circumstances. - The resort to some new and different rule, better adapted to the actual state of things, was unavoidable. - Every rule which can be suggested will be found to be attended with great difficulty. #### Discovery, Conquest, and Indian Occupancy - However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear, if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned. - So, too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. - However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by Courts of justice. #### Title acquired by a Conveyance from the Crown - Another view has been taken of this question, which deserves to be considered. - The title of the crown, whatever it might be, could be acquired only by a conveyance from the crown. - If an individual might extinguish the Indian title for his own benefit, or, in other words, might purchase it, still he could acquire only that title. - Admitting their power to change their laws or usages, so far as to allow an individual to separate a portion of their lands from the common stock, and hold it in severalty, still it is a part of their territory, and is held under them, by a title dependent on their laws. - The grant derives its efficacy from their will; and, if they choose to resume it, and make a different disposition of the land, the Courts of the United States cannot interpose for the protection of the title. - The person who purchases lands from the Indians, within their territory, incorporates himself with them, so far as respects the property purchased, holds their title under their protection, and subject to their laws. - If they annul the grant, we know of no tribunal which can revise and set aside the proceeding. -We know of no principle which can distinguish this case from a grant made to a native Indian, authorizing him to hold a particular tract of land in severalty. #### The Legal Consequence of a Grant - As such a grant could not separate the Indian from his nation, nor give a title which our Courts could distinguish from the title of his tribe, as it might still be conquered from, or ceded by his tribe, we can perceive no legal principle which will authorize a Court to say, that different consequences are attached to this purchase, because it was made by a stranger. - By the treaties concluded between the United States and the Indian nations, whose title the plaintiffs claim, the country comprehending the lands in controversy has been ceded to the United States, without any reservation of their title. These nations had been at war with the United States, and had an unquestionable right to annul any grant they had made to American citizens. - Their cession of the country, without a reservation of this land, affords a fair presumption, that they considered it as of no validity. #### Proclamation of 1763 - The proclamation issued by the King of Great Britain, in 1763, has been considered, and, we think, with reason, as constituting an additional objection to the title of the plaintiffs. - By that proclamation, the crown reserved under its own dominion and protection, for the use of the Indians, "all the land and territories lying to the westward of the sources of the rivers which fall into the sea from the west and northwest", and strictly forbade all British subjects from making any purchases or settlements whatever, or taking possession of the reserved lands. - [Chief Justice Marshall rejected the argument that the Proclamation exceeded the powers of the British Crown.] #### Colonial Assemblies and Indian Deeds - The acts of the several colonial assemblies, prohibiting purchases from the Indians, have also been relied on, as proving, that, independent of such prohibitions, Indian deeds would be valid. - But, we think this fact, at most, equivocal. - While the existence of such purchases would justify their prohibition, even by colonies which considered Indian deeds as previously invalid, the fact that such acts have been generally passed, is strong evidence of the general opinion, that such purchases are opposed by the soundest principles of wisdom and national policy. #### The Court's Decision - After bestowing on this subject a degree of attention which was more required by the magnitude of the interest in litigation, and the able and elaborate arguments of the bar, than by its intrinsic difficulty, the Court is decidedly of opinion, that the plaintiffs do not exhibit a title which can be sustained in the Courts of the United States and that there is no error in the judgment which was rendered against them in the District Court of Illinois. #### Important Points Based on the Notes and Questions - The doctrine of discovery granted European nations the right to acquire title to lands, but not full rights. Indigenous people retained the right of occupancy. - The doctrine of discovery was ultimately upheld by the Supreme Court. - The case of Johnson v. McIntosh was a significant landmark in the development of American law, and it continues to be cited by courts today. - The decision highlights the importance of understanding the history of the relationship between the United States and Indigenous peoples. - It should also be noted that the Supreme Court's decision in Johnson v. M'Intosh was reached at a time when the United States was still a relatively young country and when the relationship between the federal government and Indigenous peoples was still evolving. **It is important to acknowledge that the doctrine of discovery has been widely criticized for its racist origins and its role in justifying the dispossession of Indigenous peoples.** - Today, many scholars and activists call for the doctrine of discovery to be explicitly repudiated. - The idea that European nations had the right to claim lands that were already occupied by Indigenous peoples is deeply offensive and has had a lasting impact on Indigenous communities. **It is important to consider the legacy of Johnson v. M'Intosh and its role in shaping the relationship between the United States and Indigenous peoples.** - The legal and moral questions raised by this case continue to be debated today.