“A History of America”: Comments on Johnson v M’Intosh

Winnifred Fallers Sullivan

Of the suite of early judicial opinions which pretend to establish the reach of US law, there is perhaps no case more consequential than the 1823 Supreme Court decision in Johnson and Graham’s Lessee v M’Intosh.¹ This decision originated in a plea in ejectment to quiet title to 43,000 square miles of land in Illinois and Indiana, a form of local action that was normally cognizable only by state courts but which, in this case, by virtue of clever lawyering, had been turned into a federal diversity action, and then moved in a matter of months to the Supreme Court from the brand new federal district court in the then brand new state of Illinois.² The opinion by Chief Justice John Marshall finding for the defendant concluded not just a by then decades old dispute over ownership to a tract of land; it implicated all subsequent land claims in North America—and well beyond. Virtually every sentence forges a link in the chain that binds the reader to Marshall’s complex and brilliant rhetorical violence.

As presented to the Court, Johnson v M’Intosh was ostensibly a suit between the successors to Thomas Johnson, one of a group of investors who had purchased land from the Illinois and Piankeshaw Indians fifty years earlier, and William M’Intosh, who claimed to have been granted part of the same land in 1818 as bounty provided to Virginia soldiers who had fought in the Revolutionary War. The narrow presenting question for the district court was whether the first sale was valid—or, in other words, as Marshall put it, whether the Piankeshaw and Illinois had the legal capacity to sell the land. However, also before the Court was the validity of the grants to war veterans, a promise dear to Marshall’s heart.³

While Marshall could have decided the case by declaring the sales invalid under the Royal Proclamation of 1763, George III’s declaration that prohibited settlement of Indian lands west of the Appalachians, he chose rather to use the case to affirm federal supremacy over the states and comprehensively to define the relationship of the US to the Indian nations.

The collapsing of time and space was essential to the success of Marshall’s gamble. All of the inhabitants and all of the territory and all of the centuries needed to be brought together into one legal principle that could bridge multiple claimants over multiple centuries across a variegated legal landscape. He needed to say that

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.⁴

He needed to say that the federal government now had legal title to the entire continental United States.

This was not an easy task, as Sarah Cleveland explains:

[T]he case presented a difficult conceptual problem for the Court. If the Indians were found to hold legal title to their lands, as full foreign sovereigns, the ruling would invalidate large grants of Indian-held lands made to settlers by the British Crown without tribal consent. It would also eliminate the U.S. government's power to control the disposition of Indian lands, thus exposing Indian holdings to unscrupulous land speculators. On the other hand, a ruling that the tribe did not hold title to the lands would contradict existing treaty provisions that vowed to respect Indian property rights and potentially threaten U.S. title to large tracts of land that had been ceded to the United States through Indian treaties.⁵

Marshall solves this problem by telling a story of discovery, a “history of America,” as he called it, a several hundred-year history affirming US ownership of the land, an ownership ultimately grounded in what he calls the principle of the right of discovery. “This principle,” he tells us, “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.”⁶

In his opinion Marshall recounts in rough outline the history of French, Dutch, English and Spanish efforts to be the last European nation standing in this contest. All of this history is told by way of background, in the passive voice, to display the extinguishing of Indian title from every inch of land by some European crown acting before there was a United States, the implication being that the US is not really responsible for that extinguishment. The US appears then merely as inheritor of the title acquired through all of this prior fevered discovery. Discovery does not entirely extinguish all of the rights of the inhabitants, Marshall explains with careful humanitarian condescension. The inhabitants, it turns out, still have a right of occupancy. But they have now become, as one historian has quipped, tenants in their own land.⁷

This is outrageous.

There are many reasons, however, why understanding this opinion from the heroic age of the Court should not end there. It is much more complicated. And our complicity endures. To collapse the complications into a simple invocation of victor’s justice effaces the way in which the interplay of ordinary law, politics, and business played its part—and continues to do so—and the ways in which the very expansiveness of Marshall’s opinion carries the seeds of its own subversion, revealing the lumpiness of sovereign territorial pretension described by Lauren Benton and others.⁸

First the complications, and then more about the “history of America.”

For one thing, the case was cooked up. They should not have been in the Supreme Court. The litigants, all of them on both sides land speculators, had colluded to bring the suit in order to establish title and protect their investments, presenting an agreed upon set of facts to the Illinois court, and thereby successfully evading difficult evidentiary problems caused by the length of time since the purchases. The evidence for the sales was a stipulation which the plaintiffs paid M’Intosh for. It is a sordid tale.

The plaintiffs had also carefully narrowed the legal issues to the one they thought they could win on, the reach of George III’s Proclamation of 1763 barring purchases of Indian lands west of the Appalachians. They failed in that effort. They had focused on the past. Marshall was focused on the future. By 1823 it was essential that, as Marshall put it, “As the right of society, to prescribe those rules by which property may be acquired and preserved is not, and cannot be drawn into question” and “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.⁹

By this sentence, Marshall converted the case from one sounding in either natural law or the law of nations to a question of positive law. “As now reformulated, the question was whether in 1823 Indians could give, and individuals receive, a title that could be so recognized. By means of this second framing, Marshall converted Johnson into a case about the validity of post–Revolutionary War Indian land transactions.”¹⁰

The fascinating details of the tangled history of this land claim, the many abortive efforts to petition Congress to affirm its legitimacy, and the story of the collusive nature of the eventual litigation, have been established by a recent book based on newly discovered archives of the United Illinois and Wabash Land Companies.¹¹ The claimants had been working every legal and political angle in the territory and in Washington for decades. While they made every effort to control the litigation in their favor, scheming to find a sympathetic judge and even hiring famed orator Daniel Webster to argue their case before a Court recently packed with Federalist justices, in the end the case was hijacked by Marshall to his own ends.

The apparently unitary magisterial story Marshall tells about “the history of America,” the law of nations, the law of war and necessity, and the doctrine of discovery, not only papers over the collusion; it belies and obscures a much more complex patchwork of land arrangements between Indians and various colonial and state governments, as well as with numerous land speculators, a massive greedy effort transversing periods of war and the rise and fall of colonial powers. Marshall was himself a successful land speculator, as many leading Americans were, as well as being involved in a prolonged and nasty political battle with Thomas Jefferson and others of his fellow Virginians, also land speculators. The property theories supporting those arrangements were also more varied, as Marshall himself acknowledges.

Among the larger legal and political issues implicated in this case, as would become clear in the other two of the trio of Indian cases decided by the Court during Marshall’s tenure, would become an ongoing struggle between federal and state power. When Marshall later saw how the doctrine of discovery was being used to dispossess the Indians by the states he tried to take it back, insisting that Indians retained a right of self-government.¹² By then, however, Andrew Jackson was President and he wanted to use the doctrine to underwrite Indian removal.

A further and lingering complication lies in the failure of Marshall’s opinion in Johnson v M’Intosh to resolve the ambiguity as to what exactly the doctrine of discovery gave to the U.S.: absolute ownership over Indian lands or merely the right to be first among European nations in dealing with Indian nations. This gap can be seen in retrospect to reflect what would become an ongoing tension about the source of authority for the US to act internationally—whether that power derives from the Constitution or from the “law of nations.” In other words, does the federal government have inherent powers in addition to enumerated powers—and what are those powers with respect to foreign policy in particular? This question is first raised in the trio of Marshall Indian cases and then again in the late nineteenth century cases concerning US expansion including United States v. Curtiss-Wright Exp. Corp., 299 U.S. 304, 318 (1936), and then in the Guantanamo cases.¹³

Let us return to Marshall’s history of America. He begins with discovery, carefully deflecting to the great nations of Europe and the conflict among them the responsibility for the conquest:

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.¹⁴

Masterfully employing the passive voice, Marshall appears to lament but not reject the conquest, seeing it as a deed already done:

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.¹⁵

He then details the New World activities of each European power in turn, beginning with Spain, through to the Louisiana Purchase, returning periodically to remind the reader of the great principle of discovery: “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.”¹⁶ But, again the lament, quickly dispensed with:

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 . . . 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 . . . 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.¹⁷

Marshall’s effectiveness in transforming the world through legal words is impressive and tragic, as Lindsay Robertson notes.

Marshall's incorporation of the discovery doctrine into the Johnson opinion led to political catastrophe for Native Americans . . . and the United States has inherited a legal regime dependent on their subsequent politically driven resurrection of a wrongly decided, collusive case. Perhaps even more troubling, other former British colonial states have imported the doctrine, establishing it as a baseline for indigenous relations throughout the English-speaking world.¹⁸

The opinion itself is quite remarkable as a legal text. It is a masterpiece of rhetorical overreach and strategic ambiguity. There are virtually no citations to precedent. Lindsay Robertson says that Marshall wrote it in a week, a week otherwise very busy, cribbing part of it from his Life of George Washington. He also quotes Thomas Jefferson on Marshall: “When conversing with Marshall,” Jefferson reportedly said, “I never admit anything. So sure as you admit any position to be good, no matter how remote from the conclusion he seeks to establish, you are gone.” ¹⁹

There is a sense in which every effort we make to diminish its power only enhances it. One sees in Marshall’s opinion the fancy legal footwork at the heart of the American project, one that claims fidelity to the rule of law and to the law of nations while acting as an outlaw, an outlaw whose justification in subjugating savages is in her claim to being Christian and civilized in a new and very special way.

Recognizing the collusive nature of the lawsuit and the dirty hands of the government officials who participated in it draws attention to the jurisdictional flaw at the heart of this case. But it also draws attention to how jurisdiction is effected. Johnson v M’Intosh came before the Supreme Court only as the result of a manufactured dispute designed to create diversity jurisdiction in a state which still lacked an independent circuit court of appeals. While there is evidence that Marshall was aware of all of this, he still seized the chance, as he arguably did in other early cases before the Court, to define the Court’s power expansively. He does this through jurisdiction, that is by “speaking the law.” As Justin Richland explains in his article summarizing law and language scholarship on, and the importance of, juris-diction, “by attending . . . to jurisdiction, the reader is redirected toward understanding sovereignty as an active undertaking and moreover one that is getting (re)constituted in the unfolding, unstable pragmatics of the present.”²⁰ Importantly, as Richland explains, by attending to language, we are not leaving the realm of the real, we are immersed in it. Changing the history of America is not separate from making the history. Telling a different story would involve re-writing the titles of every piece of real estate in the country. Telling a different story is what Indians all over the country today are engaged in doing.²¹

Cooper Harriss in this collection describes the Great American Novel this way:

…the central irony (some may say tragedy) of “America” rests in the notion that its potential (“who we say we are”) renders the reality (“who we are”) unbearable. Great American novels qualify as “great” because they bring the full brunt of this reality to the fore. As “novels,” they offer literary ritualization of McKeon’s internal moral state of its people. As “American” they do so through recourse to race, violence, and (re)memory (Light in August, The Sport of Kings, Toni Morrison’s Beloved [1987]), the ship of state (Moby-Dick, The Adventures of Huckleberry Finn), or notable disjunctures between appearances and reality (Invisible Man).

Might we see Marshall’s opinion as in some sense a Great American Novel avant la lettre? Might we say that there is an earlier moment before the periodizations offered by literary critics (1860’s to 1920’s) and (1920’s-1960’s)—one that reads not the Civil War but the French and Indian War as formative—and the Indian genocide, not slavery, as the original sin? The Supreme Court opinions that conjured the nation, Marbury v Madison, McCulloch v Maryland, and Johnson v M’Intosh were in many ways works of fiction. Like the novels Harriss discusses they necessarily fall short, carrying the seeds of their own failure.

Returning to Marshall we see that he legitimates the decision by drawing together in one sentence the “principles of abstract justice which the Creator of all things has impressed on the mind of his creature” and “those principles also which our own government has adopted in the particular case,” occluding and effacing the rights and actions of other governments, both European and Indian. He tells a story in which natural right and positive law are (and in some sense must be) coincident with federal ownership.

And yet he also cannot resist adding shadows to the picture. After describing the process by which the European nations fought among themselves to establish who should have the right by way of discovery, with Great Britain being left the victor, and describing the ideal process by which a subject people become assimilated to a conquering culture, Marshall says that “But the tribes of Indians inhabiting this country . . . were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence.”²² Marshall grew up on the frontier. He was not a plantation owner like Jefferson. He did not romanticize a rural agrarian democracy. There is almost regret in his assertion of the doctrine; he appears too honest to deny the crime:

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.²³

Harriss concludes: “There are no answers, only horizons. Sounding the distance between internal moral condition and external social order, Great American Novels provide the unbearable evidence of just what such gods require.” We know from the God of earlier periods in American colonial history, discussed in Constance Furey’s essay in this volume, just how terrifying that judgment is imagined.

Marshall’s trilogy can be seen now to have set the course for an attempt to make Indians permanent dependent non-citizens, but they also make very large claims about the nature of American sovereignty. It was a bold move, a Schmittian moment of creation, if you like, one of breathtaking originary violence.