A United States Supreme Court
case decided in 1823
. Chief Justice John Marshall
, writing the opinion for the majority, ruled that Native Americans
could not give private individuals a sustainable title
Facts of the case
On October 18, 1775, a group of chiefs from the Piankeshaw tribe met Louis Viviat, representing a group of investors mostly based in Maryland, at the British military post of Vincennes. The chiefs agreed to sell a large tract of land in what is now Illinois. The deed, prepared and notarized by a British notary public in December, was sold for consideration of $31,000.
At the time it was sold, this tract was located in an autonomous area within the grant of the colony of Virginia. It had become part of Virginia following the French and Indian War, in which the Piankeshaw had fought on the side of the French, who claimed the land but gave the local tribes sovereignty over their own portions of it. In 1763, France lost the war and transferred the territory to Britain. Britain continued the custom established by France, permitting the local tribes to control their own affairs in the region, which had yet to be extensively colonized by Europeans. To keep the area from being overrun by colonists, and to ease tensions between Native Americans and Europeans, King George III issued a proclamation, which said, in relevant part:
We do further declare it to be Our Royal Will and Pleasure, for the present as aforesaid, to reserve under our Sovereignty, Protection, and Dominion, for the use of the said Indians, all the Lands and Territories not included within the Limits of (Florida and Quebec), or within the Limits of the Territory granted to the Hudson's Bay Company, as also all the Lands and Territories lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West as aforesaid.
And We do hereby strictly forbid, on Pain of our Displeasure, all our loving Subjects from making any Purchases or Settlements whatever, or taking Possession of any of the Lands above reserved, without our especial leave and Licence for that Purpose first obtained.
And We do further strictly enjoin and require all Persons whatever who have either wilfully or inadvertently seated themselves upon any Lands within the Countries above described. or upon any other Lands which, not having been ceded to or purchased by Us, are still reserved to the said Indians as aforesaid, forthwith to remove themselves from such Settlements.
And whereas great Frauds and Abuses have been committed in purchasing Lands of the Indians, to the great Prejudice of our Interests. and to the great Dissatisfaction of the said Indians: In order, therefore, to prevent such Irregularities for the future, and to the end that the Indians may be convinced of our Justice and determined Resolution to remove all reasonable Cause of Discontent, We do, with the Advice of our Privy Council strictly enjoin and require, that no private Person do presume to make any purchase from the said Indians of any Lands reserved to the said Indians, within those parts of our Colonies where We have thought proper to allow Settlement: but that, if at any Time any of the Said Indians should be inclined to dispose of the said Lands, the same shall be Purchased only for Us, in our Name, at some public Meeting or Assembly of the said Indians, to be held for that Purpose by the Governor or Commander in Chief of our Colony respectively within which they shall lie: and in case they shall lie within the limits of any Proprietary Government, they shall be purchased only for the Use and in the name of such Proprietaries, conformable to such Directions and Instructions as We or they shall think proper to give for that Purpose.
On May 6
, Virginia declared its independence from Britain. Illinois became a battlefield of war, and the investors were unable to access the land they had purchased. Two years later, American revolutionary forces had captured the post at Vincennes, and Virginia declared the area part of a new county of Illinois
. In 1779
, Virginia passed a statute that said, in relevant part:
This Commonwealth hath the exclusive right of pre-emption from the Indians, of all the lands within the limits of its own chartered territory, as described by the act and constitution of government, in the year 1776. That no person or persons whatsoever, have, or ever had, a right to purchase any lands within the same, from any Indian nation, except only persons duly authorized to make such purchases on the public account, formerly for the use and benefit of the colony, and lately of the Commonwealth, and that such exclusive right or pre-emption, will and ought to be maintained by this Commonwealth, to the utmost of its power.
And be it further declared and enacted, That every purchase of lands heretofore made, by, or on behalf of, the crown of England or Great Britain, from any Indian nation or nations, within the before mentioned limits, doth and ought to enure for ever, to and for the use and benefit of this Commonwealth, and to or for no other use or purpose whatsoever; and that all sales and deeds which have been, or shall be made by any Indian or Indians, or by any Indian nation or nations, for lands within the said limits, to or for the separate use of any person or persons whatsoever shall be, and the same are, hereby declared utterly void and of no effect.
On March 1
, Virginia's representatives in Congress
transferred Illinois to the government of the United States (then operating under the Articles of Confederation
). The investors who had purchased the same land from the Piankeshaw petitioned Congress to recognize their title to the lands, but Congress refused to do so, and eventually sold 11,560 acres of land in Illinois to William M'Intosh on July 20, 1818
. M'Intosh's land grant
overlapped the property purchased from the Piankeshaw.
The following year, Thomas Johnson, one of the investors involved in the 1775 transaction, died. Johnson left his land in Illinois to his son Joshua Johnson and grandson Thomas Graham. Johnson and Graham brought an action of ejectment in court in an attempt to remove M'Intosh from their newly-inherited land. The lower court ruled for M'Intosh, and the case was brought to the Supreme Court on writ of error.
Arguments were heard from February 17 to February 19, 1823.
Johnson's lawyers made four main arguments. Their first was based on the terms of the Treaty of Utrecht and Treaty of Aix-la-Chapelle, in which Britain recognized a "right of soil" belonging to the Native Americans in Illinois. Secondly, the royal proclamation did not affect the right of the tribe to sell their property because they were not under British control at the time. Thirdly, the proclamation did not affect the right of the buyers to buy the property, because the king had no power of prerogative legislation over Virginia at the time of sale. Finally, the Virginia statute did not apply because the state assembly was not empowered to affect prior land translations.
M'Intosh's lawyers argued that Native Americans did not have a recognizable title in land, as they lived in a "state of nature" wholly different from the private property concept practiced in Europe and the United States. Because native cultures in colonized areas did not exercise property rights, European nations exercised a "doctrine of discovery" in which the first civilized nation to find the land received the right to sell it piecemeal. In the colonies, it had been a rule that all title to land had to ultimately come from the British crown. Even if the natives had remained sovereign in the wake of the French and Indian War, they were still subject to subjugation at the pleasure of the British government, since they were a conquered people.
Chief Justice Marshall issued the opinion of the Court on March 10, 1823. He faced a difficult problem: if he ruled that Native Americans had no right to land, there would be no way for them to live without constantly fleeing new landowners. He thus had to concede that they had some rights in their land. "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 their own soil at will, to whomsoever they pleased, was denied by the original fundamental principle that discovery gave exclusive title to those who made it."
On the other hand, if Marshall ruled that the United States could not appropriate Native American land at will, many portions of the country would become illegally occupied. "However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear," he wrote, "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."
The ruling in the case balanced between these two extremes. Marshall characterized the country as "granted by the crown while in the occupation of the Indians." He established that their rights were ultimately at the pleasure of the government. "Their right of possession has never been questioned. The claim of government extends to the complete ultimate title, charged with this right of possession, and to the exclusive power of acquiring that right." In effect, Native Americans became tenants under the landlord-like stewardship of the United States, and because the United States had ultimate authority over the absolute title in the land, tribes could not transfer it.
While the grant of 1775 was binding under the tribe's laws, the United States ceased to recognize it when the territory was ceded by the tribe. Marshall said that "(the tribe's) cession of the country, without a reservation of this land, affords a fair presumption that they considered it as of no validity." Johnson and Graham's appeal was therefore rejected.
Note that Native Americans could and did legally transfer their property to others; the catch is that they needed explicit authorization from Congress to do so. For more on this, see the node Treaties with the American Indian.
- Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543, 5 L.Ed. 681 (1823)
- Royal Proclamation of 1763, http://www.bloorstreet.com/200block/rp1763.htm
- Wilkins, "Johnson v. M'Intosh Revisited: Through The Eyes of Mitchel v. United States," 19 Am. Indian L. Rev. 159 (1994)
- Singer, Property Law (3d ed., 2002)
- Churchill, History of the English-Speaking Peoples (Commager arrangement, 1995)