The landmark 1823 Supreme Court case set a precedent that has undermined tribal sovereignty ever since

ICT: RENAE DITMER

If Johnson v. M’Intosh isn’t one of the first cases presented on the first day of law school everywhere in the United States, Michael-Corey F. Hinton would be surprised, and likely, sorely disappointed. The landmark case, decided 200 years ago this year by the U.S. Supreme Court, set in motion land use laws for Indian Country that eventually led to widespread injustices and land grabs with egregious implications for tribal self-determination.

Pawnee author and lawyer Walter R. Echo-Hawk called it one of “the 10 worst Indian law cases ever decided” in his 2010 nonfiction book, “In the Courts of the Conqueror.” It might actually be one of the 10 worst cases ever decided by the Supreme Court.

Hinton, an attorney with the Drummond Woodsum law firm in Portland, Maine, which represents a number of tribal nations, told ICT he considers the decision “the center of how U.S. property law developed…and the foundation of all American law.” He sees “a pretty direct line between this case and how most property laws operate in the U.S.,” and, more importantly, how property law is enacted in Indian Country.

And that’s where things get sticky. And long. Two hundred years of settled law is worth several dissertations, but the objective here is to outline the history of the law, summarize its meaning over time, and ponder what it means from today forward.

Here we go.

Legal fight for land

The lawsuit was filed by the heirs to the lands of Thomas Johnson, an American politician who later briefly served as a U.S. Supreme Court justice. Johnson was purported to have purchased land in 1773 and 1775 from the Piankeshaw tribes in what was then Indiana Territory. Side bar: This was obviously prior to the existence of the United States as a sovereign nation and before the existence of the U.S. Supreme Court.

M’Intosh, however, claimed he had ownership of the land, saying it was among the 11,560 acres he had purchased from Congress in 1818.

The lawsuit by the Johnson heirs sought to evict M’Intosh (pronounced as McIntosh) from the land by claiming their title was obtained earlier, while the lands were considered colonies of Great Britain, which had obtained the property via a land patent.

The sweeping decision, written by Chief Justice John Marshall, concluded that tribes had no authority to sell their trust lands to individuals, meaning that only the federal government had the authority to purchase it. The ruling concluded that the Johnson heirs had no title to the land because the U.S. government’s rights to acquire it superseded their rights under Great Britain.

Author Stephen L. Pevar offered a summary of the general meaning of Johnson v. M’Intosh in his 2012 book, “The Rights of Indians and Tribes.” Pevar has been an attorney with the American Civil Liberties Union for nearly 40 years and is now senior staff attorney for the ACLU’s racial justice program. He specializes in Indian and tribal rights and other issues, and served as a staff attorney with South Dakota Legal Services on the Rosebud Indian Reservation before joining the ACLU.

He concludes that Indian Country is defined as land held in trust by the U.S. government for use by Native people, including land within reservation lands and those outside reservation lands that are under federal supervision. Tribes may also purchase land, referred to as “fee land,” which is not held in trust by the U.S. government and which is not impacted by Johnson v. M’Intosh.

The result, he said, is that cases dealing with disputes involving use such as planning or zoning on tribal trust lands are referred to tribal courts, while land use cases that involve other jurisdictions or individuals are referred to federal courts. In neither case do trust land cases go to state or local courts, though fee land cases often end up in local or state courts. If you’re confused by now, you’re keeping up.

The U.S. Supreme Court was asked to determine who held title to lands after the U.S. won its independence from Great Britain. Although the new country was officially formed in 1776, claims to the territory began with the purported arrival of Columbus in 1492, leaving almost 300 years for people to stake out, buy and sell property — including tribes and tribal citizens.

Robert J. Miller, professor at the Sandra Day O’Connor College of Law at Arizona State University and an expert in Indian law, said Indian nations were powerful and confederated on big issues long before the colonists arrived. They established and recognized boundaries and understood and practiced sovereignty, Miller said.

Enter Johnson v. M’Intosh in 1823. The Supreme Court was petitioned to determine whether a non-Indian who had bought land from an Indian tribe had obtained valid title to that land. In other words, did the non-Native person now own it?

Pevar succinctly summed up the question before the Supreme Court. “Was it the Indians, who had lived on those lands for centuries,” he asked, “or the new U.S. government, which had yet to even explore most of these areas?”

The Supreme Court issued its ruling the same year the suit was filed. The court concluded on March 10, 1823, that the non-Indian who purchased land from a tribe did not hold valid title to the land because the land was not the tribe’s to sell. Chief Justice Marshall participated in the decision despite a clear conflict of interest, since his vast land holdings would have been adversely affected by a different decision.

The ruling incorporated the “Doctrine of Discovery,” which had emerged in international law from papal bulls issued as early as the 1400s that concluded that Christian colonizers could acquire lands they “discovered” from non-Christians.  So, it was M’Intosh for the win, and tribes — and the Johnson heirs — for the loss for the 200 years since the ruling. 

Matthew L. M. Fletcher, Harry Burns Hutchins Collegiate Professor of Law at the University of Michigan School of Law, said the Supreme Court ruling meant that Native people could not sell their property interests – known then as Indian title, original Indian title, or aboriginal title — to anyone except the U.S. government.

“Indian sales to individuals (as in this case) or to states or any other nation were void,” he concluded in an article in the American Bar Association Journal. “The court confirmed national authority over Indian affairs, which had barred all land and commercial transactions with Indians absent sovereign consent since at least the 1763 British Proclamation, a policy adopted by the First Congress in the 1790 Trade and Intercourse Act.” 

Today’s views

So, on the 200th anniversary of Johnson v. M’Intosh, I would be seriously remiss if I didn’t address the real elephant in the courtroom: the Doctrine of Discovery and its continued impact on tribes.

With its origins in the The Papal Bull “Inter Caetera,” issued by Pope Alexander VI on May 4, 1493, the doctrine basically declares that any land not inhabited by Christians was available to be “discovered,” claimed and exploited by Christian rulers, and declared that “the Catholic faith and the Christian religion be exalted and be everywhere increased and spread, that the health of souls be cared for and that barbarous nations be overthrown and brought to the faith itself.”

That’s rather pretentious, but not necessarily unique to Christian colonizers or imperialists.

According to Muqtedar Khan, professor in the Department of Political Science and International Relations at the University of Delaware and founding director of its Islamic Studies Program, Muslims rationalized some of the Islamic and Ottoman conquests in a similar way. “Some Muslim advisors to kings developed the idea of darul Islam and darul harb and argued that it was acceptable to conquer (fatah) those areas at war with Islam to establish Islam,” Khan said. “Fatah literally means to open up, so open up areas for Islam. The Ottomans in particular used this theory.”

But back to the Doctrine of Discovery. Although the Vatican formally repudiated the Doctrine of Discovery with an announcement on March 30, the decision will not alter U.S. case law.

Kevin Allis, president and owner at Thunderbird Strategic and first chief executive officer of the National Congress of American Indians and member of the Forest County Potawatomi Community, had plenty to say on how that kind of thinking has played out historically for tribes in the United States.

“The Doctrine of Discovery perpetuates and legitimizes Christians’ rationale that their beliefs were more civilized than Indians’,” he said. “I find it fascinating that some of the rationale in this case and what supported the doctrine at the time (virgin land, demons, sacrilegious beliefs, not considering Indians real people, were not humanity) so the land is ours and we can trample on it.”

He continued, “Worse, they still see Indian communities the same today. This has led to the creation of a mythical belief that we are substandard; therefore we shouldn’t be considered as equal when it comes to funding, legal rights, and governmental sovereignty. This is fueled by a nonsensical belief that never took a look at who we were.” The ruling is yet another way to marginalize Native people, he said.

“They don’t call us pure savages anymore, and when it comes to making good decisions, I can’t help but think that these misunderstandings influence their decisions,” he said. “At the time of the Johnson v. M’Intosh decision, there were no Catholic justices on the Supreme Court … So, the question hangs out there as to why a Catholic doctrine so heavily influenced a non-Catholic Supreme Court in 1823?”

The takeaway is perhaps best summarized by Richard McGee, principal at the Law Offices of Richard McGee in Minneapolis, Minnesota. “The Supreme Court swallowed the fiction that not only did Europeans discover Americas and ‘conquer’ tribes,” he said. “The U.S. became the superior sovereign, so the U.S. can define the laws.”

What’s next? To be determined.

Rare historical documents on view
The First Americans Museum and the University of Oklahoma Law School Library are presenting a special exhibit featuring historical documents never before shown publicly that are related to the Johnson v. M’Intosh ruling and the Indian Removal Act.
The exhibit opened March 10 and will remain open through Aug. 31 in the Tribal Nations Gallery, 659 First Americans Blvd, Oklahoma City, Oklahoma.

Renae Ditmer, Ph.D., is a Native entrepreneur and an expert in tribal sovereignty and governance. She founded STRATCON LLC in 2007 to provide research and management expertise to both the federal government and tribes and has written for Indian Country Today, now ICT, since 2016. She has a doctorate in government from Georgetown University and a master’s in strategic studies and international economics from the Johns Hopkins Paul H. Nitze School of Advanced International Studies. She is a citizen of the Sault Tribe of Chippewa Indians.