Published online by Cambridge University Press: 28 October 2011
At the root of most land titles in America outside the original thirteen colonies sits a federal patent. The validity of government title, in turn, rests on “[t]he great case of Johnson v. M'Intosh,” which held that a discovering sovereign has the exclusive right to extinguish Indians' interests in their lands, either by purchase or just war. Yet both legal and historical scholarship on this “great case” is surprisingly thin. There are no studies examining the litigants or the actual acreage under dispute (surprising for a real property dispute). There are also a number of unanswered legal questions surrounding Chief Justice Marshall's opinion in M'Intosh, perhaps none more glaring than the failure to pin down the legal basis for the decision. This article endeavors to fill in these gaps.
1. Tee-Hit-Ton Indians v. United States, 348 U.S. 272, 279 (1954), citing Johnson v. M'Intosh, 21 U.S. (8 Wheat.) 543 (1823). In the opinion itself, Chief Justice Marshall adverted to the “magnitude of the interest in [this] litigation.” Ibid., 604. A prominent national newspaper reported in only a short paragraph the outcome of a closely watched Kentucky land title case, Green v. Biddle, 21 U.S. (8 Wheat.) 1 (1823), but devoted an entire column to Johnson v. M'Intosh: “from the great importance of the subject matter in controversy, [Johnson v. M'Intosh] seems to require rather a more detailed notice than it is usual, or even possible, in general to take of questions argued before [the Supreme Court].” Niles'Register (Baltimore), March 28, 1823, at 3 (vol 24, no. 1). The article goes on to laud Marshall's opinion as “one of the most luminous and satisfactory opinions we recollect ever to have listened to…”
2. I discuss this law and economics interpretation of Johnson v. M'Intosh and a host of other European and American legal rules at greater length in “The Dark Side of Efficiency: Johnson v. M'Intosh and The Expropriation of Indian Lands,” University of Pennsylvania Law Review 148 (2000): (1065–1190).
3. Given the colonizers' superior might, Indian rules governing land transactions had little impact on transactions between the two sides.
4. Johnson v. M'Intosh, 573.
5. Ball, Milner S., “Constitution, Court, Indian Tribes,” American Bar Foundation Research Journal 3 (1987): 24.Google Scholar Other scholars have made the same point. See Lindley, Mark Frank, The Acquisition and Government of Backward Territory in International Law (London: Longmans, Green, 1926), 29Google Scholar; Youngblood Henderson, J., “Unraveling the Riddle of Aboriginal Title,” American Indian Law Review 5 (1977): 75, 90CrossRefGoogle Scholar; Hurley, John, “Aboriginal Rights, The Constitution and the Marshall Court,” Revu Juridique Théoretique 17 (1982–1983): 403, 418Google Scholar; Berman, Harold, “The Concept of Aboriginal Rights in the Early Legal History of the United States,” Buffalo Law Review 27 (1978): 637, 644.Google Scholar
6. Johnson v. M'Intosh, 573; Alvord, Clarence W., The Illinois Country, 1673–1818, Centennial History of Illinois 1 (1920; reprint, Chicago: Loyola University Press, 1965), 206Google Scholar (documenting private purchases from Indians under French rule in Illinois). The United Illinois and Wabash Land Companies, An Account of Proceedings of the Illinois and Ouabache [Wabash] Land Companies (Philadelphia: Young, 1796), iiiGoogle Scholar (Early American Imprints, 1st series, no. 30,618 [hereafter United Companies, 1796 Memorial]) (averment that French land records in Illinois included private purchases from tribes).
7. Williams, Robert A., The American Indian in Western Legal Thought: The Discourses of Conquest (New York: Oxford University Press, 1990), 211Google Scholar (quoting Governor Harvey); John Winthrop, Conclusions for the Plantation in New England, cited in Weinberg, Albert K., Manifest Destiny: A Study of Nationalist Expansionism in American History (Baltimore: Johns Hopkins Press, 1935), 74Google Scholar; Jennings, Francis, The Invasion of America: Indians, Colonialism, and the Cant of Conquest (New York: Norton, 1976), 80Google Scholar, citing Purchas, Samuel, Hakluytus Posthumus or Purchas His Pilgrimes (London, 1625), 4:1814.Google Scholar
8. John Quncy Adams, “Oration of the Anniversary Festival of the Pilgrims (1802),” quoted in Charles C. Royce, Indian Land Cessions in the United States (Eighteenth Annual Report of the Bureau of American Ethnology, 1896–97, part 2), 527, 536; Prucha, Francis Paul, American Indian Policy in the Formative Years: The Indian Trade and Intercourse Acts, 1790–1834 (Lincoln: University of Nebraska Press, 1970), 227Google Scholar (citing a letter from President Monroe to Andrew Jackson, Oct. 5, 1817); A Compilation of the Messages and Papers of the Presidents, 1789–1897 (James D. Richardson ed., New York 1896), 2:16; Roosevelt, Theodore, The Winning of the West (New York: G. Putnam and Sons, 1889), 1:90.Google Scholar
9. Carter, Clarence Edwin, ed., The Territorial Papers of the United States (Washington: GPO, 1939), 6:106–13.Google Scholar
10. Eno, Joel N., The Puritans and Indian Lands (New York: 1906), 1Google Scholar, cited by Kawashima, Yasuhide, Puritan Justice and the Indians: White Man's Law in Massachusetts (Middletown: Wesleyan University Press, 1986), 47–48, 50, 51Google Scholar; Whitmore, William H., ed., The Colonial Laws of Mass. Reprinted from the Edition of 1660, with the Supplements to 1672 (Boston: City Council of Boston, 1889), 160–61Google Scholar; Springer, James Warren, “American Indians and the Law of Real Property in Colonial New England,” American Journal of Legal History 30 (1986): 49.CrossRefGoogle Scholar
11. Cohen, Felix S., “Original Indian Title,” Minnesota Law Review 32 (1947): 28, 37 n. 20, 46.Google Scholar Citing the Report of the Commission of Indian Affairs for 1872, Cohen maintains that “[e]xcept only in the case of the Indians in Minnesota, after the outbreak of 1862, the United States government has never extinguished an Indian title as by right of conquest; and in this latter case the Government provided the Indians another reservation, besides giving them the proceeds of the sales of the lands vacated by them in Minnesota.”
12. Johnson v. M'lntosh, 574.
13. Stitt Robinson, W., Mother Earth: Land Grants in Virginia, 1607–1699 (Richmond: Virginia 350th Anniversary Corp., 1957), 3.Google Scholar
14. 3 Johnson's Reports 375, 384–85 (N.Y. 1808).
15. As discussed above, the French apparently did not adopt such a rule and recognized private purchases of Indian lands.
16. Springer, “Indians and the Law of Real Property,” 35–39 (collecting cites). Rhode Island appears to be an exception to the otherwise universal colonial rule against private purchases from the natives. Based on the radical politics of the colony's founder, Roger Williams, and his relatively friendly posture toward the Indians, “in early Rhode Island the acquisition of the Indian title was thought to be paramount, and merely perfunctory approval of the purchase was made by the legislature.” Livermore, Shaw, Early American Land Companies: Their Influence on Corporate Development (1939; reprint, New York: Octagon Books, 1968), 21Google Scholar (footnote omitted). For additional history on the inalienability of aboriginal land title in the British Colonies, see McNeil, Kent, Common Law Aboriginal Title (Oxford: Oxford University Press, 1989), 221–41.Google Scholar
17. Clinton, Robert N., “The Proclamation of 1763: Colonial Prelude to Two Centuries of Federal-State Conflict over the Management of Indian Affairs,” Boston University Law Review 69 (1989): 329, 349.Google Scholar For the complete text of the Proclamation of 1763, see Washburn, Wilcomb E., The American Indian and the United States: A Documentary History (New York: Random House, 1973), 3:2135Google Scholar, or Clinton, “Proclamation of 1763,” 328 (Appendix); Journals of the Continental Congress, 24:264, 319–20; 25:602; 1 Stat. 138 (1790); 1 Stat. 330 (1793); 1 Stat. 472 (1796); 1 Stat. 746 (1799). Congress worded these later statutes quite broadly, criminalizing the act of negotiating (“treating”) with the Indians for land “directly or indirectly.”
18. American State Papers: Documents, Legislative and Executive of the Congress of the United States, Public Lands (Washington: Gales and Seaton, 1834), 1:9; Shurtleff, Nathaniel, ed., Records of the Governor and Company of the Massachusetts Bay in New England (Boston: W. White, 1853), 4:282Google Scholar (statute of 1665 barring leases); Livermore, Early American Land Companies, 198–203 (administrators refuse to recognize 999-year lease given by Seneca tribe to the New York-Genesee Land Company); Springer, “Indians and the Law of Real Property,” 36 (barring timber sales); The Seneca Lands, Opinions of the United States Attorney General (1819), 1:465 (same); Johnson v. M'Intosh, 570, citing Sullivan, James, The History of Land Titles in Massachusetts (1801; reprint, Buffalo: W. S. Hein, 1972), 45Google Scholar; Kawashima, Puritan Justice, 54 (sovereign approving purchase from Indians after the fact).
19. Command, John R., “The Story of Grosse Ile,” Michigan Historical Magazine 3 (1919): 130Google Scholar One George Ash, in 1807, was the recipient of “the last Indian grant to receive any favorable treatment from Congress.” Ash, originally abducted by the Indians, had become very friendly with his captors and the tribes eventually released him. Congress gyrated on the petition for five years, eventually approving a 640–acre Indian grant. Treat, Payson Jackson, The National Land System, 1785–1820 (New York: E. B. Treat, 1910), 296–97Google Scholar; American State Papers, Public Lands, 2:11 (Application to Confirm an Indian Grant, Communicated to the House of Representatives, January 20, 1810).
20. Letter from Washington to Crawford, in The Writings of George Washington (Washington, D.C.: GPO, 1931), 2:220Google Scholar; Volwiler, Albert T., George Croghan and the Western Movement, 1741–1782 (Cleveland: Arthur H. Clark, 1926), 257, 296–97Google Scholar; Sosin, Jack M., “The Yorke-Camden Opinion and American Land Speculators,” Pennsylvania Magazine of History and Biography 85 (1961): 38, 42–43Google Scholar; Alvord, Clarence, The Mississippi Valley in British Politics: A Study of the Trade, Land Speculation, and Experiments in Imperialism Culminating in the America Revolution (Cleveland: Arthur H. Clark, 1917), 2:201Google Scholar. There appear to have been at least two similar documents supporting private purchases of Indian lands. Samuel Wharton, the Philadelphia Indian trader and western land speculator, “wrote that he had secured a very full and satisfactory opinion from Sarjeant Glynn, ‘the best Lawyer, Lord Camden assures me, in England,’ upon the title of the Indian grant of 1768.” Lewis, George Elmer, The Indiana Company, 1763–98 (Glendale, Cal.: Arthur H. Clark, 1941), 159.Google Scholar The United Illinois and Wabash Companies cited Glynn's opinion in their last memorial to Congress. United Companies, Memorial of 1816, 46–47 (Early American Imprints, 2d series, no. 39, 145). The United Companies also reproduced an opinion by Henry Dagge, Esq., on the validity of private purchases of Indian lands. Ibid., 45–46. Benjamin Franklin and Patrick Henry wrote short endorsements of both opinions. Ibid. 47. According to the United Companies, both opinions and the endorsements were authored in 1775.
21. Marks, Anna Edith, “William Murray, Trader and Land Speculator in the Illinois Country,” Transactions of the Illinois State Historical Society 26 (1919): 190.Google Scholar Marks's article contains the most reliable account of William Murray and the thin record of his activities in Illinois. A more recent biography of Murray is not reliable. See Ridge, Martin, Book Review, Illinois History Journal 82 (1989): 275Google Scholar (reviewing Murray, Myles N. and Zoda, Robert V., William Murray, Esq.: Land Agent in the Illinois Territory Before the Revolutionary War (Brooklyn: T. Gaus, 1987)Google Scholar (“Dubious premises, unsubstantiated assertions, and a lack of hard facts plague the authors” in their “shabby and misguided effort to make a Revolutionary hero of a failed intriguer…”). For similar appraisals, see Guice, John D. W., Book Reviews, Journal of Mississippi History 51 (1989): 265Google Scholar; Henderson, Dwight F., Book Reviews, Journal of the Early Republic 9 (1989): 558.CrossRefGoogle Scholar The Illinois Company involved in the Johnson v. M'Intosh case must be distinguished from an earlier (1766) abortive venture of the same name. See Alvord, The Mississippi Valley in British Politics, 1:94–101, 316–24; White, Richard, The Middle Ground: Empires, Indians and Republics in the Great Lakes Region, 1650–1815 (New York: Cambridge University Press, 1991), 308 n.77.CrossRefGoogle Scholar
22. Alvord, Clarence W., The Illinois Country, 1673–1818, vol. 1 of The Centennial History of Illinois (1920; reprint, Chicago: Loyola University Press, 1965), 301Google Scholar, citing letter of Lord to Haldimand, July 3, 1773 (British Museum); United Companies, 1796 Memorial, i–ii (Murray's abstract of transaction); White, The Middle Ground, 17, 19.
23. Blasingham, Emily J., “The Illinois Indians, 1634–1800: A Study in Depopulation” (Ph.D. diss., University of Illinois, 1956)Google Scholar, summarized in Ethnohistory 3 (1956): 193–224, 361–412; Sturtevant, William C. and Trigger, Bruce G., eds., Handbook of North American Indians (Washington, D.C.: Smithsonian Institution, 1978), 15:594–97, 674, 678–79.Google Scholar Less than one hundred years earlier, the Illinois Confederation consisted of as many as twelve distinct tribes, but the severe population decline led to a series of mergers and extinctions that left only these three. The map above (68) shows the location of the Illinois Company's purchases. Murray promptly recorded the deed at the Kaskaskia records office. United Companies, 1796 Memorial, i–ii, 11–12.
24. United Companies, 1796 Memorial, 5 (quoting deed), 49; Johnson v. M'Intosh, 553.
25. United Companies, 1796 Memorial, 6. This alternative grant is reiterated in the habendum clause of the deed: “to HAVE and to HOLD [to the grantees individually] or unto his said Majesty… to and for the use, benefit, and behoof of the said grantees…” Ibid. 9.
26. Sosin, Jack M., Whitehall and the Wilderness: The Middle West in British Colonial Policy (Lincoln: University of Nebraska Press, 1961), 233Google Scholar; Marks, “William Murray,” 203 n.92 (order dated March 9, 1774).
27. United Companies, 1796 Memorial, ii–iii (Murray's abstract of transaction).
28. Marks, “William Murray,” 202; Alvord, Illinois Country, 302–3 and n.35.
29. Viviat was “a prominent Frenchman of Kaskaskia.” Carter, Clarence Edwin, Great Britain and the Illinois Country, 1763–1774 (1910; reprint, Port Washington, N.Y.: Kennikat Press, 1970), 69.Google Scholar He was apparently a farranging trader; business took him as far east as Pittsburgh. Alvord, Clarence Walworth and Carter, Clarence Edwin, eds., Trade and Politics, 1767–1769, vol. 26 of the Collections of the Illinois State Historical Society, British Series 3 (Springfield, Ill.: Trustees of the Illinois State Historical Society, 1921), 142.Google Scholar He served as a judge under the British regime in Illinois and remained loyal to the British during the Revolution. See Alvord and Carter, Trade and Politics, 462–67, and Alvord, Illinois Country, 320. This led to a break with Murray, who was a revolutionary and “devoted both time and money to the cause of the revolting colonies…” See Alvord, Illinois Country, 321–22.
30. Marks, “William Murray,” 204; Sturtevant and Trigger, Handbook of North American Indians, 15:596–97, 681, 688. Population figures for the Piankashaw tribe alone are apparently unavailable; United Companies, 1796 Memorial, 17, 21–22, 49; Johnson v. M'lntosh, 557. The map above (68) shows the location of the Wabash Company's purchases. Wabash Company investors included Virginia Governor Lord Dunmore and Maryland Governor Thomas Johnson—predecessor in interest to the Johnson v. M'lntosh plaintiffs, Joshua Johnson (his grandson) and Thomas Graham (son-in-law).
31. United Companies, 1796 Memorial, 19 (granting clause), 23 (habendum clause), 23–24 (mentioning only Piankashaw chiefs as signatories to deed); White, The Middle Ground, 372.
32. Gates, Paul Wallace, History of Public Land Law Development (Washington D.C.: GPO, 1968), 64Google Scholar, quoting statement of Rep. David Howell, Rhode Island.
33. Wilson was an inveterate land speculator, investing in at least two other large schemes: the (in)famous Yazoo lands and the Indiana Company. Peter Magrath, C., Yazoo—Law and Politics in the New Republic: The Case of Fletcher v. Peck (Providence: Brown University Press, 1966), 5Google Scholar; Sakolski, Aaron M., The Great American Land Bubble (New York: Harper and Bros., 1932), 135Google Scholar; Lewis, The Indiana Company, 253. Morris bought a share of The United Company on October 2, 1779. Minutes of the United Illinois and Wabash Land Companies 46 (manuscript in collection of the Historical Society of Pennsylvania, Philadelphia) [hereafter Minutes of the United Companies]. Abernethy, Thomas Perkins, Western Lands and the American Revolution (New York: D. Appleton, 1937), 60Google Scholar, discusses some of Dr. Walker's speculation. The members of the United Companies proposed granting Generals St. Clair, Thompson, and Parsons tracts of up to 24,000 acres and discussed extending the same terms to Brigadier General Wayne. Apparently contemplating the formation of a broader base of support for their claims, the shareholders also considered smaller grants to soldiers of lower rank. Minutes of the United Companies, 50, 53–58, 61.
34. Minutes of the United Companies, 19, 62–67; United Companies, 1796 Memorial, ix, 7–13; United Illinois and Wabash Land Companies, 1803 Memorial to Congress (Early American Imprints, 2d series, no. 5193, 9–14).
35. William P. Palmer, ed., Calendar of Virginia State Papers and Other Manuscripts, 1652–1781 (1875), 1:314 (Dec. 26, 1778); Livermore, Early American Land Companies, 95–96; Alvord, Illinois Country, 341, citing William Waller Hening, ed., The Statutes at Large of Virginia (1809), 10:97; Lewis, The Indian Company, 220. Virginia's 1779 statute barring private land purchases from the Indians replaced a similar provision that appears to have lapsed prior to the United Companies purchases; the legal implications of this lapsed statute in the Johnson v. M'Intosh case are discussed below.
36. Donaldson, Thomas, The Public Domain (Washington: GPO, 1884; reprint, New York: Johnson Reprint Corp., 1970), 67–70Google Scholar; Jensen, Merrill, The Articles of Confederation: An Interpretation of the Social-Constitutional History of the American Revolution, 1774–1778 (Madison: University of Wisconsin Press, 1940), 225–26Google Scholar; Letter from Thomas Jefferson to Rayneval (March 20, 1801), in Ford, Paul L., ed., Writings of Thomas Jefferson (New York: G. P. Putnam, 1892–1899), 8:19–21.Google Scholar
37. Minutes of the United Companies, 82–84 (1781, 1782), 98 (1787), 101 (1790), 105 (1796), 107–108 (April 12, 1799) (empowering Wilson and Morris “to prosecute the business of this Company” with Congress). The company granted Wilson an extra share for drafting the first memorial; no payment is recorded for the later ones.
38. Minutes of the United Company, 104 (Jan. 23, 1787), 116–19 (Feb. 6, 1793), 157–59 (April 2, 1793, citing the first Trade and Intercourse Act, codifying ban on private purchases of Indian land).
39. The Companies assessed each shareholder $50 on Nov. 3, 1778; $100 on Nov. 7, 1778; $30 on March 24, 1779; and £5 (Pennsylvania currency) on September 24, 1781; ibid., 5, 6, 20, 98; ibid., 28, 61 (number of shares authorized and issued); ibid., 112–13(Dec. 1792) (sale of share to Nicholson). Interestingly, in a later (1793) transaction between two insiders, Michael Gratz paid David Franks $500 Spanish Milled Dollars for a share. Gratz and Franks were business partners in other ventures, and it is possible that this was a sham transaction to try to prop up the publicly perceived value of shares.
Land claims based on Indian deeds sold at deep discounts; as early as 1779, “[s]hares in the Indiana Company [discussed above, note 33] were advertised for sale and brought when sold at about twenty per cent of their estimated face value…” Volwiler, George Croghan, 314. Sales at 20 percent of face value correspond precisely to the ratio that United Companies insiders were willing to pay for the share Nicholson bought at full price.
40. Minutes of the United Companies, 15.
41. The members first discussed this approach at a meeting in late 1781 and proposed “cleansing” their title via a United States patent in all subsequent memorials. Ibid., 98. For subsequent offers, see United Illinois and Wabash Land Companies, Memorial of 1797, 5 (Early American Imprints, 1st series, no. 32, 977); Minutes of the United Companies, 98 (fall 1781) (one fifth, consisting of part of the first, or southern, Illinois Company tract); ibid., 110 (Dec. 17, 1791) (one eighth, no location specified).
42. Statement of December 1791, included in United Companies, 1796 Memorial, 29; ibid., 50–51; United Companies, 1797Memorial, part 1, 5, 6; ibid., Appendix II (“Additional Statements by the Agents of the Illinois and Wabash Land Companies”), 7 [emphasis in original]; ibid., Appendix I, 3; Carter, Territorial Papers of the United States, 1:115–16 (Report of Committee [on] The United Land Companies of the Illinois and Wabash, June 27, 1788).
43. United Companies, 1796 Memorial, 28, 47; Report of the Committee To whom was referred, on the 13th ultimo, The Memorial of the Illinois and Wabash Land Company, Feb. 3, 1797 (Early American Imprints, 1st series, no. 33,032).
44. 2 U.S. (2 Dall.) 304, 28 F. Cas. 1012 (no. 16,857) (Circuit Ct. Pa., 1795); United Companies, 1797 Memorial, Appendix III, 6–7. The Memorial quoted the case without a citation.
46. Carter, Territorial Papers of the United States, 2:490–92 (Oct. 28, 1797).
47. United Companies, Memorial of 1802 (Early American Imprints, 2d series, no. 3191); United Companies, 1803 Memorial; United Companies, Memorial of 1810, reprinted in American State Papers, Public Lands, 2:110; Carter, Territorial Papers of the United States, 7:205–8, 311–12, 329, 445; Esarey, Logan, ed., Messages and Letters of William Henry Harrison (Indianapolis: Indiana Historical Commission, 1922), 1:102.Google Scholar
48. Harper argued (often with co-counsel) at least eighty-six cases between 1806 and 1825. Search of LEXIS, Genfed Library, US file (March 12, 1997). In addition to Johnson v. M'lntosh, he argued such leading cases as Strawbridge v. Curtiss, 7 U.S. (3 Cranch) 267 (1806) (requiring complete diversity between litigants in order to invoke federal courts' diversity jurisdiction) [Harper's first Supreme Court case, successfully argued] and Fletcher v. Peck, 10 U.S. (6 Cranch) 87 (1810) (holding that the Contract Clause barred Georgia from rescinding grants made as part of the Yazoo scheme). Harper served as the Yazoo Company's Philadelphia agent in 1791. Sommerville, Charles William, Robert Goodloe Harper (Washington: Neale, 1899), 7.Google Scholar Apparently he purchased some shares himself. He also invested in the North American Land Company and authored at least part of a pamphlet supporting its claims.
49. United Companies, 1810 Memorial, 111, 116. The Companies offered, as an alternative, to take debt certificates equal in value to the land, to be paid off from land sale proceeds.
50. American State Papers, Public Lands, 2:253 (Report of Committee on Public Lands, Jan. 10, 1811). Congress cited the long list of the colonial statutes against private land purchases discussed in the first part of this article.
51. Alvord, Illinois Country, 416.
52. “Hints on the Subject of Indian Boundaries, Suggested for Consideration” (Dec. 29, 1802), in Bergh, Albert E., ed., The Writings of Thomas Jefferson (Washington, D.C.: Thomas Jefferson Memorial Association, 1907), 17:375Google Scholar; Smith, Dwight L., “Indian Land Cessions in the Old Northwest, 1795–1809” (Ph.D. diss., Indiana University, 1949), 257Google Scholar; 7 Stat. 78, 200 (1803); Treat, The National Land System, 404 (giving acreage of tract). For maps of this and the other cessions cited, see Royce, Indian Land Cessions, pls. 124–26; Smith, “Indian Land Sessions,” 245, citing letter from William Henry Harrison to Secretary of War Dearborn, March 3, 1805 (manuscript in the Esarey Collection) (claiming fear of Potowatomis was main reasons Kaskaskians agreed to treaty of cession); Horsman, Reginald, Expansion and American Indian Policy, 1783–1812 (East Lansing: Michigan State University Press, 1967), 146Google Scholar; Treat, The National Land System, 169; White, The Middle Ground, 474 n.6.
53. Carter, Territorial Papers of the United States, 7:46–47, 53–54.; Dawson, Moses, A Historical Narrative of the Civil and Military Services of Major-General William H. Harrison (Cincinnati: Dawson/Advertiser, 1824), 25–26.Google Scholar
54. 7 Stat. 81 (Delaware; 1804); 7 Stat. 83 (Piankashaws; 1804); 7 Stat. 91, 100 (Miamis; 1805); 7 Stat. 113 (Miamis including Eel Rivers, Delawares, and Potowatomis; 1809); 7 Stat. 116 (Weas; 1809); 7 Stat. 117 (Kickapoos; 1809).
55. Ernst, Joseph W., “With Compass and Chain: The Federal Land Surveyors in the Old Northwest, 1785–1816” (Ph.D. diss., Columbia University, 1958), 251 (map)Google Scholar; Rohrbough, Malcolm J., The Land Office Business: The Settlement and Administration of American Public Lands, 1789–1837 (New York: Oxford University Press, 1968), 28Google Scholar; Congressional Information Service, Index to Presidential Executive Orders and Proclamations (1986) (CIS no. 1806–52–13), 1:65 (announcing commencement of land sales at Vincennes on October 10, 1806).
56. 2 Stat. 446, 447 (1807) (declaring need for more time to clear up claims in Kaskaskia district); 2 Stat. 607 (1810) (confirming claims approved by Kaskaskia commissioners made through 1809); 2 Stat. 677 (1812) (reexamining existing claims and permitting new claims in Kaskaskia district); Buck, Solon J., Illinois in 1818 (Urbana: University of Illinois Press, 1967), 53Google Scholar; 2 Stat. 797 (1813). Congress twice extended the time period for preemptive claims in the Kaskaskia district. 3 Stat. 307 (1816); 3 Stat. 218 (1815); 2 Stat. 797 (1813).
57. William Mclntosh apparently emigrated to America from Scotland after his father joined Bonnie Prince Charles's failed uprising and thus forfeited the family estate. Quaife, Milo M., ed., John Askin Papers (Detroit: Detroit Library Commission, 1928), 1:293–94 n.15.Google Scholar He served in the King's army during the Revolutionary War, rising to the rank of major. Carter, Territorial Papers of the United States, 7:669 (Letter from Governor Harrison to the Secretary of the Treasury Gallatin, Vincennes, Aug. 29, 1809); Letter to the Western World, Extra, Frankfort, Thursday, March 3, 1808, ibid., 8:94. After the war, Mclntosh appeared as an attorney in Vincennes and resided there until at least 1816; at some date thereafter he moved to Grand Rapid, near Palmyra, Illinois. John Askin Papers, 1:328 n.75. He served as treasurer of the Indiana Territory circa 1804 and, like many other frontier officials, “jumped in at the very beginning of [his] residence in the new territories to acquire [land] claims…” Gates, The Public Lands, 92; Carter, Territorial Papers of the United States, 7:194 (Letter from Michael Jones, Register of Land Office at Kaskaskia, to the Secretary of the Treasury, from Kaskaskia, May 18, 1804). William Mclntosh spelled and signed his last name with a “c” instead of an apostrophe, yet the Supreme Court used an apostrophe.
58. District Court Records of Johnson v. M'Intosh, National Archives and Records Administration, Record Group 267 (Supreme Court Case Files), Microfilm M214 (1792–1831), Roll 56, Frame 410 (hereafter District Court Records of Johnson v. M'Intosh) (copy of Mclntosh's patents). The district court records of Mclntosh's purchases match exactly patents issued to him as recorded in a database of all United States patents issued for land in Illinois, gopher://gopher.uic.edu:70/11/library/libdb/landsale/ (State of Illinois, Archives, Public Domain Land Tract Sales Archive). The Supreme Court dates the purchases three years later, in 1818, when the federal government issued patents. Johnson v. M'Intosh, 560. Such delays between purchase and issuance of patent were common. Rohrbough, The Land Office Business, 175. The Supreme Court's acreage count, 11,560 acres, based on the parties' stipulated facts, appears to be off a bit; the land records indicate that Mclntosh purchased 11,982.81 acres (forty-four quarter sections, one half section, six sections, a fractional section [521.21 acres] and a fractional half section [260.6 acres]). According to the State of Illinois Public Domain Land Tract Sales Archive database cited above, Mclntosh paid the statutory minimum two dollars per acre for each and every parcel.
59. Carter, Territorial Papers of the United States, 7:194 (Letter from Michael Jones, Register of Land Office at Kaskaskia, to the Secretary of the Treasury, from Kaskaskia, May 18, 1804); ibid., 125 (Petition to Congress by Inhabitants of Knox, St. Clair, and Randolph Counties, Oct. 22, 1803); ibid., 503 (Memorial on behalf of French claimants of Vincennes—William Mclntosh to the President, Dec. 15, 1807); ibid., 536–38 (William Mclntosh to the President, March 30, 1808); ibid., 612 (Memorial to Congress by Inhabitants of Knox County) (Israel Rouland signed “by Will: Mclntosh his agent”); ibid., 669 (Letter from Governor Harrison to the Secretary of the Treasury, Gallatin, Vincennes, Aug. 29, 1809).
60. Letter to the Western World, in Carter, Territorial Papers of the United States, 8:94 –99; ibid., 93–94 (Deposition of Newton E. Westfall, Jan. 23, 1811); ibid., 81 (Deposition of Judge Vanderburgh, Jan 14, 1811); Davson, A Historical Narrative, 78; Francis S. Philbrick, ed., The Laws of Indiana Territory 1801–1809, vol. 21 of the Collections of the Illinois State Historical Library, Law Series vol. 2, xxvi. An anonymous ally of Harrison described how Mclntosh avoided a duel and mocked him for “his unutterable aversion to the smell of gunpowder. He surely is the veriest coward that ever bit the dust.”
61. Leon Friedman and Fred L. Israel, eds., The Justices of the United States Supreme Court 1789–1969, 1:149–58; Letter from Roger Taney to Robert Goodloe Harper, Dec. 4, 1822, in Harper Papers, Legal Correspondence, 1797–1824, Maryland Historical Society Collection (Manuscript 1884, accession number 55,644).
62. See map above, 68; Magrath, Yazoo (showing that Fletcher v. Peck, 10 U.S. [6 Cranch] 87 , resolving Yazoo land case, was feigned); Warren, Charles, The Supreme Court in United States History (Boston; Little, Brown, 1926), 1:147Google Scholar (arguing that Hylton v. United States, 3 U.S. [3 Dall.] 171  was feigned).
63. District Court Records of Johnson v. M'lntosh, Frame 414 (summarizing stipulated facts); Johnson v. M'lntosh, 543 (emphasis added).
64. Mclntosh purchased Township 14 South, Range 1 East, on September 24, 1819 (shown on map above, 68), over a year before the plaintiffs filed their case. State of Illinois Public Domain Land Tract Sales Archive database (data record no. 166,128).
65. District Court Records Johnson v. M'Intosh, Frame 422; Bonsteel Tachau, Mary K., Federal Courts in the Early Republic: Kentucky, 1789–1816 (Princeton: Princeton University Press, 1978), 77Google Scholar, 84, 177 n.24. For biographical information on Pope, see 30 Fed. Cas. 1391 (Bibliographic Notes of the Federal Judges); Paul M. Angle, “Nathaniel Pope, 1784 –1850,” in Illinois State Hist. Soc'y, Transactions for Year 1936. The Great Chicago Fire consumed most of Pope's, and the Illinois District Court's, early records. Charles Davey (or Dewey—the handwritten transcript is unclear) represented the plaintiff; research failed to uncover any biographical information on him. Henry Starr represented the defendant Mclntosh. Starr practiced out of Kaskaskia and had a partner, Blackwell, who worked in Belleville, Illinois. Advertisement, Illinois Intelligencer (April 14, 1819), vol. 3, no. 33, 4.
66. District Court Records in Johnson v. M'Intosh, Frame 347. “[J]uries were often discharged without making a finding. The technique usually employed for dismissing a jury was to withdraw a juror, ‘whereupon the jury was discharged.’” Tachau, Federal Courts in the Early Republic, 88.
67. National Archives and Records Administration, microcopy series 216 (Supreme Court Docket Sheets), frame 408. The Supreme Court received the district court records almost a year before the plaintiff finally filed the writ of error. Ibid. An index of all of Webster's letters and an even more detailed index of microfilms containing his complete works contain not a single cite to Johnson v. M'Intosh. See Konefsky, Alfred S. and King, Andrew J., eds., The Papers of Daniel Webster: Legal Papers, 1798–1824 (Hanover, N.H.: Published for Dartmouth College by the University Press of New England, 1982), 1:383–475Google Scholar; Microfilms of Daniel Webster's Papers (Charles Wiltse, ed. 1974). In a letter written about a month before he argued the case, Webster in passing mentioned working on a case with Harper and requested a pamphlet on the Mohegan case, a famous and interminable Connecticut land dispute. Webster Microfilms, Reel 4, Frame 3384 (Letter from Webster to Daggett, January 7, 1823).
68. In early 1822, Harper wrote to Thomas Aspinwall in London: “Will you be so good, my dear Sir, as to inform me at your earliest convenience, of the result and expense of the inquiries which you were so good as to make for the Illinois and Wabash companies, at my instance.” He apparently received no reply; in an addendum to a copy of this letter, he renewed the request. Letter from Harper to Aspinwall, Jan. 13, 1822, with addendum dated April 25, 1822. Harper Papers, Legal Correspondence, 1797–1824, Maryland Historical Society Collection (Manuscript 1884, accession number 57,784).
69. Murray joined the Supreme Court bar on Feb. 27, 1822, a month before the plaintiffs filed their writ of error; no residence is given. National Archives and Records Administration, Record Group 267 (Supreme Court Case Files), Microfilm M217 (Attorney Signatures), Roll 1. A computer search did not reveal another Murray arguing in the Supreme Court before the Civil War. Search of LEXIS, Genfed Library, US file (March 12, 1997).
70. The case was argued February 15 and February 17–19, 1823; judgment was entered on Friday, February 28, 1823. National Archives and Records Administration, microcopy series 216 (Supreme Court Docket Sheets), frame 408.
71. Johnson v. M'Intosh, 585, 595–96. Marshall distinguished the plaintiffs' primary supporting case, Campbell v. Hall, 1 Cowp. Rep. 204 (1774), as involving royal imposition of a tax. Parliament, not the Crown, had the exclusive power to tax.
72. Goodell v. Jackson, 20 Johnson's Reports 693 (N.Y. 1823) (refusing to recognize Indian grant based on exhaustive analysis of New York Constitution of 1777, article 37, and a long line of colonial and state statutes forbidding land transactions with the Indians).
73. Henderson, “Unraveling the Riddle of Aboriginal Title,” 87; David E. Wilkins, “Johnson v. M'Intosh Revisited: Through the Eyes of Mitchel v. United States,” American Indian Law Review 19 (1994): 166–67. Marshall's opinion cites few precedents, and ail are tangential to the main doctrines established by Johnson v. M'Intosh. Research into lower federal court, colonial, and state court decisions uncovered only one antecedent opinion anticipating Marshall's approach: Marshall v. Clark, 4 Call 268 (Virginia 1792), a land dispute between Marshall's father and George Rogers Clark.
74. Johnson v. M'Intosh, 571–72, 573, 574, 587, 593, 604–5; Ball, “Constitution, Court, Indian Tribes,” 25; Henderson, “Unraveling the Riddle of Aboriginal Title,” 93–96. Marshall knew full well, of course, that there was no Indian court to hear the plaintiffs' grievance. In the very next sentence, he observed, “[i]f they annul the grant, we know of no tribunal which can revise and set aside the proceeding.” Johnson v. M'Intosh, 593.
75. Carter, Territorial Papers of the United States, 4:35 (declaration by President Jefferson that Indians retained “full, undivided and independent sovereignty as long as they choose to keep it, and that this might be forever”); Smith, Indian Land Cessions in the Old Northwest, 213–14, citing Speech of Jefferson to Tribes, April 22, 1808 (counseling Indians that in negotiating to sell land, “you have been free to do as you please, your lands are your own… to keep or sell as you please…”); Worcester, 31 U.S. 545. Abandonment explains Marsh v. Brooks, 55 U.S. (14 How.) 513 (1852), where the court ruled that the holder under a federal patent could adversely possess against the Indians, despite the failure of the government to extinguish Indian title. Without appealing to abandonment as the basis for extinguishing title, this case would be inconsistent with Johnson v. M'Intosh, empowering a private citizen to do by occupation what she could not do by purchase. The court formally declared that abandonment can extinguish Indian title in Williams v. City of Chicago, 242 U.S. 434, 437 (1917). Arguably, Marshall alluded to abandonment in Johnson v. M'Intosh. After describing Indian migrations caused by settlers thinning the game population, he noted that the “soil, to which the crown originally claimed title, being no longer occupied by its ancient inhabitants, was parceled out according to the will of the sovereign power.” Johnson v. M'Intosh, 590–91 (emphasis added).
76. Frickey, Philip P., “Marshaling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law,” Harvard Law Review 107 (1993): 381, 386.CrossRefGoogle Scholar In Tee-Hit-Ton Indians v. United States, 348 U.S. 272 (1954), the Court held tribes had no Fifth Amendment constitutional right to compensation for a taking of their title of occupancy. Payment is made at the pleasure of the United States government. This case seems to contradict Johnson v. M'Intosh, since it permits extinguishment of Indian title without purchase, just conquest, or abandonment. At bottom, however, it merely shows that Johnson v. M'Intosh was not decided on constitutional grounds. It also makes sense within Marshall's scheme of dual land tenure systems: there are no remedies “in the Courts of the United States” for rights based on Indian tenure, whether held by the plaintiffs in Johnson v. M'Intosh or the Indians in Tee-Hit-Ton.
77. Johnson v. M'Intosh, 574–89. One scholar has argued that this extended discussion was no more than tracing the chain of the United States' title, complaining that the “Court spent an extravagant amount of time in establishing the principle that the ultimate title to land within the United States was held by the federal government as the successor-in-interest to the discovery by England.” Henderson, “Unraveling the Riddle of Aboriginal Title,” 90. Marshall focused, however, on the fact that various grants were made while the Indians occupied the lands, rather than on the legitimacy of each transfer. He adverted to grants made “notwithstanding the occupancy of the Indians,” or “while in the occupation of the Indians,” no less than nine times in the course of discussing the history of the dual land tenure regime in America.
78. Epstein, Richard A., “The Path to The T.J. Hooper: The Theory and History of Custom in the Law of Tort,” Journal of Legal Studies 21 (1992): 3, 6.Google Scholar
79. Charles F. Hobson, ed., Papers of John Marshall 9:279–84; Graham v. Walker, 61 A. 98, 99 (Conn. 1905); United States v. Arredondo, 31 U.S. (6 Pet.) 691, 714–15 (1832). Johnson v. M'lntosh, 585, 604.
81. Johnson v. M'lntosh, 591–92, 600.
83. James Kent, Commentaries on American Law, Part VI, Lecture LI (emphasis added).
84. Johnson v. M'lntosh, 572–73, 591–92. Marshall seemed to define international law as in large part a subspecies of natural law. He said he was rejecting “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.”
85. Ibid., 588–89.
86. Ibid., 543 (case header). The reporter, Wheaton, may have used the constitutional label to refer to international law cases. In the same volume, he classified a case involving property rights of foreign nationals as constitutional. Society for the Propagation of the Gospel in Foreign Parts v. Town of New Haven, 21 U.S. (8 Wheat.) 464 (1823). Cotton, Joseph P., ed., The Constitutional Decisions of John Marshall (1905; reprint, New York: Da Capo Press, 1969), 2:1.Google Scholar Cotton appears unreliable, asserting that the plaintiffs “had long been in undisputed possession and enjoyment of the land…” This assertion in the record was clearly a fiction required by the common law action of ejectment. Frickey argues that Johnson v. M'Intosh was a “quasi-constitutional” decision, meaning that although it did not bar legislation to the contrary, it established a clear statement rule requiring Congress to be explicit about any further erosion of Indian rights. Frickey, “Marshaling Past and Present,” 385.
87. Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1 (1831); Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); Frickey, “Marshaling Past and Present,” 424; Kent Newmyer, R., “Chief Justice John Marshall's Last Campaign: Georgia, Jackson, and the Cherokee Cases,” Journal of Supreme Court History 23 (1999): 86, 92.Google Scholar
88. U.S. Constitution, Article III, sec. 2; Cherokee Nation v. Georgia, 30 U.S. 17 (“it may well be doubted whether those tribes which reside within the acknowledged boundaries of the United States can, with strict accuracy, be denominated foreign nations. They may, more correctly, perhaps, be denominated domestic dependent nations. They occupy a territory to which we assert a title independent of their will, which must take effect in point of possession when their right of possession ceases”). While President Jackson's infamous refusal to enforce Marshall's decision is apocryphal, it is nevertheless true that his “administration worked in various ways to subvert the decision…” Newmyer, “Marshall's Last Campaign,” 90. This at first blush appears to undermine the unifying, nationalist holding of Worcester v. Georgia. In fact Jackson's refusal to protect the Indians against the depredations of the Georgia state government may only indicate that the nation and its popular president approved of the state's policy and in effect relied on Georgia, as an agent, to further national policy. Marshall's decision gave the federal government the power to prevent state actions inconsistent with the national interest; Jackson merely chose not to exercise this power against Georgia.
89. Russell, Don, “How Many Indians Were Killed?,” American West 42 (July 1973): 63Google Scholar; Cohen, “Original Indian Title,” 34 (“[w]e are probably the one great nation in the world that has consistently sought to deal with an aboriginal population on fair and equitable terms. We have not always succeeded in this effort but our deviations have not been typical”); Prucha, American Indian Policy in the Formative Years, 248 (citing statutes and treaties evidencing attempt by nation to treat Indians fairly).
90. Definitions of a league ranged from a little over two miles to three miles. “General Harmar used 22 leagues as about 50 miles.” Francis S. Philbrick, ed., Law of the Indiana Territory, 1801–1809 (Collections of the Illinois State Historical Library 21, Law Series 2, 1930), lxx n.3. “The league was a rather indefinite measurement, usually considered to be about three miles in length.” Carter, Territorial Papers of the United States, 7:53 (Secretary of War Dearborn to William Henry Harrison, June 17, 1802).
91. Alvord, The Mississippi Valley in British Politics, vol. 2, frontispiece. Alvord briefly discussed the difficulties determining the northern Illinois Company tract, confessing that “[t]he boundaries of the tract on the Illinois River are impossible to trace.” Ibid., 203 n.375. The Companies themselves admitted that the description of this tract had serious flaws. Minutes of the United Companies, 14, 18.
92. The United States of America Laid down From the best Authorities Agreeable to the Peace of 1783 (I. Norman, Boston, 1791) (Osgood Carleton, mapmaker) (Library of Congress, Map Section, G3700 1791.C3 VAULT); A Map of the Northern and Middle States (Amos Doolittle, New Haven, 1789) (Library of Congress, Map Section, G3300 1789. D6 VAULT). This map shows the Illinois side of the Wabash Company tracts as three times their Indiana side.