In How the Indians Lost Their Land, Law and Power on the Frontier (2005), Stuart Banner weaves together a perceptive interpretation of the historical record, with a novel economic analysis of conflicts, to create a sophisticated narrative of the process by which European colonists took control of the lands that now comprise the United States. Banner's view of expropriation falls somewhere between the parsimony of an economic model and the richness of a traditional historical account. It forms part of a growing trend to focus on finding positive facts about the taking of Indian lands, as opposed to making normative judgments.

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.