History and Interpretation of the Great Case of Johnson v. M'Intosh

Law and History Review

Volumn 19, Issue 1, 2001, Pages 67-116

  Kades, Eric ^a  

^a WAYNE STATE UNIVERSITY   (United States)

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EID: 85011484781     PISSN: 07382480     EISSN: 19399022     Source Type: Journal    
DOI: 10.2307/744212     Document Type: Article

References (75)

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.” 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. Given the colonizers’ superior might, Indian rules governing land transactions had little impact on transactions between the two sides.
3. Milner S. Ball, “Constitution, Court, Indian Tribes,” American Bar Foundation Research Journal 3 (1987): 24. Other scholars have made the same point. See Mark Frank Lindley, The Acquisition and Government of Backward Territory in International Law (London: Longmans, Green, 1926), 29; J. Youngblood Henderson, “Unraveling the Riddle of Aboriginal Title,” American Indian Law Review 5 (1977): 75, 90; John Hurley, “Aboriginal Rights, The Constitution and the Marshall Court,” Revu Juridique Theoretique 17 (1982-83): 403, 418; Harold Berman, “The Concept of Aboriginal Rights in the Early Legal History of the United States,” Buffalo Law Review 27 (1978): 637, 644.
4. Johnson v. M'Intosh, 573; Clarence W. Alvord, The Illinois Country, 1673-1818, Centennial History of Illinois 1 (1920; reprint, Chicago: Loyola University Press, 1965), 206 (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), iii (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).
5. Robert A. Williams, The American Indian in Western Legal Thought: The Discourses of Conquest (New York: Oxford University Press, 1990), 211 (quoting Governor Harvey); John Winthrop, Conclusions for the Plantation in New England, cited in Albert K. Weinberg, Manifest Destiny: A Study of Nationalist Expansionism in American History (Baltimore: Johns Hopkins Press, 1935), 74; Francis Jennings, The Invasion of America: Indians, Colonialism, and the Cant of Conquest (New York: Norton, 1976), 80, citing Samuel Purchas, Hakluytus Posthumus or Purchas His Pilgrimes (London, 1625), 4:1814.
6. John Quincy 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; Francis Paul Prucha, American Indian Policy in the Formative Years: The Indian Trade and Intercourse Acts, 1790-1834 (Lincoln: University of Nebraska Press, 1970), 227 (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; Theodore Roosevelt, The Winning of the West (New York: G. Putnam and Sons, 1889), 1:90.
7. Clarence Edwin Carter, ed., The Territorial Papers of the United States (Washington: GPO, 1939), 6:106-13.
8. Joel N. Eno, The Puritans and Indian Lands (New York: 1906), 1, cited by Yasuhide Kawashima, Puritan Justice and the Indians: White Man's Law in Massachusetts (Middletown: Wesleyan University Press, 1986), 47t8, 50, 51; William H. Whitmore, ed., The Colonial Laws of Mass. Reprinted front the Edition of 1660, with the Supplements to 1672 (Boston: City Council of Boston, 1889), 160-61; James Warren Springer, “American Indians and the Law of Real Property in Colonial New England,” American Journal of Legal History 30 (1986): 49.
9. Felix S. Cohen, “Original Indian Title,” Minnesota Law Review 32 (1947): 28, 37 n.20, 46. 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.”
10. Johnson v. M'Intosh, 574.
11. W. Stitt Robinson, Mother Earth: Land Grants in Virginia, 1607-1699 (Richmond: Virginia 350th Anniversary Corp., 1957), 3.
12. As discussed above, the French apparently did not adopt such a rule and recognized private purchases of Indian lands.
13. 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.” Shaw Livermore, Early American Land Companies: Their Influence on Corporate Development (1939; reprint, New York: Octagon Books, 1968), 21 (footnote omitted). For additional history on the inalienability of aboriginal land title in the British Colonies, see Kent McNeil, Common Law Aboriginal Title (Oxford: Oxford University Press, 1989), 221-41.
14. Robert N. Clinton, “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. For the complete text of the Proclamation of 1763, see Wilcomb E. Washburn, The American Indian and the United States: A Documentary History (New York: Random House, 1973), 3:2135, 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.”
15. American State Papers: Documents, Legislative and Executive of the Congress of the United States, Public Lands (Washington: Gales and Seaton, 1834), 1:9; Nathaniel Shurtleff, ed., Records of the Governor and Company of the Massachusetts Bay in New England (Boston: W. White, 1853), 4:282 (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 James Sullivan, The History of Land Titles in Massachusetts (1801; reprint, Buffalo: W. S. Hein, 1972), 45; Kawashima, Puritan Justice, 54 (sovereign approving purchase from Indians after the fact).
16. John R. Command, “The Story of Grosse He,” Michigan Historical Magazine 3 (1919); 130. 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. Payson Jackson Treat, The National Land System, 1785-1820 (New York: E. B. Treat, 1910), 296-97; American State Papers, Public Lands, 2:11 (Application to Confirm an Indian Grant, Communicated to the House of Representatives, January 20, 1810).
17. Letter from Washington to Crawford, in The Writings of George Washington (Washington, D.C.: GPO, 1931), 2:220; Albert T. Volwiler, George Croghan and the Western Movement, 1741-1782 (Cleveland: Arthur H. Clark, 1926), 257,296-97; Jack M. Sosin, “The Yorke-Camden Opinion and American Land Speculators,” Pennsylvania Magazine of History and Biography 85 (1961): 38, \2-M>\ Clarence Alvord, 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), 2:201. 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.” George Elmer Lewis, The Indiana Company, 1763-98 (Glendale, Cal.: Arthur H. Clark, 1941), 159. 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. “The Story of Grosse He,”., 456. Benjamin Franklin and Patrick Henry wrote short endorsements of both opinions. “The Story of Grosse He,”. 47. According to the United Companies, both opinions and the endorsements were authored in 1775.
18. Anna Edith Marks, “William Murray, Trader and Land Speculator in the Illinois Country,” Transactions of the Illinois State Historical Society 26 (1919): 190. 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 Martin Ridge, Book Review, Illinois History Journal 82 (1989): 275 (reviewing Myles N. Murray and Robert V. Zoda, William Murray, Esq.: Land Agent in the Illinois Territory Before the Revolutionary War (Brooklyn: T. Gaus, 1987) (“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 John D. W. Guice, Book Reviews, Journal of Mississippi History 51 (1989): 265; Dwight F. Henderson, Book Reviews, Journal of the Early Republic 9 (1989): 558. 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; Richard White, The Middle Ground: Empires, Indians and Republics in the Great Lakes Region, 1650-1815 (New York: Cambridge University Press, 1991), 308 n.77.
19. Clarence W. Alvord, The Illinois Country, 1673-1818, vol. 1 of The Centennial History of Illinois (1920; reprint, Chicago: Loyola University Press, 1965), 301, 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.
20. Emily J. Blasingham, “The Illinois Indians, 1634-1800: A Study in Depopulation” (Ph.D. diss., University of Illinois, 1956), summarized in Ethnohistory 3 (1956): 193-224, 36112; William C. Sturtevant and Bruce G. Trigger, eds., Handbook of North American Indians (Washington, D.C.: Smithsonian Institution, 1978), 15:594-97, 674, 678-79. 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.
21. United Companies, 1796 Memorial, 5 (quoting deed), 49; Johnson v. M'lntosh, 553.
22. 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… “ United Companies. 9.
23. Jack M. Sosin, Whitehall and the Wilderness: The Middle West in British Colonial Policy (Lincoln: University of Nebraska Press, 1961), 233; Marks, “William Murray,” 203 n.92 (order dated March 9, 1774).
24. United Companies, 1796 Memorial, ii-iii (Murray's abstract of transaction).
25. Marks, “William Murray,” 202; Alvord, Illinois Country, 302-3 and n.35.
26. Viviat was “a prominent Frenchman of Kaskaskia.” Clarence Edwin Carter, Great Britain and the Illinois Country, 1763-1774 (1910; reprint, Port Washington, N.Y.: Kennikat Press, 1970), 69. He was apparently a far-ranging trader; business took him as far east as Pittsburgh. Clarence Walworth Alvord and Clarence Edwin Carter, eds., Trade and Politics, 1767-1769, vol. 26 of the Collections of the Illinois State Historical Society, British Series 3 (Springfield, 111.: Trustees of the Illinois State Historical Society, 1921), 142. 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.
27. 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'Intosh, 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'Intosh plaintiffs, Joshua Johnson (his grandson) and Thomas Graham (son-in-law).
28. 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.
29. Paul Wallace Gates, History of Public Land Law Development (Washington D.C.: GPO, 1968), 64, quoting statement of Rep. David Howell, Rhode Island.
30. Wilson was an inveterate land speculator, investing in at least two other large schemes: the (in)famous Yazoo lands and the Indiana Company. C. Peter Magrath. Yazoo-Law and Politics in the New Republic: The Case of Fletcher v. Peck (Providence: Brown University Press, 1966), 5; Aaron M. Sakolski, The Great American Land Bubble (New York: Harper and Bros., 1932), 135; 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]. Thomas Perkins Abernethy, Western Lands and the American Revolution (New York: D. Appleton, 1937), 60, 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.
31. 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).
32. 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.
33. Thomas Donaldson, The Public Domain (Washington: GPO, 1884; reprint, New York: Johnson Reprint Corp., 1970), 67-70; Merrill Jensen, The Articles of Confederation: An Interpretation of the Social-Constitutional History of the American Revolution, 1774-1778 (Madison: University of Wisconsin Press, 1940), 225-26; Letter from Thomas Jefferson to Rayneval (March 20, 1801), in Paul L. Ford, ed., Writings of Thomas Jefferson (New York: G. P. Putnam, 1892-1899), 8:19-21.
34. 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.
35. 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).
36. 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; Minutes of the United Company., 5, 6, 20, 98; Minutes of the United Company., 28, 61 (number of shares authorized and issued); Minutes of the United Company., 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.
37. Minutes of the United Companies, 15.
38. 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. Minutes of the United Companies., 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); Minutes of the United Companies., 110 (Dec. 17, 1791) (one eighth, no location specified).
39. Statement of December 1791, included in United Companies, 1796 Memorial, 29; 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., 50-51; United Companies, 1797Memorial, part 1, 5, 6; 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., Appendix II (“Additional Statements by the Agents of the Illinois and Wabash Land Companies”), 7 [emphasis in original]; 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., 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).
40. 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).
41. 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.
42. Charles Page Smith, James Wilson, Founding Father (Chapel Hill: University of North Carolina Press, 1956), 382-94; Ellis P. Oberholtzer, Robert Morris: Patriot and Financier (New York: B. Franklin, 1903), 55.
43. Carter, Territorial Papers of the United States, 2:490-92 (Oct. 28, 1797).
44. 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; Logan Esarey, ed., Messages and Letters of William Henry Harrison (Indianapolis: Indiana Historical Commission, 1922), 1:102.
45. 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.
46. Alvord, Illinois Country, 416.
47. “Hints on the Subject of Indian Boundaries, Suggested for Consideration” (Dec. 29, 1802), in Albert E. Bergh, ed., The Writings of Thomas Jefferson (Washington, D.C.: Thomas Jefferson Memorial Association, 1907), 17:375; Dwight L. Smith, “Indian Land Cessions in the Old Northwest, 1795-1809” (Ph.D. diss., Indiana University, 1949), 257; 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, pis. 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); Reginald Hbrsman, Expansion and American Indian Policy, 1783-1812 (East Lansing: Michigan State University Press, 1967), 146; Treat, The National Land System, 169; White, The Middle Ground, 474 n.6.
48. Carter, Territorial Papers of the United States, 7:46-47, 53-54.; Moses Dawson, A Historical Narrative of the Civil and Military Services of Major-General William H. Harrison (Cincinnati: Dawson/Advertiser, 1824), 25-26.
49. Joseph W. Ernst, “With Compass and Chain: The Federal Land Surveyors in the Old Northwest, 1785-1816” (Ph.D. diss., Columbia University, 1958), 251 (map); Malcolm J. Rohrbough, The Land Office Business: The Settlement and Administration of American Public Lands, 1789-1837 (New York: Oxford University Press, 1968), 28; 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).
50. 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); “With Compass and Chain: The Federal Land Surveyors in the Old Northwest, 1785-1816”., 125 (Petition to Congress by Inhabitants of Knox, St. Clair, and Randolph Counties, Oct. 22, 1803); “With Compass and Chain: The Federal Land Surveyors in the Old Northwest, 1785-1816”., 503 (Memorial on behalf of French claimants of Vincennes-William Mclntosh to the President, Dec. 15, 1807); “With Compass and Chain: The Federal Land Surveyors in the Old Northwest, 1785-1816”., 536-38 (William Mclntosh to the President, March 30, 1808); “With Compass and Chain: The Federal Land Surveyors in the Old Northwest, 1785-1816”., 612 (Memorial to Congress by Inhabitants of Knox County) (Israel Rouland signed “by Will: Mclntosh his agent”); 669 (Letter from Governor Harrison to the Secretary of the Treasury, Gallatin, Vincennes, Aug. 29, 1809).
51. Letter to the Western World, in Carter, Territorial Papers of the United States, 8:94-99; Territorial Papers of the United States., 93-94 (Deposition of Newton E. Westfall, Jan. 23, 1811); Territorial Papers of the United States., 81 (Deposition of Judge Vanderburgh, Jan 14, 1811); Dawson, 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.”
52. 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).
53. See map above, 68; Magrath, Yazoo (showing that Fletcher v. Peck, 10 U.S. [6 Cranch] 87 [1810], resolving Yazoo land case, was feigned); Charles Warren, The Supreme Court in United States History (Boston: Little, Brown, 1926), 1:147 (arguing that Hylton v. United States, 3 U.S. [3 Dall.] 171 [1796] was feigned).
54. District Court Records of Johnson v. M'Intosh, Frame 422; Mary K. Bonsteel Tachau, Federal Courts in the Early Republic: Kentucky, 1789-1816 (Princeton: Princeton University Press, 1978), 77, 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.
55. 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).
56. 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.
57. 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.
58. 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).
59. Philip P. Frickey, “Marshaling Past and Present: Colonialism, Constitutionalism, and Interpretation in Federal Indian Law,” Harvard Law Review 107 (1993): 381, 386. 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.
60. 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.
61. Richard A. Epstein, “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.
62. 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'Intosh, 585, 604.
63. Richard A. Epstein, “International News Service v. Associated Press: Custom and Law as Sources of Property Rights in News,” Virginia Law Review 78 (1992): 85, 87 n.6.
64. Johnson v. M'Intosh, 591-92, 600.
65. Carol Rose, “The Comedy of the Commons: Custom, Commerce, and Inherently Public Property,” University of Chicago Law Review 53 (1986): 711, 717 (footnote omitted).
66. James Kent, Commentaries on American Law, Part VI, Lecture LI (emphasis added).
67. Johnson v. M'Intosh, 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.”
68. Commentaries on American Law., 588-89.
69. Commentaries on American Law., 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). Joseph P. Cotton, ed., The Constitutional Decisions of John Marshall (1905; reprint, New York: Da Capo Press, 1969), 2:1. 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.
70. 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; R. Kent Newmyer, “Chief Justice John Marshall's Last Campaign: Georgia, Jackson, and the Cherokee Cases,” Journal of Supreme Court History 23 (1999): 86, 92.
71. 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.
72. Don Russell, “How Many Indians Were Killed?,” American West 42 (July 1973): 63; 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).
73. 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).
74. 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.” Definitions of a league ranged from a little over two miles to three miles., 203 n.375. The Companies themselves admitted that the description of this tract had serious flaws. Minutes of the United Companies, 14, 18.
75. 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, G33OO 1789. D6 VAULT). This map shows the Illinois side of the Wabash Company tracts as three times their Indiana side.