Buying America from the Indians: Johnson V. McIntosh and the History of Native Land Rights

By Ely, James W., Jr. | Independent Review, Summer 2013 | Go to article overview

Buying America from the Indians: Johnson V. McIntosh and the History of Native Land Rights


Ely, James W., Jr., Independent Review


* Buying America from the Indians: Johnson v. McIntosh and the History of Native Land Rights

By Blake A. Watson

Norman: University of Oklahoma Press, 2012.

Pp. xvi, 494. $45.00.

The contested issue of Indian land rights has generated a vast outpouring of scholarship in recent years. With Buying America from the Indians: Johnson v. McIntosh and the History of Native Land Rights, Blake A. Watson has enriched this literature with a thoughtful, if somewhat problematic, account of Chief Justice John Marshall's seminal opinion in Johnson v. McIntosh (21 U.S. 543 [1823]). Writing for a unanimous Supreme Court, Marshall established three fundamental principles: (1) that by virtue of discovery, title to land in America passed to the European powers and eventually to the United States; (2) that the discovering powers also obtained the exclusive power to acquire land from the Indians; (3) that the Indians were "the rightful occupants of the soil, with a legal as well as a just claim to retain possession of it" (at 574).

The last principle gave rise to the novel concept of Indian title as a limited right of possession, subject to the rights of ownership and preemption in the United States. Marshall only half-heartedly defended the doctrine of discovery and acknowledged that the doctrine was inconsistent with the natural-law right of ownership. However, he maintained that the history of America "proves, we think, the universal recognition of these principles" (at 574). The tone of his opinion suggests that Marshall, despite some sympathy for the plight of the Indians, was resigned to what he perceived to be a fait accompli. In Johnson, he seemingly achieved a compromise result, rejecting the contention that Indians had no rights at all in land, but denying them full ownership, which might have compromised many land titles held by settlers in the western states and territories. The upshot was that Indian land rights were inferior to the general pattern of fee-simple ownership for non-Indians. The precise nature of Indian title remains a topic of debate to the present.

Watson discusses at length the tangled background of Anglo-American attitudes toward Indian land rights, noting the existence of a wide range of views. As early as 1632, for instance, Roger Williams insisted that the land belonged to the Indians and must be purchased. He questioned the efficacy of royal charters to dispose of land in North America. Many colonists in fact purchased land from Indians, but this practice may have been dictated as much by a desire to avoid costly conflicts as by an acknowledgment that Indians had legal title. Given the ambivalent record, Watson makes a strong argument that Marshall's assertion of "the universal recognition" of the discovery doctrine is inaccurate. Although the discovery doctrine was certainly advocated on a regular basis, it was never the sole view regarding Indian land rights. Ironically, as in Johnson, land speculators, anxious only to obtain clear title to Indian land for the purpose of resale, were prominent among those contending that Indians held and could sell fee-simple title.

The Johnson case turned on competing land titles. Watson gives particular attention to transactions in 1773 and 1775 by two Indian tribes that sold huge tracts of land in present-day Indiana and Illinois to private land companies, which later merged. The plaintiffs, Joshua Johnson and Thomas Grahame, were grantees of the land companies. The United States acquired the same tract thereafter by treaty with the same tribes and resold it to individuals, including William McIntosh. Watson details the united land company's persistent, if ultimately unsuccessful, efforts to gain compensation for the loss of the land it claimed to own by virtue of the prior titles. After numerous petitions to Congress failed to secure any redress, counsel for the land company arranged a contrived lawsuit in federal court based on diversity of citizenship. …

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