Chief Justice John Marshall’s opinion in Johnson v. M’Intosh is often taken as the source of some foundational principles in property law. Indeed, it is often the first case, alternating with the fox and hunter, appearing in many textbooks.
The essential points of the case are that discovery is a basis for acquiring property and that Indian tribes held only the right of occupancy of their lands, which could be extinguished at any time at the leisure of the federal government, but in no case did they hold the power to alienate any interest. Professor Sheila Simon, in Johnson v. M’Intosh: 200 Years of Racism that Runs with the Land, offers some compelling reasons why we should not celebrate either the case or Marshall.
The ruling purported to validate, on principled grounds, the wholesale taking of native lands by Europeans who landed on what was described as uninhabited lands, terra nullius (at least not inhabited or dominated in the European sense). Some teachers find value in Marshall’s rationales (political rules overrule natural law, security of title is paramount), while others castigate the ruling as dishonest and driven fundamentally by racism toward Native Americans—described by Marshall as “savage,” heathen, and in need of the supervision and benevolence of Christian Europeans.
Prof. Simon convincingly calls into question the precedential value of the case. After physically locating the parcels at issue in the case, a place which happened to be near her law school, she shows that even as there was some geographical overlap in the parcels claimed between Johnson (the earlier grantee from the native tribes) and M’Intosh (the later grantee from the federal government), there was in truth no case or controversy as would give the court jurisdiction.
In fact, the whole case was contrived. Johnson failed in achieving confirmation of title from state legislatures. With the intervention of the Trade & Non-Intercourse Act in 1790, which prohibited the purchase of native lands by private parties, Johnson sought a ruling from the courts—theoretically based on the recognition of the Natives as owners and on the first in time, first in right principle. Johnson selected the venue for the case, and the defendant, and even tried to select the trial judge.
The property dispute in the concocted ejectment action was entirely fictional—the original parties to the suit being denominated as “Thomas Troublesome” and “Simon Peaceable.” The case was submitted on agreed facts and the trial court rendered judgment without any reasoning. Alas, the decision was stunning because of Marshall’s crafting of the rules and creative selection of facts to void Johnson’s title and affirm the political hegemony of the federal government over the Natives.
Prof. Simon challenges Marshall’s reliance on international law, since he did not cite any rules or principles, but referenced only the practice of English conquerors to assimilate the conquered at the time.
Then, she explains how Marshall’s discussion of why the Natives could not be regarded as inhabitants in possession of the land, rested on incomplete facts about what they did on the land. He saw them only as nomadic hunters and gatherers, that the land remained in a state of nature, open to discovery by enlightened Europeans. But there was much evidence at the time that revealed the Natives were much like the Europeans in using the land—for living and for farming.
Even as the opinion was a broad ruling, affecting parties other than those in the litigation, Prof. Simon points out that no one spoke for the Natives. However, her treatment of this issue may reveal a degree of naivete. She seems to believe that if the Natives had somehow intervened or there had been amicus briefs supporting their interests, giving the Court the opportunity to hear the truth about them, the outcome would have been different. Given the evident biases toward them and the willingness to adopt the narratives from a one-sided record, it is highly doubtful that Marshall would have ruled differently and declared the Natives to be owners of their land. It was just too late and too much was at stake for the government.
Prof. Simon gets it right when she says the value of the land was weighed differently for Europeans than for Natives; the Court being animated by different cultural attitudes about dealing in and with land. The Natives had lost their first rights to the land because they had not used it up. The imbalance served to justify centuries of further deprivations of land and culture, the most infamous being the Trail of Tears—the forced removal of the Cherokee from their native eastern lands to culturally foreign environs in the west.
So, what does Prof. Simon want us to see from this contrived and counterfeit litigation that has proven so woeful for an independent people? She thinks our senses should be heightened, our antenna raised to false propositions. This seems the most we can imagine.
Even as she states that former President Obama joined the International Convention of Rights of Indigenous Peoples in 2010, there is little hope of any measures to rethink the propositions from Johnson v. M’Intosh. But, as law teachers, we may have a duty to expose the case for what it was and to reveal the consequences of flawed and disingenuous litigation.
