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 Marshalls
seminal opinion in Johnson v. McIntosh (21 U.S. 543 ). 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 Marshalls 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 companys 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. The lawyers recruited McIntosh as a cooperative defendant
and even paid his attorneys. The company sought judicial confirmation of its title in
a bid to strengthen the case for compensation. Large sums were potentially at stake, as
evidenced by the fact that such prominent attorneys as Daniel Webster and Robert
Goodloe Harper argued for the land company in the Supreme Court.
Marshalls affirmation of the exclusive power of the United States to acquire
Indian title doomed the claimants in Johnson. The doctrine of preemptive right
proved to be a two-edged sword regarding Indian land rights. On one hand, it
offered protection against aggressive land companies that might engage in fraudulent
practices to obtain land. Thus, it eliminated a fertile source of disputes. On the
other hand, recognition of a preemptive right in the federal government denied
Indians an opportunity to consider competing offers and bargain for higher prices
to relinquish their occupancy rights. (See Eric Kades, The Dark Side of Efficiency:
Johnson v. MIntosh and the Expropriation of American Indian Lands, Universityof Pennsylvania Law Review 148 : 1108131.) Of course, nothing in Johnson required Indians to sell their title on any terms. Over the course of the nineteenth
century, however, as the population of tribes declined and their military threat
diminished, Johnson facilitated the wholesale purchase of Indian titles by the United
States at minimum prices through a series of coerced and one-sided treaties. The
voluntary nature of many transactions was simply a fiction.
Watson maintains that Johnson has had a lasting and deleterious impact on
Indians legal status. It is debatable, however, whether the Johnson case concerned
with land titles really laid the basis for diminished tribal sovereignty and the plenary
power doctrine. Moreover, Marshalls opinion compared Indian title to a
leasehold and spoke largely in terms of purchasing the right of occupancy. During
the nineteenth century, the Supreme Court rejected the notion that the federal
government could take Indian title without the payment of compensation. Possessory
interests are a form of property entitled to protection under the Fifth Amendment.
The dubious decision by the Warren Court in Tee-Hit-Ton Indians v. United
States (348 U.S. 272, 279 ) that Indian title is not a property right
and may be terminated without any legally enforceable obligation to compensate
the Indians rested on the erroneous premise that Indian title was simply permission
from the whites to occupy (at 279). This unfortunate conclusion is a
misreading of Johnson and cannot be blamed on the property-conscious Marshall.
Instead, it reflects the Warren Courts general disinterest in property owners
constitutional rights. (See Richard A. Epstein, The Takings Jurisprudence of the
Warren Court: A Constitutional Siesta, Tulsa Law Review 31 : 64376.)
In line with much of the current scholarship, Watson is no fan of Johnson v.
McIntosh. Adopting an advocacy role, he calls for repudiation of both Johnson and
the discovery doctrine. But his arguments raise a number of troublesome issues.
He never explores the effect of such an overruling of a long-standing rule. Would
it be purely symbolic? Or would it open the floodgates for prolonged and divisive
litigation? Even more vexing is Watsons endorsement of supposed international
law norms as a basis to overturn the discovery doctrine. In recent years, scholars
on the political left have developed an interest in pushing foreign sources of law
upon American courts. Appeals to malleable and elite-framed international norms,
many invented in the postWorld War II period, seek to trump the unique U.S.
constitutional tradition and import extensive social welfare policies. In addition, one
might well question whether United Nations declarations, pronouncements of academic
symposia, or resolutions by church groups constitute statements of international
law. After all, the supporters of these resolutions likely have political agendas
and do not have to bear the consequences of the actions they promote. (See Ken I.
Kersch, Constructing Civil Liberties: Discontinuities in the Development of American
Constitutional Law [Cambridge: Cambridge University Press, 2004], pp. 34158.)
Watson might profitably have given more attention to the political context in
which Johnson was decided. The idea that Indians enjoyed fee-simple ownership
of their land had been weakened by a series of events in the late eighteenth
century. Among other things, most Indians had allied with the British during the
War of the Revolution and were thus on the losing side. The victorious colonists
began to see the conflict as in part a war of conquest. The blunt fact is that Marshall
and his colleagues were circumscribed by the political realities of the day. It is
instructive to recall that Marshalls defense of Indian sovereignty in Worchester v.
Georgia (31 U.S. 515 ) was ineffective and did not halt the Jacksonian
policy of Indian removal. That sad episode made clear the sharp limits on federal
judicial power. In fact, the outcome in Johnson was congruent with the eras prevailing
legal opinion. As Stuart Banner points out, In the American legal culture as
of 1823, Marshalls conclusions were not surprising (How the Indians Lost Their
Land [Cambridge, Mass.: Harvard University Press, 2005], p. 183).
Watson similarly should have considered how radically different conceptions of
land ownership and use may have informed Johnson. After brief experiments with
communal property, the English colonies adopted the practice of granting land to
individuals in fee simple. Such ownership entitled the title holder to develop the
tract, to maintain exclusive possession, and to treat it as a commodity for purposes
of sale. Settlers typically enclosed the premises, plowed fields, and introduced
domestic animals. In marked contrast, Indian land was held by a community and
shared by tribal members. Land, valued in large part for hunting, was not enclosed.
This lack of individual rights, coupled with apparent underdevelopment as judged
by European standards, could well have made it more difficult for the European
settlers to conceive of Indians as owners rather than mere occupants. To further
complicate matters, land claims by various tribes were vague and overlapping and
gave rise to frequent intertribal conflict.
Notwithstanding these reservations, this readable book contains a wealth of
information about the significant Johnson case and the extinguishment of Indian
land claims. It is a worthy addition to the scholarly dialogue on the contested history
of the dispossession of the Indians of North America.