John Marshall's Constitutionalism by Clyde Ray

Author:Clyde Ray [Ray, Clyde]
Language: eng
Format: epub
Tags: American Government, Political Science, History & Theory, Judicial Branch
ISBN: 9781438474427
Google: qmabDwAAQBAJ
Goodreads: 42453355
Publisher: SUNY Press
Published: 2019-05-31T10:28:17+00:00

The Native American Cases Revisited

The Court’s first major decision concerning Native American land ownership, Johnson v. M’Intosh (1823), did not bode well for the tribes.14 Here was a case whose outcome bore directly on their future, yet neither party was Native American!15 The dispute related to a 1775 purchase of land in present-day Illinois from the Piankeshaw Indians by a number of colonists, including former Supreme Court Justice Thomas Johnson. Following the Revolutionary War, the Piankeshaw sold the previously purchased parcel of land to the federal government, of which 10,000 acres were later purchased by William McIntosh, a prominent real estate entrepreneur and fur trader.16 In response, Johnson’s heirs sued to establish their title to the land as anterior to and thus invalidating the later purchase by McIntosh.

In deciding the case, the Court confronted the questions of whether land grants issued by the tribes were reviewable by federal courts and, generally, whether Native Americans possessed the power to purchase and sell titles to their land to private buyers. Marshall’s opinion would deliver a victory not only to McIntosh, but also to the federal government, while firmly establishing what the opinion deemed “the right of society to prescribe those rules by which property may be acquired and preserved” (21 U.S. 572). According to Marshall, the validity of land titles depended not on considerations of natural law or justice, but on the positive law of the land in which territory resided. Prior to the American Revolution, he asserted, the British gained title and possession to North American land through discovery, a rule “the great nations of Europe”—British, French, Spanish, and other nation-states—acknowledged in order to peacefully settle land claims during their shared exploration of North America.17 According to the Treaty of Paris, Great Britain relinquished to the states not only claims over government, but titles pertaining to the “propriety and territorial rights of the United States” (584). To be sure, Native Americans remained “rightful occupants of the soil, with a legal as well as just claim to retain possession of it” (574). Yet the doctrine of discovery as expounded by Marshall ensured that “their rights to complete sovereignty as independent nations,” in his words, “were necessarily diminished.” Of particular relevance to Johnson’s heirs, the right of Native Americans “to dispose of the soil at their own will to whomsoever they pleased” was superseded by the sovereignty of the federal government and the commerce clause, which prohibited the sale of tribal lands by Native Americans to private citizens. Indeed, as Marshall put it, it was a “broad principle which had always been maintained that the exclusive right to purchase from the Indians resided in the government” (585). The validity of McIntosh’s title was confirmed, but more portentous for the Native Americans was the distinction Marshall had drawn between land occupation and ownership. As Marshall put it, to confuse the two concepts, or worse yet to conflate them, would call into question the validity of all non-Native land titles. Indeed, it would cast doubt on the legitimacy of the national government itself, an implication he strenuously avoided.

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