The difficulty of accurately analyzing the 1823 U.S. Supreme Court ruling Johnson v. M’Intosh is well demonstrated in an article published by Robert T. Coulter (co-authored with Steven M. Tullberg) in 1984 in the book The Aggressions of Civilization. In their article, “Indian Land Rights,” the two scholars say that the Supreme Court’s analysis of Johnson v. M’Intosh found that “the right of discovery…did not limit the legal powers or rights of Indian nations in their homelands.”
Although it would have been great if this characterization had been correct, this is a curious conclusion, especially given what the Supreme Court actually said. Unfortunately, in the Johnson ruling the Supreme Court said that the Indians’ “…rights to complete sovereignty, as independent nation, were necessarily diminished…by the original fundamental principle that discovery gave title to those who made it.” If the word “diminished” means anything, it means “to limit” by decreasing or reducing something in size, content, or extent.
Yet for some reason the authors did not acknowledge the Supreme Court’s claim that Indian rights to “complete sovereignty” had been “diminished” by the Christian European claim “that discovery gave title” to the “discoverers.” If Mr. Coulter and his colleague had acknowledged the Supreme Court’s claim of Indian “diminishment”, it would have directly contradicted the claim that the Court found that the “right of discovery…did not limit the legal powers or rights of Indian nations in their homelands.”
To further demonstrate the point, Chief Justice Marshall wrote for the Court in the Johnson ruling: “Although we do not mean to engage in the defense of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them.” (emphasis added)
If the Court’s analysis found that “the right of discovery did not limit the legal powers or rights of Indian nations,” then why did the Court call our nations and peoples “the people whose rights have been wrested from them”? (emphasis added) To say this is to say that their rights had been “pulled away forcefully.”
How then are we to account for this muddled analysis? One thing seems clear. This conclusion was based on what they brought to their reading and interpretation of the Johnson ruling. Their analysis must have been based on what they had read into the Johnson ruling rather than a close reading of the ruling.
Later, the two authors correctly point to the Court’s statement that the law of conquest “was incapable of application” to the Indian nations. And in yet another section of their article—“The Denigration of Indian Title to a Mere Right of Occupancy”—we find this statement about the Johnson ruling:
Marshall determined that the property of non-Indians must be made secure, even if it meant subverting settled legal doctrine and adopting what he termed an “extravagant pretension.” This pretension required converting the right of discovery into actual land title, thereby fabricating a secure title for non-Indians to un-ceded lands still occupied by the original Indian owners. (emphasis added)
By giving the reader only a partial account, the article makes it appear as if the Court had talked about “converting the right of discovery into actual land title.” (emphasis added) In actuality, though, the Court’s verbatim language is, “..the pretension of converting the discovery of an inhabited country into conquest...” (emphasis added)
On the basis of that pretension Coulter and Tullberg said that the Court had created a theory in which “the discovering European nation could hold or grant to others ‘absolute title’ to lands still in the possession of the original land owners and prior to any conveyance or other acquisition of Indian rights to the land.”Under this theory, Indians were regarded not as owners, as contemporary international law commanded, but “merely as occupants.”
When the authors discussed the Court’s construction in Johnson of “an Indian title” of a lesser right or title of “occupancy,” they said of the Court’s reasoning: “their [the Indians’] right of occupancy was. . .clearly of inferior status in the legal hierarchy of land titles” in the United States. The question that arises is this: How could the United States have conceptually created an Indian title of “occupancy” that was “of inferior status,” and do so without purporting to limit Indian rights?
The purpose of scholarship in any field is to increase knowledge and deepen understanding. That purpose is not well served in the study of federal Indian law and policy when scholars fail to be accurate in their characterization of Supreme Court language and of the so-called “right of discovery,” which the Supreme Court said was “confined to countries then unknown to Christian people.”
Steven Newcomb (Shawnee, Lenape) is the co-founder and co-director of the Indigenous Law Institute, author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008), and the Indigenous and Kumeyaay Research Coordinator for the Sycuan Band of the Kumeyaay Nation in the Kumeyaay territory (now commonly called “San Diego”).