February 28, 2014
Imagine if, today, the Supreme Court announced its ruling in a real property dispute. At the heart of this dispute was deciding the ownership a piece of land with two conflicting claims of possession.
Now imagine, in its rationale for siding with one party over the other, the Supreme Court unanimously ruled that the claim of ownership of the losing party was invalid because it was purchased from “an inferior race of people” who had no ownership rights to the land on which they were living and so consequently were unable to legally transfer title to another.
It seems more than a little farfetched for today’s Court to issue such a ruling. But just under two centuries ago, our nation’s highest court actually made such a ruling – and, reflecting conventional attitudes at the time, it was received with little to no controversy.
That ruling, Johnson v. M’Intosh, was decided 191 years ago today, on February 28, 1823.
Johnson is likely familiar to most attorneys, or at least to the ones who remember their property law courses, since it is typically one of the first rulings taught to students in those classes.
For those of us who don’t remember the details of all of the cases we learned about in our first (or second) year of law school, the facts of Johnson go something like this:
In 1773 and 1775, Thomas Johnson purchased two tracts of land from Native Americans. The land was left to Johnson’s heirs. In 1818, William M’Intosh purchased a large swath of land from U.S. Congress.
The two discovered that their ownership claims overlapped (although there is some evidence to suggest that this evidence was fabricated to obtain a court ruling on the matter), and Johnson’s heirs sued M’Intosh in U.S. district court to recover full ownership of the land.
The district court ruled in M’Intosh’s favor, finding that Johnson’s purchases from the Native Americans to be invalid because they were not able to convey title to begin with.
On appeal, the Supreme Court unanimously affirmed the district court, going into great detail as to the reasons why Native Americans were unable to own or convey land.
This lack of property rights was due to a principle called the “doctrine of discovery,” which gave European monarchs the right to claim sovereignty over any lands in the New World “discovered” by their subjects. The Native peoples that were living on these “discovered” lands had a right of occupancy, but nothing more. Furthermore, this “right” could be extinguished at any time by the U.S. government.
Why did European (and later, American) explorers have such rights to claim lands already occupied by Native Americans?
Originally, during the “Age of Discovery,” Europeans felt justified in claiming ownership over lands inhabited by Natives because the Natives’ “character and religion” gave to Europeans “an apology for considering them as a people over whom the superior genius of Europe might claim an ascendency.”
In other words, because the Natives were not Christian, and because their culture and society were quite dissimilar from their European counterparts’, Europeans felt no need to respect the ownership rights of the Natives. According to the Court, these Europeans believed that they provided “ample compensation to the [Native peoples], by bestowing on them civilization and Christianity.”
Thus, it was because of the inherent “inferiority” of the Natives that they were unable to own or dispose of land. Only European powers and the U.S. could claim sovereignty over the lands of the New World, and even the Natives’ occupancy rights were subject to the whims of these nations.
Clearly, attitudes about Native Americans have changed since Johnson, but that doesn’t mean that the principles underlying the ruling have changed along with them. The case was widely cited by the Supreme Court well into the late 20th century, and the “doctrine of discovery” was cited in 2005’s City of Sherrill, New York v. Oneida Indian Nation as the basis for all land ownership in the United States today.
Of course, it is worth noting that the majority (if not all) of these court opinions do not explicitly voice support for this doctrine, but rather cite it as the longstanding basis for land ownership in the New World.
A rejection of this principle (without the substitution of an analogous principle that reached the same result) would likely lead to the mass reversion of lands back to their original respective Native inhabitants, potentially resulting in the complete loss of land over which the U.S. (and other New World nations) claim sovereignty – a result that all but the most radical of judges would want to avoid.
As such, even though opposition to the racist and ethnocentric rationales underlying the “discovery doctrine” expounded on in Chief Justice John Marshall’s Johnson opinion are near-universal today, there seems to be an unspoken, if not uncomfortable, consensus that the United States’ existence is due entirely because of this doctrine.