The committee then moved to introduce a bill authorizing the President to convey, in fee-simple title, the 2,560 acres Zane had received from the Wyandot.
As pointed out in Johnson, the eruption of the American Revolution had made it impossible for Johnson et al. to validate their title and take possession of the land since the purchasers ran afoul of the American colonists. However, Johnson and Graham had been petitioning Congress since 1781 seeking relief for their unfulfilled land title.44
Marshall did not address the question as to how these prerevolutionary land purchases were different from previous purchases made by English/American colonists in the thirteen colonies before the Revolutionary War, since Great Britain was the settled and dominant European sovereign and this procedure—individuals purchasing land under British auspices—was commonly used to purchase Indian lands.
Instead, the Marshall Court raised and then proceeded to answer an entirely different and far more troubling question—especially since the Indian tribes were not parties in the suit—as to whether tribes had a title that could be conveyed to whomever they chose. By generating this question and then answering it negatively, Marshall’s court, in the process of this unanimous opinion, both created and recreated a set of legal rationalizations to justify the reduction of Indian rights without allowing any room for listening to the Indian voice. More importantly, Marshall arrived at the conclusion that Indian tribes did not have full title, they had merely an “impaired” and therefore incomplete title that could not be conveyed to whomever they wished.
This is evidently his purpose in the second paragraph of his opinion where he states:
As the right of society to prescribe those rules by which property may be acquired and preserved is not, and cannot, be drawn into question; as the title to lands, especially, is, and must be admitted to depend entirely on the law of the nation in which they lie; it will be necessary, in pursing this inquiry, to examine, not simply those principles of abstract justice . . . which are admitted to regulate, in a great degree the rights of civilized nations . . . but those principles also which our own government has adopted in the particular case, and given us as the rule for our decision.45
Here Marshall was asserting that if the rule of law or “abstract justice” was in conflict with the national government’s right to generate rules favorable to its own property and political needs then it was the Court’s duty to construct principles or amend existing principles which would sanction those new standards. In other words, the rule of law, which should have led to a decision in favor of the plaintiffs (Johnson et al.) because of their preexisting and lawfully executed property rights, was circumvented in this case by what amounted to a political decision cloaked in judicial doctrines and strengthened by the politically expedient compromise agreed to by the founders of the American Republic which “provided for the cession of frontier claims by the ‘landed’ states to a federal sovereign claiming exclusive rights to extinguish Indian title claimed by purchase or conquest . . . [and] settled the legal status and rights of the American Indian in United States law.”46
The bulk of Marshall’s opinion served to lay out and transform the “doctrine of discovery.”47 This doctrine has been vilified by a number of writers,48 and one scholar has argued that the discovery principle is actually a limitation on the rights of the “discovering” states and has little directly to do with indigenous rights.49 Notwithstanding the substantial arguments of the minority, the reality for tribes over the years has been that the major principles emanating from Johnson—the discovery doctrine, the inferior status of Indian property rights, the notion of conquest, the allegedly inferior cultural standing of tribes, the impaired ability of tribes to sell their “incomplete” title, and the “so-called” diminished political status of tribes—have had lasting implications for indigenous-nonindigenous relations.50
Marshall’s retrospective vision of “discovery”—the definitive principle in the case—created a “landlord-tenant” relationship between the federal government and the Indian tribes. “The federal government, as the ultimate landlord, not only possessed the power to terminate the ‘tenancy’ of its occupants but also could materially affect the lives of Indians through its control and regulation of land use.”51 Several well-worn quotes from the opinion give clear evidence of this unilateral transmutation of Indian property and political rights, based solely on the Court’s own self-generated notions. In this case, the Court was willing to violate even Euro-American individual property rights to place itself in a superior political position relative to tribal nations who were not even parties to the dispute.
On the “Discovery” Principle: Masking the Discovery Doctrine
On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire . . . But as they were all in pursuit of nearly the same object, it was necessary, in order to avoid conflicting settlements . . . to establish a principle, which all should acknowledge as the law by which the right of acquisition, which they all asserted, should be regulated, as between themselves. This principle was, that discovery gave title to the government by whose subjects, or by whose authority, it was made, against all other European governments, which title might be consummated by possession. The exclusion of all other Europeans necessarily gave to the nation making the discovery the sole right of acquiring the soil from the natives, and establishing settlements upon it. It was a right with which no European could interfere. . . .52
The United States, then, have unequivocally acceded to that great and broad rule by which its civilized inhabitants now hold this country. They hold, and assert in themselves, the title by which it was acquired. They maintain, as all others have maintained, that discovery gave an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest; and gave also a right to such a degree of sovereignty, as the circumstances of the people would allow them to exercise.53
On the Tribes’ Impaired Rights to both Soil and Sovereignty
In the establishment of these relations, the rights of the original inhabitants were, in no instance, entirely disregarded; but were, necessarily, to a considerable extent, impaired. They were admitted to be the rightful occupants of the soil, with a legal as well as just claim to retain possession of it, and to use it according to their own discretion; but their rights to complete sovereignty, as independent nations, were necessarily diminished, and their power to dispose of the soil, at their own will, to whomever they pleased, was denied by the original fundamental principle, that discovery gave exclusive title to those who made it.54 An absolute title to lands cannot exist, at the same time, in different persons, or in different governments. An absolute [title] must be an exclusive title, or at least a title which excludes all others not compatible with it. All our institutions recognise the absolute title of the crown, subject only to the Indian right of occupancy, and recognize the absolute title of the crown to extinguish that right. This is incompatible with an absolute and complete title in the Indians.55
So too, with respect to the concomitant principle, that the Indian inhabitants are to be considered merely as occupants, to be protected, indeed, while in peace, in the possession of their lands, but to be deemed incapable of transferring the absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by courts of justice.56
It has never been contended that the Indian title amounted to nothing. Their right of possession has never been questioned. The claim of government extends to the complete ultimate title, charged with this right of possession, and to the exclusive power of acquiring that right.57
The thrust of the Court’s message in Johnson was that indigenous peoples do n
ot have the natural right exercised by citizens of “civilized” nations to sell their property to whomever they wish. Basically, Marshall had acknowledged that tribal nations possessed certain rights and a form of title that could be disposed of under certain situations. To legitimate the denial of full tribal territorial sovereignty and complete political sovereignty, Marshall pulled together a conflicting and confusing potpourri of arguments. First, he couched his argument against recognition of full tribal property rights on the basis of their allegedly inferior, non-Christian cultural status, though he tried to downplay this cultural ethnocentrism by saying, “We will not enter into the controversy, whether agriculturalists, merchants and manufacturers have a right, on abstract principles, to expel hunters from the territory they possess, or to contract their limits.”58 Marshall believed that leaving the Indians alone in sole possession of their territory was tantamount to “leaving the country a wilderness.”59
Marshall made several equivocal statements about the doctrine of “conquest” and how this alleged domination had affected the relationship between tribes and European and Euro-American nations. After a long discussion about the limitations placed upon conquered peoples by the conquering nation, Marshall rechanneled and redirected his thoughts, stating that the “law which regulates, and ought to regulate in general, the relations between the conqueror and the conquered, was incapable of application to a people [tribes] under such circumstances.”60 The result was that the Court created a “new and different rule, better adapted to the actual state of things. . . .”61 That “rule” was Marshall’s innovative deployment of the historically fictitious doctrines of discovery and conquest to legitimize the United States’ power over tribes.62
In a remarkable admission Marshall said, “However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards, sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it, it becomes the law of the land, and cannot be questioned.”63 This is an amazing confession. The Chief Justice was candidly admitting that the doctrines of discovery and of conquest were nothing more than extravagant pretenses without any basis in fact. Nevertheless, the Supreme Court had decided for purely political and economic reasons to transform these legal fictions into legal concepts.
Marshall went on to argue that Johnson and Graham, as successors to the original purchasers of Indian title in the two prerevolutionary land transactions, had, in buying land within Indian Country, incorporated themselves within that tribal territory and therefore held their acquired title under tribal protection and were subject to tribal law.64 The United States, by contrast, in concluding postrevolutionary treaties with the tribes for the same territory, had secured recognizable title to the lands in dispute partly because the tribes had been at war with the United States and retained the right to annul any previous land grant they had made to American citizens.65 In short, the Chief Justice was saying that the plaintiffs’ claims were defeated because the tribes themselves had extinguished their interests by selling the land again, this time to the United States.
In his conclusion, Marshall had cleverly reached a political/legal compromise that avoided two contrasting visions of Indian title: 1) that the doctrine of discovery completely vanquished Indian title in toto or 2) that tribes held a title equal to the fee-simple title that was wholly unaffected by the claims of the European and U.S. “discoverers.”66 The former would have left the tribes with no enforceable interests whatsoever; the latter would have nullified state and federal grants derived from Indians. The end result, of course, was the enshrinement, the institutionalization of a theory of tribal subordination to the federal government.67 Put more pithily, “Johnson’s acceptance of the Doctrine of Discovery into U.S. law preserved the legacy of 1,000 years of European racism and colonialism directed against nonwestern peoples. White society’s exercise of power over Indian tribes received the sanction of the Rule of Law in Johnson v. McIntosh.”68
A solid argument can be made69 that Johnson was implicitly overruled by two later cases, Worcester v. Georgia (1832) and especially Mitchel v. U.S. (1835). The fact remains, however, that this decision is still regularly cited by commentators and, more importantly, relied upon as “good” precedent by the Supreme Court, as will become evident in the discussion of later cases involving jurisdiction and land claims.
THE FORCED PIERCING OF TRIBAL SOVEREIGNTY BY FEDERAL LAW
The period of twenty-three years between Johnson and United States v. Rogers (1846) was a wildly tumultuous era in both indigenous and American history. If there is no such viable entity as “federal Indian law,” with a clear and well-delineated set of principles and precepts that are generally followed, then it is also true that there is not and has never been—with a brief exception of the first few years of the American Republic—any such creature as federal Indian policy operating with a distinctive conceptual framework and with explicit terms and constructs forming an overarching paradigm. What Commissioner of Indian Affairs William Dole said in 1864 has from the early 1800s been as true as it is today: “From a glance at the history of our relations with the Indian, it will appear that we have been governed by the course of events, rather than by the adoption of a well-settled policy.”70
In the mid-to-late nineteenth century this dichotomy of Indian policy and law appeared under another set of somewhat less dichotomous terms: Removal versus Civilization. The removal position, expressed in the Indian Removal Act of 183071 and numerous treaties, many of which tribes were coerced into signing, advocated the voluntary and, “when necessary,” the forced dispossession of Indians from their aboriginal homelands. As Commissioner of Indian Affairs Elbert Herry noted in his annual report for 1831: “Gradually diminishing in numbers and deteriorating in condition; incapable of coping with the superior intelligence of the white man, ready to fall into the vices, but inapt to appropriate the benefits of the social state; the increasing tide of white population threatened soon to engulf them, and finally to cause their extinction.”72 A majority of federal officials would not accept this allegedly inevitable situation. The federal government responded by developing the Indian Removal program which, it was thought, would save the tribes from obliteration since they would be “under the protection of the United States. . . .”73
The phrase “under the protection of the United States” is, of course, intrinsically connected to the option of “civilizing” the Indian tribes. The idea of “civilization” for indigenous peoples had been a major impetus animating much of the federal policymakers’ agenda since the formation of the American Republic. In fact, in 1818, a House committee report noted, “in the present state of our country, one of two things seems to be necessary, either that those sons of the great forest should be moralized or exterminated: humanity would rejoice at the former, but shrink with horror from the latter.”74
Both positions are grounded in the assumption that indigenous peoples were different—politically, culturally, socially, spiritually—in ways that could not and should not be tolerated. And while the two positions sparked ample and often vigorous debate in congressional, judicial, and executive chambers, “they functioned to exclude from discourse a third ideological point of view, that of cultural relativism. The idea that Indians in America should be allowed to perpetuate a radically different cultural heritage from that of white settlers . . . was not seriously entertained throughout much of American history.75
Still, the tension between these two opposite yet interrelated concepts—removal and civilization—fueled both knowingly and unknowingly a chain of events that would culminate in Chief Justice Roger Taney’s perplexing decision in United States v. Rogers. In the last half of the nineteenth century, political relations between tribes and the U.S. were largely determined either by treaties or by Indian trade and intercourse acts. These acts, the first passed in 1790, the fina
l and enduring one in 1834,76 were established to systematize the regulation of Indian trade, restrict liquor in Indian territory, and protect the disposition of tribal lands. The 1834 codification was also important in that it incorporated the germane provisions of an 1817 law which extended federal criminal jurisdiction over interracial (Indian and non-Indian) crimes in Indian Country.77
During this era, Indian-on-Indian crimes were not affected by these laws, because to adjudicate such matters would have been a direct violation of tribal sovereignty. Efforts continued, however, on the part of some federal lawmakers to control even solely domestic tribal matters. For example, the internal schism among the Cherokee Indians in the 1840s prompted President James K. Polk on April 13, 1846, to suggest
the propriety of making such amendments of the laws regulating intercourse with the Indian tribes as will submit to trial and punishment in the courts of the United States all Indians guilty of murder, and such other felonies as may be designated, when committed on other Indians within the jurisdiction of the United States. Such a modification of the existing laws is supported, because if offenders against the laws of humanity in the Indian Country are left to be punished by Indian law, they will generally, if not always, be permitted to escape with impunity. This has been the case in repeated instances among the Cherokees.78
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