Aboriginal title in the Marshall Court
Encyclopedia
The Supreme Court of the United States
, under Chief Justice John Marshall
(1801—1835), issued some of the earliest and most influential opinions on the status of aboriginal title in the United States
, several of them written by Chief Justice John Marshall
himself. However, without exception, the remarks of the Court on aboriginal title
during this period are dicta. Only one indigenous litigant ever appeared before the Marshall Court, and there, Marshall dismissed the case for lack of original jurisdiction
.
Fletcher v. Peck
(1810) and Johnson v. M'Intosh
(1823), the first and the most detailed explorations of the subject by Marshall, respectively, both arose out of collusive lawsuit
s, where land speculators presented an artificial case and controversy in order to elicit the desired precedent. In Cherokee Nation v. Georgia
(1831) and Worcester v. Georgia
(1832), the dicta of Marshall and the dissenting justices embraced a far broader view of aboriginal title
.
Johnson involved a pre-Revolutionary private conveyances from 1773 and 1775; Michell v. United States (1835) involved 1804 and 1806 conveyances in Florida under Spanish rule. However, in both cases, the Marshall Court continued to apply the rule that aboriginal title was inalienable
, except to The Crown
. This inalienability principle—whether embodied by the Royal Proclamation of 1763
, the Confederation Congress Proclamation of 1783
, the Nonintercourse Acts of 1790, 1793, 1796, 1799, 1802, or 1833, or the federal common law
—remains the crux of the modern Indian land claim litigation.
Several other cases involved disputes between non-Indians holding land grants from different states or state nonintercourse acts; federal courts had subject-matter jurisdiction over such disputes as "Controversies . . . between Citizens of the same State claiming Lands under Grants of different States." For example, Preston v. Browder (1816), Danforth's Lessee v. Thomas (1816), and Danforth v. Wear (1824) involved conflicting land grants from the states of North Carolina and Tennessee.
Sims' Lessee v. Irvine (1799) was the first Supreme Court decision to discuss aboriginal title (albeit briefly), and the only such decision before the Marshall Court. The Court found ejectment
jurisdiction over certain lands, notwithstanding the defendant's claim (in the alternative to the claim that the defendant himself held title) that the lands were still held in aboriginal title because:
State court decisions
The "first known American case to address the issue" of the validity of state land grands to land over which the aboriginal title had not been extinguished was Marshall v. Clark (Va. 1791), decided by the Virginia Supreme Court. The plaintiff was John Marshall's father, Thomas Marshall, challenging (on behalf of the state militia's claim to the same land) the validity of a land grant to Revolutionary War veteran George Rogers Clark
. Marshall argued that the grant could not be valid because the aboriginal title was not extinguished; the Virginia Supreme Court disagreed:
The Pennsylvania Supreme Court and Tennessee Supreme Court
soon issued opinions to the same effect, holding that states could grant land that the federal government had not yet purchased from Indians. Such transactions, already common, increased in the wake of these decisions; the assumption was that the Indians held fee simple to their land, but that future executory interests could be sold, representing a promise of the state to transfer the land should it ever come into their possession.
A second, competing view was that the Indians possessed only a possessory right of occupancy, not fee simple to their land. "The first reported American court decision holding that unsold Indian land was owned by the government, subject only to the lesser right of 'possession' or 'occupancy' held by Indians" was Strother v. Cathey (N.C. 1807), decided by the North Carolina Supreme Court
. There, the North Carolina court decided that the fee title to the land was held by the state, subject to the tribe's right of occupancy, and that—while the federal government could terminate that right occupancy—the federal government could not acquire fee title by doing so.
In Jackson v. Hudson (N.Y. 1808) held that the nature of Indian title was an undecided question in New York, and avoided deciding the issue because neither party claimed its chain of title traced to Indians. The next term, when a party before the court claimed to derive title deeds from Indian sellers, the New York court held that such deeds were insufficient in Van Gorden v. Jackson (N.Y. 1809):
Following Fletcher v. Peck
(1810), the latter view prevailed over the former in additional state courts. Other state courts disagreed.
Fletcher v. Peck
(1810) is famous as the "first of the great nineteenth-century Contract Clause
cases"; Marshall's majority, at the very end, "included only two sentence about the Indians, but they would prove to be influential." In the oral argument
, Peck's lawyer "launched into the first discussion of the nature of Indian landownership ever to take place before the U.S. Supreme Court":
Peck's lawyer raised the point in response to a question from the bench, almost certainly from Justice Johnson. Vattel, Montesquieu, and Smith all had two things in common: they falsely believed that Native Americans did not practice agriculture; and, they had never travelled to North America. Marshall did not cite these sources in his opinion in Fletcher, but he would cite all three in Johnson.
Marshall's majority
Marshall addressed the arguments raised by Peck's lawyers and Johnson's dissent at the very end of his majority opinion:
Marshall's formulation is actually a compromise: responding to Johnson's concern that Georgian land owners with such grants could evict Indians, while still trying to preserve the validity of the dominant form of land grant in the United States at the time. In doing so, Marshall in effect adopted the newer view of Indian title promulgated in state courts for two decades that the Indians did not own fee simple to their lands. Marshall's opinion did not spell out which methods could legitimately extinguish Indian title, or even whether the power resided with the state or federal government.
Johnson's dissent
Dissents were rare on the Marshall Court; Justice William Johnson
dissented more frequently than most, but still quite rarely by modern standards. First, although Johnson agreed that the Georgia legislature could not revoke its land grant, he located such a prohibition in natural law
, rather than the Contract Clause. More substantively, Johnson's opinion advocated the older view (from the state courts and colonial custom) that Indians held fee simple to their land, and that state land grants constituted a future executory interest.
Later history
In the oral arguments for Meigs v. M'Clung's Lessee (1815), Marshall asked a litigant about the validity of state grants before the extinguishment of aboriginal title; before the lawyer could finish responding that the question did not arise, Justice Joseph Story
interrupted: "That question has been decided in the case of Fletcher v. Peck." Two years later, riding the Massachusetts Circuit, Story cited Fletcher for the proposition that states owned Indian land in fee simple before extinguishment. Justice Bushrod Washington
, riding in Pennsylvania gave the same as a jury instruction. Litigants in the Supreme Court and state high courts cited Fletcher to similar effect.
(1813) considered the rights of British aliens, holding title from a Royal grant, defending against an ejectment action pursuant to a Virginia statute. The Court (with Justices Marshall and Todd absent) held that the treaty between the United States and Great British, ratified subsequent to the ejectment judgement in the lower court but prior to the Virginia Supreme Court decision, should have prevented the ejectment.
against another non-Indian, and the Supreme Court affirmed the ruling. Justice Thomas Todd
, writing for a unanimous court, said the follow about aboriginal title:
(1791), and the plaintiff seeking ejectment had acquired a state land grant from North Carolina that same year; the defendant held a state land grant from Tennessee issued in 1809. The plaintiff's land grant had been excluded from evidence, and the jury had thus returned a verdict for the defendant. The Justice Todd, again writing for a unanimous court, affirmed. The court was able to decide the case without reaching the question of aboriginal title:
(1823), thirteen years after Fletcher, was the Supreme Court's "first detailed discussion of the subject" of indigenous title, today "remembered as the origin of the right of occupancy." The primary effect of the Johnson decision was to remove the cloud of title, or the title to property, over the large number of state land grants on land which the indigenous title had not yet been taken away. Many quotes from Johnson have reverberated in legal quotations and law review titles for 200 years, including: "Conquest gives title which the Courts of the conquer cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim."
Because the pre-Revolutionary transactions had taken place after the Royal Proclamation of 1763
, Marshall could have decided the case simply by reliance on the proclamation; instead, he based his ruling on custom
, looking equally to the law of nations of all colonial powers, not just the British.
Building upon the brief afterthought in the Fletcher decision, the Johnson decision added to the idea that indigenous nations did not hold fee simple
, or unconditional ownership of their lands with the right to control or transfer them as they chose. Justice Johnson, still on the court, did not dissent again. The influence of the Johnson became grew during the "golden age of American legal treatises" that followed; the case figured prominently in, inter alia, James Kent
's Commentaries on American Law (c. 1820) and Joseph Story
's Commentaries on the Constitution (1833).
Justice William Johnson
delivered the opinion of the unanimous court. The Court cited Preston and Danforth's Lessee for the proposition that "the inviolability of the Indian territory is fully recognised." However, the Court reversed the judgment below and held that the grant should have been admissible in relation to the land over which aboriginal title had been extinguished at the time of the survey.
Fletcher and Johnson had established one principle that Native Americans soon hoped to be able to enforce: that a state government
could not extinguish aboriginal title. William Wirt
, former U.S. attorney general, tried three times in three years to get a case regarding Cherokee removal
to the Supreme Court. In December 1830, Marshall granted a writ of error to a criminal case regarding a murder committed by a Cherokee, Geroge Tassels, against another tribe member on Cherokee land, but Georgia executed him and mooted the case before Marshall could hear oral arguments.
Marshall's majority
In Cherokee Nation v. Georgia
, Wirt filed directly in the Supreme Court seeking to invoke the Court's original jurisdiction
to void the 1820s Georgia statutes declared unconstitutional, contrary to treaties between the U.S. and the Cherokees, or contrary to the Nonintercourse Act
of 1802. Marshall decided that the Cherokee were a "domestic dependent nation," not a foreign state, and thus dismissed the case for lack of jurisdiction.
Thompson and Story's dissent
Justices Smith Thompson
and Joseph Story
dissented on the jurisdictional question, and thus reached the merits, siding with the Cherokee. According to Richard Peters, the court reporter, this dissent was written with the explicit encouragement and assistance of Marshall. Moreover, Marshall "encourage[d] Peters to publish a separate report" that included the dissents, oral arguments, treaties, and the opinion of James Kent
for the Cherokees.
Thompson, with whom Story concurred, noted that although the U.S. had promised in a compact with Georgia to extinguish the aboriginal title, it had not done so yet, and thus: "[T]he state has not even a reversionary interest in the soil. . . . [U]ntil this is done, the state can have no claim to the lands." If the U.S. never extinguished the title, Thompson opined, Georgia could not force the U.S. to specifically perform the compact. Thompson would have enjoined the Georgia laws because: "The complaint is not of a mere private trespass, admitting of compensation in damages; but of injuries which go to the total destruction of the whole right of the complainants."
(1832) was the third case by Wirt, appealing the conviction of Samuel Worcester
for illegally residing on Cherokee lands without a license from the state. Although the holding of the opinion reached only the question of criminal jurisdiction, its dicta was far more pro-Indian than Fletcher or Johnson:
Of course, the "extravagant and absurd" idea was one "that Marshall himself had played an important role in propagating nine years earlier in Johnson v. M'Intosh." Worcester eventually resulted in the freeing of Samuel Worcester, but the decision did not invalidate any state or federal law, or impose any lingering obligation on the state or federal government. Three years later, the U.S. government signed the Treaty of New Echota
(1835) with a "group of dissent Cherokees" and forced them on what became known as the "trail of tears."
Marshall interpreted the provision of the Florida land act requiring Spanish grants to be filed within one year narrowly. Marshall stated: “It is impossible to suppose, that Congress intended to forfeit real titles, not exhibited to their commissioners within so short a period.” He interpreted this provision to mean only that the commissioners could not grant title after one year, not that the property rights held by virtue of the Spanish grants were void.
, was the last Marshall Court opinion on aboriginal title. At issue was 1,200,00 acres of land in Florida
alienated to the Spanish crown in 1804 and 1806, and then granted to private parties. Baldwin, for a unanimous court, upheld those transactions. Noting that the Royal Proclamation of 1763
applied while Florida was under British rule from 1763 to 1783
, Baldwin held that Spanish law (which he perceived to be materially the same as British law in this respect) governed the extinguishment of aboriginal title when the territory reverted to Spanish rule from 1783 to 1821.
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
, under Chief Justice John Marshall
John Marshall
John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...
(1801—1835), issued some of the earliest and most influential opinions on the status of aboriginal title in the United States
Aboriginal title in the United States
The United States was the first jurisdiction to acknowledge the common law doctrine of aboriginal title...
, several of them written by Chief Justice John Marshall
John Marshall
John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...
himself. However, without exception, the remarks of the Court on aboriginal title
Aboriginal title
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism...
during this period are dicta. Only one indigenous litigant ever appeared before the Marshall Court, and there, Marshall dismissed the case for lack of original jurisdiction
Original jurisdiction
The original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a court has the power to review a lower court's decision.-France:...
.
Fletcher v. Peck
Fletcher v. Peck
Fletcher v. Peck, , was a landmark United States Supreme Court decision. The first case in which the Supreme Court ruled a state law unconstitutional, the decision also helped create a growing precedent for the sanctity of legal contracts, and hinted that Native Americans did not hold title to...
(1810) and Johnson v. M'Intosh
Johnson v. M'Intosh
Johnson v. M'Intosh, 21 U.S. 543 , is a landmark decision of the U.S. Supreme Court that held that private citizens could not purchase lands from Native Americans...
(1823), the first and the most detailed explorations of the subject by Marshall, respectively, both arose out of collusive lawsuit
Collusive lawsuit
A collusive lawsuit is a lawsuit in which the parties to the suit have no actual quarrel with one another, but one sues the other to achieve some result desired by both.-Constitutional law:...
s, where land speculators presented an artificial case and controversy in order to elicit the desired precedent. In Cherokee Nation v. Georgia
Cherokee Nation v. Georgia
Cherokee Nation v. Georgia, , was a United States Supreme Court case. The Cherokee Nation sought a federal injunction against laws passed by the state of Georgia depriving them of rights within its boundaries, but the Supreme Court did not hear the case on its merits...
(1831) and Worcester v. Georgia
Worcester v. Georgia
Worcester v. Georgia, 31 U.S. 515 , was a case in which the United States Supreme Court vacated the conviction of Samuel Worcester and held that the Georgia criminal statute that prohibited non-Indians from being present on Indian lands without a license from the state was unconstitutional.The...
(1832), the dicta of Marshall and the dissenting justices embraced a far broader view of aboriginal title
Aboriginal title
Aboriginal title is a common law doctrine that the land rights of indigenous peoples to customary tenure persist after the assumption of sovereignty under settler colonialism...
.
Johnson involved a pre-Revolutionary private conveyances from 1773 and 1775; Michell v. United States (1835) involved 1804 and 1806 conveyances in Florida under Spanish rule. However, in both cases, the Marshall Court continued to apply the rule that aboriginal title was inalienable
Alienation (property law)
Alienation, in property law, is the capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another. Although property is generally deemed to be alienable, it may be subject to restraints on alienation....
, except to The Crown
The Crown
The Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
. This inalienability principle—whether embodied by the Royal Proclamation of 1763
Royal Proclamation of 1763
The Royal Proclamation of 1763 was issued October 7, 1763, by King George III following Great Britain's acquisition of French territory in North America after the end of the French and Indian War/Seven Years' War...
, the Confederation Congress Proclamation of 1783
Confederation Congress Proclamation of 1783
Confederation Congress Proclamation of 1783 was a proclamation by the Congress of the Confederation dated September 22, 1783 prohibiting the extinguishment of aboriginal title in the United States without the consent of the federal government...
, the Nonintercourse Acts of 1790, 1793, 1796, 1799, 1802, or 1833, or the federal common law
Federal common law
Federal common law is a term of United States law used to describe common law that is developed by the federal courts, instead of by the courts of the various states...
—remains the crux of the modern Indian land claim litigation.
Several other cases involved disputes between non-Indians holding land grants from different states or state nonintercourse acts; federal courts had subject-matter jurisdiction over such disputes as "Controversies . . . between Citizens of the same State claiming Lands under Grants of different States." For example, Preston v. Browder (1816), Danforth's Lessee v. Thomas (1816), and Danforth v. Wear (1824) involved conflicting land grants from the states of North Carolina and Tennessee.
Background
Earlier Supreme Court decisionsSims' Lessee v. Irvine (1799) was the first Supreme Court decision to discuss aboriginal title (albeit briefly), and the only such decision before the Marshall Court. The Court found ejectment
Ejectment
Ejectment is the common law term for civil action to recover the possession of and title to land. It replaced the old real actions as well as the various possessory assizes...
jurisdiction over certain lands, notwithstanding the defendant's claim (in the alternative to the claim that the defendant himself held title) that the lands were still held in aboriginal title because:
Without confessing the aboriginal title of the Indian tribes, it is enough for the lessor of the Plaintiff to allege . . . that before the year 1779, they had abandoned and relinquished all the lands . . . and that in pursuance of treaties, they have since receded very distantly from that boundary. Lands may be acquired by conquest; and a relinquishment, in consequence of hostilities, is tantamount to conquest.
State court decisions
The "first known American case to address the issue" of the validity of state land grands to land over which the aboriginal title had not been extinguished was Marshall v. Clark (Va. 1791), decided by the Virginia Supreme Court. The plaintiff was John Marshall's father, Thomas Marshall, challenging (on behalf of the state militia's claim to the same land) the validity of a land grant to Revolutionary War veteran George Rogers Clark
George Rogers Clark
George Rogers Clark was a soldier from Virginia and the highest ranking American military officer on the northwestern frontier during the American Revolutionary War. He served as leader of the Kentucky militia throughout much of the war...
. Marshall argued that the grant could not be valid because the aboriginal title was not extinguished; the Virginia Supreme Court disagreed:
The Indian title did not impede . . . the power of the legislature to grant the land. [The grantee] must risque the event of the Indian claim, and yield to it, if finally established, or have the benefit of a former or future extinction thereof.
The Pennsylvania Supreme Court and Tennessee Supreme Court
Tennessee Supreme Court
The Tennessee Supreme Court is the state supreme court of the state of Tennessee. Cornelia Clark is the current Chief Justice.Unlike other states, in which the state attorney general is directly elected or appointed by the governor or state legislature, the Tennessee Supreme Court appoints the...
soon issued opinions to the same effect, holding that states could grant land that the federal government had not yet purchased from Indians. Such transactions, already common, increased in the wake of these decisions; the assumption was that the Indians held fee simple to their land, but that future executory interests could be sold, representing a promise of the state to transfer the land should it ever come into their possession.
A second, competing view was that the Indians possessed only a possessory right of occupancy, not fee simple to their land. "The first reported American court decision holding that unsold Indian land was owned by the government, subject only to the lesser right of 'possession' or 'occupancy' held by Indians" was Strother v. Cathey (N.C. 1807), decided by the North Carolina Supreme Court
North Carolina Supreme Court
The Supreme Court of North Carolina is the state's highest appellate court. Until the creation of the North Carolina Court of Appeals in the 1960s, it was the state's only appellate court. The Supreme Court consists of six associate justices and one chief justice, although the number of justices...
. There, the North Carolina court decided that the fee title to the land was held by the state, subject to the tribe's right of occupancy, and that—while the federal government could terminate that right occupancy—the federal government could not acquire fee title by doing so.
In Jackson v. Hudson (N.Y. 1808) held that the nature of Indian title was an undecided question in New York, and avoided deciding the issue because neither party claimed its chain of title traced to Indians. The next term, when a party before the court claimed to derive title deeds from Indian sellers, the New York court held that such deeds were insufficient in Van Gorden v. Jackson (N.Y. 1809):
Though Indian deeds were obtained for the purpose of proving that the rights of the natives were extinguished, [such deeds] were never admitted, as of themselves, to be a source of legal title. [Indian deeds] were presented to government as an inducement to extend its boundary by grant, but the firm and unbending principle has uniformly been, that all titles must be derived, either mediately or immediately, actually or presumptively, from the crownThe CrownThe Crown is a corporation sole that in the Commonwealth realms and any provincial or state sub-divisions thereof represents the legal embodiment of governance, whether executive, legislative, or judicial...
.
Following Fletcher v. Peck
Fletcher v. Peck
Fletcher v. Peck, , was a landmark United States Supreme Court decision. The first case in which the Supreme Court ruled a state law unconstitutional, the decision also helped create a growing precedent for the sanctity of legal contracts, and hinted that Native Americans did not hold title to...
(1810), the latter view prevailed over the former in additional state courts. Other state courts disagreed.
Fletcher v. Peck (1810)
Oral argumentsFletcher v. Peck
Fletcher v. Peck
Fletcher v. Peck, , was a landmark United States Supreme Court decision. The first case in which the Supreme Court ruled a state law unconstitutional, the decision also helped create a growing precedent for the sanctity of legal contracts, and hinted that Native Americans did not hold title to...
(1810) is famous as the "first of the great nineteenth-century Contract Clause
Contract Clause
The Contract Clause appears in the United States Constitution, Article I, section 10, clause 1. It states:The Contract Clause prohibits states from enacting any law that retroactively impairs contract rights...
cases"; Marshall's majority, at the very end, "included only two sentence about the Indians, but they would prove to be influential." In the oral argument
Oral argument
Oral arguments are spoken presentations to a judge or appellate court by a lawyer of the legal reasons why they should prevail. Oral argument at the appellate level accompanies written briefs, which also advance the argument of each party in the legal dispute...
, Peck's lawyer "launched into the first discussion of the nature of Indian landownership ever to take place before the U.S. Supreme Court":
What is the Indian title? It is a mere occupancy for the purpose of hunting. It is not like our tenures; they have no idea of a title to the soil itself. It is overrun by them, rather than inhabited. It is not a true and legal possession. VattelEmerich de VattelEmer de Vattel was a Swiss philosopher, diplomat, and legal expert whose theories laid the foundation of modern international law and political philosophy. He was born in Couvet in Neuchatel, Switzerland in 1714 and died in 1767 of edema...
, b. 1. § 81. p. 37. and § 209. b. 2. § 97. MontesquieuCharles de Secondat, baron de MontesquieuCharles-Louis de Secondat, baron de La Brède et de Montesquieu , generally referred to as simply Montesquieu, was a French social commentator and political thinker who lived during the Enlightenment...
, b. 18. c. 12. Smith'sAdam SmithAdam Smith was a Scottish social philosopher and a pioneer of political economy. One of the key figures of the Scottish Enlightenment, Smith is the author of The Theory of Moral Sentiments and An Inquiry into the Nature and Causes of the Wealth of Nations...
Wealth of NationsThe Wealth of NationsAn Inquiry into the Nature and Causes of the Wealth of Nations, generally referred to by its shortened title The Wealth of Nations, is the magnum opus of the Scottish economist and moral philosopher Adam Smith...
, b. 5. c. 1. It is a right not to be transferred but extinguished. It a right regulated by treaties, not by deeds of conveyance. It depends upon the law of nations, not upon municipal right.
Although the power to extinguish this right by treaty, is vested in congress, yet Georgia had a right to sell subject to the Indian claim. The point has never been decided in the courts of the United States, because it has never before been questioned.
Peck's lawyer raised the point in response to a question from the bench, almost certainly from Justice Johnson. Vattel, Montesquieu, and Smith all had two things in common: they falsely believed that Native Americans did not practice agriculture; and, they had never travelled to North America. Marshall did not cite these sources in his opinion in Fletcher, but he would cite all three in Johnson.
Marshall's majority
Marshall addressed the arguments raised by Peck's lawyers and Johnson's dissent at the very end of his majority opinion:
It was doubted whether a state can be seised in fee of lands, subject to the Indian title, and whether a decision that they were seised in fee, might not be construed to amount to a decision that their grantee might maintain an ejectmentEjectmentEjectment is the common law term for civil action to recover the possession of and title to land. It replaced the old real actions as well as the various possessory assizes...
for them, notwithstanding that title.
The majority of the court is of opinion that the nature of the Indian title, which is certainly to be respected by all courts, until it be legitimately extinguished, is not such as to be absolutely repugnant to seisinSeisinSeisin is the term denoting the legal possession of a feudal fiefdom . It was used in the form of "the son and heir of X has obtained seisin of his inheritance", and thus is effectively a term concerned with conveyancing in the feudal era...
in fee on the part of the state.
Marshall's formulation is actually a compromise: responding to Johnson's concern that Georgian land owners with such grants could evict Indians, while still trying to preserve the validity of the dominant form of land grant in the United States at the time. In doing so, Marshall in effect adopted the newer view of Indian title promulgated in state courts for two decades that the Indians did not own fee simple to their lands. Marshall's opinion did not spell out which methods could legitimately extinguish Indian title, or even whether the power resided with the state or federal government.
Johnson's dissent
Dissents were rare on the Marshall Court; Justice William Johnson
William Johnson (judge)
William Johnson was a state legislator and judge in South Carolina, and an Associate Justice of the United States Supreme Court from 1804 to his death in 1834.-Youth and early career:...
dissented more frequently than most, but still quite rarely by modern standards. First, although Johnson agreed that the Georgia legislature could not revoke its land grant, he located such a prohibition in natural law
Natural law
Natural law, or the law of nature , is any system of law which is purportedly determined by nature, and thus universal. Classically, natural law refers to the use of reason to analyze human nature and deduce binding rules of moral behavior. Natural law is contrasted with the positive law Natural...
, rather than the Contract Clause. More substantively, Johnson's opinion advocated the older view (from the state courts and colonial custom) that Indians held fee simple to their land, and that state land grants constituted a future executory interest.
Later history
In the oral arguments for Meigs v. M'Clung's Lessee (1815), Marshall asked a litigant about the validity of state grants before the extinguishment of aboriginal title; before the lawyer could finish responding that the question did not arise, Justice Joseph Story
Joseph Story
Joseph Story was an American lawyer and jurist who served on the Supreme Court of the United States from 1811 to 1845. He is most remembered today for his opinions in Martin v. Hunter's Lessee and The Amistad, along with his magisterial Commentaries on the Constitution of the United States, first...
interrupted: "That question has been decided in the case of Fletcher v. Peck." Two years later, riding the Massachusetts Circuit, Story cited Fletcher for the proposition that states owned Indian land in fee simple before extinguishment. Justice Bushrod Washington
Bushrod Washington
Bushrod Washington was a U.S. Supreme Court associate justice and the nephew of George Washington.Washington was born in Westmoreland County, Virginia, and was the son of John Augustine Washington, brother of the first president. Bushrod attended Delamere, an academy administered by the Rev....
, riding in Pennsylvania gave the same as a jury instruction. Litigants in the Supreme Court and state high courts cited Fletcher to similar effect.
Fairfax's Devisee v. Hunter's Lessee (1813)
Fairfax's Devisee v. Hunter's LesseeFairfax's Devisee v. Hunter's Lessee
Fairfax's Devisee v. Hunter's Lessee, 11 U.S. 603 , was a United States Supreme Court case arising out of the acquisition of Fairfax land in the Northern Neck of the state of Virginia by the family and associates of John Marshall, including Robert Morris...
(1813) considered the rights of British aliens, holding title from a Royal grant, defending against an ejectment action pursuant to a Virginia statute. The Court (with Justices Marshall and Todd absent) held that the treaty between the United States and Great British, ratified subsequent to the ejectment judgement in the lower court but prior to the Virginia Supreme Court decision, should have prevented the ejectment.
Preston v. Browder (1816)
Preston v. Browder (1816) upheld North Carolina's nonintercourse act; both the statute and the conduct in question dated to the post-Revolution, pre-Articles of Confederation period. There, a plaintiff had acquired land in the western territory of North Carolina (part of Tennessee at the time of suit) in 1778 in violation of a 1777 North Carolina statute. The circuit court for the district of East Tennessee denied the plaintiff ejectmentEjectment
Ejectment is the common law term for civil action to recover the possession of and title to land. It replaced the old real actions as well as the various possessory assizes...
against another non-Indian, and the Supreme Court affirmed the ruling. Justice Thomas Todd
Thomas Todd
Thomas Todd was an American attorney and U.S. Supreme Court justice. Raised in the Colony of Virginia, he studied law and later participated in the founding of Kentucky, where he served as a clerk, judge, and justice. He was married twice and had a total of eight children. Todd joined the U.S...
, writing for a unanimous court, said the follow about aboriginal title:
North Carolina, at the time of passing this act, . . . had, but a short time before, shaken off her colonial government, and assumed a sovereign independent . . . . [D]uring the colonial system, . . . the citizens were restrained and prohibited from extending their settlements to the westward, so as to encroach on lands set apart for the Indian tribes . . . . [By treaty,] a boundary between the state and the said Indians was established. [The North Carolina nonintercourse act of November 1777 restriction the acquisition of lands] ‘which have accrued, or shall accrue, to this state, by treaty or conquest.’ . . . . It is not to be presumed, that the legislature intended, so shortly after making the treaty, to violate it, by permitting entries to be made west of the line fixed by the treaty. . . . [T]he legislative intention, to prohibit and restrict entries from being made on lands reserved for Indian tribes, may be discerned. [Amendments to the act passed after the acquisition in question] expressly forbid[] the entering or surveying any lands within the Indian hunting grounds, recognises the western boundary as fixed by the above-mentioned treaty, and declares void all entries and surveys which have been, or shall thereafter be made within the Indian boundary.
Danforth's Lessee v. Thomas (1816)
Danforth's Lessee v. Thomas (1816) was a companion case to Preston v. Browder, involving a similar dispute; this time, the relevant North Carolina statute was passed in 1783, during the Articles of Confederation period. The Cherokee's aboriginal title to the lands in question had been extinguished by the Treaty of HolstonTreaty of Holston
The Treaty of Holston was a treaty between the United States government and the Cherokee signed on July 2, 1791 and proclaimed on February 7, 1792...
(1791), and the plaintiff seeking ejectment had acquired a state land grant from North Carolina that same year; the defendant held a state land grant from Tennessee issued in 1809. The plaintiff's land grant had been excluded from evidence, and the jury had thus returned a verdict for the defendant. The Justice Todd, again writing for a unanimous court, affirmed. The court was able to decide the case without reaching the question of aboriginal title:
Whether the legislature had the power, or intended to give the Indians a right of property in the soil, or merely the use and enjoyment of it, need not be inquired into, nor decided, by this court; for it is perfectly clear, that the [1983 act] prohibits all persons from making entries or surveys for any lands within the bounds set apart for the Cherokee Indians, and declares all such entries and grants thereupon, if any should be made, utterly void. [The defendant argues] that the mere extinguishment of the Indian title did not subject the land to appropriation, until an act of the legislature authorized or permitted it. Whatever doubts this court might entertain on this subject, were they now construing these laws upon the first impression, that doubt would be removed [by North Carolina case law].
Johnson v. M'Intosh (1823)
Johnson v. M'IntoshJohnson v. M'Intosh
Johnson v. M'Intosh, 21 U.S. 543 , is a landmark decision of the U.S. Supreme Court that held that private citizens could not purchase lands from Native Americans...
(1823), thirteen years after Fletcher, was the Supreme Court's "first detailed discussion of the subject" of indigenous title, today "remembered as the origin of the right of occupancy." The primary effect of the Johnson decision was to remove the cloud of title, or the title to property, over the large number of state land grants on land which the indigenous title had not yet been taken away. Many quotes from Johnson have reverberated in legal quotations and law review titles for 200 years, including: "Conquest gives title which the Courts of the conquer cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim."
Because the pre-Revolutionary transactions had taken place after the Royal Proclamation of 1763
Royal Proclamation of 1763
The Royal Proclamation of 1763 was issued October 7, 1763, by King George III following Great Britain's acquisition of French territory in North America after the end of the French and Indian War/Seven Years' War...
, Marshall could have decided the case simply by reliance on the proclamation; instead, he based his ruling on custom
Custom (law)
Custom in law is the established pattern of behavior that can be objectively verified within a particular social setting. A claim can be carried out in defense of "what has always been done and accepted by law." Customary law exists where:...
, looking equally to the law of nations of all colonial powers, not just the British.
Building upon the brief afterthought in the Fletcher decision, the Johnson decision added to the idea that indigenous nations did not hold fee simple
Fee simple
In English law, a fee simple is an estate in land, a form of freehold ownership. It is the most common way that real estate is owned in common law countries, and is ordinarily the most complete ownership interest that can be had in real property short of allodial title, which is often reserved...
, or unconditional ownership of their lands with the right to control or transfer them as they chose. Justice Johnson, still on the court, did not dissent again. The influence of the Johnson became grew during the "golden age of American legal treatises" that followed; the case figured prominently in, inter alia, James Kent
James Kent
James Kent was an American jurist and legal scholar.-Life:...
's Commentaries on American Law (c. 1820) and Joseph Story
Joseph Story
Joseph Story was an American lawyer and jurist who served on the Supreme Court of the United States from 1811 to 1845. He is most remembered today for his opinions in Martin v. Hunter's Lessee and The Amistad, along with his magisterial Commentaries on the Constitution of the United States, first...
's Commentaries on the Constitution (1833).
Danforth v. Wear (1824)
Danforth v. Wear (1824), like Preston v. Browder and Danforth's Lessee v. Thomas, involved conflicting land grants issued by North Carolina and Tennessee. The plaintiff's North Carolina land grant included both "a tract of country over which the Indian title had been extinguished" and "a large body of land, over which the Indian title existed at the time of the survey, but has since been extinguished." Once again, the trial court had deemed the plaintiff's grant void and excluded it from evidence; the Court observed that such a ruling "could only be sustained upon the ground that it was wholly void, or wholly inadmissible in that cause. For if the grant was good but for an acre of the land claimed in the action, the Court could not have withheld it from the jury."Justice William Johnson
William Johnson (judge)
William Johnson was a state legislator and judge in South Carolina, and an Associate Justice of the United States Supreme Court from 1804 to his death in 1834.-Youth and early career:...
delivered the opinion of the unanimous court. The Court cited Preston and Danforth's Lessee for the proposition that "the inviolability of the Indian territory is fully recognised." However, the Court reversed the judgment below and held that the grant should have been admissible in relation to the land over which aboriginal title had been extinguished at the time of the survey.
Harcourt v. Gaillard (1827)
In Harcourt v. Gaillard (1827), a case involving British land grants, the Court distinguished between conquest and change of sovereignty. As to conquest, the Court noted: "War is a suit prosecuted by the sword; and where the question to be decided is one of original claim to territory, grants of soil made flagrante bello by the party that fails, can only derive validity from treaty stipulations. It is not necessary here to consider the rights of the conqueror in case of actual conquest; since the views previously presented put the acquisition of such rights out of this case." Yet, the Court continued to recognize the principle that "a change of sovereignty produces no change in individual property, yet it imputes to them only a modified validity." The relevant statute provided that British land grants that were not accompanied by possession must be filed with a commission, and the Harcourt grant was not.Cherokee Nation v. Georgia (1831)
BackgroundFletcher and Johnson had established one principle that Native Americans soon hoped to be able to enforce: that a state government
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
could not extinguish aboriginal title. William Wirt
William Wirt (Attorney General)
William Wirt was an American author and statesman who is credited with turning the position of United States Attorney General into one of influence.-History:...
, former U.S. attorney general, tried three times in three years to get a case regarding Cherokee removal
Cherokee removal
Cherokee removal, part of the Trail of Tears, refers to the forced relocation between 1836 to 1839 of the Cherokee Nation from their lands in Georgia, Texas, Tennessee, Alabama, and North Carolina to the Indian Territory in the Western United States, which resulted in the deaths of approximately...
to the Supreme Court. In December 1830, Marshall granted a writ of error to a criminal case regarding a murder committed by a Cherokee, Geroge Tassels, against another tribe member on Cherokee land, but Georgia executed him and mooted the case before Marshall could hear oral arguments.
Marshall's majority
In Cherokee Nation v. Georgia
Cherokee Nation v. Georgia
Cherokee Nation v. Georgia, , was a United States Supreme Court case. The Cherokee Nation sought a federal injunction against laws passed by the state of Georgia depriving them of rights within its boundaries, but the Supreme Court did not hear the case on its merits...
, Wirt filed directly in the Supreme Court seeking to invoke the Court's original jurisdiction
Original jurisdiction
The original jurisdiction of a court is the power to hear a case for the first time, as opposed to appellate jurisdiction, when a court has the power to review a lower court's decision.-France:...
to void the 1820s Georgia statutes declared unconstitutional, contrary to treaties between the U.S. and the Cherokees, or contrary to the Nonintercourse Act
Indian Intercourse Act
The Nonintercourse Act is the collective name given to six statutes passed by the United States Congress in 1790, 1793, 1796, 1799, 1802, and 1834. The Act regulates commerce between Native Americans and non-Indians...
of 1802. Marshall decided that the Cherokee were a "domestic dependent nation," not a foreign state, and thus dismissed the case for lack of jurisdiction.
Thompson and Story's dissent
Justices Smith Thompson
Smith Thompson
Smith Thompson was a United States Secretary of the Navy from 1818 to 1823, and a United States Supreme Court Associate Justice from 1823 until his death in 1843....
and Joseph Story
Joseph Story
Joseph Story was an American lawyer and jurist who served on the Supreme Court of the United States from 1811 to 1845. He is most remembered today for his opinions in Martin v. Hunter's Lessee and The Amistad, along with his magisterial Commentaries on the Constitution of the United States, first...
dissented on the jurisdictional question, and thus reached the merits, siding with the Cherokee. According to Richard Peters, the court reporter, this dissent was written with the explicit encouragement and assistance of Marshall. Moreover, Marshall "encourage[d] Peters to publish a separate report" that included the dissents, oral arguments, treaties, and the opinion of James Kent
James Kent
James Kent was an American jurist and legal scholar.-Life:...
for the Cherokees.
Thompson, with whom Story concurred, noted that although the U.S. had promised in a compact with Georgia to extinguish the aboriginal title, it had not done so yet, and thus: "[T]he state has not even a reversionary interest in the soil. . . . [U]ntil this is done, the state can have no claim to the lands." If the U.S. never extinguished the title, Thompson opined, Georgia could not force the U.S. to specifically perform the compact. Thompson would have enjoined the Georgia laws because: "The complaint is not of a mere private trespass, admitting of compensation in damages; but of injuries which go to the total destruction of the whole right of the complainants."
Worcester v. Georgia (1832)
Worcester v. GeorgiaWorcester v. Georgia
Worcester v. Georgia, 31 U.S. 515 , was a case in which the United States Supreme Court vacated the conviction of Samuel Worcester and held that the Georgia criminal statute that prohibited non-Indians from being present on Indian lands without a license from the state was unconstitutional.The...
(1832) was the third case by Wirt, appealing the conviction of Samuel Worcester
Samuel Worcester
Samuel Austin Worcester , was a missionary to the Cherokee, translator of the Bible, printer and defender of the Cherokee's sovereignty. He was a party in Worcester v...
for illegally residing on Cherokee lands without a license from the state. Although the holding of the opinion reached only the question of criminal jurisdiction, its dicta was far more pro-Indian than Fletcher or Johnson:
The extravagant and absurd idea, that the feeble settlements made on the sea coast, or the companies under whom they were made, acquired legitimate power by them to govern the people, or occupy the lands from sea to sea, did not enter the mind of any man. They were well understood to convey the title which, according to the common law of European sovereigns respecting America, they might rightfully convey, and no more. This was the exclusive right of purchasing such lands as the natives were willing to sell. The crown could not be understood to grant what the crown did not affect to claim, nor was it so understood.
Of course, the "extravagant and absurd" idea was one "that Marshall himself had played an important role in propagating nine years earlier in Johnson v. M'Intosh." Worcester eventually resulted in the freeing of Samuel Worcester, but the decision did not invalidate any state or federal law, or impose any lingering obligation on the state or federal government. Three years later, the U.S. government signed the Treaty of New Echota
Treaty of New Echota
The Treaty of New Echota was a treaty signed on December 29, 1835, in New Echota, Georgia by officials of the United States government and representatives of a minority Cherokee political faction, known as the Treaty Party...
(1835) with a "group of dissent Cherokees" and forced them on what became known as the "trail of tears."
United States v. Percheman (1833)
United States v. Percheman (1833) involved a Spanish land grant in Florida (and a non-indigenous plaintiff). Marshall, for a unanimous Court, reaffirmed the principle that (at least as far as European property owners—who gained U.S. citizenship—were concerned) the transfer of sovereignty—in Florida, from Spain to the United States—did not disturb private property rights. Marshall wrote:[I]t is very unusual, even in cases of conquest, for the conqueror to do more than to displace the sovereign and assume dominion over the country. The modern usage of nations, which has become law, would be violated; that sense of justice and of right which is acknowledged and felt by the whole civilized world would be outraged, if private property should be generally confiscated, and private rights annulled. The people change their allegiance; their relation to their ancient sovereign is dissolved; but their relations to each other, and their rights of property, remain undisturbed. If this be the modern rule, even in cases of conquest, who can doubt its application to the case of an amicable cession of territory? Had Florida changed its sovereign by an act containing no stipulation respecting the property of individuals, the right of property in all those who became subjects or citizens of the new government would have been unaffected by the change; it would have remained the same as under the ancient sovereign. . . . A cession of territory is never understood to be a cession of the property belonging to its inhabitants. The king cedes that only which belonged to him; lands he had previously granted, were not his to cede. Neither party could so understand the cession; neither party could consider itself as attempting a wrong to individuals, condemned by the practice of the whole civilized world. The cession of a territory, by its name, from one sovereign to another, conveying the compound idea of surrendering at the same time the lands and the people who inhabit them, would be necessarily understood to pass the sovereignty only, and not to interfere with private property.
Marshall interpreted the provision of the Florida land act requiring Spanish grants to be filed within one year narrowly. Marshall stated: “It is impossible to suppose, that Congress intended to forfeit real titles, not exhibited to their commissioners within so short a period.” He interpreted this provision to mean only that the commissioners could not grant title after one year, not that the property rights held by virtue of the Spanish grants were void.
Mitchel v. United States (1835)
Mitchel v. United States (1835), authored by Justice Henry BaldwinHenry Baldwin (judge)
Henry Baldwin was an Associate Justice of the Supreme Court of the United States from January 18, 1830, to April 21, 1844.-Biography:...
, was the last Marshall Court opinion on aboriginal title. At issue was 1,200,00 acres of land in Florida
Florida
Florida is a state in the southeastern United States, located on the nation's Atlantic and Gulf coasts. It is bordered to the west by the Gulf of Mexico, to the north by Alabama and Georgia and to the east by the Atlantic Ocean. With a population of 18,801,310 as measured by the 2010 census, it...
alienated to the Spanish crown in 1804 and 1806, and then granted to private parties. Baldwin, for a unanimous court, upheld those transactions. Noting that the Royal Proclamation of 1763
Royal Proclamation of 1763
The Royal Proclamation of 1763 was issued October 7, 1763, by King George III following Great Britain's acquisition of French territory in North America after the end of the French and Indian War/Seven Years' War...
applied while Florida was under British rule from 1763 to 1783
History of Florida
The history of Florida can be traced back to when the first Native Americans began to inhabit the peninsula as early as 14,000 years ago. Recorded history begins with the arrival of Europeans to Florida, beginning with the Spanish explorer Juan Ponce de León, who explored the area in 1513...
, Baldwin held that Spanish law (which he perceived to be materially the same as British law in this respect) governed the extinguishment of aboriginal title when the territory reverted to Spanish rule from 1783 to 1821.