In his 2005 monograph, Conquest by law: how the discovery of America dispossessed indigenous peoples of their lands,[1] Lindsay Robertson narrates the history of the landmark 1823 Supreme Court case of Johnson v. M’Intosh which held that private citizens could not purchase land titles from American Indians. Robertson also explores the circumstances which led to the “discovery doctrine,” the cornerstone of this legal opinion and the long lasting impact that this case had, far beyond what he believes was Chief Justice Marshall’s original intent. In this rather dense, though interesting narrative, the author uses a plethora of primary source documents, previously uninvestigated by historians and manages to produce a concise and interesting history of not only Johnson v. M’Intosh, but also the dynamics of the early American judicial process.
Robertson begins his work with four stated goals: contextualizing the legal history of Johnson v. M’Intosh, exposing the process of judicial lawmaking in the early nineteenth century, recasting the figure of John Marshall in a more human and less omnipotent guise, and encouraging a reassessment of Johnson v. M’Intosh in the light of its procedural and political history. The first three chapters of this book consist of an extremely taut narrative of how Johnson v. M’Intosh came before the Supreme Court. He starts with the Proclamation Line of 1763, an edict which prohibited non-Indians from settling west of the Appalachian Mountains and the Illinois and Wabash Land Companies’ illegal maneuvering around that law to acquire land in present day Indiana and Illinois. He then delves into a detailed account of Maryland attorney and politician Robert Goodloe Harper’s long orchestration of this Supreme Court case in order to increase his own wealth presumably through land speculation as well as the precedent set by Fletcher v. Peck which hinted that Indians did not hold title to their own lands.
Johnson v. M’Intosh set the descendents of Thomas Johnson, one of the original purchasers of land from the Illinois and Wabash Companies who had purchased it from the Piankeshaw tribe, against William M’Intosh who had purchased a similar tract of land from the US government. Harper hoped to prove that the original sale was legal, thereby granting himself, and other land speculators access to thousands of acres. Despite years of careful planning, the Supreme Court found for Johnson, deciding that while Indians were “rightful occupants of the soil…the discovery [by the Crown] gave exclusive title to those who made it.”[2] This ruling gave the vast acreage of the continental US to the government, who could purchase occupancy as needed from the native population and was used as the precedent for the Indian removal policies characteristic of the Jackson administration.
Robertson’s final three chapters attempt to explain the Johnson v. M’Intosh in their historical context as well as chart its lasting impact. He places much of the blame on mitigating political and social factors in John Marshall’s own life. First, he believed that finding for Johnson would allow Congress to fufill promises to Revolutionary War veterans who had been denied access to land in Kentucky. Additionally, the political disputes in the Early Republic had, in some instatnces threatened the security and stability of the Supreme Court. His decision, which he likely believed would have no lasting impact, was the most politically uncontroversial and helped garner support for the Court. Later, in Worchester v. Georgia, Marshall attempted to slightly reverse his position from Johnson v. M’Intosh, ruling that state governments had no rights to enforce laws on Indian lands, but after his death, this opinion was overshadowed by his “discovery doctrine.”
Robertson’s book works well in many ways. First, it is an enlightening narrative of the origins and procedures of Johnson v. M’Intosh, one of the most important Indian Laws in history. It also demonstrates the complicated birth of the modern judicial system, showing that the Supreme Court was not automatically established with the same powers and responsibilities that it is granted today. Additionally he shows how personal and political factors can impact historical acts beyond merely the facts and laws associated with the case. This book is slightly difficult for those who have little exposure to legal history. Though he helpfully provides two appendices, and writes very clearly, some of the narrative and language is tricky for those without some background in law or legal history. Additionally, as he states in the introduction, the absence of any Indian voices, though definitely a sign of their disenfranchisement, also makes this narrative somewhat incomplete. However, this is likely due to a lack of sources from this perspective. On a slightly more obscure note, running through this text are notes on Indian rights to hunt on their land, without owning the fee-title, or the rights of Europeans to take land that was not being properly utilized. [3] The assumption of a hunter-gather society in many of the Indian lands is one that has been challenged by historians, notably William Cronon, who have suggested that even Indians in New England practiced agriculture, simply not in a manner recognizable to Europeans. This issue is not really addressed in this text. Granted, it is not intended to be an environmental or social history of nineteenth century Indians but seems important if a justification for land confiscation was lack of ‘proper,’ agrarian use.
Despite, these remarks, Robertson’s text is an excellent resource for anyone interested in the Early Republic, Native American History or American legal history. It is a concise, well written and painstakingly researched book, filled with many helpful maps and images as in addition to references from vast primary source documents.
No comments:
Post a Comment