When we consider the history of the early United States, it’s easy to think of the Founders’ failure to resolve the issue of slavery as a moral failure on their part (despite the admiration that they otherwise amply earned). Certainly slavery was a ticking time bomb and their solution to it was to kick the can down the road and leave it to future generations to solve. Which they didn’t, it took our traumatic civil war to do that.
But Johnson’s Lessee v. McIntosh demonstrates that slavery was not the only conundrum to which no comfortable moral solution could be found. We need not condemn John Marshall and his Court too harshly, though, since I scarcely doubt we could have done much better today and as I conclude, there is a logical legal issue compelling a result that otherwise seems awful.
The setup for the case is similar to that which we saw in Fletcher v. Peck: an eviction, in which the potential evictee claimed title as a result of competing claims to own land. To solve the case, each side was required to trace their respective claims to title of the land all the way back to origin.
On July 5, 1773, a consortium of land investors purchased rather a lot of land from a tribe of Illinois Indians and again on October 8, 1775, another and partially overlapping consortium of investors bought more land from the Piankeshaw tribe. Problem was, in 1818, Congress later granted the same land to different people, who challenged the validity of the title tracing back to the Indian grantors. By 1822, the case had reached the Supreme Court.
The actual tracts at issue were generally about the right size for single-family farms. There is reason to suspect that both sides in the case colluded to suggest they were claiming the same precise tracts of land when they really weren’t. But they did have a real dispute about their basic claims to title, which really did compete with one another — either good title came from the Indian sales, or good title came from the Congressional grants.
Let’s spend a diversion looking at where the land was, and how much of it we’re talking about. It’s a diversion because we need to dig in to the “legal description” of land, the way of defining where a particular tract of land begins and ends when there are no plat maps or street addresses to refer to.
Back in the 1770’s, you’d define the borders of a tract by its “metes and bounds.” The surveyor would trace out and describe the borders of the property, tracing out a polygon on a map. The Supreme Court’s recital of the metes and bounds of the initial of the three purchases is a fine example of how it was done, and a fine example of why lawyers dealing with legal descriptions of metes and bounds so frequently have very little hair left afterwards. I’ll repring the description in full for your amusement, and then I’ll attempt to translate that into something that will make more sense to contemporary readers:
Beginning for one of the said tracts on the east side of the Mississippi at the mouth of the Heron Creek, called by the French the River of Mary, being about a league below the mouth of the Kaskaskias River, and running thence a northward of east course in a direct line back to the Hilly Plains, about eight leagues more or less; thence the same course in a direct line to the Crab Tree Plains, about seventeen leagues more or less; thence the same course in a direct line to a remarkable place known by the name of the Big Buffalo Hoofs, about seventeen leagues more or less; thence the same course, in a direct line to the Salt Lick Creek, about seven leagues more or less; then crossing the Salt Lick Creek, about one league below the ancient Shawanese town in an easterly or a little to the north of east course in a direct line to the River Ohio, about four leagues more or less; then down the Ohio by its several courses until it empties into the Mississippi, about thirty-five leagues more or less; and then up the Mississippi, by its several courses, to the place of beginning, about thirty-three leagues more or less … .
This would never do today. How long is a “league?” At least three standard definitions, all of which varied whenever they changed Kings because Kings didn’t come with strides of standardized lengths. And do you have any idea how many Salt Lick Creeks there are in Illinois? So today, we frequently use a much more modern system to legally describe property lines, created in part by Thomas Jefferson in the late eighteenth century, with significantly more intuitive descriptions like “The southwest quarter of the northeast quarter of the northwest quarter of the northwest quarter of section 17, township 5 north range 3 west of the Quimby Hill Baseline and Meridian, excepting the westerly 80 feet thereof.” See? Much easier to understand using the methods of two hundred years ago instead of the methods of four hundred years ago. (Oh, okay. In urban areas, we use plat maps now, too.)
But what you see quoted above is how they did it in the 1770’s. So I’ve taken my best guess, and made my best attempt to illustrate that guess using primitive computer painting tools, of roughly the areas of the three tracts of land sold by the Piakeneshaw and Illinois tribes in these transactions as they would appear on a modern map. All told, we’re discussing something in the range of 30% to 40% what is today the State of Illinois, nearly all of it readily accessible from the four major rivers of the area.
The price paid for the land are stated for only two of the three tracts. Those prices are low, even bearing in mind that we’re talking about 1770’s money: pennies per acre. To be sure, this was a risky venture for the speculators who put up what we should likely consider the modern equivalent of a high eight-figure stake for all this land.
The opinion and the stipulated facts go to great lengths to indicate that translators and lawyers were used by these two tribes so that their leaders knew exactly what they were doing when they sold this land. The Indian tribes may have had translators and lawyers, but it seems to me that they still could easily have commanded a much higher price than they did for all this land. But at the same time, this isn’t quite the same thing as the legendary sale of Manhattan island for $24 worth of beads, blankets (this week only: all blankets guaranteed smallpox-free!), and shiny trinkets. So unlike the sale price of the Yazoo lands we discussed in Fletcher v. Peck, which I’d describe as “just plain criminal,” this price should be assessed as “merely unconscionable.”
According to the common law of England, it would seem that the Indians owned the land even if the land had fallen under the sovereignty of the British Crown. And indeed, this seems to have been recognized by several English monarchs, by the King of France when France claimed to hold sway over this territory, and by the several treaties resolving the French and Indian War (called the Seven Years’ War in Europe). The idea that these tribes owned this land, in a meaningful sense of the word, was credible and indeed might have been the conventional wisdom of the time.
We need to take another moment to look at how this war was resolved, at least as between the British Crown and the Indians. Some of the Indian tribes in the trans-Ohio territory had allied with France during the French and Indian War, and the French lost. It appears that the Illinois, at least, were allies of the French; I cannot find a definitive indicator that the Piankeshaw were also French allies, but there seems to be some blurring of identity on the part of the Europeans between those two tribes. The treaty ending the war, in February of 1763, established definitively that French claims to sovereighty over this area were ceded to the British. Then in October of 1763, a Royal proclamation was issued regarding the organization and government of the lands Britain had acquired in February. This is interesting to us because the Royal proclamation created a “reserve” of land for the Indians in the trans-Ohio region, and it forbade the sale of land in that region from Indians to individuals; only the Crown could buy land from the Indians, so as to minimize the possibility of disputes.
This section of the Proclamation of 1763 was wildly unpopular with Americans who wished to transact business with the Indians and speculate in land in the trans-Ohio; it was also frequently disregarded. Indeed, this provision of the Proclamation is obliquely referred to as a causus belli in the Declaration of Independence:
[King George III] has forbidden his Governors to pass Laws of immediate and pressing importance, unless suspended in their operation till his Assent should be obtained; and when so suspended, he has utterly neglected to attend to them.
He has refused to pass other Laws for the accommodation of large districts of people, unless those people would relinquish the right of Representation in the Legislature, a right inestimable to them and formidable to tyrants only.
…He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.
Not all of this referred exclusively to forbidding trade in land with the Indians and opening up the trans-Ohio to settlement, of course. But that’s in there. This was part of the reason why the colonists revolted against Britain.
There is a myth, a false one, that the Indians didn’t understand the concept of ownership of land on the same terms that the Europeans did. But we’re talking about the 1770’s here. The Indians had more than a century of direct experience with Europeans, often as equals or even military superiors. By the 1770’s, these particular tribes had Anglo-American lawyers working for them who explained what was going on in the negotiations with the investors and experience with at least small-scale land sales with speculators. These particular sales of large tracts of land were all solemnized with big ceremonies at a British military outpost. No one could have missed the fact that the English thought these transactions were very big deals.
The opinion labors to state that the transactions were fair and negotiated at arms’ length, and while that might be questioned in retrospect, the presumption throughout the opinion was that the Indians understood what their European negotiating partners were seeking, that they purported to have it to sell, that they bargained, and that everyone involved believed in good faith that a negotaited and binding sale of land was taking place.
The question before John Marshall’s Supreme Court is whether the Indians really did own the land to sell in the first place. And when you realize that it’s John Marshall’s Supreme Court we’re talking about, and you recall that the competing claim to title traced its origins back to a series of Congressional land grants in the Northwest Territory, you’d be right to suspect that things were looking bad for the Indians’ claim to title.
You’d be right. John Marshall’s well-established modus operandi by this point was well-established to be the enlargement and cementing of Federal power. It’s hard to imagine how the plaintiffs (the successors to the Indian grants) could have been optimistic going in to the briefings. But they had some reason to hope, and that reason was precedent.
You see, in 1779 (before ceding its trans-Ohio claims to the national government) passed a law declaring that the Commonwealth of Virginia had the “exclusive right of pre-emption from the Indians, of all the lands within the limits of her own chartered territory [including modern Illinois], and tha tno person or persons whatsoever have, or ever had, a right to purchase any lands from within the same, from any Indian nations, except only persons duly authorized to make such purchase; formerly for the use and benefit of the colony, and lately for the Commonwealth.” Past purported sales of land from the Indians to Europeans or European colonists or Americans were declared void. And after passing the 1779 law, Virginia proceeded to parcel up what is today Kentucky and opened up a land office to sell it.
So you’re thinking, Fletcher v. Peck, right? Recall that in that case, Georgia granted title to a bunch of land, then the voters found out that the entire Legislature had been bribed to sell at below-fire-sale prices, so a new set of non-corrupted legisators passed a law to wipe the slate clean. Supreme Court says, “No dice, even if the sale of land is totally corrupt and obviously invalid, it’s still a contract of sale, it’s still a sale, and we have to have sales be final or else no one will ever actually own anything and all property rights will eventually be subject to reversal by a state.” Here, we’ve got sales of land, and a state law purporting to retroactively invalidate it, so we ought to get the same result, right? At least, that’s what I have to imagine the plaintiffs were telling themselves.
What they couldn’t have been expecting was what they got, though, which began with a history lesson.
Marshall spent the first half of the opinion describing the European discovery, colonization, and settlement of North America. He announces that Europeans, when they settled, stakes claims out to the land as to other Europeans. “Those relations which were to exist between the discoverer and the natives, were to be regulated by themselves.” But, for instance, the French claim to the basin of the Mississippi River was a claim that was honored by the Dutch, the English, the Spanish — the claim did not regard the Indians, the native people who were actually living in the basin of the Mississippi River that was so hotly disputed between the western European powers active in claiming North America as their own.
Interestingly, Marshall concedes that the Indians were not without rights by the European reckoning. The Indians, he says, “were admitted to be the rightful occupants of the soil, with a legal as well as a just claim to retain possession of it.” What they lost when the Europeans came, Marshall says, was sovereignty. As Europeans set and imposed their political will, the Indians may have kept possession of their lands, but they were subject to the laws of the nation that had staked out claims on those lands. So they retained was a right of occupancy.
But the case was not about a possessory interest to the land but rather title to the land. And here, Marshall says “It has never been doubted, that either the United States, or the several States, had a clear title to all the lands within the boundary lines described in the treaty [resolving the American Revolution], subject only to the Indian right of occupancy, and the exclusive power to extinguish that right, was vested in that government which might constitutionally exercise it.” Which government? Originally France, then Spain, then France again, then Britain, then Virginia, then the Federal government.
But, what about the Indians? Well, they didn’t have title because… well, they lost it, if they ever had it in the first place. By what right did the Europeans get title to the land? The right of conquest. Simply put, Marshall said, the Indians lost. They got themselves conquered, which was their own damn fault for not having guns and for not using them to kill all the Europeans when they did get them and they had a chance. So to the winners go the spoils. So they lost not only sovereignty over their land, they lost title to it too. That’s what it is to be King, that’s what it is to win.
And that’s not so bad as it seems, says Marshall: “Humanity, however, acting on public opinion, has established, as a general rule, that the conquered shall not be wantonly oppressed, and their condition shall remain as eligible as is compatible with the objects of the conquest. … [P]ublic opinion, which not even the conquerer can disregard, imposes those restraints upon him.” So it’s bad to be conquered, but it isn’t that bad because the King cares about public opinion and therefore won’t oppress you too harshly as long as you stay out of his way.
Unless, that is, you had the bad taste to choose warlike barbarians as parents:
But the tribes of Indians inhabiting this country were fierce savages, whose occupation was war, and whose subsistence was drawn chiefly from the forest. To leave them in possession of their country, was to leave the country a wilderness; to govern them as a distinct people, was impossible, because they were as brave and as high spirited as they were fierce, and were ready to repel by arms every attempt on their independence.
What was the inevitable consequence of this state of things? The Europeans were under the necessity of eitehr abandoning the country, and relinquishing their pompus claims to it, or of enforcing those claims by the sword, and by the adoption of principles adapted to the condition of a people with whom it was impossible to mix, and who could not be governed as a distinct society, or of remaining in their neighborhood, and exposing themselves and their families to the perpetual hazard of being massacred.
… That law which regulates, and ought to regulate in general, the relations between conqueror and conquered, was incapable of application to a people under such circumstances. The resort to some new and different rule, better adapted to the actual state of tings, was unavoidable. Every rule which can be suggested will be found to be attended with great difficult.
Indians! You can’t govern them, and you can’t cohabit with them. Why don’t they just start acting like proper Europeans and integrate with us already! Really, what choice do we have but genocide?
So Marshall is candid in disclosing that all the rules that apply to relations between European powers are not in effect after all. The only law that matters is the law of the sword. And he’s equally frank about how “discovery” may not be quite the same thing as “conquest” but that’s how the Europeans treated it betwen each other, so that’s how the American law will treat discovery. Thus,
…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 absolute title to others. However this restriction may be opposed to natural right, and to the usages of civilized nations, yet, if it be indispensible to that system under which the coutnry has been settled, and be adapted to the actual condition of two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by Courts of justice.
It’s easy to admire John Marshall at other points in his career. Here, not so much. In essence, “We have a different rule for Indians. They can’t sell land because we reserve the right in the government to seize their land and kill them at whim.” This is the rule evolving out of a century and a half of historical relations which Marshall insists “cannot be rejected by Courts of justice.”
But, let’s get back to the thing that has lingered in my mind since law school. Adverse possession. The Indians in fact possessed and exploited the lands in question — after the European conquests. In 1773, the land was British territory (at least as far as the Britishw ere concerned), but these Indian tribes in question had been in continuous possession of this land, which was otherwise “vacant,” to use Marshall’s condescending and inaccurate phrase. Although he provides no citation for the proposition, I’ve little reason to doubt that he’s right to claim that the Crown holds title to “vacant” land. Only the land wasn’t vacant, it was at minimum “occupied” by the Indians.
Now, living on the land is not enough for the British doctrine of adverse possession to take effect — you have to do something useful with it while you’re possessing it. The British being who they are, this “useful exploitation” typically meant farming or raising livestock. The voyageur Jacques Marquette wrote more than a century before these transactions: “The Illinois … raise Indian corn, which they have in great abundance, have squashes as large as those of France, and have a great many roots and fruits.” That is agriculture, my friends, representing the definitive form of continuous, sedentary, hostile, and useful exploitation of the land for at least twenty years prior to the sale. That is how the English common law doctrine of adverse possession has taken effect since at least the time of Blackstone.
That’s trouble if you’re on Congress’ side of this case. Even if they lost title when the Europeans came to the area in the middle of the seventeenth century, by 1773, according to English law, the Illinois and Piankeshaw Indians should have got it back by way of adverse possession.
In modern times, the objection a real estate lawyer would make to my theory that the Indians adversely possessed title back after conquest is that one cannot adversely possess title as against the sovereign itself. I do believe there is an exception to that rule, and one which applies here. The law granting immunity to the sovereign required that the land over which the sovereign claimed title had to have been put to some sort of public use, a doctrine which appears to have roots in antiquity. To back this up, it didn’t take me very long to find a case from the King’s Bench, The King v. Montague (1822) 4 B & C. 598 that looks like it hits this exact issue — under what circumstances might one adversely possess an interest in property as against the sovereign?
But I can’t readily find the text of Montague, because British common law is getting away from where my own legal research skills lie and the areas where my research resources can reach. I’ll likely need to make a barrister friend back in the UK who is as geeky about legal history as I am in order to get the text of that case itself, and hopefully find the definitive answer to my question, whether it is to be found in Montague or elsewhere. (If that describes you, UK Readers who have been called to the bar, I’ll gladly buy you a steak and a pint the next time I’m in your green and pleasant land, in exchange for you doing some hopefully interesting historical research during your spare time.)
In any event, I can tell from annotations appearing in early reported cases in New York and New Jersey that Montague involved a claim of a public use on a road conflicting with another claim of an easement to travel by a stream intersecting the road. Because some other King had, in antiquity before the route of the stream could be determined, decreed that there be a road at that location, the then-contemporary King George IV’s public use of the public road prevailed over the claimed right of the boatman to navigate the stream; else, the navigator would have prevailed even as against the King.
So Montague and its sister cases in the colonies and early states suggest that under English common law, the colony of Virginia had to have been putting the land purportedly sold by the Piankeshaws and Illinois to some sort of public use to prevent the accrual of a right to adversely possess it. And there is little doubt that the land in question was in fact not being put to any sort of public use by Virginia in 1773 and 1775. Virginia, as I noted above, had other things on its legislative plate in those years than making public parks out in the hinterlands.
No matter how I approach it, it sure looks to me like the tribes had good title to sell. All that is left was King George’s Proclamation of 1763. Which was one of the reasons why the United States revolted against King George in the first place, so of course that got set aside in the revolution, right? Wrong. Marshall breathes not a word about the unpopularity of the law forbidding sale of land to private individuals by the Indians, and instead simply states that it was the law of Britain that prevailed at the time, and therefore the sale was invalid because it was contrary to law. The Crown had stripped the Indians of the right to alienate their land, so the sale was invalid ab initio.
Where does that leave us? The Indians had no title to the land, and the legal rules that would have given them title back didn’t count because they were Indians. And even if the rules did apply, other rules prevented the sale of land. Since the American government stepped into the shoes of the Crown after the Revolution, it inherited all of the Crown’s rights of sovereignty and its entire legal heritage. So the American government could extinguish any right of any Indians to any land at will. Result: the Indians can’t sell land, except to the government. Here, they tried to sell land to private parties, so that doesn’t work, and thus the people who bought the land from Congress win, rather than the ones who bought it from the Indians.
This was pretty much in harmony for how the American government treated the Indians. Now, we’ll take a moment in the future to look at a case at the end of Chief Justice John Marshall’s career in which he was considerably more sympathetic to the Indians, but that’s more interesting from a separation of powers perspective than as a redeeming feature of the tap dancing around the substantial claims the Indians should have been able to set forth in this case, which could have reached the same result in so many different ways, and morally seems like it should have reached the result that the Indians’ rights to the land deserved recognition in some fashion.
Johnson v. McIntosh now stands for the proposition that a Federal or a European land grant is the end-all origin of a title search because a title deriving from the Indians isn’t valid. If you own land in the United States, its title gets traced back to either a European government or its progeny, the American government. The Indians don’t count. This case remains good law to this day.
A footnote: fans of “natural rights” theory may find themselves somewhat disappointed in Marshall, who takes a moment near the beginning of the opinion to nod the concept of natural rights away:
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 pursuing this inquiry, to examine, not singly those principles of abstract justice, which the Creator of all things has impressed ont he mind of his creature man, and which are admitted to regulate, in a great degree, the rights of civilized nations, whose perfect independence is acknowledged; but those principles also which our own government has adopted in the particulare case, and given us as the rule for our decision.
Natural rights like the right to acquire, own, and sell property don’t matter because, after all, we’re dealing with Indians, not Europeans — so the positive law governs this dispute. Recall that John Marshall was, by the 1820’s when this case was decided, one of the last members of the Founding generation who still held any kind of political power. And when he wanted to reach a particular result, he was willing to disregard the theoretical legal and moral framework of the natural rights theory relied upon so clearly in the Declaration of Independence.
The part of the case that seems most surprising to me is that the case could have been resolved relatively easily and specifically by pointing to Article I, Section 8, clause three — the Commerce Clause. The Constitution gives Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” This apparently means inheriting the King’s powers under the Proclamation of 1763, though, and thus becoming the Leviathan against whom a generation previous the leaders of the United States mounted a successful revolt.
Johnson v. McIntosh has been called one of the cases that law students are trained to hate. I would say that I hate it too, but for one thing. When you’re tracing title to land, there has to be a point at which you can stop, a point at which you can say, “Yes, this is the origin of title.” That point is, of necessity, the sovereign. The sovereign was originally the King (be he the King of England, Spain, or France), and the Federal government steps into the shoes of the King of England after the Revolution. So we can’t get around the point that when tracing a chain of title, a Federal grant of land necessarily trumps everything.
Consequently, Johnson v. McIntosh is one of those cases that nearly every law student in the United States must study as part of their property curriculum. It’s a fine opportunity to feel sorry for the Indians and to demonstrate how they got really screwed over. Only, they didn’t, at least not all that much. They got their money in the 1770’s, the money they negotiated for. One reason they didn’t get more is that the venture was risky for the land speculators, and one of the risks they took was that one day, their title based on a grant of land from the Indians would be declared void, which is what this case did. In the meantime, the Indians did get some money, money for nothing as it turned out. Feeling sorry for the Indians here really means feeling sorry for the people who bought the land from the Indians.
So when you realize that the people who really got screwed were a bunch of speculators, very few of whom ever set foot on or intended to actually use the land themselves, it makes the pill a little bit easier to swallow. We’ve got plenty of other reasons to feel sorry for the Indians and regret how our predecessors treated them. But this case, a cornerstone of ownership of real property in the United States, isn’t really one of them. At least, that’s what I tell myself.