Supreme Court - Introduction

It's a long way from Alexander VI's Bull Inter caetera (1493) to Chief Justice John Marshall's Supreme Court decision in Johnson v. M'Intosh (1823), but, in a real sense, the end is in the beginning. During the land-hungry early national period, Marshall invoked the age-old "Doctrine of Discovery" as the basis of his finding that Indians occupied but did not own their lands. The Doctrine of Discovery, he wrote, gave the discovering European nation "an exclusive right to extinguish the Indian title of occupancy, either by purchase or by conquest."

Robert L. Williams, Jr. asserts that Marshall's ruling "preserved the legacy of 1,000 years of European racism and colonialism directed against non-Western peoples," that the "medievally derived ideology" of the Doctrine of Discovery held that "normatively divergent 'savage' peoples could be denied rights and status equal to those accorded to the civilized nations of Europe" (317).

Johnson v. M'Intosh became the basis of future Indian policy by the United States government, resulting in, as Stuart Banner says, "the erasure of virtually all memory . . . that under American law the Indians had once been deemed the owners of their land" (190).

It may be a touch too dramatic, but it does seem that students on the trail of the history of justification will inevitably end up on the Trail of Tears.

Students of the Marshall period will want to consult the latter half of chapter 7, "The Colonists' War for America," in Williams's The American Indian in Western Legal Thought: The Discourses of Conquest.

This Supreme Court section of our Literature of Justification project was initiated by Patricia Engle in spring 2004. We envision our project extending beyond Engle and even beyond students and faculty at Lehigh University, so we welcome suggestions, corrections, questions, and, especially, appropriate contributions of all types from bibliographical entries through full essays.

Contact Professor Edward J. Gallagher, Department of English, Lehigh University via e-mail at ejg1@lehigh.edu.