Supreme Court - Essays

The Origins and Legacy of Justice Marshall's "New Rule" of Conquest in Johnson v. M'Intosh

Patricia Engle (January 2004)

 (1)    Johnson v. M'Intosh is a title dispute over a land parcel of some 12,000 acres in present-day southern Illinois.  The case, decided by the U.S. Supreme Court under Chief Justice John Marshall in 1823, turned on the question of whether or not Indians had the right to transfer land title by sale to private citizens.  Like many cases that determined the rights of U.S. aboriginal peoples, the litigants were non-native whites.  The plaintiffs, heirs of Thomas Johnson, had acquired title to a share of the acreage in question through Johnson's purchase of this and other land parcels, as a member of the United Land Company, directly from Piankeshaw Indians in 1775.  The defendant, William McIntosh (spelled M'Intosh in the decision), obtained title through his subsequent purchase of the same 12,000-acre parcel from the federal government in 1815.  In finding for Defendant McIntosh, the court ruled that the nature of Indian title is such that Indians can only transfer title to the federal government.  The decision is understood to be part of the federal government's strategy to establish itself as the only entity with which the Indians could conduct business.  Johnson v. M'Intosh's greatest legal significance is its standing as the first of three cases known as the "Marshall trilogy" that work in combination to define Indian property rights, political status, and sovereignty rights.

(2)     Joseph C. Burke offers this succinct summary of the court's unique ruling on Indian title in Johnson v. M'Intosh:

The United States held the ultimate right to the soil; the tribes retained the right of possession with the limitation that they could sell only to the United States.  Marshall suggested that the right of the United States might be compared to a "seisin in fee" and the Indian right to a "lease for years." (138)

As Eric Kades has pointed out, the effect of the decision was to establish the federal government as a "monopsony," creating a single-buyer market ("History" par. 123) for the purpose of driving down the price of Indian land even further than it had been:  "By preserving a unitary entity to deal with the Indians, Marshall's opinions [in the trilogy cases] helped the United States to continue to buy Indian land cheaply" ("Dark Side").  Scholars have tended to view Marshall's ruling in M'Intosh as a foregone conclusion, a mere administrative codification of federal policy and national ambitions.  Robert A. Williams, Jr., for example, has characterized Marshall's decision in M'Intosh as a "fait accompli" (308), since Marshall's "judicial task was merely to fill in the details and rationalize the fictions by which Europeans legitimated the denial of the Indians' rights in their acquisition of the Indians' America" (312).

(3)    Whether or not the court's establishment of the federal government as the holder of "ultimate" title to Indian soil was legal or proper, M'Intosh is relied upon by Indians and Indian law scholars alike for the "half a loaf" it retained for Native Americans: recognition that certain vestiges of tribal sovereignty, particularly with respect to self-government, remained intact.  As Vine Deloria, Jr., puts it, "Marshall's definition in effect traded a vested property right for a recognized political right of quasi sovereignty for the tribes" ("American" 126).  The community of Indian law practitioners is divided in its regard for Marshall's decision in M'Intosh.  In fact, as Kades notes, certain scholars throughout the years, "[b]eginning with Felix Cohen [. . .], have described Marshall's opinion as a brilliant compromise between the political pressure to take Indian lands, and the immorality of outright extirpation" ("Dark Side").  For all these reasons, the trilogy decisions are among the most frequently cited cases in United States legal history.

Argument for Rhetorical Significance

 (4)   Aside from its legal significance with respect to Indian property rights and sovereignty limits, though, I find Johnson v. M'Intosh of critical historical value because it exposes hidden and unstable prejudices in United States American ideology, literally in their making.  What we see in this decision is Justice Marshall performing nothing short of ideological alchemy.  He "marshals" together all the ingredients of medieval conquest discourse theretofore used to justify removal of native peoples from their U.S. homelands and, recognizing that none, singly or in tandem, truly pass legal muster, applies to them the pressure of manifest destiny to transform them into a "new and different rule" of "conquest."  That "new and different rule" served to dispossess native peoples of their lands, decimate their numbers, and extinguish many native cultures as well, while skewing core dogma of U.S. democracy with faulty premises of superior entitlement.  Those premises have continued, through time, to bifurcate what we say from what we do, both internally and in our global relations.  Furthermore, inasmuch as the trilogy decisions established doctrines inconsistent with treaties, postures, and pronouncements that the legislative and executive branches of the government had represented up to that point in time, they set dangerous precedent for judiciary caprice, which we are seeing reach crisis proportions today.

 (5)    Accordingly, I invite the reader to approach the Johnson v. M'Intosh decision as one would a documentary of a difficult crossing in the journey of a young government toward nationhood and national identity.  What I argue is that M'Intosh and the trilogy document two parallel tracks of boundary expansion that were simultaneously occurring in the United States after the colonies achieved independence from Great Britain: at the same time that native territorial boundaries were being breached and pushed continually westward, the moral boundaries of nascent U.S. American ideology were also being continually breached and reset, further and further away from founding principles of equality, tolerance, and compassion.  The good news is that the slippage did not go down easily or uncontested.  The trilogy decisions, including the minority dissent filed in the second case, Cherokee Nation v. State of Georgia, and the concurring opinion in the third, Worcester v. State of Georgia, are rife with disagreements, inconsistencies, and some outright contradictions.  To the extent that the justices' disagreements may reflect inherent, continuing, and growing unrest about the treatment of Native Americans in the United States and the ancillary damage done to the nation's founding principles, reparations and course changes still remain possible.  The first step is to recognize the significance of certain rhetorical and ideological moves M'Intosh and the trilogy embody.  The particular aspects of M'Intosh I propose to probe are Justice Marshall's treatment of medieval doctrines of "discovery" and "conquest," the nature of the "new rule" of conquest he forges from these traditional land-seizing justifications, and certain ideological dynamics between M'Intosh and the other two cases in the trilogy with respect to human rights and national interests.

Discovery Doctrine Endorsed on Principle

 (6)    Despite some pro forma equivocation on its plausibility and rationality, Justice Marshall agrees that the "doctrine of discovery" granted various European powers rightful entitlement to certain pieces of North America "discovered" under their commissions to be either empty or occupied by non-Christian, non-agricultural peoples, which Marshall finds had been historically considered to mean the same thing:  "[N]o distinction was taken between vacant lands and lands occupied by the Indians."  On his first pass, Marshall upholds discovery rights on principle:

On the discovery of this immense continent, the great nations of Europe were eager to appropriate to themselves so much of it as they could respectively acquire.  Its vast extent offered and [sic] field to the ambition and enterprise of all; and the character and religion of its inhabitants afforded an apology for considering them as a people over whom the superior genius of Europe might claim an ascendancy.

Further in the decision, he reiterates:

Although we do not mean to engage in the defence of those principles which Europeans have applied to Indian title, they may, we think, find some excuse, if not justification, in the character and habits of the people whose rights have been wrested from them.

And elsewhere:

This opinion conforms precisely to the principle which has been supposed to be recognized by all European governments, from the first settlement of America.  The absolute ultimate title has been considered as acquired by discovery [. . .].

Certainly, Marshall does more than simply review the history and practice here; he vigorously defends it, pointedly upholding the medieval premise that the primacy of Christianity and Western "civilization" justifies seizure of lands from non-Christian peoples.  Accordingly, he finds Great Britain's New-World claims, passed on to the newly independent United States, legal and binding in U.S. law.  The federal government's title, he ruled, was subject only to the fatally tenuous, as the later Cherokee case would prove, "Indian right of occupancy."

(7)    As Williams argues, Marshall's endorsement of the discovery doctrine on principle in M'Intosh facilitated not only the material dispossession but also the cultural extirpation of native peoples, on the basis of a doctrine which, at its heart, is inherently and inescapably biased and oppressive:

Perhaps most important, Johnson's acceptance of the Doctrine of Discovery into United States law preserved the legacy of 1,000 years of European racism and colonialism directed against non-Western peoples. [. . . ] While the tasks of conquest and colonization had not yet been fully actualized on the entire American continent, the originary legal rules and principles of federal Indian law set down by Marshall in Johnson v. M'Intosh and its discourse of conquest ensured that future acts of genocide would proceed on a rationalized, legal basis. (317)

Williams' placement of racism in discovery's wake supports my sense that race, class, and other manner of social oppression became embedded in U.S. ideology by the manner in which the Indian lands were taken.  Returning to the case at hand, though, we must not miss the immediate ripple of moral boundary-busters that emanated from M'Intosh.  The state of Georgia, for one, wasted no time in putting to use the "gift" that the M'Intosh decision clearly constituted to a state seeking seizure of title to Indian-occupied land.  Georgia began, in 1824, actions culminating in its 1828 Indian Removal Act (Washburn 27), the subject of the second case in the Marshall trilogy (1831), which resulted in the driving of some 16,000 Cherokees, in all, from their ancestral homelands in the south across the Trail of Tears to Oklahoma (Deloria, "American" 129).

(8)    Although M'Intosh does not give individual states the right to extinguish Indian title, reserving that unique power to the federal government, Georgia knew that obtaining federal approval was just a move away.  Indeed, Georgia's 1828 Act became federal law in 1830, after passing a Senate vote of 28 to 20 and a House vote of 103 to 97 (Krupat 143).  Justice Marshall's belated attempt to halt the Cherokees' removal by declaring Georgia's actions "repugnant to the constitution, laws, and treaties of the United States" in the third case of the trilogy, Worcester v. State of Georgia, was for naught.  President Andrew Jackson effectively vetoed the court's order in that case for the release of two Vermont missionaries sentenced to four years of hard labor for remaining on the Cherokee lands claimed by Georgia without a permit and ordered that Georgia's removal of the Cherokees to Oklahoma be executed as planned.

(9)    Thus, the Supreme Court's truncation of Indian title in M'Intosh, followed by its nullification of Indian legal rights in the second case by declaring the Cherokees neither citizens nor foreign nations and therefore unable to advance a complaint in the legal system, can be seen as having triggered the Georgia-Jackson coalition and the enactment of an epic American tragedy that even the Supreme Court could not stop.  Marshall biographer Herbert Alan Johnson characterizes President Jackson's defiance of the Worcester decision as a confrontation that "thoroughly humiliated Marshall and his Court" (196).  However, the role that M'Intosh played in constructing what Arnold Krupat calls "the story" that justified Indian removal in the 1830s cannot be overlooked.  In Krupat's view,

[. . .] Indian removal could finally be written into law and enforced in the 1830s because by that time, a certain story about America and about "civilization" had become sufficiently acceptable that it could be used as ideological justification for "certain sequences of causes and effects," for the policy of [ . . . ] "expansion with honor." (133)

In this sense, the justifications Marshall articulated for the federal government's title rights to Indian land in M'Intosh — as much as the case decision itself — worked like the evil magic described in Leslie Marmon Silko's Ceremony, "set in motion" by a sorcerer's spell to send whites "swarming like larva / out of a crushed ant hill" (136) to dispossess natives across the United States.  Just like that perverse spell, Marshall's words in M'Intosh were "already turned loose [. . .] already coming [. . .] can't be called back" (138).

(10)    It is important to note that the "front" presented by the legislative and executive branches of the federal government prior to M'Intosh had by and large been one that sought to court the native chiefs in peace and friendship, a fact Marshall acknowledged in the denigrated Worcester decision, as will be discussed hereinafter.  Such good-government/bad-government strategies, coupled with the discursive skips and shifts evident among the trilogy cases themselves and in their relation to legislative and executive policies that followed in their wake, were consistent with the way Old World empire expansion had been conducted.  The Marshall decision in M'Intosh signaled that the business of empire would proceed in the New World in the same way but on a larger scale, with greater speed and legal backing.  Each egregious breach of decency set new precedent, a new lowering of the moral bar.  M'Intosh's endorsement of the discovery doctrine on principle dropped the bar low and long enough to release imperialist greed into the United States legal system.  

Discovery Doctrine Endorsed on Basis of Practice

(11)    If endorsement of the discovery doctrine on principle were not enough, though, Marshall also affirms the validity of its New-World application on the bases of historical precedent and the native people's acquiescence:

However extravagant the pretension of converting the discovery of an inhabited country into conquest may appear; if the principle has been asserted in the first instance, and afterwards sustained; if a country has been acquired and held under it; if the property of the great mass of the community originates in it; it becomes the law of the land, and cannot be questioned. [. . .] However this restriction may be opposed to natural right, and to the usages of civil nations, yet, if it be indispensable to that system under which the country has been settled, and be adapted to the actual condition of the two people, it may, perhaps, be supported by reason, and certainly cannot be rejected by Courts of justice.

Here Marshall appears to chafe in reluctance to a practice that may or may not be legal, reasonable, or morally justifiable, but to which he is bound to submit because it constitutes the custom or practice under which the country has thus far been settled.  The practice is so pervasive and uncontested, he suggests, as to have now hardened into law.  In my opinion, this position is indefensible for several reasons.

(12)     First, the doctrine of discovery only applied to European powers, not the indigenous peoples over whose lands the monarchs were competing.  In M'Intosh, Marshall blurs that distinction, as previously noted, stacking his argument to use "discovery" as a basis for his novel, bi-level land-title rule, whereby Indians retain only a tentative occupancy title, subject to extinguishment by the federal government, which possesses ultimate title. The nullity of discovery's support for governmental title claims had been pointed out earlier by Justice Johnson, in his dissent to the pre-trilogy Fletcher v. Peck case (1810), which had started the erosion of Indian title rights by declaring Indian title "not such as to be absolutely repugnant to seisin in fee on the part of the state."  Justice Johnson had disagreed then with the majority's finding that both the Indians and the state of Georgia could claim title right to Indian soil:

[I]numerable treaties formed with [Indians] acknowledge them to be an independent people, and the uniform practice of acknowledging their right of soil, by purchasing from them, and restraining all persons from encroaching upon their territory, makes it unnecessary to insist upon their right of soil.[. . .] What, then, practically, is the interest of the states in the soil of the Indians within their boundaries?  Unaffected by particular treaties, it is nothing more than what was assumed at the first settlement of the country, to wit, a right of conquest or of purchase, exclusively of all competitors within certain defined limits. (Fletcher v. Peck)

(13)    In his 1832 Worcester decision, finally, Marshall reins in his expansive interpretation of  "discovery" in this regard, placing it more in conformance with Justice Johnson's arguments twenty-one years earlier:

This principle, acknowledged by all Europeans, because it was the interest of all to acknowledge it, gave to the nation making the discovery, as its inevitable consequence, the sole right of acquiring the soil and of making settlements on it.  It was an exclusive principle which shut out the right of competition among those who had agreed to it; not one which could annul the previous rights of those who had not agreed to it.

Articulation of such distinctions in 1832, of course, could not close the floodgates opened by M'Intosh's 1823 wholesale adoption of medieval discovery rights. In fact, given the pattern of events that Marshall had seen flow from M'Intosh in those nine years, his pronouncements in support of Cherokee treaty and land rights in the 1832 Worcester case can be seen as gratuitous and self-serving, though Marshall biographer R. Kent Newmyer suggests he may have approached Worcester with an eye to "soften the impact of M'Intosh, and to harmonize the law of the land with his personal feelings about Native Americans" (qtd. in Kades, "History" par. 126).

(14)     Second, Marshall's position that the discovery rule had been settled by acquiescence and precedent in the United States is shamefully gratuitous for two reasons: 1) the treaties and verbal agreements the federal government had been forging with the Indians since first contact made no such representations of the government holding ultimate title to tribal lands, by virtue of the discovery doctrine or any other such dream-law; and 2) the Indians had no voice recognized by U.S. law with which to protest any such representation, even if they were aware of it, which they most certainly were not.  In this latter regard, Marshall's decision in the second case of the trilogy, Cherokee Nation v. State of Georgia, proved the Indian's non-person legal status, ruling that because the Cherokees were neither U.S. citizens, nor a foreign nation, nor citizens of a foreign nation, they had no legal right under the Constitution to bring their complaint of eviction from ancestral homelands, in violation of a federal treaty, to the U.S. Supreme Court.

(15)     Kades employs Hirschleifer's principle of "muscular economics" to describe the manner in which the federal government coldly and efficiently expropriated tribal lands and, in this connection, cites Johnson v. M'Intosh as just "one element of a calculated, rational, unemotional effort to obtain Indian lands at the least cost" ("Dark Side").  Cost efficiency, Kades surmises, dictated Marshall's reasoning to an extent that necessarily excluded all moral and humane considerations:

This analysis rejects the kindness imputed to Marshall by the benevolent school and the truculence imputed by the malevolent school.  The working assumption is that such a sweeping national policy to transfer wealth must be understood, at bottom, in terms of selfishness (economics), not benevolence or malevolence (morality or lack thereof). ("Dark Side")

Certainly, the silence and invisibility of native peoples themselves from the trilogy cases prove that the U.S. government in its infancy stages had mastered from the British the fine art of "shunning" indigenous peoples into non-person status in order to justify seizure of their land. The pattern employed in the Crown's 17th century Ulster plantation project in Northern Ireland is replicated here in cool precision: suspension of legal rights, the outlawing of the culture, and the galvanizing of settlers against the indigenous "others."  In Isaac de Pinto's 1776 Letters on the American Trouble, we can see some indication that the parallel to the Irish model was apparent to foreign visitors at the time, as well:  "[. . .] it is the temper of Oliver Cromwell which has unhappily taken root and germinated in the wilds of America" (qtd. in Pagden 37).

(16)    The Ulster plantation parallels the U.S. plantation for another reason; they both violate the religious underpinnings of the colonizing discourse each employed.  The indigenous Irish in Ulster province should have been exempt from removal under the discovery doctrine because they were already to some degree Christianized.  Their removal on the basis of England's "discovery" and "conquest" rights makes as much sense as dispossessing the deeply spiritual Native Americans from their United States homelands to make room for a new government founded on freedom of religion.  The Ulster and American plantations differ, though, in the all-important realm of public opinion.  The oft-quoted observations of Alexis de Tocqueville summarize the nature and effect of the new level of "humanity" United States Americans had grafted onto Old World models of plantation:

The Spaniards by unparalleled atrocities which brand them with indelible shame did not succeed in exterminating the Indian race and could not even prevent them from sharing their rights; the United States Americans have attained both these results with wondrous ease, quietly, legally, and philanthropically, without spilling blood and without violating a single one of the great principles of morality in the eyes of the world.  It is impossible to destroy men with more respect to the laws of humanity. (qtd. in Krupat 144)

Sir Francis Bacon enunciates the lethally subtle distinction that occurs when "plantation" is undertaken on occupied soil: "I like a Plantation in a pure soil; that is where People are not displanted to the end, to Plant others.  For else it is rather an Extirpation than a Plantation" (qtd. in Pagden 79).  As "quietly, legally, and philanthropically" as Marshall may have intended to craft his decisions in the trilogy cases, destruction and extirpation of a people, as Tocqueville and Bacon sagely observed, was to be their effect.

(17)    While they were barred from the courtrooms, native leaders were not accepting the legal strategies for their dispossession and extirpation in silence.  This excerpt from the testimony of an unidentified Indian leader during a hearing with land commissioners in 1793 speaks volumes on how the federal government's pronouncements of their diminished rights were received by native peoples:

Brothers:  We never made any agreement with the King nor with any other nation, that we would give to either the exclusive right of purchasing our lands; and we declare to you, that we consider ourselves free to make any bargain or cession of lands, whenever, and to whomever we please.  If the white people, as you say, made a treaty that none of them but the King should purchase of us, and that he has given that right to the United States, it is an affair which concerns you and him, and not us; we have never parted with such a power. (qtd. in Kades "Dark Side")

Again, the parallels to Old World models of conquest are compelling.  The Supreme Court's 19th century declarations of government entitlement to Indian land title, made in hearings conducted without the Indians present or even involved, are tantamount to the 16th century Spaniards' practice of reading off the Requerimiento, in Spanish, to inform New World natives who understood not a word of Spanish of their rights as a "conquered" people.

Why Focus on the Discovery Doctrine is Significant

(18)    Because the discovery doctrine does not, by principle or practice, constitute a defense for a governmental claim to ultimate title of Indian lands, the best explanation for Justice Marshall's endorsement of it is probably that which Deloria and Wilkins suggest.  It was not the idea of a cabal of mid-Atlantic businessmen buying Indian land that concerned the court but rather the possibility that European powers could still strengthen their New World holds through land-purchase alliances with Indians inside and surrounding the United States:

The Revolution resolved the question of political independence only for the Americans.  It did not affect the posture of other European nations toward Indian tribes.  After the war the British conducted several treaty councils with the tribes of the Ohio and Great Lakes country. [. . .] The Spanish quickly made treaties with the strong southeastern tribes, most notably the Creek and Choctaw, and in 1785 made an important treaty with the Comanche, which had to be conducted at several locations in the Southwest because the tribe controlled nearly one thousand miles of territory considered by the Spanish to be their borderlands.  Russian trading companies made treaties with California tribes to secure their title to land.  And following the Mexican Revolution in 1820, the new Mexican government immediately began making treaties with tribes who resided primarily in the area later settled by the United States, and continued to do so until the 1870s.  (9-10)

Sight should not be lost of the stature of those mid-Atlantic businessmen, however.  Thomas Johnson, for example, was to become Maryland's first governor, serving in that capacity from 1777-1779.  Later, he would himself serve as a U.S. Supreme Court justice.  Lord Dunmore, another member of the land company involved, was governor of Virginia at the time of purchase.  Clearly, Marshall's concentration on the discovery rule and his decision in M'Intosh that Indians could only transfer land title to the federal government are moves to "marshal" control of Indian land title into the hands of the federal government in order to keep European powers out and, as Kades says, to drive Indian land prices down.  Marshall's finding, in the second case of the trilogy, that the Cherokees did not constitute a foreign nation pinioned native peoples finally and securely under the thumb of the federal government.  However, as Deloria and Wilkins note in the excerpt quoted above, native leaders did continue to make treaties with outside concerns for some years after the trilogy cases were decided.

Doctrine of Conquest Endorsed

(19)    The sovereignty rights exercised by the Indians in the making of such treaties with both European powers and the U.S. federal government coupled with Tocqueville's previously mentioned observation about the relatively bloodless manner in which the Indians were being removed from their lands brings into focus the second principle of medieval crusade discourse adopted by Marshall in Johnson v. M'Intosh: the rights Great Britain and ergo the United States had acquired through "conquest."

 (20)   In M'Intosh, Justice Marshall relies heavily upon the principle that the federal government acquired the right to Indian soil through its "conquest" of native peoples:

Conquest gives a title which the Courts of the conqueror cannot deny, whatever the private and speculative opinions of individuals may be, respecting the original justice of the claim which has been successfully asserted.  The British government, which was then our government, and whose rights have passed to the United States, asserted a title to all the lands occupied by Indians, within the chartered limits of the British colonies.  It asserted also a limited sovereignty over them, and the exclusive right of extinguishing the title which occupancy gave to them.  These claims have been maintained and established as far west as the river Mississippi, by the sword. [. . .] It is not for the Courts of this country to question the validity of this title, or to sustain one which is incompatible with it.

In his recitation, shortly after this passage in M'Intosh, of the history of conquest of native peoples in the United States, Marshall refers to the "[f]requent and bloody wars, in which the whites were not always the aggressors"; the outcome he reports is that "European policy, numbers, and skill, prevailed."

(21)    As Tocqueville's observations suggest, though, the "sword" was not the prevalent strategy employed by either the Crown or the United States to dispossess native peoples of their land.  The fact is, as Kades notes, that wars were the exception to the rule:

The pattern of European land acquisition in New England, purchases punctuated by rare conquests, repeated itself across the rest of the continent.  The United States paid over $800 million for Indian lands.  According to Congress, the United States exercised the right of conquest only once [referring to a forced 1862 relocation of Indians in Minnesota, in which the Indians received the proceeds of the sale of their land] and then half-heartedly. ("History" par. 17) 

In his 1831 Cherokee Nation v. State of Georgia decision, dismissing the Cherokee's protest of Georgia's Indian Removal Act, Marshall acknowledges that Indian lands had generally been acquired through voluntary cession:

Though the Indians are acknowledged to have an unquestionable, and unquestioned right to the lands they occupy, until that right shall be extinguished by a voluntary cession to our government [. . .].

Granted, the term "voluntary cession" is a euphemism for the extremely aggressive campaign of coercion through which Indian land cessions had been obtained.  As Burke explains,

In theory, the Government treated with the tribes as sovereign nations, purchasing only the lands they chose to sell and guaranteeing forever their title to the land they chose to keep.  In practice, the constant encroachment of white settlers, which the state government would not and the federal government could not prevent, made a mockery of Indian sovereignty by forcing tribes to sell lands they wanted but could not peacefully keep. [. . .] Because the Indians, under pressure, usually sold the lands that the settlers demanded, the President, the Congress, and the Supreme Court could maintain the formal position that cession had been voluntary. (150)

The slippage from the "conquest" defense is significant, however, in that it reveals Marshall's struggles, through the course of the trilogy cases, to construct a "spin" about past land title acquisitions capable of supporting future encroachments at an even more vigorous pace.

(22)    By the third decision, the 1832 about-face Worcester, Marshall seems to have relinquished M'Intosh's defense of war-based conquest rights completely, as he observes that "defensive war alone seems to have been contemplated" and "[t]he power of war is given only for defence, not for conquest."  The stress cracks from straddling legal and world-opinion forums were now beginning to show.

(23)    Perhaps the most compelling testimony, however, to the fact that land title had historically been transferred through purchases and treaties, not conquest, comes from the Cherokee Nation itself, in its December 18, 1829, written memorial to Congress, prior to the Cherokees' fruitless appeal to the Supreme Court:

In addition to that first of all rights, the right of inheritance and peaceable possession, we have the faith and pledge of the United States, repeated over and over again, in treaties made at various times. [. . .] If we were but tenants at will, why was it necessary that our consent must first be obtained, before these Governments could take lawful possession of our lands?  The answer is obvious.  These Governments perfectly understood our rights—our right to the country, and our right to self Government. [. . .] The undersigned memorialists humbly represent, that if their interpretation of the treaties has been different from that of the Government, then they have ever been deceived as to how the Government regarded them, and what she has asked and promised.  Moreover, they have uniformly misunderstood their own acts. (rpt. in Krupat 170-72)

Likewise, this passage from their November 5, 1829, memorial establishes that the Cherokees'  relationship with Great Britain prior to the colonies' independence had most certainly not been within the constraints of conquest:

It is evident from facts deducible from known history, that the Indians were found here by the white man, in the enjoyment of plenty and peace, and all the rights of soil and domain, inherited from their ancestors from time immemorial, well furnished with kings, chiefs, and warriors, the bulwarks of liberty, and the pride of their race.  Great Britain established with them relationships of friendship and alliance, and at no time did she treat them as subjects, and as tenants at will, to her power.  In war she fought them as a separate people, and they resisted her as a nation.  In peace, she spoke the language of friendship, and they replied in the voice of independence, and frequently assisted her as allies, at their choice to fight her enemies in their own way and discipline, subject to the control of their own chiefs, and unaccountable to European officers and military law.  Such was the connexion of this nation to Great Britain, to wit, that of friendship, and not allegiance, to the period of the declaration of Independence by the United States  [. . .]. (rpt. in Krupat 164-69)

Accordingly, the doctrine of conquest, to the victor go the spoils, did not quite match the history of Euro-Indian relations in the United States.  Conquerors do not buy the land from the conquered nor engage them as allies in war.  Marshall rose to the challenge of converting purchase into "conquest" by bumping out a "new and different rule" of conquest to justify the federal government's claims on Indian land title.  

Justification for the "New and Different" Rule of Conquest

(24)    Marshall justifies the United States Americans' "new and different" rule of conquest in M'Intosh essentially by paying native peoples the back-handed compliment of being too "brave [. . .] high spirited [and] fierce" to conquer by any legitimate means.  The way conquest is supposed to work, he says, is that,

The old and new members of the society mingle with each other; the distinction between them is gradually lost, and they make one people.  Where this incorporation is practicable, humanity demands, and a wise policy requires, that the rights of the conquered to property should remain unimpaired; that the new subjects should be governed as equitably as the old, and that confidence in their security should gradually banish the painful sense of being separated from their ancient connexions, and united by force to strangers. 

Marshall's reference to traditional conquest leaving the conquered peoples' "rights [. . .] to property [. . .] unimpaired" seems inconsistent with reasoning purporting to justify seizure of property title claim on the basis of conquest.  Nonetheless, note that the manner in which Marshall supports his "new rule" of conquest launches him back into the discovery-rule defense:

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 high spirited as they were fierce, and were ready to repel by arms every attempt on their independence.

Again, Marshall is relying on the Western, medieval principle that non-Christian, non-agricultural peoples could legally and should morally be removed from their land and spiritually rehabilitated.  The Europeans, he finds, had no choice but to forge a new, albeit cowardly, way of conquest that the new United States government was bound to follow:

The law which regulates, and ought to regulate in general, the relations between the 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 things, was unavoidable.

Here is where the truly virulent damage of M'Intosh was injected into the United States legal system — and hence, our national ideology — for here, Marshall is codifying a "new rule" of justifiable deceit.

(25)    Unlike the valued and time-honored words that Justice Marshall enshrines in M'Intosh to support extinguishment of the Indians' human rights — words like "discovery," "conquest," and "civilization" — the words framed in those innumerable treaties negotiated with the native peoples assuring them security and sovereignty within their territories "forever," along with the allied friendship of the federal government, were cheap, disposable, and temporary.  For example, Justice Thompson's dissent to the Cherokee Nation v. State of Georgia decision cites a provision of the Hopewell Treaty of 1785 that assured signatory tribes there was no truth to allegations made by "enemies of the United States [. . .] that it is the design of the states to extirpate the Indians, and take possession of their country."  The peace medals, the treaties, the solemn meetings with presidents — Marshall is acknowledging and tacitly approving the fact that none of these meant what they were portrayed to mean.

(26)    In Worcester, Marshall gives greater recognition to the strategy of subterfuge through which native peoples were now being determined by the highest court of the country to have been "conquered":

Fierce and warlike in their character, they [the Indians] might be formidable enemies, or effective friends.  Instead of rousing their resentments, by asserting claims to their lands, or to dominion over their persons, their alliance was sought by flattering professions, and purchased by rich presents. [. . .] Not well acquainted with the exact meaning of words, nor supposing it to be material whether they were called the subjects, or the children of their father in Europe; lavish in professions of duty and affection, in return for the rich presents they received; so long as their actual independence was untouched, and their right to self government acknowledged, they were willing to profess dependence on the powers which furnished them supplies of which they were in absolute need, and restrained dangerous intruders from entering their country: and this was probably the sense in which the term was understood by them.

At this point, Marshall's "history" of Euro-Indian relations conforms more precisely to what the Cherokees describe in their Memorials, but, of course, the damage is done.  

The Legacy and Significance of the "New and Different Rule"

(27)    The legacy of M'Intosh, on its own and in the context of the trilogy cases, is of the veritable "forked tongue."  The "new and different rule" Marshall approves is that saying one thing and doing another is a sanctioned expedient for furthering national interests.  With the new rule come ancillary principles of exclusion and oppression, and a model for a privileged, bi-level application of law.  Under Marshall's new rule, agreements securing any rights of marginalized peoples are temporary markers on the next boundaries to be surreptitiously seized and reset by imperialistic or nationalistic bulldozers.  Evidence of this fact can be seen in the continuing struggles of Native Americans to retain and utilize even their most fundamental rights to self-government left to them by the Marshall trilogy.  Continued judiciary erosion of those rights prompted hearings before the Senate Committee on Indian Affairs in February 2002.  Professor David Getches of the University of Colorado was among the legal scholars who testified to petition congressional intervention:

Indian rights and Indian sovereignty are essential in a government-to-government relationship that goes all the way back to the founding of the nation.  If the Court understood this and appreciated this grounding in original intent, Indian laws could be put back on track by the Court itself, but this seems unlikely.  The Court's primary mission has little to do with Indian law.  It will be up to Congress to reverse this trend. ("Hearing")

As Committee Vice-Chairman Ben Nighthorse Campbell said at the close of those hearings, in response to Getches' testimony, with a succinctness that can only come from aged exasperation,

[. . .] when I hear comments like yours [. . .] I do get mad [. . .] at [. . .] the way we have treated Indians in the history of this country.  It seems to me that they should have two sets of rights: that of being Native Americans as given in the treaties and that they inherit being an American, like any other American.  Yet, we see a constant erosion of their rights on both sides of that equation.

(28)    Thus it seems that the cultural bias of white, Christian supremacy embedded in U.S. ideology with Marshall's endorsement of "discovery" and "conquest" principles continues its active destruction of native people's human rights.  It must be noted that any implied characterization of the Indians' demise as inevitable due to some perception of inferiority on their part is belied by the events of record in the trilogy cases.  Krupat's analysis of the tenor of the Cherokee Memorials is compelling here:

The Cherokee memorialists will not allow their dispossession to be seen as savagist ideology would have it, as inevitable or necessary, neither God's will, nor Nature's law. Rather, should they be "translated" west of the Mississippi, such an outcome would be the result of no more than the force of American imperial power. (161)

Indeed, the political savvy and eloquence of the Cherokee leaders, apparent in those excerpts from their Memorials previously quoted, deeply affected Justice Joseph Story, who co-signed Justice Thompson's dissent to the majority opinion authored by Marshall in the Cherokee case.  Some measure of Story's regret regarding the government's treatment of the Cherokees can be seen in this excerpt from a January 13, 1832, letter to his wife:

At Philadelphia, I was introduced to two of the chiefs of the Cherokee Nation so sadly dealt with by the State of Georgia.  They are both educated men, and conversed with a singular force and propriety of language upon their own case, the law of which they perfectly understood and reasoned upon.  I never in my whole life was more affected by the consideration that they and all their race are destined to destruction.  And I feel, as an American, disgraced by our gross violation of the public faith towards them.  I fear, and greatly fear, that in the course of Providence there will be dealt to us a heavy retributive justice. (qtd. in Lubbers 65)

Examination of this passage shows Story falling prey to the all-too-human tendency to at first shift culpability (to the "State of Georgia"), only to be crushed, within the same breath, by the recoil of such suppression, since the "gross violation of the public faith towards them" rests, as he says, with all Americans.

(29)    Greed wrote the "new rule" of conquest Marshall endorsed in Johnson v. M'Intosh.  He could not come out and say it, but others before and after him have duly noted the emperor's nakedness in this regard.  As Pagden suggests, our national origins lie in our European ancestors' melding of Christianly avaricious desires:

[The American colonies] had been created out of a seemingly insatiable European need for precious metals, and an ambition, which the Ancients could scarcely have understood, to change the religious beliefs of their autochthonous inhabitants. (11)

Certainly, the blurring of "gold" and "God" in medieval discovery and conquest discourse was not overlooked by all people of the times, though.  In his In Defense of the Indians, for example, the 16th century Dominican friar Bartolome de las Casas excoriates Spain's use of forced conversion of native peoples to Christianity, pursuant to the discovery rule, as a means to seize their lands:

All this drags innumerable souls to ruin and blocks the service of spreading the Christian religion by closing the eyes of those who, crazed by blind ambition, bend all their energies of mind and body to the one purpose of gaining wealth, power, honors, and dignities.  For the sake of these things they kill and destroy with inhuman cruelty people who are completely innocent, meek, harmless, temperate, and quite ready and willing to receive and embrace the word of God.  (26)

Long before the trilogy cases, greed had become sacralized in the foundations of United States American ideology.  In this respect, Williams is right; M'Intosh is a "fait accompli" formality.  Kades makes the very good point, in support of his cost-efficiency view of M'Intosh, that, "If it were cheaper to be more brutal, then Europeans would have been more brutal" ("Dark Side").  However, from the history of Euro-Indian relations Marshall uses to justify his "new and different rule," we can see that Marshall, at least, had concluded the native peoples could not have been defeated, at least when their numbers were strong, on brute force alone.

(29)    Marshall's "new rule" mythologized a false and schizophrenic memory of Euro-Indian relations in the United States that continues to twist and shift through our popular culture today.  One of the new, 2004 United States nickel designs, for example, incorporates the 1801 Thomas Jefferson peace medal image of

[. . .] two hands clasped in friendship — one with a military uniform cuff, symbolizing the American government, and the other with a silver band adorned with beads and a stylized American eagle, representing the Native American community with whom the United States sought good relations.  ("New Nickels")

That handshake, the international symbol of partnership and good will between respected equals, was interpreted by Marshall as a justifiably deceptive measure toward New World conquest and land seizure.  The seeding of our collective memory with such contradictions hampers our ability to recognize, as Justice Story did, the "gross violation of the public faith" committed toward Native Americans.  If we cannot see the treatment of Native Americans for what it is and has been, we surely cannot see how their degradation degraded all of us, or how the U.S. government's endorsement of deceit and treachery in furtherance of national interests "set in motion," along the lines that Silko's Ceremony suggests, an almost hypnotic suggestion of self-perpetuating avarice in our national ideology.

(30)     Pagden sees the United States' ambitions for global democracy as the third wave of the Imperium Romanum-turned-Imperium Christianum ideology (24) that fed our originary colonizing discourse:

The modern United States still pursues very much the same political ideology with respect to their relationship with the rest of the world.  If the European settlers exported to America one notion of a civitas, sustained and enforced by a corresponding vision of a Christian imperium, their descendents have created a universal order based upon another, but no less encompassing, conception of civility: democracy, an ideology which is quite as pervasive, and certainly as demanding as its ancient (and its Christian) ancestors.  (199)

The internal manifestations of our present-day "Imperium Democraticum," as it were, are no less "pervasive," "demanding," or exclusionary.  As Pagden says, the model for U.S. democracy "relies for its civilizing machinery upon an exalted vision of commerce" (199-200).  Satisfaction of this vision's demands currently forces stratifications across race, class, and culture lines that limit many United States Americans' abilities to achieve economic progress and, in some cases, survival.  Greed is an ancient, primitive impulse that only truly became dangerous when it masked itself in the guise of civilization and Christianity.  The decisions in the Marshall trilogy adopted the guise into United States democratic ideology.  Until we can see and begin to rectify the guise's first harm to the Native Americans, we cannot begin to arrest its continuing damage to our culture and restore our founding, democratic principles toward fulfillment of their original promise. 

Works Cited

Burke, Joseph C.  "The Cherokee Cases: A Study in Law, Politics, and Morality."  Native American Law and Colonialism, Before 1776-1903.  Ed. John R. Wunder.  New York:  Garland, 1996. 136-67.

Casas, Bartolome de las.  In Defense of the Indians.  Ed. & Trans. Stafford Poole.  DeKalb:  Northern Illinois UP, 1974.

Cherokee Nation v. State of Georgia.  30 U.S. 1.  U.S. Supr. Ct. 1831.  Lexis-Nexis. 23 Sep. 03.

Deloria, Vine, Jr.  "American Indians in Historical Perspective."  Native American Law and Colonialism, Before 1776-1903.  Ed. John R. Wunder.  New York: Garland, 1996.  123-34.

Deloria, Vine, Jr., and David E. Wilkins.  Tribes, Treaties, and Constitutional Tribulations.  Austin: U of Texas P, 1999.

Fletcher v. Peck.  10 U.S. 87.  U.S. Supr. Ct. 1810.  Lexis-Nexis. 11 Sep. 03.

"Hearing Before the Committee on Indian Affairs.  United States Senate, One Hundred Seventh Congress, Second Session on Concerns of Recent Decisions of the U.S. Supreme Court and the Indian Tribal Governments in America."  27 Feb. 02.   U.S. Government Printing Office.  24 Oct. 03.  <https://purl.access.gpo.gov/GPO/LPS20968>.

Johnson, Herbert Alan.  "John Marshall."  The Justices of the United States Supreme Court:  Their Lives and Major Opinions.  Vol. 1.   Eds. Leon Friedman and Fred L. Israel.  New York: Chelsea, 1997. 181-99.

Johnson v. M'Intosh.  21 U.S. 543.  U.S. Supr. Ct. 1823.  Lexis-Nexis. 21 Oct. 03.

Kades, Eric.  "The Dark Side of Efficiency: Johnson v. M'Intosh and the Expropriation of American Indian Lands.  U of Pa. Law Review 148 (Apr. 2000):1065-1190.  Lexis-Nexis. 23 Sep. 03.

---.  "History and Interpretation of the Great Case of Johnson v. M'Intosh."  Law and History Review  19.1(Spring 2001): 67+.  11 Sep. 03. <https://www.historycooperative.org/journals/lhr/19.1/kades.html>.

Krupat, Arnold.  Ethnocriticism:  Ethnography, History, and Literature.  Berkeley: U of California P, 1992.

Lubbers, Klaus.  Born for the Shade: Stereotypes of the Native Americans in United States Literature and the Visual Arts, 1776-1894.  Amsterdam: Rodopi, 1994.

"New Nickels in 2004."  The United States Mint.  12 Nov. 03. <https://www.usmint.gov/mint_programs/index.cfm?action=nickel_series>.

Pagden, Anthony.  Lords of All the World:  Ideologies of Empire in Spain, Britain, and France c. 1500 – c. 1800.  New Haven: Yale UP, 1995.

Silko, Leslie Marmon.  Ceremony.  New York: Penguin, 1977.

Washburn, Wilcomb E.  "The Moral and Legal Justifications for Dispossessing the Indians."  Seventeenth Century America:  Essays in Colonial History.  Ed. James Morton Smith. New York: Norton, 1972.  15-32.

Williams, Robert A., Jr.  The American Indian in Western Legal Thought: The Discourses of Conquest.  New York: Oxford UP, 1990.

Worcester v. State of Georgia.  31 U.S. 515.  U.S. Supr. Court. 1832.  Lexis-Nexis.  23 Sep. 03.