Case: Johnson and Graham's Lessee v. William M'Intosh, February 28, 1823 Supreme Court Decision, 21 U.S. 543; Ed. 681; 1823 U.S. Lexis 293; 8 Wheat, 543.

Overview: The case is a land-title dispute.  Thomas Johnson's heirs obtained title to the Illinois land parcel in question through direct purchase from the Indians.  William McIntosh (spelled "M'Intosh" in the court decision) obtained title through subsequent purchase of the same land from the federal government.  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.  Johnson v. M'Intosh became the first of three cases constituting the "Marshall trilogy" (the others are Cherokee Nation v. State of Georgia and Worcester v. State of Georgia) that, in combination, defined the property rights, political status, and sovereignty rights of aboriginal peoples in the United States. Note:  Unless otherwise indicated, dates and facts are taken from the court decision itself.

May 23, 1609: James I establishes Robert, Earl of Salisbury and others "into a body corporate and politic, by the name and style of 'The Treasurer and Company of Adventurers and Planters of the City of London, for the first Colony in Virginia,'" granting this company and its successors "all the soil, grounds, rights, privileges, and appurtenances" attached to the land 200 miles north and south of Cape Comfort, "all that space and circuit of land lying from the seacoast [ . . .] west and northwest; and also all the islands lying within one hundred miles, along the coast of both seas."  The effect of this document is that it created the Virginia Company with open western boundaries that included the contested land parcel in what was to become the state of Illinois.  The text of this document can be found at:  <https://www.yale.edu/lawweb/avalon/states/va02.htm>

1756: War breaks out between Great Britain and France over their territorial holdings in the New World, including territory in which the disputed land parcel in the Johnson v. M'Intosh case is contained.  The French establish military forts and settlements at Kaskaskia, in what would become Illinois, and Vincennes, in what would become Indiana.

February 10, 1763: Treaty on this date ends the war between Great Britain and France.  Text of the treaty can be found at: <https://www.yale.edu/lawweb/avalon/paris763.htm>

The relevance of the Treaty to this case is that it establishes the Mississippi River as the boundary between French and British territories in North America.  Great Britain surrendered its claim to lands west of the Mississippi and retained claim to lands east of the Mississippi, with exceptions as outlined below.  Thus, the contested land parcel in what would become Illinois comes under British control: [Display Quote]

October 7, 1763: A proclamation is issued by King George III, providing, among other things, that the lands "lying to the Westward of the Sources of the Rivers which fall into the Sea from the West and North West" be set aside for the Indians, and that neither this nor any eastern Indian territory could be settled or purchased
without the Crown's permission.  The text of this Proclamation can be found at:  <https://www.yale.edu/lawweb/avalon/proc1763.htm>

The Proclamation's bearing on this case is that it prohibited purchase of Indian lands without the Crown's permission, with certain exceptions as noted below: [Display Quote]

July 5, 1773: In exchange for goods valued at  $24,000, certain Illinois Indian chiefs sell two land parcels to William Murray and twenty-one other members of the Illinois Company, "[. . .] their heirs and assigns for ever [. . .] or to George the Third [. . .] his heirs and successors, for the use, benefit, and behoof of the grantees, their heirs and assigns [. . .] by whichever of those tenures they might most legally hold [. . .] two [. . .] parcels of land [. . .] on the east of the Mississippi [. . .] ."   The negotiations and sale take place at public hearings at Fort Kaskaskia. This sale of land directly by the Indians to the members of the Illinois Company is the event that precipitates the dispute in Johnson v. M'Intosh.

September 2, 1773: The deed for the July 5, 1773, land sale is recorded at Fort Kaskaskia, in the office of Vicerault Lemerance, a notary public.

January, 1774: On orders from the Crown, the British commander at Kaskaskia publicly pronounces the July 1773 land sale invalid; the chiefs involved reportedly stand by the sale.  [Source:  Kades, Eric.  "History and Interpretation of the Great Case of Johnson v. M'Intosh."  Law and History Review  19.1 (Spring 2001):  9, pars. 43-44.  <https://www.historycooperative.org/journals/lhr/19.1/kades.html> ]

October 18, 1775: In exchange for goods valued at $31,000, certain chiefs of the Piankeshaw Indians sell to Louis Viviat and twenty other members of the Wabash Company (including Thomas Johnson, Jr.), "[. . .] their heirs and assigns [. . .] or to George III [. . .] his heirs and successors, for the use, benefit, and behoof of all the above mentioned grantees, their heirs and assigns, in severalty, by which ever of those tenures they might most legally hold [. . .] two [. . .] tracts of land [. . .] northwest of the Ohio, east of the Mississippi.[. . .]."  The negotiations and sale take place at public hearings at Fort Vincennes.  This is the second of the land sales involved in the Johnson v. M'Intosh dispute.  Thomas Johnson, Jr., was to become Maryland's first governor, serving in that capacity 1777-1779; he also served on the U.S. Supreme Court 1791-92.  Among the other Wabash Company members at the time of the 1775 purchase was Lord Dunmore, who was then governor of Virginia.

December 5, 1775: The deed for the October 18, 1775, land sale is recorded at Fort Kaskaskia, in the office of Louis Bomer, a notary public.

May 6, 1776: The colony of Virginia declares its independence from Great Britain, thus claiming for itself the lands within its patented borders formerly under control of the Crown. The text of this draft document can be found at: <https://gunstonhall.org/documents/vdr-draft.html> [Display Quote]

October 5, 1778: Virginia seizes the posts of Kaskaskia and Vincennes from British forces; by act of Assembly on this date, it establishes the seized territory as "the county of Illinois."  With respect to the Johnson case, this move solidifies Virginia's claim to control over the disputed land parcels.

March 13, 1779: The two land companies involved in the 1773 & 1775 land sales (Illinois & Wabash Land Companies) merge as United Companies and gain new investors, including James Wilson (later a Supreme Court Justice) and Robert Morris, financier of the American Revolution (Kades supra 10, par. 53).  These developments are significant to the case for several reasons.  The merger joined the two companies' holdings, thus giving the Johnson-Wabash heirs arguable claim to the parcel William McIntosh purchased, which was apparently within the tract originally purchased by the Illinois Company.  The addition of even more prestigious investors suggests some strength of opinion among the legal and business community of the day that the plaintiffs' case was strong.

May, 1779: The Virginia Assembly passes a statute retroactively forbidding the purchase of Indian land by individuals: [Display Quote]

December 20, 1783: Virginia turns over to the United States all territory "within her limits, as defined [. . .] by the letters patent of May 23d, 1609, and lying to the northwest of the Ohio," thus formally transferring to the federal government power over the disputed land parcel.

1789: The U.S. Constitution gives the federal government the exclusive power to regulate and conduct Indian affairs.

1796: After unsuccessful attempts to obtain Virginia's recognition of their title to the Illinois land parcels, United Companies tries to negotiate a compromise with the federal government, offering to settle for ¼ of the land involved in the two sales and leaving the federal government the rest; the offer is rejected (Kades supra 12, par. 64).

August, 1803: Representing the federal government, William Henry Harrison obtains an 8.9 million acre cession from the Illinois tribes, which includes the parcels purchased by the Illinois Company in 1773 (Kades supra 15, par. 79).

1809: The federal government obtains additional land cessions, from the Piankeshaws and other tribes, which include the parcels purchased by the Wabash Company in 1775 (Kades supra 15, par. 82).

March 16, 1810: The U.S. Supreme Court renders its decision in an unrelated case, Fletcher v. Peck (10 U.S. 87).  U.S. Supreme Court Chief Justice John Marshall delivers the court's opinion that England's 1763 Proclamation did not alter the state of Georgia's boundaries with respect to the "vacant lands" to the west, that the Proclamation's reservation of lands west of the Mississippi for the Indians "appears to be a temporary arrangement," and that the "nature of the Indian title [. . . ] is not such as to be absolutely repugnant to seisin in fee on the part of the state."  Justice Johnson dissents on several points, including the finding that both the state and the Indians retained the "right of soil" to the land in question.  The text of the decision can be found at:
<https://laws.findlaw.com/us/10/87.html> [Hide Quote]

[. . . ]the interest of the states in the soil of the Indians within their boundaries [. . . .] [i]s 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 [. . .]. If the interest in Georgia was nothing more than a pre-emptive right, how could that be called a fee-simple, which was nothing more than a power to acquire a fee-simple by purchase, when the proprietors should be pleased to sell?" (from Justice Johnson's dissent; all quotes within this entry are from Fletcher v. Peck)

The Johnson v. M'Intosh decision would later cite Fletcher v. Peck as precedent for the principle "that 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 the absolute title to others."

1810: United Companies proffers further compromise to the federal government, offering to relinquish its claim to all but 1/8 of the land; the offer is rejected (Kades supra 14, par. 74).

April 24, 1815: The U.S. government sells to William McIntosh 11, 560 acres of land, located within the second of the two land parcels sold by the Piankeshaw to Louis Viviat for the Wabash Company on October 18, 1775 (Kades supra 16, par. 86).

July 20, 1818: The U.S. government issues patents to William McIntosh for the land he purchased in 1815 from the federal government (Kades supra 31, footnote 58).

October 1, 1819: Thomas Johnson Jr., dies, leaving his share of the parcels sold on October 18, 1775, "to his son, Joshua Johnson, and his heirs, and his grandson, Thomas J. Graham, and his heirs."

December, 1820: Joshua Johnson and Thomas Graham bring suit to the U.S. District Court for Illinois against William M'Intosh over their overlapping land claims.  Presiding Judge Nathaniel Pope dismisses the jury and decides the case on his own, denying the Johnson heirs' claim (Kades supra 18, par. 97).

February 5, 1822: Plaintiffs Johnson and Graham file a writ of error, appealing the District Court decision to the U.S. Supreme Court (Kades supra 18, par. 99).

February 15 & 17-19, 1823: The case of Johnson v. M'Intosh is argued before the U.S. Supreme Court (Kades supra 33, footnote 70).

February 28, 1823: The U.S. Supreme Court's decision in Johnson v. M'Intosh is rendered.  Chief Justice John Marshall affirms the District Court for Illinois' denial of the Johnson heirs' claim, since "[. . .] 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 the absolute title to others."  He further affirms "the broad principle which had always been maintained, that the exclusive right to purchase from the Indians resided in the government."  No dissent is filed.  Johnson v. M'Intosh was to become the first of the "Marshall trilogy" of cases which, in combination, serve to define the property rights, political status, and sovereignty rights of aboriginal peoples in the United States.  The text of the decision can be found at:
<https://www.utulsa.edu/law/classes/rice/USSCT_Cases/JOHNSON_V_MCINTOSH_1823.HTM>  (see essay by Patricia Engle) [Display Quote]

March 18, 1831: The Supreme Court's decision in the case of Cherokee Nation v. State of Georgia (30 U.S. 1) is rendered.  This becomes the second case in the Marshall trilogy.  The plaintiffs here sought relief from the 1828 Georgia law requiring their removal west of the Mississippi, on the basis that such removal violated multiple federal treaties that guaranteed their security on their land.  Chief Justice Marshall dismisses the case for lack of jurisdiction, finding that since the Cherokees are "not a foreign state," but rather a "domestic dependent nation," in the nature of a "ward to his guardian," they "cannot maintain an action in the courts of the United States." Justice Thompson files dissent, co-signed by Justice Story (quotes taken from the decision itself).  The text of the decision can be found at: <https://laws.findlaw.com/us/30/1.html> [Display Quote]

March 3, 1832: The Supreme Court's decision in the case of Worcester v. State of Georgia (31 U.S. 515), the third case in the Marshall trilogy, is rendered. The case appealed the conviction of two Vermont missionaries for remaining on the Cherokee land claimed by the state of Georgia.  Chief Justice Marshall incorporates many of the arguments from the Thompson dissent to Cherokee Nation v. Georgia to declare the 1828 Georgia law ordering the removal of the Cherokees void.  Justice Baldwin dissents on a matter pertaining to the state court's procedural handling of the case.  Justice M'Lean files a concurring decision recognizing certain merits to Georgia's case.  Georgia refuses the order to free the missionaries, who eventually obtain pardons.  President Jackson enforces removal of some 12,000 Cherokees in 1838, across the "Trail of Tears" to Oklahoma.  The text of the decision can be found at: <https://laws.findlaw.com/us/31/515/html> [Display Quote]